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Supreme Court of New South Wales - Court of Appeal |
Last Updated: 6 February 2003
NEW SOUTH WALES SUPREME COURT
CITATION: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
CURRENT JURISDICTION:
FILE NUMBER(S): 40505/99
40499/01
HEARING DATE{S): 8 April 2002, 9 April 2002, 10 April 2002, 11 April 2002, 15 April 2002, 16 April 2002, 17 April 2002, 18 April 2002, 22 April 2002, 23 April 2002, 19 September 2002
JUDGMENT DATE: 24/12/2002
PARTIES:
Amalgamated Television Services Pty Limited
John Robert Marsden
JUDGMENT OF: Beazley JA Giles JA Santow JA
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): 20223/95
20592/96
LOWER COURT JUDICIAL OFFICER: Levine J
COUNSEL:
W H Nicholas QC/R R Stitt QC/K A Rees (A)
B W Walker SC/M B J Lee (R)
SOLICITORS:
Malleson Stephen Jacques (A)
Marsdens Law Group (R)
CATCHWORDS:
DEFAMATION - justification - substantial truth
DEFAMATION - qualified privilege - reasonableness - 'Lange' defence - malice - reckless indifference - lack of honest belief - improper motive
DEFAMATION - damages - harm to reputation - lifestyle - injury to feelings - plaintiff not giving evidence
DEFAMATION - damages - psychiatric injury
DEFAMATION - exemplary damages
APPEAL - credit based findings - 'Abalos' principle
STANDARD OF PROOF - civil case - grave allegations - evidence act s140
INDENTIFICATION EVIDENCE - civil case
CORROBORATION - civil case - allegations of criminal conduct
ADMISSION BY CONDUCT - interfering with witnesses - lies
COSTS - offer of compromise in defamation case - interest
ACTS CITED:
Crimes Act 1900 (NSW), s 333
Criminal Procedure Act 1986 (NSW) s 24A
Defamation Act 1974 (NSW) ss 7A(4), 15(2), 16, 22
Evidence Act 1995 (NSW) ss 32, 48, 135, 140, 164(1), 165
Listening Devices Act 1984 (NSW), ss 3, 5, 13, 16, 19
Police Integrity Commission Act 1996 (NSW), s 56(4)(c)
Supreme Court Act 1970 (NSW), s 94
Supreme Court Rules Pt 37 r 2, Pt 51 r 23(1)
DECISION:
No substantive orders at this time. Stood over for mention on 14 February 2003
LAST UPDATED: 24/12/2002
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40502/99
CA 40499/01
CL 20223/95
CL 20592/96
BEAZLEY JA
GILES JA
SANTOW JA
Tuesday, 24 December 2002
The appellant broadcast on the Today Tonight programme what it claimed to be the result of an investigation of allegations of paedophilia in New South Wales. Fourteen months later the appellant broadcast on the Witness programme what it claimed to be the result of a second investigation on the same subject matter. The respondent was named and accused in both programmes as having engaged in sexual activities with boys under the age of 18.
The respondent commenced proceedings in relation to alleged defamatory imputations arising from the two programmes. A jury found a number of defamatory imputations to have been made concerning the respondent in the two programmes. The gravamen of the imputations was that the respondent knowingly had sexual intercourse with boys under the age of 18, and in one case, a boy aged 15.
Following this verdict the trial judge conducted a hearing as to the appellant's defences, broadly classified as justification and qualified privilege defences, and the assessment of damages. He concluded that the defences failed, and assessed damages and awarded interest on the damages. He ordered the appellant to pay the respondent's costs, in part on an indemnity basis.
On appeal the appellant challenged the findings in relation to the justification and qualified privilege defences, as well as the assessment of damages (as being too high) and the indemnity costs. The respondent cross-appealed challenging the assessment of damages (for omitting relevant heads of damages and as being too low) and the interest on the damages.
HELD
Justification
(i) The success of the justification defences depended upon the credibility of the witnesses called to prove the substantial truth of the imputations.
(ii) There was no appellable error in the trial judge's approach to the assessment of the evidence of the witnesses or in the application of legal principles.
(iii) There was no appellable error in the trial judge's rejection of the evidence of the witnesses.
(iv) The trial judge did not err in rejecting the New South Wales and interstate justification-based defences
Consideration of -
(a) principles of appellate review of trial judge's credit-based findings;
(b) standard of proof of grave allegations (Bringinshaw and Evidence Act s 140);
(c) principles governing identification evidence in a civil case and the extent to which assistance may be found in criminal law authorities;
(d) the role of corroboration in a civil case -
(i) the extent to which assistance may be found
in criminal law authorities (Longman analogy);
(ii) the approach to the assessment of alleged
corroborative evidence;
(e) proof of knowledge in a civil case involving allegations of a criminal nature;
(f) admissions by conduct;
(g) exercise of discretion in the discharge of a witness who refuses to give further evidence;
(h) the approach to the evidence of such a witness;
(i) exercise of discretion in refusing leave to re-open, including the question of substantial miscarriage of justice.
Qualified Privilege
(v) The trial judge did not err in finding that the appellant's conduct in publishing the imputations was unreasonable and so not entitled to statutory qualified privileges in New South Wales or interstate or Lange common law privilege.
(vi) The trial judge did not err in holding that the imputations were not published on non-Lange occasions of common law qualified privilege.
(vii) The trial judge erred in his approach to the question of malice. The defence of common law qualified privilege is denied, inter alia where there is the presence of an improper motive which actuated the publication of the defamatory matter, so constituting malice. Mere absence of an honest belief or reckless indifference as to truth or falsity, falling short of wilful blindness, are not by themselves sufficient to establish an improper motive. Malice was not established for the Today Tonight programme, but was established in relation to the Witness programme.
(viii) Nonetheless, since the occasion of publication of the Today Tonight programme was not one of non-Lange common law privilege, the trial judge did not err in holding that the qualified privilege defences failed.
Consideration of -
(a) failure to make basic enquiries in relation to reasonableness, reckless indifference and honest belief;
(b) application of Lange and Reynolds;
(c) response-based common law qualified privilege;
(d) reckless indifference, lack of honest belief and improper motive for the purposes of malice;
(e) public interest, public benefit and good faith where relevant to interstate legislation.
Damages
(ix) The trial judge did not err in his approach to the assessment of ordinary compensatory damages.
(x) The trial judge erred in holding that in the absence of evidence of injury to feelings from the respondent he could not award aggravated damages for injury to feelings.
(xi) The trial judge erred in not awarding exemplary damages in relation to the Witness programme; the Court assessed exemplary damages.
(xii) Since by reason of (x) and subject to further submissions from the parties there should be a reassessment of compensatory damages, the issues of indemnity costs and interest on the damages should not be decided; but there was no error in holding that an offer of compromise served by the respondent attracted the operation of Pt 52A r22(4) of the Rules.
Consideration of -
(a) exercise of discretion in refusing to depart from "normal" course of trial;
(b) proof of injury to feelings where the plaintiff does not give evidence of injury to feelings - ordinary and aggravated compensatory damages;
(c) diminution of reputation with regard to character and lifestyle;
(d) whether trial judge's findings adverse to the plaintiff can be taken into account in diminution of reputation;
(e) enhancement of extent of publication by the litigation;
(f) qualification to give opinion as to psychiatric injury;
(g) the award of exemplary damages;
(h) new trial on limited issues;
(i) principles for interest on damages for reputation;
(j) offers of compromise in proceedings for defamation.
ORDERS
No substantive orders at this time. Appeal and cross appeal to be listed for further mention at 9.30am on 14 February 2003, exchange of statement of orders to be made as directed and submissions for further conduct of the matter.
Page
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40502/99
CA 40499/01
CL 20223/95
CL 20592/96
BEAZLEY JA
GILES JA
SANTOW JA
Tuesday, 24 December 2002
1 THE COURT: On 25 February 1999, a jury found that the appellant defamed the respondent by the broadcast of two television programmes, the first on 13 March 1995 on the programme Today Tonight [J 51] and the second on 7 May 1995 on a segment of the programme Witness entitled "The Dark Side" [J 5].
2 The genesis of the allegations against the respondent, for the purposes of these proceedings, was a statement made under parliamentary privilege by Deirdre Grusovin, a member of the Legislative Assembly of the New South Wales Parliament, on 1 December 1994. That statement was based upon a statutory declaration made by one Colin Fisk (Fisk), a convicted paedophile, in which Fisk alleged that the respondent was a pederast. Fisk subsequently withdrew the allegation.
3 The first programme containing the defamatory imputations was a Today Tonight "special investigation" of the respondent and his alleged sexual conduct with "under age" boys. "Under age" meant a boy under the age of 18 years at the time of the alleged sexual encounter. The programme contained interviews with two persons, whose names were suppressed and images obscured, making allegations of under age sex against the respondent. The unidentified persons in the programme were Ronald James Kinchela and John William Pearce, both of whom gave evidence in the proceedings. The programme also reported the allegations made in State Parliament by Deidre Grusovin. Fisk's retracting statutory declaration was also broadcast as part of the programme [J 2].
4 The Witness programme, entitled The Dark Side also involved an investigation of the respondent. It contained interviews with three males who alleged they had been the "prey" of the respondent and discussed the paedophile activities that took place in Kings Cross in the 1970s and early 1980s, particularly at Costello's Nightclub which the respondent was said to have patronised. The programme went on to allege a link between the paedophile activity and serious crimes later committed by the victims. Reference was again made to the allegations made against the respondent in State Parliament by Ms Grusovin [J 5-12].
5 The respondent commenced defamation proceedings against the appellant on 14 March 1995 in respect of the Today Tonight programme and on 13 June 1996 in respect of the Witness programme. The actions were heard together.
6 The imputations found to have been carried and to be defamatory in the Today Tonight programme were [J 1]:
"1(a) The plaintiff has had sexual intercourse with boys who were under the age of 18 knowing them to be under the age of 18.
3(a) The plaintiff has had sexual intercourse with a 15 year old boy who was then under the influence of drugs which had been given to him by the plaintiff."
The imputations found to have been carried and to be defamatory in the Witness programme were [J 13]:
"1(a) The plaintiff has had sexual intercourse with 15 year old boys, having deliberately refrained from asking those boys how old they were.
2(a) The plaintiff has had sexual intercourse with 15 year old male prostitutes having deliberately refrained from asking them how old they were."
7 Following the jury verdict, the defences of justification and qualified privilege and the respondent's claim for damages were heard and determined by Levine J pursuant to s 7A(4) of the Defamation Act 1974 (NSW). His Honour rejected both defences and awarded the respondent general damages in the sum of $275,000 in respect of the Today Tonight programme and $250,000 in respect of the Witness programme. His Honour rejected the respondent's claim for aggravated and exemplary damages.
8 Both parties appeal against his Honour's determinations.
9 The appellant appeals against the rejection of the defences and the quantum of damages awarded. It contends that even if his Honour was correct in rejecting the defences of justification and qualified privilege an award of nominal damages only should have been made.
10 The respondent cross-appeals against the trial judge's award of damages. Specifically, he alleges that his Honour erred in failing to award, as part of his claim for general damages, damages for psychiatric injury; that in any event the general damages awarded were inadequate to properly compensate him for the injury to his reputation; that his Honour should have awarded both aggravated and exemplary damages; and that the interest rate used by his Honour was incorrect: see s 94 of the Supreme Court Act 1970 (NSW).
Introduction
11 The appellant pleaded in its defence that each of the imputations was justified. For the purposes of the law in New South Wales, the defence of justification is only made out if it is established that the imputation is a matter of substantial truth and the imputation either relates to a matter of public interest or is published under qualified privilege: Defamation Act s 15(2). The appellant also relied upon s 16 of the Defamation Act, that is, whether there is substantial truth in contextual imputations. A defendant bears the onus of establishing the defence. The "justification issue" before Levine J in the present proceedings was the substantial truth of the imputations. There was no issue that the matter published was a matter of public interest [J 106]. As the programmes were also shown in other states in Australia the appellant pleaded the justification defences applicable in those States.
12 The appellant relied in its justification case upon the evidence of eleven witnesses, all of who alleged they had either had underage sex or had witnessed the respondent engage in underage sex. For the most part the justification witnesses were unknown to each other. They each had extensive criminal histories and many had had significant problems with substance abuse.
13 The appellant sought to advance its case through these witnesses on the basis that there were common features of the sexual encounters, which it was said, amounted to a "modus operandi" whereby the respondent solicited boys at various known homosexual "beats" or "pick up" places and engaged in sex either at his home at Campbelltown, at hotels or at a well-known nightclub in Kings Cross, Costello's, which was frequented by homosexuals.
14 The appellant also sought to prove its justification defence by relying upon conduct of the respondent which it alleged amounted to an admission in respect of certain witnesses that his case was a weak one or was unfounded: see Wigmore: 3rd ed (1940) Vol 2 para 278; R v Watt (1905) 20 Cox CC 852. The respondent's conduct said to amount to an admission (to the extent that it was an issue in the appeal) was his alleged attempt to suborn witnesses or potential witnesses to commit a "wrongful act" such as giving false evidence [J 39-J 44]; and having a witness make a statutory declaration which was false [J 46].
15 Levine J's rejection of the justification defence involved a rejection of the justification witnesses as witnesses of credit. The respondent submitted that the appellant's justification case was dependent upon the trial judge's acceptance of its witnesses. That, as the appellant submitted to the trial judge, involved "a contest of credit between ... [the respondent] ... on the one hand and the [appellant's] justification witnesses on the other". The respondent pointed out that his Honour's finding meant the appellant had "lost the contest" [RS 2] and that those findings are protected by the application of the principles in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 178-179; Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at 448. We will, for the purpose of these reasons, refer to the principles enunciated in these cases as the Abalos principle.
16 The respondent submitted that the well known exceptions to the limitations placed upon an appellate court's interference with a trial judge's credit findings have not been established. The appellant submitted that this was a case where appellate interference is warranted because there was incontrovertible evidence which supported contrary findings to those made by his Honour. In large measure, the appellant relied upon the components of what was referred to as the respondent's modus operandi in support of this argument. Before further explaining that concept, and because the Abalos principle forms an essential backdrop to this appeal it is appropriate to refer to it in a little more detail.
17 The essence of the principle is that an appellate court faces considerable restraint in interfering with the credit based findings of a trial judge. In Devries, Brennan, Gaudron and McHugh JJ said at 479:
"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact (Brunskill [1985] HCA 61; (1985) 59 ALJR 842; 62 ALR 53; Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167). If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge `has failed to use or has palpably misused his advantage' (SS Hontestroom v SS Sagaporack [1927] AC 37 at 47) or has acted on evidence which was `inconsistent with the facts incontrovertibly established by the evidence' or which was `glaringly improbable' (Brunskill (1985) 59 ALJR at 844; 62 ALR at 57)."
18 Deane and Dawson JJ pointed out at 480, however, that the appellate court's duty itself to weigh the evidence, draw inferences and reach conclusions was not displaced merely by a demeanour finding and could not be explained away by "any short exhaustive formula". More relevantly for present purposes, they had earlier observed at 479-480:
"An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong. When such a finding is wholly or partly based on the trial judge's assessment of the trustworthiness of witnesses who have given oral testimony, allowance must be made for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses give their evidence. The `value and importance' of that advantage `will vary according to the class of case, and, ... [the circumstances of] the individual case' (Watt (or Thomas) v Thomas [1947] AC 484 at 488 per Lord Thankerton).
If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little significance or even irrelevant."
19 It follows that an appellate court cannot reverse the findings of a trial judge unless satisfied that the advantage of having seen the witness could not be sufficient to explain or justify the trial judge's conclusion. In Rosenberg v Percival at 448 McHugh J emphasised the protected nature of credit based finding, especially those founded essentially on demeanour:
"One of the consequences of the "advantage" of seeing and hearing the witnesses is that the trial judge is in a far better position than an appellate court to know what individual weight should be assigned to the various factors -- credibility, matters for and matters against -- that must be evaluated in making the ultimate findings of fact in the case. Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case. The common law tradition is an oral tradition. Trial by transcript can seldom be an adequate representation of an oral trial before a judge or an oral trial before a judge and jury."
The Respondent's Modus Operandi
20 It was common ground in the proceedings that the respondent, a prominent solicitor in this State, is homosexual and openly so and is admittedly promiscuous in the sense that over the years he has engaged in sexual activities with a number of persons (referred to in the proceedings as `casual sex'), including males he had picked up at known homosexual `beats'.
21 The respondent agreed that when picking up a male at a beat, he would not know their age [T 6946]. He denied that there was any risk in picking up an underage person "unless you are dumb and can't see for yourself what you are looking at" [T 6948]. He agreed that the issue of age only became relevant in 1984 when adult homosexual engagements were removed as an offence from the statute books [T 6948].
22 According to the appellant, the respondent's sexual conduct was said to involve a number of common features or involve a modus operandi. That modus operandi was as follows:
(i) the respondent engaged sexual partners at a `beat', meaning he visited a pickup area to find a sexual partner;
(ii) they drove in his Mercedes Benz, usually driven by a chauffeur, to the respondent's home at Campbelltown;
(iii) at his home, the chosen partner was taken upstairs to the respondent's bedroom;
(iv) marijuana, which the respondent kept in a drawer in his bedside table and at one stage in an alcove in the walk-in wardrobe was smoked.
(v) the respondent used amyl nitrate during the sexual activities. It was kept in a drawer beside the bed;
(vi) the partner stayed the night and was driven to the railway station the following morning;
(vii) on occasions the partner was given a sum of money by the respondent when he was dropped off at the railway station.
23 The appellant argued that his Honour failed to give proper weight to this evidence. It was submitted that had he done so and then assessed the totality of the evidence including his findings on credibility in respect of both the respondent's witnesses and the appellant's witnesses, it was likely he would have reached a different conclusion and found that the imputations were proved.
Issues on the Appeal
24 The appellant challenges his Honour's determination in 146 grounds of appeal. As might be expected with such a multiplicity of grounds, overlapping is inevitable. Accordingly, for the purposes of determining whether any of his Honour's findings involve appealable error, it is convenient to adopt the course proposed by the appellant of dealing with the alleged errors in categories. This categorisation, in part at least, follows the format of his Honour's judgment whereby his Honour dealt with the general issues involved in the case and gave himself a number of directions in relation to those issues before he dealt with the individual justification witnesses.
25 The alleged errors may be categorised as follows:
(i) General errors in self-direction. The appellant alleges that his Honour erred in the manner in which he dealt with the following issues or in applying the following concepts to his consideration of the issues:
(a) in applying a criminal law standard of proof, particularly in dealing with the issues of `identification` and `corroboration';
(b) in applying an "inappropriately high standard of proof";
(c) in inappropriately seeking guidance from the criminal law when dealing with the issue of `knowledge'.
(ii) Particular errors in relation to individual witnesses.
(iii) Errors in methodology. The appellant alleges that his Honour's fact finding method was flawed in that he failed to pay regard to the whole of the evidence and failed to have regard to the cumulative effect of the evidence when determining the justification defence in the following respects:
(a) wrongful segmentation of the evidence by treating each justification witness separately, without having regard to evidence of other witnesses or the respondent's own admissions which may have been relevant to his assessment of the evidence of a particular witness.
(b) adopting a "two stage approach" to his fact finding task in respect of individual witnesses in the sense that he first determined whether a particular justification witness's evidence was credible, and then used his invariably adverse conclusion in respect of that evidence to impeach any corroborative evidence: Gamaethige v Minister for Immigration [2001] FCA 565.
(c) failing to give weight to the admissions by conduct.
(d) there was an imbalance in his Honour's assessment of the weight to be given to the evidence of the justification witnesses as compared to the weight given to the respondent's evidence and that of the witnesses called in the respondent's case.
(e) misusing the modus operandi argument so as to make an adverse finding of credit if a witness's account did not correspond with the relevant components of the modus operandi. This allegation included an allegation that his Honour erroneously failed to have regard to the consistencies in the evidence of the justification witnesses and between those witnesses and the evidence of the respondent: see Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375; Cross on Evidence 6th Ed at 21284; but conversely, emphasised the inconsistencies in the evidence of the justification witnesses [AS 29-30].
26 The consequence of his Honour's flawed methodology, on the appellant's argument, was that his Honour fell into appealable error in his assessment of the credit of the justification witnesses and failed to make appropriate findings in relation to the credit of the respondent and the witnesses in his case.
General Errors in Self Direction
Application of a criminal law standard of proof
27 The appellant submitted that the trial judge failed to apply the appropriate standard of proof in determining whether the appellant's justification defence had been made out. In Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 the Court at 521 emphasised that:
"[t]he difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge."
28 There is no suggestion in his Honour's reasons that he misunderstood the standard of proof he was required to apply either generally or in relation to particular evidence. He said at J 24:
"This is a civil case. The [appellant] has pleaded the defence of `justification' and the burden of proof rests on [the appellant]. As this is a civil case, the standard of proof is the `balance of probabilities'. That which the [appellant] has to prove in its defence of justification is the substantial truth of `grave allegations'. There is no escaping the allocation to those allegations (as captured by the found imputations) of the description `criminal conduct'. However, any such description cannot derogate from the application of the civil standard of proof: see Refjek v McElroy." (emphasis added)
29 In stating his conclusion in respect of, for example, Homes' evidence, his Honour said [J 626]:
"... considering all the evidence in relation to this so-called incident, the [appellant] has failed to persuade me on the balance of probabilities that what Mr Homes says took place between [the respondent] and his brother Les Murphy has not (sic) been proved to be the fact." (emphasis added)
30 The appellant also relied on his Honour's references to the criminal law in a number of his interlocutory judgments. For our part, we consider that our point of reference should be his Honour's judgment under appeal. But in any event, as our considerations in relation to this judgment demonstrate, a reference to or even seeking guidance from the criminal law does not involve the application of a criminal standard of proof. Accordingly, we do not consider there is any point of substance in this part of the appellant's submission.
Application of a criminal law standard of proof to the issue of identification
31 The positive identification of the respondent as having been engaged in specific incidences of underage sex was crucial to the appellant's justification case. His Honour took the view that the principles which govern evidence of identification in criminal trials provided guidance to a judge in a civil trial "in considering the reliability and weight of any evidence on this issue by itself, together with the nature of other evidence" [J 88]. In particular, his Honour considered that given the well known dangers inherent in identification evidence, it was appropriate to give himself directions cognate with the directions which would be given at common law to a jury in a criminal trial.
32 His Honour referred in particular to Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, where the High Court stated at 562:
"The attention of the jury `should be drawn to any weaknesses in the identification evidence' ... It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."
The Court further stated at 565-566 that in determining whether a warning to the jury had been adequate, it was necessary to consider "the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident, and the identification and the nature and circumstances of the first identification".
33 To like effect is the statement In Cross on Evidence (Australian Edition), at para 1400 where the author points out that the warning as to identification evidence which should be given to a jury depends upon the circumstances of each case and the warning given in any given case:
"usually discusses the opportunities of identification which the witness had - the position of the witness and the person identified, the light, the exposure of the witness to stress or fear or the like - and the perceptiveness of the witness: R v Clune [1982] VR 1 (FC); R v Dickson [1983] 1 VR 227 (FC)."
34 The appellant submitted that his Honour's reliance on the criminal law in his approach to identification evidence "was unduly restrictive". More importantly it alleged that in applying those principles his Honour failed to determine the issue of identification on the balance of probabilities. [AS 100]
35 The appellant further contended that the trial judge, rather than taking the identification evidence of each individual witness and giving consideration to the weight of that testimony in context, including whether or not the witness was cross-examined or challenged on the identification evidence "adopted an inflexible approach based on criminal law".
36 In this case, however, the identification evidence itself was an integral part of the credit challenge to Homes' evidence. This was also the case in respect of Lilburn and D18. It was appropriate, therefore, for the trial judge to deal with the identification evidence in the context of the overall credibility of the witnesses.
37 So far as we are aware, there is no direct authority as to whether his Honour's approach in seeking guidance from the criminal law was correct. Certainly, the same principles apply in a criminal trial without a jury: Grbic v Pitkethly [1992] FCA 451; (1992) 38 FCR 95. In that case, Sheppard J said (at 103) this was so with one qualification, namely that in a jury trial, identification evidence may be rejected because of its unsatisfactory nature, whereas in a trial without a jury identification evidence remained admissible even if it was unsatisfactory and it was a question of the weight and significance to be given to the evidence at the end of the case. See also Sharrett v Gill (1993) 65 A Crim R 44; Parker v Espinoza (1996) 85 A Crim R 366.
38 The principles upon which his Honour relied were principles derived from the criminal law, which is the area where identification evidence is most contentious. However, there is always a risk that identification evidence, whether in a criminal or a civil trail, may be unreliable. This has now been recognised by statute in the Evidence Act 1995 (NSW) s 165 (1)(b). Although criminal law references are the source of the passage in Cross on Evidence to which we have referred, this passage, like the passage in Domican v R, to which we have also referred, provides reasons why identification evidence may be unreliable - reasons which may be equally applicable to identification evidence in a civil trial, subject to their being considered according to the appropriate standard of proof. Accordingly, we do not consider that by reference to the principles stated in the criminal law his Honour applied any wrong principle.
39 We see nothing in his Honour's statement of his approach to the identification evidence to indicate that he applied any wrong principle or the wrong standard of proof. Accordingly, we reject these aspects of the appellant's challenge to his Honour's findings.
40 As we have said, the real issue in identification evidence is its reliability. It is not a credit issue per se. That is so whether the case is a civil or a criminal one. An honest witness may not give reliable identification evidence. The warnings to the jury are directed to ensuring that they are satisfied that the identification evidence is reliable. As Mason J pointed out in Alexander v The Queen [1981] HCA 17; (1980) 145 CLR 395 at 426:
"Identification is notoriously uncertain. It depends upon so many variables. They include [relevantly for this case] ... the vagaries of human perception and recollection."
Application of a criminal law standard of proof to the issue of corroboration
41 In New South Wales, s 164(1) of the Evidence Act provides that evidence need not be corroborated. The section does not, however, prohibit the giving of a direction in respect of corroboration: R v Lewis (unreported, New South Wales Court of Criminal Appeal, 8 September 1998).
42 Section 165 of the Evidence Act deals with "unreliable evidence", specifying the type of evidence which may be unreliable, for example, identification evidence: s 165(1)(b); and evidence given in a criminal proceeding by a witness who is a prison informer: s 165(1)(e). The evidence of a complainant of a sexual assault does not fall into any of the nominated categories of unreliable evidence, although it is important to keep in mind that s 165(1) does not constitute a code of unreliable evidence. Section 165(2) provides that in a case before a jury, the judge is to give a direction if so requested, that the evidence may be unreliable. Subsections (3) to (6) qualify this requirement in certain respects.
43 Levine J, at J 64 dealt with the question of corroboration in a civil trial in the following terms:
"The trial judge in a civil action, as the fact finding tribunal, will give due weight to uncorroborated evidence but will bear in mind the fact that it is uncorroborated (which in the end may have no effect at all) in determining whether on the balance of probabilities the particular issue has been established. To ignore the absence of corroboration in a civil case where a grave allegation is made could give rise to a perceptible risk of the miscarriage of justice: R v Longman [1989] HCA 60; (1989) 168 CLR 79 at 86: not because it is a grave allegation of sexual misconduct, but because it is evidence standing alone without corroboration."
44 Longman was a criminal case dealing with the question whether a warning should be given in respect of the uncorroborated evidence of the victim of sexual abuse. There were statutory provisions which governed the giving of warnings in such a case. The High Court held that notwithstanding that the statute in part prohibited the giving of a warning, a warning could still be given "where the particular circumstances of the case provide a justification": per Brennan, Dawson and Toohey JJ at 88-89. See also Deane J at 94-95
45 In R v Crampton [2000] HCA 60; (2000) 206 CLR 161 the High Court, in applying Longman, considered that a warning of the danger of convicting on uncorroborated evidence was justified - and it would seem required - where there was a delay in a complaint of sexual assault.
46 The appellant submitted that his Honour erred in his approach to corroboration by importing into this case, which is a civil case, principles which are applicable to the criminal law by transposing the `warning' requirement, for which Longman and Crampton are authority, to a requirement of corroboration in the case of a grave allegation in a civil case.
47 Had his Honour's comments at J 64 stood alone, there might have been an argument that his Honour considered that the absence of corroboration in the case of a grave allegation affected the quality of the evidence given. That would not necessarily be correct. Evidence of itself may be inherently credible or incredible. The work of corroborative evidence is to support the evidence of a particular witness. A witness's evidence may require support before it is accepted because of some feature of the evidence itself - for example, the evidence may be in respect of an event which occurred many years previously or the witness may have proved so unsatisfactory that the trial judge determined that the witness's evidence would not be accepted unless supported by other evidence. J 64 appears on its face to go beyond that.
48 It is apparent, however, from his Honour's later remarks that he did approach the question of corroborative evidence correctly, in the way to which we have just referred. His Honour acknowledged that the need for a cautious approach to the acceptance of uncorroborated evidence in the criminal sphere is not based upon the `kind' of evidence but on the circumstances of the case: Lane v the Queen (1996) 66 FCR 144. He specifically rejected the respondent's submission that there is a need for caution by reason of the class of evidence, that is, that there is a need for caution in relation to "uncorroborated evidence of a complainant in a sexual offence case" [J 68].
49 His Honour considered that it was appropriate in civil cases involving grave allegations to scrutinise the evidence with care: see Murray v R (1987) 11 NSWLR 12 at 19, noting the different standard of proof involved. He said:
"The difference is, of course, that the trial judge will scrutinise the evidence with care, but by reason of experience would understand that taking into account the need for careful scrutiny does not mean that the evidence is unreliable, but rather that the exercise is to determine whether it is reliable before concluding the part it plays in the weighing of the probabilities." [J 70]
50 His Honour concluded "the complainant's evidence will be considered with care to determine its reliability and weight, not merely because it is unsupported evidence in a sexual complaint case" [J 73]. This comment is explained in the paragraphs which follow in his judgment, namely that there could be two circumstances which were relevant to the need for careful scrutiny - "delay in complaint" and a consideration of the question "why would the complainant lie".
51 His Honour noted that in R v Crampton the High Court held that evidence of a complaint could not be adequately tested after a long passage of time, and that it would be dangerous to convict someone on such a complaint without scrutiny by the jury. However, the trial judge accepted the appellant's submission that Crampton could be distinguished as this was a civil trial with a different standard of proof and these specific allegations had been able to be "explored" throughout the hearing. He noted, however, that the "antiquity" of the allegations remained relevant to the consideration of the evidence. We see no error in this approach.
52 As to the second matter "why would the complainant lie", his Honour concluded that, in "the absence of litigation of an issue as to whether in fact the witness has a reason to lie or in fact lied", it would be imprudent to consider the question of whether the witness would lie. Again there is no error in his Honour's observation.
53 It is apparent from his Honour's discussion of the emphasis to be placed on the presence or absence of corroborative evidence that he did not err in applying a criminal standard, rather he adopted a cautious approach in line with the gravity of the allegations.
Application of "an inappropriately high" standard of proof/gravity of the allegations
54 The appellant submitted that his Honour also erred in the standard of proof he applied to his fact finding exercise by placing undue emphasis on the "gravity" of the conduct alleged.
55 In the introductory remarks to his judgment the trial judge characterised the found imputations as serious allegations. He said [J 24]:
"This is a civil case. The [appellant] has pleaded the defence of `justification' and the burden of proof rests on [the appellant]. As this is a civil case, the standard of proof is the `balance of probabilities'. That which the [appellant] has to prove in its defence of justification is the substantial proof of `grave allegations'. There is no escaping the allocation to those allegations (as captured by the found imputations) of the description `criminal' conduct. However, any such description cannot derogate from the application of the civil standard of proof."
His Honour referred to Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and Neat Holdings Pty Limited v Karajan Holdings Pty Limited [1992] HCA 66; (1993) 67 ALJR 170 at 170-1 (the Briginshaw test).
56 The appellant challenged this characterisation, submitting that given the respondent's admitted lifestyle of casual and promiscuous sex the allegations were not grave or serious. We do not agree. The imputations involved allegations of criminal conduct of a type abhorred in our community. The allegations were of `knowing' engagement in a criminal act with a 15 year old having administered drugs to the boy upon whom the criminal act was perpetrated and of engaging in criminal acts under, in effect, a screen of deliberately refraining from enquiring about the ages of the persons upon whom the criminal acts were perpetrated. The allegations were, unarguably, very serious. His Honour was correct in so characterising them and he was correct, therefore, to have regard to the Briginshaw test in his assessment of the evidence.
57 The principles in Briginshaw and Neat Holdings are well known but, given the importance of this submission to the appellant's overall challenge to his Honour's determination, they bear repeating.
58 In Briginshaw Dixon J said at 361-362:
"... when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality ... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."
59 This was explained further in Neat Holdings where the Court stated at 170-171:
"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authorative statements have often been made to the effect that clear or cogent or strict proof is necessary `where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (citations removed)
60 Section 140 of the Evidence Act now statutorily enshrines the standard of proof on the balance of probabilities in a civil case. It further provides:
"(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
...
(c) the gravity of the matters alleged."
61 It is well accepted that the test to be applied under s 140(2)(c) is the Briginshaw test: see Pedler v Richardson (unreported, NSWSC, Young J, 16 October 1997); Wily v Fitz-Gibbon (unreported, FCA, Hill J, 2 March 1998); WK v SR (1997) 22 Fam LR 592 (Full Court of the Family Court).
Seeking guidance from the criminal law when dealing with the issue of knowledge
62 The appellant's general submission that the trial judge erroneously sought guidance from the criminal law when dealing with the issue of knowledge was made in respect of Leary, Stevens, Lilburn, Stals, David Maynard, John Maynard and Kinchela:
"Nine of the ... ten justification witnesses met the Respondent at beats where underage male prostitutes met customers. Most of the justification witnesses were of boyish appearance at the relevant time... [see, for example, Leary, Stevens, Lilburn, Stals]. Some told the Respondent their age... [David Maynard, John Maynard, Kinchela, Stevens]."
63 There is no appeal in respect of Leary, Stals, David Maynard, John Maynard and Kinchela. As the particular challenge to his Honour's approach relating to knowledge is essentially confined to D18 it is more convenient to consider that challenge in the section dealing with D18.
Modus Operandi; Tendency Evidence
64 The appellant, as a feature of the manner in which it sought to prove its case, "constructed" a modus operandi of the respondent's conduct. The trial judge rejected that approach. He said when setting out his reasons in respect of the witness Kinchela [J 1864]:
"The [appellant] sought to construct a `modus operandi' against which the accounts of each of its complainants called to prove the truth case would be, as-it-were, judged. The problem with that approach of course is that the modus operandi itself depended to a very great extent upon acceptance of the evidence of the complainants."
65 The appellant complains that this finding was wrong because the modus operandi upon which it relied was based upon the respondent's own evidence [AS 36]. However, this submission fails to take into account his Honour's further observation at J 1866 [AS 39]:
"As I have said above the modus operandi concept was based upon, as it had to be, either or of both matters admitted by [the respondent] and matters alleged by the complainants. If the complainants are not believed, then a great proportion of the so-called modus operandi disappears as does the basis for the assertion, that the probabilities favour the [appellant] because the asserted conduct conforms with the modus operandi."
66 To the extent that the appellant's submission overlooks this passage we reject it. It is our view, however, that the modus operandi argument had the potential of misdirecting the parties and ultimately the court's attention from the real issue, which was whether a particular witness' evidence could, on the whole of the evidence, be believed. To that extent, elements of the "modus operandi construct" were relevant as evidence potentially corroborative of the evidence of individual witnesses. We deal with that question as we consider the evidence overall.
67 There are two other matters with which it is convenient to deal first. One is whether his Honour erroneously approached the assessment of the evidence of various witnesses by rejecting it if it did not fit the modus operandi. It is necessary to go to individual examples to determine whether this submission is made out.
68 In the case of the witness Stevens, for example, his Honour concluded at J 1381:
"The event described by Mr Stevens is extraordinarily different from the events described by any other complainant. Insofar as there exists any template or modus operandi in the [respondent] save for what I describe as the `pick up' everything otherwise falls outside of any standard procedure."
69 We see no error in his Honour's remarks.
70 His Honour's remarks in respect of Kinchela are more problematic. We have already quoted J 1866 above.
71 This passage seems to indicate that his Honour's approach to determining whether the imputations were made out depended upon him being satisfied that the modus operandi was established through each witness. To the extent that his Honour found that "an element" of the modus operandi was missing or different from that alleged, it appears his Honour used that as a factor when assessing, always adversely, the credit of the appellant's witnesses. This carries with it a danger that a witness' evidence might be tested against a pre-determined set of facts or formula, rather than determining whether a witness' evidence assessed in conjunction with any or all the evidence, including any corroborative evidence, should be accepted.
72 For example, in the case of D20, his Honour stated in his Conclusions [J 2869]:
"D20 said he was picked upon in a Mercedes; [the respondent] had a Mercedes. It was chauffeur driven; [the respondent] had a driver. The driver gave evidence that it was not his habit or usual function to drive [the respondent] to `beats' and did not do so. [The respondent] gave evidence that he did not pick up casual sexual partners at El Alamein Fountain. The [appellant's] submission that this falls into the modus operandi of the [respondent] of course depends upon that modus operandi having otherwise been established. It is not as I have found in relation to other witness who have said that that was the place where they were picked up."
73 At J 2875, he said:
"As to the sexual activity itself it was as between a practising homosexual and a casual sexual partner unremarkable except that D20 said that he was `the top' albeit unsuccessfully as I understand it. The casual sexual partner being `the top' does not fit in with any template or `modus operandi' advanced for the [appellant]."
74 This conclusion, we believe, demonstrates the danger to which we have just adverted - namely, unless a witness' evidence fitted the modus operandi precisely, his Honour considered that the account of the witness was thereby diminished. However, it should not be overlooked that it was the appellant that urged upon his Honour that conformance of the witness' account with the appellant's version of modus operandi supported acceptance of that evidence. His Honour was entitled to consider the extent to which there was disconformance in determining whether or not to accept the witness' account.
75 Another example can be found in his Honour's treatment of the evidence of David Maynard. He said at J 248:
"I find it to be bizarre and in no way conformable with any `modus operandi' or sexual practice on the part of the [respondent]."
76 We include this passage by way of illustration only. The appellant did not rely upon the evidence of either John or David Maynard on the appeal. We add that there was no appeal in relation to Kinchela.
77 We deal more fully with both these issues as and when they arise in relation to the individual witnesses. It is necessary at this point to deal with the various justification witnesses.
Admissions by Conduct
78 This was an area upon which the appellant relied in support of its justification case. No complaint is made that his Honour misstated the principles which govern an `Admissions by Conduct' case. However, as it is an area relevant to several of the witnesses it is convenient at this point in our reasons to consider the general principles which apply.
79 His Honour's preliminary analysis of the case the appellant sought to make under this heading is found at J 44-46, and J 48:
"44 The defendant submits that the evidence establishes attempting to suborn witnesses or potential witnesses and thus constitutes an admission of the relevant allegations. The evidence establishes, the defendant submits, the plaintiff inducing, or attempting to induce, especially in a secret manner, witnesses to commit a wrongful act such as giving false evidence: that constitutes the suborning of the witnesses.
45 I shall come in due course to the evidence of the alleged suborning. It is the defendant's position, however, that I should find that the plaintiff attempted to suborn eight witnesses for the purposes of preventing each of them being called to give evidence by the defendant, and to interfere with and inhibit the preparation of the defendant's case on justification in order to prevent the Court from "discovering the truth" of the issues raised in that case advanced by the defendant.
46 Further, the defendant contends that the conduct of the plaintiff in relation to two documents, the making of a statutory declaration by a witness and the procuring of a letter from his (the witness) solicitors to the defendant's solicitors was done for the purpose of preventing that witness being called and of interfering with the defendant's case.
...
48 The submission is that upon the appropriate findings being made on the evidence, the only explanation of the plaintiff's conduct is that the plaintiff acknowledged the truth of the matters raised in the defendant's case on justification, in respect of which testimony would be led from the eight witnesses referred to, and that the plaintiff did not believe that his case had sufficient strength for the Court to accept his version of the events in answer to the testimony of those witnesses."
80 His Honour considered that the allegations involving the Admissions by Conduct were "grave" and that "gravity", "as required by s 140 of the Evidence Act 1995, will be taken into account".
81 As no error is alleged in his Honour's statement of the law which underlies the circumstances in which conduct may amount to an admission, it is sufficient to refer to the statement of Phillimore J in R v Watt at 853:
"... the conduct in the litigation of a party to it, if it is such as to lead to the reasonable inference that he disbelieved in his own case, may be proved and used as evidence against him.
The principle is well stated by Sir Alfred Wills, until lately Wills J, in his edition of his father's work upon circumstantial evidence, `[a]mongst the most forcible of presumptive indications may be more than all attempts to pollute or distort the current of truth and justice or to prevent a fair and impartial trial, by endeavours to intimidate, suborn, bribe, or otherwise tamper with the prosecutor, or the witnesses, or the officers or ministers of justice, the concealment, suppression, destruction, or alteration of any article of real evidence; any of which acts clearly brought home to the prisoner or his agents, are of a more prejudicial effect as denoting on his part a consciousness of guilt, and a desire to evade the pressure of facts tending to establish it'." (emphasis added)
82 Lies may also amount to an admission by conduct. The question as to when this is the case more frequently arises in a criminal case than in a civil case and in that context is often considered under the label of `corroborative evidence' - that is as evidence which can be used by the Crown in aid of proof of guilt.
83 The authorities caution that particular care has to be taken when directing a jury as to the circumstances in which a lie may amount to corroboration. In Buck v R (1982) 8 A Crim R 208, Burt CJ said at 214:
"A jury, in my opinion, requires a very careful direction upon the circumstances in which a lie told by an accused person in or out of court can amount to corroboration. It has been said that to be capable of amounting to corroboration the lie must be deliberate, it must relate to a material issue, the motive for the lie must be a realisation of guilt and a fear of truth and the lie must be established as such by evidence independent of the witness to be corroborated or by admission made by the accused."
84 This statement was approved in R v Sutton (1986) 5 NSWLR 697 at 701. In that case, after referring to Buck, Street CJ said:
"... reliance by the Crown on collateral conduct eloquent of guilt, such as flight or a lie, is fraught with the risk of miscarriage. The link between such conduct and the crime in question must be demonstrable."
85 It is important, however, to remember that there is a distinction between lies which may constitute an admission of guilt and lies which merely go to credit: see R v Lucas [1981] QB 720 at 724; R v Liddy [2002] SASC 19; (2002) 81 SASR 22 at 90 (para 241). In Lucas the Court noted that people:
"... sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of wish to conceal disgraceful behaviour from their family."
86 The principle it would seem is equally applicable to lies told in Court: see Lucas at 724; "Can Lies Corroborate", Professor J D Heydon (as he then was) (1973) 89 LQR 552 at 561.
87 The authorities to which we have just referred are criminal ones. In R v Liddy, Mullighan J said at para 242-243:
"It is unnecessary to set out the circumstances in which a deliberate lie told by an accused person may amount to positive evidence of guilt as opposed to adversely reflecting upon the accused's credibility. The telling of relevant lies is a piece of circumstantial evidence from which an adverse inference of guilt may be drawn if the lie is told out of a consciousness of guilt and no other rational inference may be drawn."
88 The concept that "no other rational inference may be drawn" is a concept of the criminal law, necessitated by the standard of proof beyond reasonable doubt. In a civil case, it is sufficient in our view for a lie to be accepted as an admission of guilt, if that is the more probable inference to be drawn. In this regard we adopt the like approach taken by the trial judge to the adoption of the knowledge test in Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 (to which we come later in these reasons) to the civil sphere. That adoption is not only appropriate but necessary to accommodate the differing standard of proof.
Appellate Review
89 It is now necessary to consider the appeal as it relates to the individual witnesses.
90 Before embarking upon that process, however, it is important to understand the nature of the appellate task we are undertaking, not only in relation to the justification defence but generally in relation to the appeal. In the first place it is necessary to find appellable error. More significantly for present purposes, however, is what should follow if appellable error has been made out. There is no question that if appellate interference is called for in relation to justification in this case, the only possible order is for a new trial, in whole or part. However, Pt 51 r 23(1) of the Supreme Court Rules provides that a new trial shall not be ordered "unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned".
91 Adopting for convenience extracts from the annotations to Pt 51 r 23(1), it can be said relevantly, that:
"In order to satisfy the court that there has been a substantial wrong or miscarriage it is not necessary to show affirmatively that the result of the trial was in fact affected by the error: Ashley v Schonberger [1968] VR 22 at 26; Holford v Melbourne Tramway and Omnibus Co Ltd [1909] VLR 497 at 527. However, a new trial ought not to be ordered if the court is satisfied that the error in the conduct of the first trial did not really bear upon the result: Freeman v G J Coles & Co Ltd [1967] 1 NSWR 297; Coroneo v Kurri Kurri and South Maitland Amusement Co Ltd [1934] HCA 21; (1934) 51 CLR 328 at 345 (not sufficient merely to raise a doubt about the correctness of the first trial)."
92 In Freeman v G J Coles & Co Ltd (1967) 1 NSWR 297 the plaintiff claimed damages in a slipping case. He said he reported the accident to a person who claimed to be the manager of the shop. Evidence was admitted as to the result of enquiries made by the defendant in an attempt to find the person to whom the plaintiff said he reported the accident. It was held by two of the judges, the third not deciding, that the evidence was admissible. All three judges said that if it was not admissible there should not be a new trial.
93 Herron CJ said at 300 (Sugerman JA agreeing):
"The result, however, of all the authorities seems to be this: a new trial ought not to be ordered if the court is satisfied that if the rejected evidence had been received, it could not have affected the jury's verdict. The same rule applies in cases where the evidence has been improperly admitted. What has to be looked at is the essential justice of the case, and for the appellate Court to see whether the error of the judge, if there was one, really bore upon the ultimate result. In this case, having regard to the way in which it was conducted and to the essential issue of whether the plaintiff was to be accepted, or whether the defendant's evidence was to be accepted as to the happening of the accident, I myself would have decided, if it had been necessary, that the act of the judge in admitting the evidence would not have affected the verdict." (emphasis added)
94 Walsh JA said (also at 300):
"Whilst in theory I recognize that if the evidence was wrongly admitted it could have had some bearing on the question whether the jury would accept the appellant's version or not, I think that in reality and in substance this is a case in which the Court can confidently say it is satisfied that the rejection of the evidence instead of its admission could not have affected the ultimate result of this case."
95 There is some reference to substantial wrong or miscarriage in Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024. At trial the plaintiff was refused leave to reopen to lead certain evidence. Gleeson CJ and McHugh, Hayne and Callinan JJ said the refusal was correct as the evidence went only to credit, while acknowledging the difficulty of characterising the evidence. Kirby J considered that there was error, while regarding the case as borderline (para 72). His Honour went on to say (para 73) that the error was "not of a degree that caused the trial to miscarry or such as to have the necessary bearing on the outcome of the trial or the crucial issue of fact in the trial". The reasons for this (at para 74) were rather intricate but included:
"Whilst the precise way that the rebutting evidence might have influenced the primary decision-maker can never be known, because it was excluded, that is not the test. The issue is not whether the Commissioner could have been persuaded to change his mind about the issue of credibility but rather whether objectively such a change of opinion might possibly have followed if such evidence had been admitted".
It was said that "it would be unreasonable to conclude that a change of decision on credibility might have been reached".
96 There are a multitude of cases on the point and as might be expected, there are shades of opinion in the various authorities. The evaluation of whether there has been a miscarriage can be different when dealing with the inscrutable verdict of a jury, on the one hand, or the reasoned conclusion of a judge, on the other hand, since the possible effect of the error in question can be better assessed in the latter case. Overall, however, such burden as there is on an appellant who successfully establishes error is not very heavy. If the court can be satisfied that the error did not affect the result, then it will follow that there was no substantial wrong or miscarriage. That may be because in any event the right result was reached, or because the significance of the error was minimal. If the court can not so conclude, however, the flavour seems to be that it is difficult to hold that there was not a substantial wrong or miscarriage. It may be that nothing much more sophisticated than the formulation in Freeman v G J Coles & Co Ltd can be reached, namely whether the error "really bore upon the ultimate result".
97 We now turn to the individual justification witnesses. They were Tony Homes, Jason Lilburn, D20, D18, Jason Stevens and Steven Elomari. We will deal with each in turn.
HOMES
98 Tony Homes was called as a witness in the appellant's justification case to prove the substantial truth of the Today Tonight imputation 1(a) and the Witness imputation 1(a).
99 Tony Homes was originally named Patrick Alan Murphy and is an older brother of Les Murphy. He changed his name by Deed Poll in 1987 to Tony Patrick Homes although he had used other names from time to time. He has an extensive criminal record including for offences of dishonesty and violence. He has served numerous prison sentences.
100 Homes said that he first began "getting into trouble" when he was about 11 and by the time he was 13 years old had gravitated to Kings Cross in company with his brothers, Les and Garry [T 5027]. He was employed at Costello's at 2 Kellett Street, Kings Cross, in between prison terms, from 1976 to 1978. He was then 14 to 16 years old.
101 Homes gave evidence that in June or July 1978, when he was working at Costello's, he saw the respondent, at Costello's, having anal intercourse with his brother Les Murphy. Les Murphy is a notorious convicted murderer in this state. Both the respondent and Les Murphy denied such an event took place. According to each they did not meet until sometime between 1997 and 1999 [J 488]. The respondent also denied he had ever been to Costello's [J 488] and called evidence to support this assertion [J 494; J 465].
102 His Honour rejected Homes' evidence [J 640], essentially on the basis that he did not accept him as a witness of truth. His Honour said [J 639]:
"One matter in particular affected my view of Mr Homes. This was a witness whose demeanour made an adverse impact upon me as the trial judge. As the [respondent] submitted Mr Homes in cross-examination resorted to `smart alec' answers and responses to the point where I felt at the time that that evidence was given he was being flippant, irresponsible and totally unreliable."
103 The appellant contended that the trial judge erred in his approach to the task of assessing, on the balance of probabilities, whether what Homes said he observed did in fact occur [AS 367]. The appellant alleged three specific errors [AS 368]:
(i) the trial judge failed to give proper weight to Homes' evidence of identification of the respondent (Grounds 3 and 4);
(ii) the trial judge failed to deal properly with issues relating to the respondent's credit and the credit of Les Murphy (Grounds 1, 2, 6 and 7); and
(iii) the trial judge failed to give proper weight to Homes' and other evidence concerning the respondent's sexual behaviour and modus operandi (Grounds 1, 5 and 8).
104 The respondent submitted that these alleged errors failed to come to grips with the fundamental issue, namely, that his Honour made an adverse demeanour based credit finding against Homes, and given the evidence of other witnesses, did not believe Homes that the incident occurred. It followed, on this submission, that the finding was protected unless the appellant was able to overcome the Abalos principle. The respondent submitted that the appellant did not even attempt to do so.
Identification Evidence
105 Homes said that he recognised the respondent as being the person whom he saw having intercourse with his brother because he had been introduced to him previously, in 1976, at his home at Campbelltown in the company of Stacey Fenton and had subsequently seen the respondent at Costello's on a number of occasions, both in the bar on the first floor and in the sauna/brothel section on the second floor.
106 Homes' evidence as to identification is one of the areas where the appellant makes a larger attack on his Honour's judicial method. We have already dealt with that larger attack. However, it is necessary to consider the particular matters upon which the appellant relies in respect of Homes' identification evidence.
107 The respondent denied he had ever been to Costello's or even heard of it until its existence was revealed during the Wood Royal Commission in the 1990s. The trial judge accepted the first part of this denial, although he doubted the second. His acceptance of the respondent's denial that he had ever been to Costello's necessarily involved the rejection of Homes' evidence that he had witnessed the respondent having underage sex with his brother at Costello's. It followed that his Honour rejected Homes' identification evidence. There were a number of reasons why he did so.
108 First, he found Homes' evidence to be flawed [J 629]. In particular, he doubted his evidence that he met the respondent in 1976 when he was introduced to him by Stacey Fenton, a young male prostitute who worked at Costello's and who was a friend of the respondent's, at Campbelltown, before he witnessed him having sexual intercourse with his brother [AS 104]. That evidence was, on his Honour's finding, a "late component of the appellant's case" [J 521]. That finding was based on the difference between Homes' evidence and the particulars the appellant had supplied in respect of Homes, namely that [J 498]:
"The first occasion when ... (Homes) met the [respondent] was on the first floor of Costello's before the cubicles were built on the second floor.
(Homes) met the [respondent] at the front end of Costello's in the bar. The barman at the time was Phillip Russell."
109 When Homes came to give the evidence to which we have just referred, senior counsel for the appellant introduced the evidence by stating [J 497]:
"the information came to me during the course of a conference today."
110 His Honour's comment that this was a "late component of the appellant's case" implied that this evidence had been recently invented. A finding of recent invention is, of course, an adverse finding as to the witness' credibility on that issue. It was legitimate for his Honour to take the difference between the particulars and the evidence into account in determining whether to accept Homes' evidence on this point.
111 Further, the identification evidence in respect of the introduction at Campbelltown was spare in its detail. Homes did not describe the person to whom he was introduced. The only descriptive element of the meeting was that the respondent was "walking towards the door with just a throw rug around him, like a dressing gown sort of thing" (T 5042). This description in its bare terms even lacked the element of a named introduction [J 630, 496]. Homes gave no details of the respondent's home where he said he was introduced. He gave no details of how he got there other than saying "I went there to pick up my friend Stacey Fenton" (T 5039), "I got there early in the morning" (T 5042). Homes was 13 years old when this was said to have occurred.
112 The appellant placed considerable emphasis upon the respondent's failure to cross-examine Homes on this evidence, asserting that Homes' evidence should therefore have been believed.
113 It is well accepted that the absence of cross-examination is relevant in determining whether to accept evidence or not. However, it does not compel the acceptance of that evidence. As Samuels JA said in Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 507:
"While I do not think that it would be right to conclude that the absence of cross-examination entails the acceptance of the evidence given, it certainly enables that evidence to be regarded by any tribunal of fact with a greater degree of assurance than might otherwise have been the case."
114 His Honour was not prepared to accept the evidence of the introduction at Campbelltown. He was not in error in so doing. He did not find the evidence inherently persuasive [J 496]. That finding was open to him and not surprising, given the nature of the evidence given. His Honour also placed emphasis upon the lateness of the allegation. The evidence had the hallmarks of recent invention and his Honour was entitled to treat it as such. [J 521]
115 The second circumstance of prior identification relied upon by the appellant was that Homes had seen the respondent at Costello's in the bar area on a number of occasions during 1976. The bar was on the first floor in 1976. It was moved to the second floor during 1978 [T 5043]. Homes was extensively and successfully cross-examined by senior counsel for the respondent. He was rejected as a witness of credit. There was other evidence called by both parties seeking to prove or disprove the appellant's case that the respondent visited Costello's. His Honour's finding on this was also challenged by the appellant and we deal with it shortly. However, his Honour's rejection of Homes' evidence on this issue (and generally) was a matter for his Honour and has not been demonstrated to be in error. As with many of the appellant's submissions, it was a submission that his Honour was wrong to have disbelieved the witness. This is not appellable error.
116 Once the evidence of the Campbelltown meeting and the evidence of the sighting at Costello's is rejected there is no basis for the appellant's complaint, finally encapsulated in AS 104, that:
"The trial judge rejected Homes' identification of the Respondent at Costello's, making no allowance for the fact that Homes had met the Respondent before he witnessed the Respondent having sexual intercourse with an underage male"
The task which confronted his Honour was to decide whether to accept the evidence of prior contact or not. The appellant's submission implied that the evidence had to be accepted. That is not so. His Honour considered the evidence and did not accept it. That is quite different from his Honour making "no allowance" for the fact Homes had met the respondent before having sexual intercourse with an underage male.
Rejection of Homes as a Witness of Credit
117 His Honour found other weaknesses in Homes' evidence. He considered him "flippant, irresponsible and totally unreliable". That was a demeanour based finding [J 639]. It has not been shown to be wrong within the Abalos principle.
118 His Honour also considered that Homes' allegation that he had observed the respondent having sex with his brother was a recent invention [J 503; J 638]. This finding was based upon the fact that Homes, in a recorded interview on 14 September 1996 in which he said that "what I'm about to talk about is the truth" [Blue 820] and "I'll name some people and some ages" [Blue 822], made no mention of the respondent's alleged abuse of his brother, notwithstanding that he named other persons whom the respondent had abused and referred to his brother having commenced working as a prostitute at Costello's "when he was pretty young" [Blue 828] and "doing it pretty hard, knowing his life was tied up in a vicious circle" [Blue 830]. This was a good foundation for the finding.
The Costello's Evidence
119 Both parties called evidence in relation to Costello's. The appellant called Raymond Leary and Phillip Russell. Leary was a justification witness. He said he had had four sexual encounters with the respondent, three of them at Costello's, two of those occasions being in 1973 and the other in 1976 [J 196-J 200]. The respondent denied any sexual encounter with him. Leary was not accepted by the trial judge and there is no appeal in respect of that finding.
120 Russell was the barman at Costello's around early 1972 or 1973 and who worked there "on and off for 10 years" [J 327; T 397]. He said he saw the respondent frequent the club "for years" [J 329; T 3978]. He first saw him coming to the club "probably about 1973 I suppose" [J 329]. He saw arrangements being made between the respondent and McKnight who was 14 at the time [J 339]. He also saw the respondent with other young men including Pearce, Fenton and Lewis [J 341]. McKnight and Pearce were both called as justification witnesses alleging sexual contact with the respondent when each was underage. McKnight alleged that he had sexual contact with the respondent at Costello's in the period June/July 1978. The trial judge rejected McKnight's evidence and there is no appeal from that finding.
121 Pearce said he was child prostitute at Kings Cross and on occasions worked at Costello's. His evidence varied as to when he had sexual contact with the respondent. His initial allegation was made in a statutory declaration supplied to Deidre Grusovin, in which he alleged that when he was about 15 years old he was picked up by the respondent at the Rex Hotel. He appeared on the Witness programme and made similar allegations. During the course of his evidence Pearce was asked his age when he first had sex with the respondent. He said he was "23, 24 years of age". He was subsequently ruled an unfavourable witness under s 38 of the Evidence Act and his Honour's ultimate finding was that he had "no capacity to discriminate between truth and falsity". There is no appeal from his Honour's finding. Relevantly, however, for present purposes, Pearce did not at any time make any allegation of a sexual encounter with the respondent at Costello's. Indeed, his evidence was that he had never seen the respondent at Costello's. It follows then that his evidence did not support Russell's evidence.
122 The respondent called evidence from six persons to support his case that he had never been to Costello's [J 494].
123 One witness, Ms Annette Crowe, a social worker, routinely visited Costello's in her professional capacity from late 1978/early 1979 to the end of 1982/early 1983 twice a week on Tuesdays and Thursdays and sometimes on other nights as well, between about 9pm and 6am. She never saw the respondent on any occasion of her visits there [J 561]. Nor did she ever hear any reference to him either by his name or nickname (Madge) [J 563]. His Honour found that "the fact she did not, strongly supports [the respondent's] denial" [J 561]. Ms Crowe said she first met the respondent in the mid eighties but did not recognise him as someone she had met before. She knew Homes, Les Murphy, Pearce, Stringer and Russell who all had an involvement with Costello's in some way or another [J 563]. There was no suggestion that Ms Crowe was other than an `independent' witness.
124 The appellant submitted Ms Crowe's evidence was irrelevant as it related to a period after the alleged incident. However, the appellant's case was (and it was never disputed) that the respondent's `lifestyle' including casual sex with persons picked up at `beats' spanned a considerable period. If the respondent was a `regular' at a place like Costello's, as Homes alleged, it is possible and might even be likely that he would become known, by sight or reputation, to someone like Ms Crowe, who was a regular visitor and whose work was concerned with the welfare of male prostitutes who worked there.
125 The appellant's submission that Ms Crowe's evidence was irrelevant involved the proposition that having been a `regular' at Costello's, at least until July 1978, the respondent stopped going there by late 1978 and his name was never mentioned by anyone. This does not fit with the picture attempted to be portrayed of the respondent in the appellant's case. Ms Crowe's evidence was relevant to the question whether the respondent had ever visited Costello's. It was then a question of the weight to be attached to it. That was a matter for his Honour.
126 The other witnesses, Carlos Azzarradel, Jon Clark, Robert Thompson, Derek Cook and Noel Shinkwin, were patrons and/or employees of Costello's at varying times throughout the period 1974 to 1980. All gave evidence that they had never seen the respondent there. Thompson was acquainted with MacLean, Stringer, Marshall-Moore and Shinkwin - all supposedly part of a paedophile ring, of which the respondent was allegedly a member [J 581]. It is not necessary to deal with the detail of the evidence of these witnesses. It is set out in his Honour's judgment at J 569 - J 586.
127 The appellant submitted that his Honour erred in placing weight on these witnesses. It was submitted that other than Shinkwin, none had attended at Costello's at the time of the incident witnessed by Homes, that is June or July 1978. It further pointed out that the respondent did not meet Marshall-Moore until 1983. The appellant's submission is correct in the sense that, except for Shinkwin, none gave evidence of visiting or being at Costello's in June/July 1978. However, they each gave evidence of being at Costello's at varying times around this period. For example, Clark was a regular patron at Costello's from about March 1974 until early 1975 and Avzarradel commenced working there in August 1978.
128 The trial judge was aware of the limitations of the evidence called by the respondent on this issue. He said at J 575:
"It is for the [appellant] to prove the [respondent] was at Costello's at the times relevant to the Leary/McKnight/Les Murphy incidents. The [respondent] said he was never there and called such evidence as he did, not to prove the unprovable (his never being there) but to provide material of varying degrees of weight to aid in the determination of the probabilities of what the [appellant] asserts to have been the facts"
129 In dealing with the evidence he accorded it the weight it deserved. For example, when dealing with Clark's evidence he said:
"Given the hours he attended Costello's, it is arguable that little weight should attach to his testimony. Be that as it may what he said will go into the scales." [J 575]
130 Accordingly we do not see that his Honour erred in the consideration he gave to this evidence or in the weight he gave to it.
131 It also has to be borne in mind that there was a range of evidence relating to Costello's which extended beyond Homes' allegation in relation to Murphy. That evidence included the evidence of Leary, Russell, McKnight and Pearce, referred to above, which related to different periods. The evidence called by the respondent to support his case that he had never been there was called in relation to all the allegations against him and was not confined to the period relevant to Homes' allegation.
Respondent's Credit
132 The appellant also submitted that the trial judge should have made adverse credit findings against the respondent and Les Murphy, given no weight to their denials and accepted Homes' evidence of the events he observed. [AS 393]
133 The appellant makes two points. First, that no weight should have been placed on the respondent's denial in light of the number of adverse credit findings made in relation to his evidence. Strictly, this submission is misconceived. His Honour was faced with two conflicting pieces of evidence. Homes said he saw the appellant at Costello's having homosexual intercourse with his brother. The respondent said he had never been to Costello's and had not had homosexual intercourse with Les Murphy. Accordingly, on this aspect of the case, it was not a matter of attaching weight to the denial. It was a matter of determining whether he believed Homes or the respondent. In assessing whether he accepted Homes' evidence, his Honour was required to assess the respondent's denial.
134 The respondent's denial was directly supported by Les Murphy who denied the incident occurred. If his Honour accepted Homes, he would have found the incident occurred. Conversely, if he did not accept Homes and accepted the respondent's evidence, he would not have accepted that the incident occurred. There was no other alternative. However, it was a matter for his Honour to determine what evidence he accepted. He did not accept Homes' evidence. It followed that he accepted the respondent's denial. The appellant has not demonstrated any error in his Honour's rejection of that evidence. Its submission really rises no higher than saying that there were aspects of the respondent's evidence found by his Honour not to be credible, accordingly none of his evidence should be believed. That is not appellable error. We consider the submission that his Honour failed to deal with the respondent's credit as a separate issue in these reasons. However, the particular submission made here has not, on our view, been made out.
135 The second point raised by the appellant in this submission is that his Honour found part of the respondent's evidence, that he had not heard of Costello's in the 1970s, to be "improbable" but failed to give that adverse finding "reasonable operation and effect". This submission is really encompassed in the next point made by the appellant, namely that his Honour made inconsistent findings in respect of the respondent's evidence on this issue. On the one hand he found the respondent's evidence that he did not know about Costello's and had not been there to be credible [J 554; J 559]. On the other hand, he found that Costello's was "notorious" [J 589] and had reservations about the respondent's assertion that he had never heard of Costello's "as it seems improbable" [J 643], but concluded at J 644:
"But if I do not accept the [respondent] when he asserts that he had not heard of it, it does not follow that I must reject his statement that he never went there; that I must reject his reasons for never having gone there; and that therefore I should come to the conclusion that he was there, not only generally, but also in connection with the three specific events the subject of Mr Leary, Mr Russell/McKnight and Mr Homes/Murphy components.'
136 The appellant submitted that his Honour should have extended his finding that it was improbable that the respondent had never heard of Costello's to a finding that it was improbable he had never been there [AS 402]. It was said that in assessing the weight to be given to the respondent's denials, his Honour should have taken into account his finding that Costello's was notorious, and given no weight to the respondent's denials [AS 403]. To the extent that we have already commented on the trial judge's entitlement to accept evidence, reject evidence and accord it weight as he considered appropriate, those comments apply equally to this submission. His Honour assessed the respondent's evidence and rejected part of it. That did not compel him to reject other parts as this submission suggests. His Honour rejected such evidence as placed the respondent there in the 1970's. He had good grounds for doing so. Accordingly we reject the appellant's submission on this point.
Inconsistency Within Trial Judge's Credit Findings
137 The appellant next submitted that the trial judge's treatment of its evidence in relation to Costello's contained within it an internal inconsistency which, had his Honour recognised it, may have affected his acceptance of the respondent's evidence that he had never been there. This submission is an extension of the submission just discussed.
138 The respondent said that the first he had heard of Costello's was during the course of the Wood Royal Commission in the 1990s. If that was accepted it followed that he had never been there in the 1970s. His evidence was that he had never been there at all.
139 However, in the course of his cross-examination the following evidence emerged [T 7140-T 7143]:
"Q If you knew in the 1970's of the existence of Costello's, can you think of any reason why you wouldn't have gone there?
A No. If I had known it existed in the 1970's as a gay club, not as an underage thing or anything like that, as a gay club, there is absolutely not one reason why, if I had been in Sydney late, I wouldn't have gone there. Probably the only minus is that the research we have done, is it didn't open until between 10.30 and 11, and that's just a wee late for me to be out. I like to get up at 4 o'clock, and I don't think I would be floating into Sydney with an hour to go home. There is no reason why I would have gone. (emphasis added).
Q There would be no reason you wouldn't get involved?
A Except for the reason about the time.
Q That assumes that Costello's was closed until it opened at 10 or 11 at night?
A That was what my research revealed from reading the Wood Royal Commission.
Q If in fact Costello's was opened in much more liberal hours than that, there would have been no reason why you wouldn't have gone there, would there?
A No reason whatsoever, sir.'
140 The appellant's submission on this point again involved two aspects. First, it submitted that it was inconsistent to believe the appellant's denial that he had been to Costello's but to doubt his evidence that he had never heard of it. We have already dealt with that point.
141 The second aspect was that, in accepting the respondent's denial, he in effect "quarantined" that part of the evidence which he considered was "improbable", so that it had no effect on his determination whether to accept the respondent's denial that he had never been there [AS 401]. Again, we have dealt with that submission above. However, the appellant seeks to further support this argument by the evidence emphasised above, apparently as indicating that if it was accepted that he knew about Costello's, it should be inferred that he would have gone there and it followed, his Honour should thereby have found that he did go to Costello's in the 1970's. Once the argument is expressed in this sequence it is apparent that it has no legal logic.
142 The appellant's submission has another problem. The evidence relied upon was qualified. The respondent said one thing that would have stopped him going to Costello's was its operating hours. It was suggested that if the hours were not as the respondent assumed they were, there was no reason he would not have gone there. The appellant did not, in this line of questioning directly put to the respondent what the operating hours were, although there was other evidence on the point. However, if the appellant intended to fix the respondent with an admission on this evidence, it was incumbent on it to put the matter expressly to him to allow him deal with: see the principle in Browne v Dunn (1893) 6 R 67 to which we refer more fully below. The appellant failed to do so. It cannot now complain that his Honour should have made an express finding on a matter which was not fully put to the witness. In any event, even had the matter been put fully to the respondent, the evidence would not have compelled the conclusion sought by the appellant.
Conclusion
143 Having regard to the conclusions which we have expressed in relation to the various challenges made by the appellant to his Honour's findings in respect of Homes, it is sufficient for us to merely record at this point that we reject each of the grounds of appeal in relation to Homes.
LILBURN
144 Jason Lilburn was called as a witness in the appellant's justification case to prove the substantial truth of the Today Tonight imputation 1(a) and both the Witness programme imputations.
145 Lilburn was born on 17 September 1975. He has an extensive criminal record, commencing in 1991 whilst still a juvenile, and has served periods in juvenile detention centres and in prison. At the time of giving evidence Lilburn was serving a period of imprisonment in Queensland [J 778].
146 Lilburn first gave information concerning the respondent to the NSW Police in 1998. On 28 May 1998, when an inmate of the Kirkconnell Correctional Centre, he gave a signed statement (exhibit 74) [Blue 286] to Detective Sergeant Panich from the NSW Child Protection Enforcement Agency. On 5 June 1998 he provided a second statement (exhibit 75) [Blue 291] in the form of a recorded interview with Detective Sergeant Panich.
147 In the statement of 28 May, Lilburn gave details of being a `procurer' of `boys' for the respondent whilst working at the Wall as a prostitute in early to mid 1991. He described the respondent as then being about 45 years of age with dark brown hair who wore a suit and tie. He said the respondent came to the area in a "limo" driven by a male driver. In the statement of 5 June, he described the car as a "black limo". He said that the boys he procured for the respondent were "anywhere between 14 and 17 ... they just looked that age [but] as a matter of fact, I hardly knew them" [Blue 293].
148 In neither statement did Lilburn assert any personal sexual encounter with the respondent.
149 On 15 September 1998, whilst an inmate at Goulburn Gaol, Lilburn made a statutory declaration (exhibit 76) in which he stated that he had never seen or met the respondent in person, but had only heard of him on television and in the newspapers. He said his statement to Detective Sergeant Panich, that he had seen the respondent pick boys up at the Wall, was a lie told to benefit himself [Blue 296]. In particular, he said he "was trying to get a s 24A of the Crimes Act" [Blue 301]. This was a reference to s 24A of the Criminal Procedure Act 1986 (NSW) which allowed the court to adjust the commencement of cumulative sentences on the quashing or variation of earlier sentences. It is difficult to see how Lilburn could obtain any benefit from the section. That, however, is not the point. The point is that on one version of the material before the court, Lilburn was seeking a benefit, which he believed was available to him under the section.
150 He gave evidence that he had met the respondent, whom he identified in court, sometime when he was between the ages of 14 and 16 years (that is, between September 1989 and September 1991) at the `Wall' where he was working as a prostitute. He said his original `relationship' with the respondent was as a procurer of young boys for him for sex. However, on one occasion a boy did not turn up and Lilburn went with the respondent instead. He said he and the respondent had sex on that occasion and on two subsequent occasions, at a house on the North Shore. He was paid on each occasion - $150 to $200 on the first occasion, and unspecified amounts on the second and third occasion. They were driven to the house by a chauffeur and the respondent returned him to the city afterwards on the first and third occasions and may have done so on the second occasion - Lilburn said he was "going through withdrawals" on this occasion and could not remember much [T 4544].
151 In his evidence, Lilburn did not specify the make and colour of the car nor the location of the place where they went, other than it was on the `North Shore', about 30 to 40 minutes drive from the city [J 1619].
152 Lilburn did not give evidence of the smoking of marijuana or the using of amyl nitrate during these sexual encounters. He gave evidence of anal sex but not oral sex. There was no evidence of any `rough' treatment.
153 Lilburn said the respondent did not ask him on any occasion how old he was, nor did he tell him.
154 The respondent denied any sexual activity with Lilburn.
155 Lilburn's evidence ended abruptly after he refused to answer further questions during the course of cross-examination and he was discharged by the trial judge.
156 The appellant made three challenges to the manner in which his Honour dealt with Lilburn and Lilburn's evidence. The specific grounds of appeal are:
"His Honour erred in not receiving Lilburn's explanation of his wish to be excused from giving further evidence and thereby deprived the appellant of Lilburn's evidence to the effect that the respondent had caused him to be intimidated and suborned and the opportunity of having his evidence being accorded full probative value" (amended Ground 50);
"His Honour erred in his approach to the issue of admissions by conduct in relation to Lilburn. Having found that the respondent engaged the services of Les Murphy to persuade Lilburn to withdraw allegations that he had procured underage sex for the respondent, his Honour should have found that the respondent's conduct amounted to an admission that he disbelieved his case, had a weak case, or was conscious that the allegations made by Lilburn were true" (Ground 51); and
"His Honour failed to find, and should have found and taken into account, that the respondent was a witness whose testimony was generally unworthy of credit. Such a finding should properly have been made having regard to his Honour's findings and the matters referred to in ground 2 (Ground 1(c)) and that the respondent employed the services of Les Murphy at Goulburn Gaol to persuade Lilburn to recant the allegations made in exhibit 76 concerning the respondent" (Ground 2(h)).
157 The appellant submitted that had the trial judge not erred in respect of each of these matters, he would have found adversely against the respondent's credit and therefore would have been likely to disbelieve his denials of sexual activity with Lilburn and the other justification witnesses and would have accepted that the appellant had, through Lilburn's evidence, justified each of the imputations.
Intimidation of the Witness
158 Lilburn gave evidence on 7, 8 and 13 March 2000. During the course of his evidence and after he had given evidence of the three sexual encounters with the respondent, the statements of 28 May (exhibit 74) and 5 June (exhibit 75) were tendered. The appellant's counsel then led evidence from Lilburn that he had made the statutory declaration of 15 September (exhibit 76) withdrawing the allegations in the earlier statements after Les Murphy, to whom we have referred earlier when dealing with the evidence of his brother, Tony Homes, had threatened him. Lilburn's evidence was [T 4553]:
"[Murphy] said to myself that I had done things wrong that needed to be fixed otherwise I would be fixed. I agreed. ...
...
The next day ... he said that he was going to get me to fill out some statutory declarations ... and he was going to - he wrote out, or he was going to write out, what needed to be said on those stat decs."
159 Lilburn subsequently made the statutory declaration, exhibit 76, and gave it to Murphy. The trial judge found that the respondent employed the services of Les Murphy to persuade Lilburn to change his position in respect of the statements made in exhibits 74 and 75 [J 1137].
160 Lilburn said in evidence that the statements in the statutory declaration exhibit 76 were false and that his original statements, exhibits 74 and 75, to Detective Sergeant Panich were true [T 4558].
161 He said that about a week after having made the statutory declaration he was visited in gaol by a barrister Wayne Flynn, who had been retained by Marsdens solicitors to assist with the case. Flynn had the statutory declaration with him and told Lilburn "[the respondent] was grateful because of what I had done for doing the stat dec" [T 4567].
162 In January 1999, Lilburn had lunch with the respondent and Flynn in Wollongong [J 788]. There was no dispute about this. The respondent relies upon it as the occasion he first met Lilburn. Lilburn and the respondent gave conflicting evidence as to who suggested they meet and have lunch. His Honour did not deal with this conflict in evidence.
163 Lilburn's evidence was that that during lunch the respondent said that Lilburn "would be well looked after, after the case was over, if [he] kept [his] mouth shut" [T 4590]. The respondent denied in cross-examination that this conversation had taken place.
164 Lilburn's cross-examination commenced on 8 March. He was asked about having been visited in gaol in March 1999 (he was, at that time, serving a further period of imprisonment) by two lawyers from the appellant who asked him if he would cooperate with the appellant in respect of the "lawsuit that was going on between [the appellant] and John Marsden". The cross-examination to this point was of fairly short duration. Lilburn was answering responsively. After the seventh question Lilburn said "I just thought I would state something please" [T 4609]. His Honour informed him Mr Nicholas QC would deal with any matters he wanted cleared up [T 4609].
165 He was asked a further four questions when senior counsel for the respondent said [T 4610]:
"I am sorry, do you have a problem?"
166 Lilburn responded [T 4610]:
"Yeah. I want to see my - could I have a talk and see me solicitor please. There is something further I want to bring up with him that's important."
167 Senior counsel for the appellant said [T 4610]:
"He may be referring to the recent entry into the court of an individual. I do not know. I do not know what follows from that. I would like the opportunity of speaking to my witness if he wishes to speak to me."
168 The appellant's legal representatives were given an opportunity to confer with Lilburn. His cross-examination then continued. He identified the `individual' in the court as Glen Goldsmith [T 4610]. Goldsmith was a client of the respondent and, according to the respondent's evidence, was a close friend of Lilburn. The respondent knew Goldsmith would be in court when Lilburn gave his evidence and agreed it was not a coincidence that that was so. The respondent was not cross-examined as to the source of his knowledge or the basis of his expectation. He denied that he arranged for Goldsmith to be there [T 7454; J 926], saying that he would have expected for him to be there during Lilburn's evidence.
169 Senior counsel for the respondent cross-examined Lilburn about Goldsmith [T 4629]:
"Q You stayed with him in January 1999, didn't you?
A Yes
Q And you told him the allegations against [the respondent] were bullshit, didn't you?
A No.
Can I say something now you've said your piece?
Q You told him they were bullshit I suggest?
A No. He tried setting me up with a job with Wayne Flynn at Gosford."
170 During the course of his cross-examination, Lilburn directed an unsolicited remark to Goldsmith: "[l]ooking good Gazza" [T 4610; J 838] and, unresponsively to a question, alleged that Goldsmith also procured boys for the respondent. At another stage of his cross-examination, Lilburn alleged that the respondent flashed a tape at him. [T 4632]
171 Lilburn was asked about a conversation he had with Flynn when Flynn visited him in prison. A significant portion of his responses to that cross-examination (over approximately 20 pages of transcript) was "I don't recall" [T 4631 and following].
172 At T 4650, and nearly at the conclusion of the day's evidence, the following exchange occurred:
"Q When you made [the statement of 28 May (exhibit 74)] you had in mind there was some mechanism that would give you early release?
A No.
Q If you made such allegations?
A No, that's untrue, because I found out a long - in the meantime my parole was automatic. It is probation.
Q When did Mr Steyne tell you about section 24A?
A I actually didn't hear about it from him. It is through the bloke's name I wrote down on the piece of paper.
Q When did you first hear about it?
A At the same time I made them allegations in the facts.
Q The ones you wrote out. It is absolute nonsense to say you sought a section 24A, whatever it is, because [the respondent] was harassing you or anybody connected to you, isn't it?
A Just hear me out. What has my parents been stalked for the past month by a private investigator and my 13 year old sister --
Q By 1998--?
A I don't give a fuck about 1998. I want to state it. Persecuted my 13 year old sister over the phone, harassed my parents, stalked them from the creek down the road. Don't you think that is pretty mature (sic).
...
Q You had in mind that you would get some benefits such as early release if you made allegations against [the respondent]?
A No." (emphasis added)
173 At the commencement of evidence the following morning, 9 March 2000, the following exchange occurred [T 4654]:
"HIS HONOUR: Good morning. You are still bound by your oath. Right?
[LILBURN]: Hmmm.
BARKER: Q I asked you yesterday if you had worked as a prostitute in January 1999 and you said, firstly, that you had, and then you said that you didn't need to because you had had compensation paid to you. Do you remember that?
A Yep.
Q That was untrue, wasn't it?
A I don't wish to proceed with this Court case any more. No further questions. I want to be escorted back to the cells please. I have nothing more to say.
HIS HONOUR: Take a seat.
WITNESS: I have nothing more to say.
HIS HONOUR: Take a seat." (emphasis added)
174 Senior counsel for the appellant was given a short adjournment to speak to Lilburn and upon resumption he sought a further adjournment of Lilburn's evidence until the following Monday (13 March 2000). On 13 March, prior to Lilburn being called back to the witness box, senior counsel for the appellant requested that the court assist Lilburn to make an application that he be excused from giving further evidence [T 4771]. Alternatively, senior counsel said he would seek leave to assist Lilburn to make that application. His Honour, in effect, refused both applications and directed that the cross-examination continue [T 4772].
175 Senior counsel for the respondent asked the trial judge to commit Lilburn for contempt "because they had many questions to put to him" [T 4744]. Senior counsel for the appellant again requested that Lilburn be permitted to make his application to be discharged. Senior counsel said [T 4775]:
"... in the light of the [contempt] application my friend has made, it would be fair, for the Court of its own motion, to enquire of the witness the basis or justification, if any, as he perceives it to be, for him to take a position which, on one view of things, puts him in some difficulty with the court. ... it would be in my submission necessary for it to at least hear what the witness has to say regarding the position that he is now adopting."
176 Senior counsel for the respondent resisted that course. His Honour said [T 4775]:
"I am not going to demean the procedures of this Court by spending any further time with Mr Lilburn. It is open to me to simply discharge him from his obligations under the subpoena, and he can go back to Queensland."
177 His Honour did not, however, discharge him at that point. Lilburn's cross-examination recommenced at 12.25pm that day. In response to the first question asked he said "I have nothing to say". His Honour directed him to answer. He said "I refuse". He refused to answer the next question. His Honour ascertained that his then gaol sentence was due to expire on 16 September that year. Senior counsel for the respondent requested his Honour to commit Lilburn for contempt. His Honour then indicated that he considered it would be of "no utility" to commit Lilburn for contempt. Lilburn was asked by his Honour if his position had changed. He said "no", whereupon his Honour, of his own motion, excused him from giving further evidence. [J 776]
178 His Honour added [T 4776]:
"... I will tell you now I will need immense persuasion to say that the plaintiff is disadvantaged by reason of the truncated cross-examination in these circumstances. His evidence has been given in chief, we have seen him in cross-examination, that's it."
179 Mr Nicholas QC said:
"That is an appropriate matter for submission and that is when we will deal with it"
180 His Honour stated that Lilburn's evidence "would stay on the record, but the weight to be given to it would be assessed in light of the denial to the plaintiff of the opportunity to cross-examine" [J 1020]. The respondent had, of course, had some opportunity to cross-examine Lilburn, including in respect of some of the critical aspects of his evidence. In particular, he had been cross-examined extensively about the truth of exhibits 74 and 75, as opposed to the truth of exhibit 76, and maintained, as he had said in his evidence in chief, that exhibit 76 was false.
181 His Honour held that there was no basis for finding that the respondent "brought" Goldsmith to court [J 1090] and he was not prepared to "speculate" as to what the parties knew about Goldsmith's presence [J 1132]. He noted that although Lilburn appeared to have been distracted for a short time by Goldsmith's presence [J 933] in court on 8 March (being the only day on which there was any reference to him being in court [J 1016]), it was not until 9 March 2000 that Lilburn had had any "change of heart" as to giving evidence and it was only on 13 March 2000 when Lilburn began to "play up". Given the lapse of time between Goldsmith's arrival in court on 8 March and the attempted resumption of Lilburn's evidence on 13 March (with a weekend intervening) his Honour was "not persuaded on the probabilities that the Goldsmith incident [could] account for Lilburn's conduct" [J 1132]. Nor was his Honour prepared to assume that senior counsel for the respondent knew, when Lilburn initially "reacted" to "something", the cause of his "problem" was Goldsmith's entry into the court room [J 923]. As his Honour did not see the 'tape' incident he ignored it [J 858; 935; 1019; 1131].
182 Finally, although his Honour found that exhibit 76 came into existence as a result of "something [taking] place between Murphy and [the respondent]", he was not satisfied that the respondent expressly suggested that Murphy use a threat of violence as part of the persuasion [J 1137].
183 The appellant contended that his Honour's finding that Lilburn had not been intimidated whilst giving his evidence was simply, and obviously from all the surrounding circumstances, not correct. Those surrounding circumstances were that Lilburn had, following overtures by Murphy, withdrawn his allegation against Marsden, in circumstances where his Honour accepted that Murphy had established a relationship of some tyranny over Lilburn [J 1127] and the overtures were accompanied by threats of violence; that Lilburn claimed members of his family had been stalked [AS 451]; and that the respondent had "brandished" a tape in court being conduct "designed to upset and harass" Lilburn [AS 453].
184 The appellant submitted that any astute, fair minded and patient trial judge would have been conscious of what was happening in the court room whilst these events unfolded. It was submitted his Honour should have ascertained the cause of Lilburn's upset and should have permitted him to state what was troubling him. It was said by not doing so his Honour's approach to Lilburn and his evidence was unfair. We do not agree and consider that a submission in these terms is not fair to the trial judge. There were a number of judicial tasks in which his Honour would or may have been engaged at the time, for example, he was obliged to be listening to the witness. In doing so he may have been looking directly at Lilburn so as to observe him, or he may have been taking notes. The alleged incident may not even have been in his Honour's line of vision. The fact that he failed to see a tape being `brandished' - an event which might have taken no more than 2 to 3 seconds - is not, in all the circumstances, surprising. Nor is it surprising that his Honour did not observe that it was the entry of someone into the courtroom which affected Lilburn. This was a complicated trial. Lilburn was posing difficulties as a witness. There had been interruptions in his evidence. In our opinion, there was nothing wanting in his Honour's conduct in respect of any of the matters raised by the appellant. It was then a matter for his Honour to determine how to assess the evidence in all the circumstances.
Discharge of the Witness
185 The next issue relates to his Honour's discharge of Lilburn. The appellant does not contend that his Honour had no power to do so. The essential complaint made is that Lilburn was not afforded the opportunity of giving an explanation as to what was troubling him or why he sought to be discharged. The appellant claims, however, that it was deprived of the opportunity of Lilburn giving evidence that he had been intimidated and suborned by the respondent or at his behest [AS 457]. The appellant further argued that that would be a relevant matter in considering whether or not Lilburn's evidence should be accepted or the weight to be given to his evidence. In the circumstances it was submitted that his Honour was unfair to Lilburn and did not give himself the proper opportunity to do justice. The appellant accepts that this is a new trial point if it is made out.
186 It is convenient to deal with the second of these two issues first.
Weight to be given to the witness' evidence
187 The discharge of Lilburn part way through his cross-examination was unusual.
188 There appears to be no direct authority as to how a court should deal with the evidence of a witness discharged in such circumstances. There is, however, some authority as to how to deal with evidence upon which there has been no opportunity to cross-examine, because, for example, a witness had died. It has been held that such evidence is admissible but that the "`court [would] not attach so much weight to it as it would have been done if there had been an opportunity of cross-examination', Daniell's Chancery Practice, 6th Ed, p 786": Estex Clothing Manufacturers Pty Ltd v Ellis & Goldstein Ltd (1967) 116 CLR 254 at 263. In that case, a witness who had died by the time the trial came on for hearing swore two contradictory affidavits. Windeyer J said at 263:
"The latter I think makes the former of no weight; and it can itself be of little or no weight in the circumstances, except to the extent that it is supported by documents which accord with other evidence to which I shall come later."
189 Abadom v Abadom (1857) 24 Beav 243 is to the same effect. There it was held that whilst an affidavit of a witness who had died could be read, the court would "pay much less attention to it than the other evidence".
190 The case of R v Stretton (1988) 86 Cr App Rep 7, is perhaps closer to this. The complainant in a sexual assault trial took a series of epileptic fits during the course of her cross-examination. She was discharged from giving further evidence. The trial judge allowed the trial to proceed but gave the jury a warning in terms that if they were of the view that the defendant was deprived of the opportunity of properly testing and probing the complainant's evidence, he `advised' they should acquit the defendant. If, however, as a matter of "commonsense and fairness" they considered they had had "a fair and complete opportunity of judging her credibility" they should assess the case accordingly. The English Court of Appeal held that it was a matter for the trial judge's discretion as to whether to permit the trial to continue and no error had been shown in the manner in which he had exercised that discretion.
191 Likewise, in Meyer v Hall (1972) 26 DLR (3d) 309, it was held that it was a matter for the discretion of the trial judge as to the weight to be given to the evidence of a witness who could not be cross-examined, including if the trial judge thought appropriate, ignoring the evidence.
192 These authorities support the trial judge's approach in the manner in which he dealt with Lilburn's evidence, if Lilburn was appropriately discharged.
Opportunity for the witness to give evidence
193 The appellant complained that his Honour should not have discharged Lilburn without hearing his explanation as to why he was refusing to give further evidence. The appellant argued that by his Honour discharging Lilburn as he did, it was deprived of the opportunity of having Lilburn give evidence that he was intimidated by Goldsmith's presence in the court and that somehow, this was due to conduct by the respondent.
194 As we have already mentioned, the appellant does not contend that his Honour had no power to discharge Lilburn. Rather it challenges the exercise of his discretion is doing so. Being a discretionary decision, the appellant is bound to show error in the exercise of the discretion, such as by the application of wrong principle, taking irrelevant considerations into account or failing to take relevant considerations into account, or by mistaking the facts: see House v King [1936] HCA 40; (1936) 55 CLR 499 at 504 -505.
195 The error alleged by the appellant is failing to permit Lilburn to explain his situation with the consequence that the appellant was deprived of the benefit of the evidence which might have been given. That evidence, it was submitted, might have been to the effect that Lilburn would state that he had been intimidated and the respondent was behind that, either directly or indirectly. So phrased, this submission seems to raise a procedural fairness issue. However, an allegation of breach of procedural fairness is usually an allegation that procedural fairness has been denied directly to a party. That is not what is alleged here. Rather, the appellant's argument is directed solely to a challenge to a discretionary decision.
196 In other parts of its submissions the appellant argued that his Honour failed to take into account that Lilburn had been intimidated by Goldsmith with the consequence that his Honour did not do justice to his evidence. We presume that this argument was an argument that his Honour failed to take into account a relevant consideration in considering whether to discharge Lilburn. That argument has problems. The question for his Honour was how he should deal with Lilburn's refusal to give evidence. He had two options. One was to deal with him for contempt, a course for which the respondent was pressing. The other was to discharge him. The relevant consideration there was whether Lilburn would resile from his refusal to give evidence. His Honour took the view he would not and granted Lilburn's request. It is not open in our view to advance an argument that, in acceding to an application which is granted, the trial judge did not consider a particular matter, when the ultimate order by the trial judge is not challenged.
197 There are other shortcomings in the appellant's argument. Let it be assumed for the moment that Lilburn would have given evidence to the effect that he was intimidated by matters going on in the court room, such as Goldsmith's presence. The question arises what would have flowed from that. It might be, for example, that the trial judge could have taken steps to ensure that there was no inappropriate conduct taking place during the evidence. However, if Goldsmith was `the problem' any problem relating to his presence was, by then, academic as there was no suggestion that Goldsmith was in court other than on 8 March.
198 If Goldsmith was `the problem' then his presence of itself does not implicate the respondent, a matter which was at the forefront of the appellant's submission, presumably upon the basis that it would have been another strand in its "admissions by conduct" case. But regardless of whether it was Goldsmith's presence which was the source of Lilburn's agitation, it would have been necessary for Lilburn to give admissible evidence that the respondent was responsible, either directly or indirectly, for whatever the intimidation was, for the appellant's argument to have any substance. On the premise he would have done so, the question arises as to how the appellant was deprived of the opportunity for that evidence to be given.
199 In the normal course of proceedings a party calls the evidence upon which it seeks to rely. If the appellant wanted Lilburn to give the evidence which it submits he might have given, it could have called him. The most obvious way it could have done that was by seeking to reopen his evidence in chief. It did not do so. Another course was for it to have made the application that Lilburn be discharged. Again in the normal course, applications to the Court have to be supported by evidence so that the appellant would have had to have called Lilburn. It did not make any such application.
200 The appellant's offer to assist Lilburn to make the application to be discharged was not an application to call evidence in its case. It was an offer to assist a third party to the proceedings to make an application in the proceedings. Third party applications are not uncommon, an application by a third party to set aside a subpoena is an example. However, if that course had been permitted, it must be asked what would have flowed from it. The appellant's submission was to the effect that Lilburn should have been allowed to state his position as to why he wished to be discharged. A statement is not evidence, in which case the appellant would be no further advanced.
201 If Lilburn gave evidence on the application the question arises as to the status that evidence would have had in the proceedings. The respondent submitted that any evidence given on the application would not have been evidence in the trial, but rather evidence on the voir dire. As such it was said "unless things were to change later [which they did not] it would be fatal to the present stance by [the appellant] in this Court" (AT 352). We understand this submission to mean that the evidence would not have been evidence in the proceedings unless tendered in the proceedings or unless Lilburn was recalled. This is the principle which applies in a criminal trial where evidence is given on the voir dire in the absence of the jury: see Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316 at 326; R v Basto [1954] HCA 78; (1954) 91 CLR 628 at 639.
202 However, it appears a different rule applies to evidence on the voir dire in the case of a civil trial or a criminal trial without a jury. In Cross on Evidence the learned author states at para 11035 in relation to a voir dire:
"... in every case tried before a judge alone, it would seem that the evidence given, if relevant, is available on any issue."
Ex parte Whitelock; Re Mackenzie [1971] 2 NSWLR 534; Casley-Smtih v FS Evans & Sons Pty Ltd (No 2) (1988) 49 SASR 332 are cited in support of this proposition.
203 In Ex parte Whitelock, Meares J, although not expressing a concluded view, said at 539:
"I should have thought that evidence given on the voir dire is evidence if relevant, on any issue if given in the presence of a jury ... and in all cases if given before a tribunal sitting without a jury."
204 In Casley-Smith, Olsson J at 335 considered this reasoning to be unassailable. See also R v Amo & Amuna [1963] P & NGLR 22, where Man CJ held that proceedings on a voir dire "cannot be regarded as constituting a separate collateral proceedings". Both Meares J and Olsson J referred to R v Amo & Amuna with approval. See further Smith v R [1957] HCA 3; (1957) 97 CLR 100 at 132 per Webb J.
205 This principle is consistent with the rule of practice often adopted in civil cases where evidence is admitted subject to admissibility or subject to relevance: see Dubbo Base Hospital v Jones [1979] 1 NSWLR 225 per Moffitt P at 227.
206 However, we do not think that these principles have any relevance to the present issue. The appellant's argument is that had Lilburn been permitted to make his application and to give evidence on it (we discount his making a statement for the reasons we have given), it would have had the benefit of that evidence. That, however, overlooks the fact that such evidence would not have been evidence in the proceedings. Nor would it have been evidence on the voir dire as contended by the respondent. Evidence on the voir dire is evidence taken as part of the proceedings to determine, for example, a point of admissibility; whether a witness should be treated as hostile; whether an expert has the necessary qualifications to given certain evidence. If given, this evidence would have been on a third party application.
207 Evidence on a third party application is both different in nature to and serves a different purpose from evidence on the voir dire. Usually it is evidence which would not be given in the principal proceedings because it is not relevant in those proceedings, although logically connected with the issues in the principal proceedings. Again an application by a third party to set aside a subpoena provides a useful example. If some such evidence was required in the principal proceedings, it would have to be called. We have already pointed out that there was no occasion during the course of this issue being before the court that the appellant made any application to his Honour to call evidence from Lilburn. We do not consider that in these circumstances it can complain that his Honour failed to `hear' Lilburn's reasons for wanting to be discharged.
208 In our opinion, therefore, the appellant has not demonstrated appellable error in his Honour's discharge of Lilburn.
Error in Dismissing the Pimping Allegations as Irrelevant
209 We have referred above to Lilburn's allegation that he made the statutory declaration of 15 September (exhibit 76) in circumstances where he was pressured, under threat of physical violence, to do so by Les Murphy. Les Murphy denied this was the case. The respondent denied asking Murphy "to induce by threats or force, or in any other way, a retraction by Lilburn of his allegations" [J 899; T 6726]. His Honour disbelieved Murphy and the respondent on this issue. He found that Murphy's evidence that there was no involvement between himself and Lilburn in relation to the preparation of the statutory declaration "was false" [J 1126]. He also accepted that Lilburn would have been adversely affected by Murphy's conduct [J 1126].
210 His Honour further found on the probabilities that the respondent "did employ the services of his friend Les Murphy at Goulburn Gaol to persuade Mr Lilburn to change his position". However, he was "unable to find" that the respondent was implicated in any suggestion that Murphy use a threat of violence, although observing that "the very presence of Mr Murphy may well have been sufficient to intimidate anyone" [J 1137].
211 His Honour specifically found that the respondent's conduct was directed to obtaining a withdrawal of the pimping allegations made in the first two statements, exhibits 74 and 75. He considered, however, that conduct could not overcome the "flaw" in the appellant's case of the lateness of the complaint of the personal sexual encounters with the respondent. In other words, his Honour found the substantial allegation against the respondent was a matter of recent invention. His Honour held that because the respondent's conduct related to the pimping allegations:
"[t]here is no rational basis therefore for concluding that any conduct by the [respondent] prior to February 1999 can be taken to be conduct consistent with a consciousness of guilt in [the respondent] of conduct that had not been alleged against him." [J 1134]
212 It appears that it was for that reason that his Honour found that the pimping allegations "in the end have no relevance to the case" [J 1136]. His Honour concluded [J 1139]:
"The ultimate point is that the evidence prior to the termination of Mr Lilburn's testimony was such as to preclude me from being satisfied on the balance of probabilities that the nub of the defendant's case namely, the allegation of the three sexual encounters, had been established for the reasons I have stated relating to Mr Lilburn's credit, the fundamental flaw in the defendant's position as to the timing of the allegations and the consequential irrelevance of any `consciousness of guilt' in [the respondent] by reason of his conduct towards Mr Murphy."
213 By the time that his Honour reached this conclusion, he had observed that the case advanced through Lilburn did not fit the modus operandi for which the appellant so strongly contended. His Honour described the differences between the Lilburn allegations and the modus operandi as being "stark and unique" [J 1118]. His Honour had also dismissed Lilburn's identification of the respondent as having no weight observing that Lilburn's in-court identification was of the person with whom he had had lunch in January 1999 and whom he contended was the person with whom he had had the sexual encounters approximately ten years previously. His Honour added that at no time had Lilburn given a personal description of the person who took him to the house on the north shore. Whilst that is correct, it is worth observing that on the appellant's case, identification by way of description was not necessary as Lilburn had had dealings with the respondent over a significant period of time and the respondent had given him his business card. His Honour did not refer to this. However, there was no issue on the appeal arising from this.
214 His Honour referred to the termination of Lilburn's evidence and then said [J 1122]:
"Pausing here there is sufficient material in my mind to raise serious reservations about the integrity of Mr Lilburn's testimony surrounding his assertion that these three encounters took place."
215 The appellant contended that his Honour's treatment of the pimping allegations as being irrelevant amounted to error. The substantive allegation made by Lilburn was that the respondent was a person who had had sexual intercourse with boys who were under the age of 18 knowing them to be underage, and that was the very essence of the pimping allegations. Accordingly, it was relevant evidence of a corroborative nature: see R v Beck [1982] 1 All ER 807 at 815; Galuzzo v R (1986) 23 A Crim R 211 at 215. His Honour found that the respondent had wanted those allegations withdrawn and had engaged the services of Murphy to assist in that. The appellant further contended that given the respondent's maintenance under oath of the falsity of seeking to have Lilburn withdraw his statements "the more persuasive became Lilburn's evidence as to the respondent's involvement in underage sex, and the more likely that the respondent's denials as to his knowledge of, and sexual contact with, Lilburn were false" [AS 477]. It followed on the appellant's submission that the trial judge should have found that the actions of the respondent in engaging Murphy's services amounted to an admission that Lilburn's allegations were true.
216 His Honour's finding was that "in the end" the pimping allegations were irrelevant. This, as we understand his Honour's reasons, was that having considered all the evidence, having found Lilburn a witness of little credit and having concluded that the substantial allegations were matters of recent invention, the pimping allegations did not support the truth of the substantive allegations. His Honour considered that the pimping allegations "aggravated" the "flaw", the flaw being the late raising of the specific allegations upon which this part of the justification defence was based, as there was no reference to them in exhibits 74 and 75 (in which the pimping allegations were made). His Honour's reasoning on this was clear. The pimping allegations, which included no reference to the substantive allegations, provided a basis for what we have referred to as a finding of recent invention. For that reason the pimping allegations did not assist the appellant in proof of the case of the substantive allegations. It is in that sense that we understand his Honour to have found the pimping allegations to be irrelevant.
217 Although the pimping allegations were found to be irrelevant, that is, as we understand it, as evidence supporting the truth of the substantive allegations, the question still remains whether the respondent's conduct in seeking to have them withdrawn and his false evidence about that could amount to an admission by conduct.
Admissions by Conduct
218 We have referred earlier to the considerations which apply when it is alleged that conduct amounts to an admission by conduct. It is sufficient at this point to remind ourselves that conduct which involves intimidation of a witness or is directed at `tampering' with a witness may constitute an admission by conduct: R v Watt. Likewise, lies may amount to an admission by conduct.
219 The `type' of conduct in which the respondent engaged, directed at having Lilburn withdraw his pimping allegations and the telling of lies about it in court, is conduct which might in a given case be evidence of an admission by conduct, provided that it relates to the matter in issue in the case. Leaving aside the case based on contextual imputations, it is only in a general sense that it can be said in this case that the matter in issue is "sex with underage boys". The justification case was a detailed case based upon specific particularised allegations. The pimping allegations did not form part of the justification case sought to be made out by the appellant. Accordingly, neither aspect of the respondent's conduct could be said to constitute an admission by conduct of the relevant matter in issue - that is, the specific Lilburn allegations of three occasions of underage sex or any of the other specific particularised allegations.
220 It is possible that this evidence could be evidence which supported the admissions by conduct case generally. The appellant's submissions do not seek to advance that argument, although there is a general allegation that the trial judge failed to consider the evidence as a whole. We deal with that argument when dealing with our Conclusions in relation to the respondent's credit. However, in so far as the submissions are specific to the case involving Lilburn we do not consider they have been made out.
221 Finally, and we mention this aspect only to dismiss it, the appellant contended that it was on one of the pimping occasions that Lilburn had his first sexual encounter with the respondent. No such case was put at trial.
222 The appellant made a further complaint in relation to the manner in which his Honour dealt with the "admissions by conduct" case, namely, that he declined to consider the "coincidence" which the appellant submitted there was between the respondent's conduct in respect of Rainey (relating to D18), W2 relating to Stevens, and Lilburn. These coincidences related to the allegations that in respect of each, the respondent made an offer of money or financial reward "after the case was over". If the contents of the Elomari tape become relevant that will add to the `coincidence' of the conduct. In so far as Lilburn's case was concerned, his Honour simply did not deal with this issue in his Conclusions.
223 This evidence was relevant. It was a significant part of the appellant's case that the respondent had made offers of financial assistance or reward to a number of the justification witnesses and that the "offers" bore at least this similarity, namely that, if any money was to be paid, it was to be paid after the case. As we have said, in the case of Lilburn, his Honour did not even deal with this evidence. That may have been because he had already indicated that because he had discharged Lilburn in the circumstances he did, his evidence would be afforded little weight and because his Honour had already made an adverse credit finding against Lilburn. We will return to this when dealing with our reasons relating to the Elomari tape and in particular the section relating to the appellant's case that the tape supported the evidence of other witnesses in relation to the payment of money after the case was over.
Respondent's Credit
224 The trial judge's finding at J 1137, that the respondent did "employ" Murphy to persuade Lilburn to change his position, involved, on the appellant's submission, a deliberate falsity on behalf of the respondent. That must be correct. Another aspect of the respondent's evidence found to be false was when he said he first knew of and saw the statutory declaration exhibit 76.
225 The appellant complained that notwithstanding this obviously false evidence, his Honour failed to make any adverse credit finding against the respondent. This is correct. The submission was also put that his Honour's finding that the respondent was implicated in Murphy's approach to Lilburn was "a powerful finding against the credit of the respondent" and that his Honour did not consider this in determining what weight should be given to Lilburn's evidence.
226 It is apparent from the manner in which his Honour constructed his reasons that he did not consider it necessary to do so. At J 1122 he concluded that there was "sufficient material in my mind to raise serious reservations about the integrity of Mr Lilburn's testimony". He next referred to the Les Murphy allegations, accepting the appellant's submissions on that issue. He then said [J 1128]:
"None of these findings however overcome what I hold to be the incurable flaw in the [appellant's] case."
227 The incurable flaw was that Lilburn's assertion of a sexual relationship was recent. It was not made in exhibits 74, 75 or 76. Nor was it made in a number of discussions he had had with Detective Sergeant Panich and Superintendent Woodhouse. In fact, Lilburn made no such allegation until February 1999 when he was visited in gaol by Quail [J 1053]. His Honour's assessment of this part of the case was also affected by the fact that Lilburn's allegations did not fall into the modus operandi upon which the appellant relied so heavily.
228 The respondent resisted the various attacks the appellant mounts against his Honour's judgment in respect of Lilburn essentially on the basis that Lilburn, who had completed his evidence in chief at the time he was discharged, was not believed in his allegations against the respondent [RS 215]. We have already referred to this. The respondent also argued that even if there was any basis to the appellant's case based on "admissions by conduct", that case "proves nothing" [AS 218] as his conduct was equally explicable on the basis that the respondent was acting as an innocent person seeking to have untrue allegations withdrawn. The respondent also pointed out that that conduct related to the pimping allegations, not to the core case against the respondent.
229 The respondent's arguments are best considered, in our view, as part of our overall conclusions in relation to the respondent's credit.
D20
230 D20 appeared both in the Today Tonight programme and on Witness. He was called as a witness in the appellant's justification case to prove the substantial truth of all imputations.
231 D20, who was born on 25 August 1970, gave evidence that on one occasion only he had sex with the respondent. He said he was 15 years old at the time and the incident occurred at the respondent's residence at Campbelltown. On the appellant's case as particularised, the incident occurred "when D20 was fifteen and in the year 1985", that is, between 26 August and 31 December 1985. The most precise evidence that D20 could give of the date was "late 1985" [T 4890]. An application by the appellant for leave to amend the particulars so as to delete the particular "in 1985" ([2000] NSWSC 227) was refused by his Honour.
232 The respondent denied having had a sexual encounter with D20.
233 The trial judge's determination of the substantial truth of the imputations in so far as D20's evidence was concerned was thus dependent upon whether he preferred the evidence of D20 or that of the respondent. His Honour rejected D 20 as a witness of credit, finding him to be "a liar and a fabricator" [J 2891], an assessment made essentially on the basis of the impact that D20's "demeanour and testimony" had on him [J 2891].
234 The appellant challenged his Honour's rejection of D20's evidence, notwithstanding that his Honour's finding was substantially credit based. In doing so it submitted that an appellate court was entitled to interfere with such a finding [AS 153]:
"where in a complex pattern of events incontrovertible evidence can only be fitted into a pattern if a different view of the credibility of a witness is taken by the court on appeal."
See Agbaba v Winter (1977) 51 ALJR 503 at 508 per Jacobs J. Jacob J's remarks were made in the course of a discussion of the limited circumstances in which an appellate court may interfere with factual findings. It is useful to quote his Honour's remarks more fully:
"... it was not open to the Court of Appeal to interfere in the way which it did with the findings of primary fact made by the trial judge, based as they were so largely upon the credibility of the witnesses. There are cases, very rare cases, where an appeal court is justified in displacing primary findings based on credibility of witnesses ... but they are cases where a whole body of evidence points inescapably to a conclusion different from that reached by the judge at first instance, where in a complex pattern of events incontrovertible evidence can only be fitted into the pattern if a different view of the credibility of a witness is taken by the court on appeal."
235 The appellant submitted that in this case there was independent or incontrovertible evidence to which his Honour failed to give appropriate weight in rejecting D 20's testimony. It also alleged that his Honour failed to give appropriate weight to the respondent's admissions and the consistent testimony of other witnesses (Grounds 21, 22) [AS 36]. It submitted that, in accordance with the principle stated by Jacobs J, his Honour's adverse credit finding was therefore insupportable (Ground 23). The appellant also alleged that the trial judge failed to give proper weight to D20's evidence of identification.
236 The respondent contended that his Honour's rejection of D20's evidence is protected from appellate review on the basis of the Abalos principle. He also made specific responses to certain aspects of the purported `incontrovertible' evidence relied upon by the appellant in support of its case that the trial judge erred in not accepting D20's evidence.
Background
237 In his evidence in chief, D20 said he had left his mother's home on the central coast when he was about 14, that he started to get into trouble with the police, that he was running away from home and would "choose to stay with [his] father" in Sydney. At about age 13 or 14 he began to venture up to Kings Cross, where he continued to engage in criminal activity, for example purse snatching or `rolling a drunk' and taking his wallet. He also solicited homosexual men at the Wall in return for money. Between September 1985 and 31 December 1985, the period in which the incident was said to have occurred, D20 lived variously with his mother on the central coast, with an aunt in Sydney, with his grandparents in Ballarat, Victoria, or in a number of different refuges, including one in the outer suburbs of Sydney.
238 D20 said that he met the respondent at the El Alamein fountain in Kings Cross sometime late in 1985 and that he accompanied him in a Mercedes car to the respondent's residence about 45 minutes from the city. D20 gave evidence of a sexual encounter there with the respondent which, it was submitted, was consistent with the respondent's modus operandi. D20 then gave evidence in some detail of the respondent's residence.
239 The respondent argued that in cross-examination a different picture of D20 emerged from that which he sought to portray in his evidence in chief. For example, in cross-examination D20 agreed he was a "poofter basher" [T 4911] and that he was not a "prostitute really" but was "a basher of homosexuals in order that [he] could deprive them of their money" [T 4911] and that he substantially earnt his living from bashing and robbing. Although he had only one conviction in this period for an offence committed at East Gosford (in September 1985), he admitted that he "got away with a lot of robberies" for which he was not caught and that he was robbing and stealing "in 1985 around Gosford consistently" [T 4923].
240 The respondent submitted that on this evidence it was highly unlikely that D20 was living the life of a male prostitute on the streets of Kings Cross (and in fact amounted to a denial that he was) [RS 106.5] and, it followed, it was unlikely that he would have been `picked up' by the respondent as alleged.
241 His Honour rejected that D20 was travelling from Gosford to Sydney quite regularly at that time [J 2676] or that he was operating as a prostitute [J 2868]. Rather, his Honour found that "D20, was a very busy burglar amongst other things, pursuing his career in that regard over the relevant period on the central coast" [J 2676] and held that he was not satisfied that the alleged incident occurred. He said at [J 2889]:
"This witness ... at a very superficial level gave evidence about time, place and activity which if there was nothing else could tip the scales in the defendant's favour. But it is the very generality, particularly of timing, and the defendant's response thereto as I have discussed, the unacceptable testimony about the automatic teller machine, which comfortably predispose me to the point where I am not satisfied on the balance of probabilities that what D20 said in fact happened." (emphasis added)
242 His Honour further explained the basis for this view:
"the good grounds ... for having reservations about the bare details given by D20, the failure of the defence case in relation to admissions by conduct, the qualities of D20 akin to an informer and all the matters raised by the [respondent] ... lead to the inevitable result that the [appellant] fails."
243 It appears that his Honour considered that some particularity as to the date of the incident was required for him to be satisfied that D20's evidence should be accepted. This impression is gained from his Honour's frequent reference to the lack of specificity in D20's evidence of the date.
244 For example, at J 2829, his Honour commented that apart from the detail in respect of the sexual conduct "everything was generalised commencing from `late in 1985'" [J 2829]. Another passage to the same effect is to be found at J 2883:
"At this point in my consideration of the evidence thus far reviewed I must say I keep coming back to the vagueness of the allocation of the time of the event."
He later commented at J 2888 and J 2889 (which is set out above) as to the vagueness and generality of D20's evidence again with focus on the generality of the timing.
245 Then, at the commencement of his Conclusions in respect of D20 his Honour described the date of the alleged incident between D20 and the respondent "[b]y reference to the calendar the relevant beginning date [being] 26 August 1985 and the concluding date 31 December 1985" [J 2862]. He then found [J 2862]:
"Within that framework the assertion by D20 that the events took place in late 1985 cannot be said (the more so given that it is but one occasion only) to be `specific' as the [appellant] submits; it is vague."
246 His Honour added at J 2867:
"As I have said the starting point is vague and is internally inconsistent with the witness' own evidence, carefully articulated, in chief."
This was a reference to the evidence that D20 gave as to when he went to Cairns. As this was evidence given at an early stage in the proceedings and which appears to have affected his Honour's overall assessment of D20's credibility, it is convenient to deal with that issue first.
Date D20 Went to Cairns
247 D20 had said in his evidence in chief that he had gone to Cairns in mid-1985 and had worked in the fishing industry for Hayles Cruises [J 2656]. In a statement to the police D20 had said he went to Cairns in February 1986 [T 4885.56-4887.10]. His group certificate for the period disclosed he had worked for Hayles Cairns Cruises (Blue 316) from 1 June 1986 to 11 July 1986.
248 His Honour found that D20's "evidence-in-chief as to the date on which he went to Cairns turned out to be false" [J 2656]. His Honour further found at J 2805:
"... D20's evidence about the timing of the incident and his move to Cairns was contradictory (having said he moved to Cairns in mid 1985) and inconsistent with statements that he had previously made to the police."
249 D20's evidence on this issue was as follows. D20 was asked about working at the Wall and over what period that occurred. His examination then continued [T 4880-1]:
"Q Did you move to Cairns in North Queensland?
A Yes. I--
Q When was that?
A Mid 1985.
Q When you went to Cairns, what did you do?
A I went to Cairns in the hope that I could obtain work, or some sort of work, relating to the boating industry, fishing industry or generally working on the water.
Q Did you get a job?
A Yes, I did. I was lucky in that I was fortunate to --
Q Who did you get a job with?
A I was lucky in that I got a job with a company by the name of Hayles Cairns Cruises. By that I mean I believe that they have since changed their name.
Q Is that spelt H-A-Y-L-E-S? Is that right?
A Yes.
Q Did you obtain a group certificate in respect of that work?
A Yes.
Q And that employer?
A Yes.
EXHIBIT #89 GROUP CERTIFICATE OF HAYLES HOLDINGS TRADING AS HAYLES CAIRNS CRUISES, TENDERED, ADMITTED WITHOUT OBJECTION."
250 Senior counsel for the appellant submitted that his Honour erred in characterising D20's evidence as to the date he went to Cairns as "false" and making an adverse credit finding against D20 on the basis of that falsity when it was clear that it was no more than a slip.
251 The sense gained from reading this portion of the transcript is that the difference between D20's evidence and the group certificate was not noticed by any of the legal representatives at the time and that rather than it being `false evidence' in the sense found by his Honour, it was no more than a slip by the witness. That impression is reinforced by the cross-examination which does not touch upon the inconsistency between D20's oral evidence and the group certificate or challenge his evidence that he went to Cairns in mid 1985. Nor was it put to D20 in cross-examination that his evidence in chief was "false" or a "lie" or inconsistent with the group certificate. Rather, the thrust of the cross-examination was that D20 went to Cairns in 1986 (although the respondent suggested the date was February 1986), and that during the second half of 1985 he was "preoccupied with criminal activities in Gosford" [T 4922].
252 It was also submitted that his Honour's finding was pejorative of D20 and that this reflected an attitude his Honour had towards the appellant's case overall. We do not consider it necessary to examine that submission.
253 The relevant matter for our determination is whether his Honour erred in his finding that D20 gave `false' evidence as to the date he went to Cairns and if so, whether that error has any appellable significance. The period in which the alleged incident occurred was a pivotal issue in the case the appellant sought to make through D20. D20's evidence was wrong, but for the reasons we have given we consider it was a slip. D20's error was one of the reasons his Honour rejected D20 as a witness of credit and this part of the appellant's case. The finding was important in his overall consideration and ultimate rejection of this part of the appellant's case. However, we leave to later consideration the consequence, if any, which flows from that for the determination of the appeal.
254 The appellant made another complaint about the manner in which his Honour dealt with D20's evidence about going to Cairns. The complaint emanated from J 2803, where his Honour made reference to the fact that during the course of D20's evidence, the appellant sought leave to amend the particulars to delete the words "in 1985". The effect of such an amendment would have been to extend the time in which the incident occurred from the end of 1985 until August 1986 when the appellant turned 16. His Honour said [J 2803]:
"One can only assume, the [respondent] argues, that he did so on instructions that D20 had recently told the [appellant] that the alleged incident occurred in 1986 and not 1985 as particularised. (The particulars presumably having been drafted in accordance with D20's previous statements to the [appellant]). I refused the application."
255 The appellant submitted that the only purpose of recording the respondent's submission in this paragraph was to indicate his Honour's acceptance of the submission.
256 There is some basis for the appellant's complaint, as the recording of the submission occurs in a paragraph in which his Honour was otherwise dealing with factual matters.
257 If his Honour accepted the respondent's submission, there is merit in the appellant's complaint as the respondent's submission involved an attack on D20's credit. The appellant contended that that attack, and his Honour's acceptance of it, was ill-based as it was not based on an appropriate factual foundation. It submitted, for example, that such a `finding', if that is what it amounted to, failed to take into account that, as his Honour knew, D20 had come from Queensland in the custody of two prison officers who remained in the court during his testimony and who returned him to the cells of the Supreme Court during any adjournments. At the end of each day D20 was returned to Long Bay gaol. Accordingly, it must have been apparent to his Honour that the appellant's counsel did not have ready access to D20 and did not have any conferences with him before he gave his evidence [AS 147-9].
258 For our part, as we do not know what his Honour knew and was entitled to infer, we do not consider we should engage in any speculation about the matter. In any event, whilst it is not readily apparent why his Honour recorded the submission as he did, mixed as it was with factual matters, nothing seems to flow from it in his Honour's reasons. Accordingly, we do not consider there is any basis for a complaint of appellable error.
Failure to Give Proper Weight to Other Evidence in Determining Whether to Accept D20's Testimony
259 It was an important part of the appellant's case in relation to D20 that his evidence was supported by incontrovertible evidence from objective sources and from the respondent's own admissions. The evidence said to support D20's evidence was set out in detail in a table in the appellant's written submissions. In summary that evidence was:
(i) D20 said that he was approached by the respondent at the El Alamein Fountain and asked if he would accompany the respondent back to his place for the evening [T 4889.32-52; 4890.29-36]. He said it was about a 45 minute drive to the respondent's home [T 4890.59]. The respondent admitted picking up people for sex at `beats' and taking them, inter alia, to his home at Campbelltown [T 6943.60; 6947; 6594.11], which it was accepted was about a 45 minute drive from the city.
(ii) D20 said the respondent had a driver who drove them in a Mercedes Benz to the respondent's house [T 4890.44]. In late 1985 the respondent owned a Mercedes Benz and employed Francis Bonomini as a chauffeur on a full time basis (Exh M; T 8187.10-15). Bonomini had dark hair and an olive complexion, which accorded with the description of the driver given by D20. Bonomini said that he lived at home while he was working for the respondent and that after he finished work for the evening, he went home and did not return until the next morning [T 8195.22].
(iii) D20 said the respondent "had quite a large house" with a large driveway. In late 1985 the respondent's house was a large two storey residence with a large driveway. In the latter part of that year renovations were being carried out on the house.
(iv) D20 said that on arriving at the house, the respondent "went to an area of the house close by to the front door to disactivate a security system in his home" [T 4891.06]. The respondent's counsel did not cross-examine D20 on this evidence. In a letter dated 25 November 1985 to Liverpool City Council the respondent stated his home was "totally and absolutely alarmed ...".
(v) D20 did not notice any tarpaulins and builder's equipment at the house [T 4939.12]. Photographs taken of the house establish that as at December 1985 renovation work was largely complete and no tarpaulins were in use.
(vi) D20 described the kitchen as being "downstairs, at the front of the house [and] to the left of the front passageway of the house". Exhibits 197 and AL showed that the kitchen was at the front of the house and to the left of stairs which led up to the new main bedroom.
(vii) D20 said the kitchen was quite big with a lot of timber in the kitchen and an area where wine was stored or kept [T 4938.25-35]. A photograph of the kitchen as at 1985 [Exh AC] showed a large kitchen with a predominantly wooden décor, encompassing the cupboards, bench tops and floors and there was a large wine rack in the kitchen area.
(viii) D20 said the respondent gave him a beer and took him out to the back of the house and showed him around. There was a "very large rectangular pool at the back of the house". Exhibit AL also showed that from the kitchen and family room area there was access to the back of the house and to a large rectangular outdoor swimming pool.
(ix) D20 said there were about a dozen PVC chairs around the pool. A photograph taken after 6 December 1985, but before renovations were finally completed on 23 December 1985, showed eleven white PVC chairs beside the pool [Exh 177]. There was no fence around the pool at that time.
(x) D20 described the wardrobe as being on the left of the doorway into the bedroom and an ensuite opposite the doorway into the bedroom. He said there was a cabinet, possibly housing a television. Exhibits AL (1985 plans), DJ (1981 plans and 1983 additions) and 188 (1970 and 1985 plans) show the respondent's bedroom on the first floor. The bedroom had an ensuite and a wardrobe area [T7071, 7067]. The 1985 plans [Exh AL and AK] show a large wardrobe on the left as one walked in to the bedroom. The respondent admitted there was a television in the bedroom [T 6550].
(xi) D20 said that the respondent produced approximately an ounce of marijuana from a set of drawers on the left hand side of the bed which he then rolled into two marijuana cigarettes and they each smoked one [T 4891.45-55]. The respondent admitted that he kept "one or two deals" of marijuana in a box beside his bed.
(xii) D20 said the respondent used amyl nitrate during the sexual activity. He described the bottle as being "a very small bottle, almost like the size of a `liquid paper' bottle" [T 4893.10-20; 4891.54-55]. The respondent inhaled the amyl nitrate and had D20 inhale it [T4892.10-15]. The respondent agreed he kept amyl nitrate in a drawer beside his bed and that he had amyl nitrate at his home at the end of 1985 [T 6913, 6914, 6921, 7065]. There was also evidence as to the respondent's use of amyl nitrate and this was not in dispute. His butler, Mr Whitton, gave evidence that the amyl nitrate was kept in small bottles in his bedside drawer. There was other evidence that amyl nitrate was distributed in small clear bottles about half an inch in diameter and one and a half inches long.
(xiii) D20 said that he and the respondent performed oral sex on one another and that the respondent asked D20 to perform anal sex on him, which he did [T 4891.53-4892.25; 4892.61]. The respondent admitted having anal and oral sex with male partners.
(xiv) D20 said that the following morning, the respondent drove him to a railway station about 10 minutes away [T 4893.40]. The closest railway station was five minutes drive away from the respondent's house [T 7069].
260 Notwithstanding the significant degree of correspondence between D20's evidence and the proved facts set out above, his Honour held that D20's evidence viewed overall was vague and general, especially as to time.
261 The appellant contended that his Honour's conclusion that D20's evidence was "generalised" cannot stand given the particularity and correctness of the evidence to which we have just referred.
262 Leaving aside the question of when the incident occurred, it appears to us that his Honour's assessment of D20's evidence as "vague and general" was only available to him because of the manner in which he dealt with the importance of any evidence which was accurate and particular. This is apparent from his Honour's findings in his "D20 - Conclusions". He said [J 2870-2]:
"There is nothing remarkable about a person such as D20 saying that there was in the back, sometime late in 1985, a large rectangular swimming pool. On the other hand there was a large rectangular swimming pool without a fence in a poorly lit area.
There is nothing remarkable about D20 identifying PVC frame chairs as being the furniture around a swimming pool. On the other hand the photographs on which the [appellant] is so insistent in its reliance as at the end of December or towards that time do show some PVC chairs and some Brown Jordan chairs.
There is nothing remarkable about a person entering their home and deactivating an alarm system. On the other hand, D20 was not cross-examined about this. The [respondent] suggests that the alarm system (and there is no question that there was one there) was `a lucky guess' in the same way as the unremarkable identification of pool furniture as PVC framed." (emphases added)
His Honour, it appears, accepted the respondent's submissions that this was a "lucky guess".
263 With respect to his Honour, we cannot agree that any one of the above matters was "unremarkable". They were matters of detail which corresponded to independent evidence as to the state of the respondent's residence. For example, as to the chairs around the pool, D20 had given substantially accurate evidence as to the number (save that the number of white PVC chairs was 11 not 12) and type of chairs which were proved by photographic evidence to be around the respondent's pool in late 1985. His Honour accepted that the evidence of there being "about a dozen chairs around the pool ... comfortably could fall into place with evidence as to the state of the pool and the house as at late 1985". However, his Honour added, apparently as a qualification to the significance of the accuracy of this evidence [J 2865] "[b]ut the witness D20 could do no better in identifying the time as `late 1985'". His Honour then, as we have indicated, diminished both the importance of the accuracy of this evidence and its content in J 2871, to which we have referred.
264 D20 had also given accurate evidence as to the shape and size of the pool although he could not remember the colour of the pool fence. There was, however, no fence around the pool, it would appear, at least until sometime in late December 1985. This is clear from correspondence from the local council on 6 December 1985 requiring the respondent to fence the pool.
265 D20's evidence that he did not recall the colour of the pool fence was elicited by counsel's question "what colour was the fence around the pool?". For the reason just given there may have been no fence so that the question may have been based on an incorrect premise. His Honour did not, it seems, make any allowance for this in his comment at J 2870. Rather, he seems to record it as indicating it was something about which D20 was wrong. That, of itself, is a small matter if it stood alone. However, it is indicative of an approach by his Honour to rely upon any wrong evidence to diminish the effect or weight of D20's accurate evidence.
266 His Honour continued [J 2873]:
"The use of marijuana and amyl is unremarkable in the context of this trial. The [respondent] denies neither. In relation however to D20, whilst not denying the presence of amyl in the house, he said that he was engaged otherwise emotionally in a relationship which did not require its usage." (emphasis added)
267 The same comment can be made about this finding. D20's evidence was both detailed and an accurate reflection of other evidence on this issue which was accepted by the trial judge. This finding also raises another issue. The question which his Honour was required to consider was not whether the use of marijuana and amyl nitrate was unremarkable in the context of this trial. Rather, being engaged in the task of assessing D20's evidence, it was part of that task to assess the accuracy of the evidence and to ultimately assess its import if it was accurate.
268 As we have said, D20's evidence accorded with the evidence of other witnesses as well as with the evidence of the respondent as to the use of these substances and where the respondent kept them. This did not make the evidence "unremarkable", but logically gave rise to the question as to how D20 knew about these matters in such detail, a matter about which he was not cross-examined.
269 It has to be acknowledged, of course, that his Honour appears to have accepted the respondent's evidence that he did not need to use amyl nitrate at that time because he was otherwise engaged in an emotional relationship. We say "appears to accept" because although his Honour merely records a statement to that effect by the respondent, this paragraph is included in his Honour's Conclusions and appears to be part of the reason why, despite the accuracy of D20's evidence, his Honour afforded it little or no probative value. However, in referring to the respondent's statement, his Honour overlooked other evidence in which the respondent said that for him, the existence of a stable relationship did not mean he did not engage in casual sex at the same time.
270 His Honour's findings as to D20's evidence continued.
271 At J 2874, his Honour said:
"That the bedroom in which the alleged activities are said to have taken place was upstairs in a two storey house is unremarkable." (emphasis added)
As a general statement this may be true enough. Nonetheless, D20's evidence on this was accurate.
272 At J 2876 his Honour dealt with D20's evidence about the kitchen:
"The description of the kitchen is `close' as submitted by the [appellant]. A lot of timber and wine facilities. I do suppose it could be suggested that there is nothing remarkable about offering that description about a downstairs kitchen in a two storey house, but it is `close'." (emphasis added)
273 His Honour's somewhat grudging acceptance of what is really a remarkably close description of the kitchen was followed by a finding in relation to the presence of the Adam family in the house.
274 John Adam was a partner in the respondent's law firm. His Honour was satisfied that John Adam and his family was in residence in the butler's quarters of the respondent's home during the period in which D20 said the incident occurred [J 2710; 2796; 2797]. His Honour acknowledged that the presence of the family in the house did not demonstrate that D20 did not have breakfast in the kitchen. He also recognised that Mr Adam's evidence did not establish that the family invariably had breakfast in the respondent's house. His Honour also acknowledged that there was no evidence as to what time the family had breakfast. His Honour next said [J 2876]:
"... but it is the presence of the Adam family over a period of nearly one year in the butler's quarters that is significant in the context where D20 positively asserts that there was no one else in the house at all and he was there overnight after the driver had departed (which was consistent with Mr Bonomini's evidence) and stayed for breakfast in the morning before being driven off to an unidentifiable bank near [an] unidentifiable railway station."
275 On one view, this involves a non sequitur. D20's evidence could have been explicable on the very basis his Honour refers to - namely that the family was not using the kitchen when D20 and the respondent had breakfast. On that view, his Honour appears to use this observation not only to diminish the importance of D20's evidence about the kitchen, but to make it of no relevance. On another view, his Honour was doing no more than saying that the presence of the Adam family was one matter to be taken into account in deciding whether or not D20's evidence should be accepted.
276 His Honour then concluded [J 2876]:
"The matter of detail to which the [appellant] points does not assist the [appellant] in the weighing up of issues going to the determination of the core matter on the balance of probabilities." (emphasis added)
277 However, it was the very fact of the detail, much of it supported by independent evidence, which was relevant to the assessment of D20's evidence. Indeed, in that assessment it could be described as a central consideration.
278 The same approach appears two paragraphs later at J 2879, to which we have already referred in part, where his Honour says:
"As the [respondent] submitted about the only matter of detail in respect of which D20 could give evidence was the sexual conduct. Everything else was generalised commencing from `late in 1985'."
279 Given the substantial accuracy of much of D20's evidence, this comment can only reflect the fact that his Honour had already dismissed the evidence, which was substantially accurate, as unremarkable.
280 As part of its argument on this issue the appellant also submitted that his Honour made a number of factual errors in relation to D20's description of the house. For example, D20 had described the ensuite as being "directly ahead from the doorway" so that "if you are walking a straight line across the room you would come to the ensuite" [T 4936]. His Honour held that the objective evidence did not support this description [J 2874]. An examination of plans of the room [Exh AL, AK and 197], demonstrated that as one entered the room there was a wall which formed a corridor and the ensuite was situated behind that wall. Indeed, if one followed the `route' to the ensuite as literally described by D20, one would hit the southern wall of the room. The appellant argued that upon a proper understanding of D20's evidence, he meant that if one walked straight across the room, as if no wall was there, "you would come to the ensuite". That may be correct. But it was not clarified by the appellant during D20's evidence or in re-examination and it is not so obviously the case as to sustain an argument that his Honour's factual conclusion was in error.
281 D20 also said he "[did not] believe there were windows in the bedroom", he was "not sure". In fact there were two sets of windows in the room located on the eastern and western walls [RS 112]. His Honour relied on this evidence in finding that D20's description of the bedroom was all the more extraordinary and "not amenable to acceptance by its vagueness as to whether or not there were indeed windows ..." [J 2874]. The appellant submitted that D20's uncertainty on this ought not to have been determinative of D20's credit. On the contrary, it should have dispelled any notion that he had been coached [AS 136].
282 There are two answers to this submission. The first is that his Honour did not determine the appellant's credibility on this evidence alone, although he was clearly unimpressed by it. Secondly, his Honour did not approach the matter on the basis that D20 had been coached or fed information. He said [J 2882]:
"It is probably a matter for conjecture or speculation as to whether or not D20 was `fed'. However the question is asked by the defendant in effect how did the witness know about the Mercedes, the two storey house, the rectangular house, the bedroom upstairs, the kitchen downstairs? I do not know and I do not propose to speculate. Saying things about them is one thing; saying such things in a way to be accepted as based on actual personal observation is another. The issue is whether or not more probably than not what he said took place." (emphasis added)
283 No objection can be taken to this passage. It may be that by framing the submission in the terms it did, the appellant focussed on the wrong issue. The real question was what weight should have been given to the fact that D20 gave substantially accurate evidence about a number of features of the appellant's house and how that evidence was to be assessed given that his description was not perfect.
284 In addition, some of D20's evidence did not accord precisely with the respondent's, so that there was a direct conflict of evidence. For example, although the respondent admitted picking up casual partners for sex at `beats', he denied having ever picked up anyone at the El Alamein Fountain. (There was evidence from Kinchela, Stals and David Maynard which supported D20's evidence on this point but their evidence was not accepted by the trial judge and there is no appeal in respect of his Honour's findings in respect of any of them). Another example is that D20 said he performed anal sex on the respondent. Although the respondent agreed that he engaged in anal sex with partners, he said his practice was to be "the top".
285 D20's evidence was also open to considerable doubt in that Bonomini, the respondent's chauffeur at the time, said that it was not his habit or usual practice to drive the respondent to `beats' and that he did not do so [J 2869].
286 D20 was incorrect in his description of the bedroom, including in the quite important aspect of whether it had windows. This is something which the trial judge regarded as significant as he was entitled to do.
287 There were times in D20's evidence when he asserted one thing and then withdrew or changed the evidence. For example, he said that his life would be in danger if it was known to his fellow inmates that he was giving evidence and that his relationship with the respondent was a homosexual one. Yet he later conceded he had discussed the matter with Lilburn and Muntz-Summons, and with other inmates, and that that there had been discussion about the respondent and allegations of sex with underage boys amongst inmates of Berrima gaol [RS 115].
288 There were other areas where his evidence lacked detail. For example, he could not remember the colour of the house, the colour of the exterior or the interior of the car, the colour of the bedspread, the colour of the chairs around the pool or the colour of the pool fence.
289 Errors, memory lapses and vacillation in D20's evidence were matters which had to be weighed up with the evidence as a whole. The appellant submitted, with some plausibility, that that task could not be done adequately in circumstances where the trial judge had diminished to the point of insignificance any evidence which was accurate.
The Appellant's Conduct of the Case
290 There is a further, overlapping, challenge to the manner in which his Honour dealt with D20's evidence and that relates to his Honour's criticism of the manner in which the appellant conducted its case. In its more amplified form, this challenge is essentially an attack on his Honour's credit finding in relation to D20.
291 His Honour was particularly critical of what he saw as the appellant's attempts to fix the date of the alleged sexual encounter between D20 and the respondent as late as possible in 1985, and even as at December 1985. At J 2819, his Honour said:
"I have dealt with the [appellant's] submissions that [the respondent] deliberately lied about a number of matters pertaining to the house in an attempt to discredit D20's description of it. The defendant's submission is not borne out by the evidence and is based in part upon the unsupported premise that `late 1985' as nominated by D20 actually meant `December 1985'."
292 At J 2862 his Honour expressed the view that D20's evidence that the alleged sexual encounter with the respondent occurred in late 1985 was vague. He continued at J 2863:
"It is in that context that one can appreciate the anxiety in the appellant ... to advance the date to as late as possible in 1985 where the evidence discloses that more probably than not the renovation work to the [respondent's] home was almost complete."
293 At J 2888 he referred to reasons why someone such as D20 might not readily be believed on his oath, mentioning "reservations (as to D20's credibility) undoubtedly intrude". He continued:
"the more so do they intrude when the vagueness and generalities of the testimony given by such a person are taken into account together with the forensic approach to overcome them which I have identified as governing the defendant."
294 His Honour returned to "vagueness of the allocation of the time of the event" at J 2883:
"I must say I come back to the obsessive preoccupation evidenced by the [appellant's] conduct of this part of the case [which], as the [respondent] submits, projected later into the year, into December, the notational (sic) date of this event by reference to what was more probable than not the almost complete state of the house so that that state can accommodate what the witness said. I find that very troubling with regard to the [appellant's] case." (emphasis added)
295 The appellant submitted that these passages demonstrated error in his Honour's approach to the credibility of D20's evidence in that he:
(i) failed to assess the evidence from the basis that there was or may be independent objective facts which corroborated D20's evidence;
(ii) appeared to infer the appellant was manipulating the evidence by proposing the date as late as possible so as to make it correspond with the time when the respondent's house was undoubtedly almost complete;
(iii) amounted to a virtual `reversal' of a proper approach to the analysis of facts;
(iv) was influenced in his assessment of credibility by what he saw as the appellant's "obsessive preoccupation evidenced by [its] conduct of this part of the case".
296 Reference should be made to a further passage in the judgment in addition to those set out above before dealing with this submission. This passage formed part of his Honour's `Conclusions' in respect of D20 and was part of his Honour's rejection of the appellant's case that D20 had given `specific' evidence of the layout of the premises in late December 1985. His Honour said at J 2866:
My overall view which I can express at this stage is that the greater the efforts to establish what was the structure and layout of the house towards the end of December 1985, the greater the inducement to have reservations about whether at all in 1985, late or otherwise, more probably than not what D20 said happened in fact happened.
297 His Honour then said at J 2890:
"The [appellant] ... recognised an immense weakness in their case in relation to D20 not the least of which was the best he could do as to whenever it occurred was `late 1985' and thus conscientiously sought be reference to excruciating detail as to chairs, construction work, council records and the like to create a state of affairs as to the Campbelltown residence as would accommodate the vague generalities of its witness." (emphasis added)
298 We consider there is merit in the appellant's complaint on this point. There is no forensic error, let alone ground for criticism, in a party to proceedings seeking to corroborate the evidence of a witness. This is even more so when a witness is relying on ancient memory of a single occasion, and where, as turned out to be the case, the credibility of the witness might be subject to attack. Here D20's credibility was subject to trenchant attack. As we explain later, his Honour considered it was evidence which had to be treated with "added caution".
299 It appears to us that one reason for disbelieving the evidence was, in his Honour's judgment, because the appellant sought to corroborate D20's evidence in its detail. That is not a correct approach either to the assessment of credibility, or to the evaluation of corroborative evidence. Evidence called to corroborate particular evidence may or may not do so. But it is the evidence which is to be assessed, not the fact that it was called. As we have said, the evidence of the justification witnesses, including D20, was seriously challenged. The more it could be supported by cogent and in particular independent evidence, the more likely its acceptance. That was the task the appellant undertook, with considerable success.
300 Accordingly, we consider that his Honour's view of the appellant's approach to its case and his adverse credit finding which flowed from that was open to criticism. The criticism is that he failed to leave a proper role for the corroborative aspect of the evidence as to the state of the house. To deal with it, as his Honour did at J 2883 and in particular by describing the calling of the evidence as to the state of the house "so that that stage can accommodate what the witness said", did not, in our view, treat the evidence as evidence which "confirmed" portions of D20's evidence: see DPP v Hester [1973] AC 296 at 325. Rather, his Honour inverted his evaluative task by determining that D20's evidence was made to fit the proved facts, rather than determining whether D20's evidence was supported by other proved facts.
301 It is also apparent from his Honour's remarks that he did assess D20's credit, in part at least, by what he perceived to be the appellant's "anxiety ... to advance the date as late as possible in 1985". We have already referred to the statement by Toohey J in Agbaba v Witter at 508. In the same case Barwick CJ at 500 described the task required of the trial judge in this way:
"His Honour's task was to weigh the evidence as a whole: that is, what the films portrayed as well as the oral evidence. First to evaluate the oral evidence and then turn to see whether the [investigation] films denied that evaluation was ... erroneous."
302 With respect to his Honour, he seems to have been overly concerned with the fact that only a range of dates was given and when the evidence, as called, supported a more specific period within that range, he appeared to believe the dates were manipulated. The result was, we believe, that his Honour risked not achieving a fair balance in his assessment of the evidence on this issue. Rather than weighing the evidence as a whole, his Honour first expressed the opinion that D20's evidence that the incident occurred late in 1985 was not "specific ..., it [was] vague" [J 2862] and then made the comment to which we have just referred. He then used that as a backdrop against which to assess the other evidence. He did so piece by piece. He diminished the relevance of any precise, accurate evidence. He considered any errors or lack of memory to be of particular significance. The evidence as to the respondent's use of the ATM is an example. As there was a particular challenge to his Honour's fact finding relating to the ATM we deal with that as a separate issue. It is sufficient at this point to record that his Honour disbelieved D20 on this point and accepted the respondent's evidence. For reasons which we give, we do not consider there was any error in Honour's assessment of that evidence. However, that is not the present point. The correct assessment of some portions of the evidence does not relieve a trial judge of the task of evaluating the evidence as a whole including any supporting evidence. These are matters of concern in his Honour's approach to the assessment of D20's evidence. It will be necessary to consider the significance of this as part of our overall conclusions.
303 The appellant made a further complaint, namely that the trial judge failed to afford it procedural fairness, in that he failed to warn them that he intended to assess D20's credibility by reference to the appellant's conduct of the case by its "obsessive preoccupation" in calling evidence in "excruciating detail" and failed to give any opportunity to address him on the issue: see Smith v New South Wales Bar Association (No 2) [1992] HCA 36; (1992) 176 CLR 256 at 269, 274-275. The appellant also complains that his Honour failed to articulate what he found "troubling" about the appellant's approach. The appellant submitted that his Honour's comment infers that it had, or had sought to, "manipulate" the evidence, a matter to which we have already adverted and in respect of which the respondent made no submission at trial. Although it is not apparent why his Honour made these comments, we do not consider that they indicate a lack of procedural fairness. Rather, their significance is to be assessed in determining whether his Honour erred in principle in the manner in which he evaluated D20's evidence and the evidence which supported it.
304 All that said, in his credit finding in relation to D20 his Honour was entitled to give considerable weight to D20's discreditable past as a "poofter-basher" (including his admission that he was not really a male prostitute) and a man guilty of crimes of dishonesty as his Honour did [J 2826]:
"By his own admission, D20: has a criminal record that suggests that he is dishonest; has a record of violent robberies and as such has been entirely contemptuous of other people's rights; and is a `poofter basher' whose favourite method of earning a living is to lure homosexual men with a promise of sexual favours and then get them in a position where he could violently rob them."
305 Further, his Honour was entitled to say [J 2888] that he had reservations arising from D20's "astonishing criminal antecedents, not the least of which is the `poofter-basher' aspect and his admission that he would have so behaved had he had the opportunity with [the respondent]".
The ATM Evidence
306 His Honour rejected D20's evidence as to the respondent's use of an automatic teller machine (ATM) so as to pay him before dropping him off at the railway station. He relied upon this as one of the reasons why he did not accept D20's allegation against the respondent.
307 D20's evidence in respect of this was brief. In evidence-in-chief he said "[the respondent] then drove me to a bank where there was an automatic teller machine in which he withdrew [the money]" [T 4893; J 2662-3]. In cross-examination his evidence was that he did not know which bank it was; he "assumed" he went to an ATM; he "imagined it would have been a bank"; he did not see him use the ATM. The highest his evidence went at this point was that he "watched him walk to an area where there were (sic) a group of shops" [T 4942; J 2693]. He "thought" it may have been opposite the railway station where he was dropped, which "may" have been Liverpool Station [T 4937; J 2687].
308 His Honour found that D20 displayed "a lack of confidence in respect of his evidence compared to that displayed in chief" [J 2695]. He noted that he was not re-examined.
309 The respondent gave evidence that he had never used an ATM. Evidence was called in his case from his secretary, his personal assistant when he was President of the Law Society and the Managing Partner of his law firm that they all had taken care of his banking needs for him and that he did not attend to such matters himself.
310 The trial judge accepted the respondent's evidence on this matter [J 2700-2704].
311 The appellant seeks to challenge his Honour's finding on the basis that "it is just improbable that an experienced solicitor would not know anything about an ATM" [AT 56]. This submission was not greeted by the Court with much enthusiasm. As a matter of common experience, there were many people in 1985 who did not and had never used an ATM and the respondent was a person who used staff attend to his day to day affairs. We see no error in his Honour's finding on this matter, which is one classically protected by the Abalos principle.
312 Complaint was also made that his Honour made a wrong factual finding in relation to D20's evidence relating to the ATM which had the effect of elevating it to a point which it did not reach. The consequence, it was submitted, was that his Honour's rejection of the evidence was made on a wrong substratum of fact. The appellant submitted that his Honour described D20 as having asserted he "had seen the respondent using the ATM". That was not his Honour's finding. His Honour observed at J 2877 that in his evidence-in-chief "D20 said [the respondent] went to an automatic teller machine". That was the effect of D20's evidence-in-chief. Accordingly, the point is not made out.
313 The appellant further submitted, and this was the substantial point made in respect of this evidence, that his Honour treated the respondent's evidence in respect of the use of the ATM "as determinative against D20" [AT 55(15)]. The relevant passage appears at J 2889 which is set out above.
314 We accept from this passage that his Honour did place reliance upon "the unacceptable testimony about the" ATM. On one reading of J 2889 is that the finding in relation to the ATM was one of only three factors upon which his Honour relied in rejecting D20's allegation. But regardless of whether it was only one of three factors, it was obviously an important consideration in his Honour's assessment. It was not "determinative", but his Honour did not say that it was. It took its place as one of several considerations. The potential problem with his Honour's reliance on it, however, is that if the appellant succeeds in establishing appellable error in relation to the manner in which his Honour dealt with D20's detailed, supported and accurate evidence, then this wrong evidence may have assumed an importance it might otherwise not have had.
315 However, we consider on balance that it would be wrong to place too much emphasis on this paragraph in his Honour's reasons. It is very much a summary paragraph providing a general description of what went before.
Finding That D20 Was a Liar and a Fabricator
316 His Honour stated in relation to D20 at J 2891:
"... at the time of giving his evidence, upon reviewing it and considering it, I am confirmed in the view initially formed that this witness was `too good to be true'. I formed a view at the time, and I still hold it, that D20 was a liar and a fabricator."
317 The appellant contended that such a finding sits uncomfortably and inconsistently with the trial judge's reason for rejecting D20 as a credible witness because his evidence was "vague". Such inconsistency of approach, it is said, makes his Honour's finding on credit insupportable.
318 We do not see that there is an inconsistency. What his Honour plainly meant was that when D20's evidence is first considered it contains detail which gives it an air of credibility. When analysed more closely, his Honour considered it contained errors, falsities (as found by his Honour), generalities and vagueness (as discussed above). In other words, on his Honour's finding it was "too good to be true", by which we understand his Honour to mean that given that D20 was giving evidence of a single encounter many years previously, his recall of various matters was such as to be unbelievable. That is not an erroneous approach of itself. If there is a problem with his Honour's approach it relates to his evaluation of the evidence as a whole as we have already discussed.
Lack of Reasons
319 It was further submitted that his Honour's judgment did not fulfil the requirements stated in Green Leisure Group Pty Ltd v Maguire [2001] NSWCA 384 per Giles JA (Hodgson JA and Ipp AJA agreeing) at 31-33 [AS 155]:
"The trial judge's advantage makes it all the more important that the reasons explain the outcome. If credibility is important to the outcome, then although in the end express or implied acceptance of credibility may not bear elaboration it should at least be made apparent that the acceptance is after due consideration of the other facts and circumstances in the case."
320 It was submitted that his Honour did not give reasons for his finding that D20 was a liar and a fabricator which left unanswered the obvious question as to how D20 could give the evidence he did [AS 156].
321 It was said that such a finding in the absence of reasons to support it was an error.
322 His Honour's finding that D20 was a liar and a fabricator was a conclusion which followed a detailed analysis of the evidence. His Honour as an initial step, found that he could not accept his evidence on the balance of probabilities. Such a finding can carry a number of connotations. It may be that a witness was mistaken about particular matters, but had an honest belief in their truth. It might also mean that a witness' memory is faulty, but again the witness might have given evidence honestly according to that person's recollection at the time. It might also mean that a witness was lying. In this case, once the trial judge rejected D20's evidence, the essence of which was that a single sexual encounter occurred between D20 and the respondent in late 1985, it followed that D20 must have lied about it. No case of possible mistaken identity was made out. Nor could such a case be advanced - otherwise there would have been no case based on D20's evidence. His Honour said that he reached his conclusion that D20 was a liar and a fabricator after considering the evidence and that was the impact his evidence and demeanour had on him. We consider that this was sufficient explanation of his reasoning process and accordingly, we see no error based on a lack of reasons ground.
323 The appellant further relied upon the statement of Deane J in Smith v New South Wales Bar Association (No 2) at 271:
"Unless it be truly necessary for the purpose of disposing of the particular case, however, a specific finding that a party or witness has deliberately given false evidence should ordinarily not be made."
It contended that that principle must have increased importance where the trial judge makes a finding that evidence was given falsely but gives no reason for that finding. We have rejected the latter part of this submission. But in any event, we do not consider his Honour offended the principle in Smith. That principle, stated in full, is:
"There are many circumstances in which a trial judge ... is required to consider whether a party or a witness has been deliberately untruthful in the course of giving evidence before it. An obvious example of such a case is where there is a direct conflict of evidence and it is apparent that there is no real possibility of honest mistake. Unless it be truly necessary for the purpose of disposing of the particular case, however, a specific finding that a party or witness has deliberately given false evidence should ordinarily not be made." (emphasis added)
324 As we have said, this is a case where there was a direct conflict of evidence between D20 who asserted there was a sexual encounter and the respondent who denied there had been a sexual encounter. It was not inappropriate, therefore, for his Honour to make the finding he did, provided of course that his Honour's overall findings are supportable.
Informer
325 It was submitted that his Honour further erred in that he approached his task by regarding D20 as having the attributes of an informer [AS 166; J 2888].
326 D20 admitted he was an informer to the police, the Crime Commission and to gaol authorities. He admitted that as a prisoner he expected to obtain an advantage to himself by informing on others [T 4929]. He had also given information to Inspector Woodhouse of the Child Protection Enforcement Agency about the respondent and sought a benefit in doing so.
327 The respondent submitted at trial that D20's evidence should therefore be treated with caution as being the evidence of an informer: see Pollitt v R [1992] HCA 35; (1992) 174 CLR 558 at 614; R v Clough (1992) 28 NSWLR 396 at 405; Evidence Act s 165 [J 2833].
328 His Honour held that D20 was not an informer in the Pollitt or Clough sense. Those were cases involving prisoners who, as witnesses in a criminal trial, gave evidence of admissions by the accused. His Honour held, however, that "attributes of an informer" were available in considering D20's evidence [J 2834]. His Honour then said, the appellant says inconsistently, that in light of "D20's status as an informer his evidence should be treated with added caution" [J 2832].
329 The appellant contended that there was no basis in the evidence to find D20 had qualities "akin to an informer" [AS 167] and further that the matters of explanation and principle in Pollitt and Clough have no application to D20.
330 In Clough, McHugh J, when explaining why an informer's evidence was to be treated with caution, referred to some of the attributes of an informer. These attributes include that such a witness is likely to be of bad character, that evidence given by an informer is likely to be concocted and that there is a motive to concoct evidence - namely the hope of some benefit conferred by the authorities. The effect of evidence having the "attributes of an informer" is that it is likely to be tainted and is potentially unreliable.
331 At least some of those attributes could be said to apply to D20. In particular, he was a person of bad character and there was no way the respondent could meet D20's allegation except by his own denial. The other attributes referred to be McHugh J also applied by analogy. The possibility of benefit is perhaps the most obvious (see exhibit CD). D20 in fact received the benefit he had sought in his discussions with Inspector Woodhouse (he was moved from a segregated section in Goulburn Gaol to Berrima Gaol, although he said he did not like Berrima and would have preferred to be returned to Goulburn) [T 4930]). Accordingly, it was open on the evidence for his Honour to so characterise D20, but only for the purpose of treating his evidence with caution. See Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187, where Sheller JA said:
"There may be good reason for a judge to approach the evidence of a witness with a degree of caution, perhaps considerable caution, bearing in mind evidence about the witness's credibility and credit worthiness."
332 Sheller JA warned, however, that it was important for a trial judge in such a case not to merely assess a witness' evidence on the basis of a pre-determined formula. He said:
"Even proven liars may give truthful evidence which is inconsistent with the evidence of other apparently more credible witnesses. There is a danger that such evidence may be wrongly rejected because of the application of a pre-determined formula such as that stated in the judgment."
333 The appellant also contended that his Honour misconstrued D20's evidence in relation to his dealings with Inspector Woodhouse. The appellant submitted it was not accurate to find that D20 "dropped [the respondent's] name as an opportunistic measure". According to D20 in cross-examination, the manner in which he came to discuss the respondent with Police Superintendent Woodhouse was as follows [T 4930]:
"Q But you knew that he was looking for evidence against [the respondent]?
A Yes. Oh, no, no , no I did not. He made it known that he was from the Child Protection Enforcement Agency and that he was making inquiries to the whereabouts of that Sean of which you just mentioned, yes.
Q In connection with [the respondent]?
A No, he didn't mention [the respondent's] name at all. In fact, it was I that brought [the respondent's] name up at the end of the meeting, or visit if you want it.
Q You decided you would take the opportunity, I suggest, ... of dropping [the respondent's] name and giving him information about [the respondent]?
A Yes."
It appears that the essence of the complaint here is the use of the word "opportunistic" which can carry a pejorative overtone, as his Honour probably meant it to have. However, D20 certainly agreed he had taken the "opportunity" to drop the respondent's name and that view of his conduct was therefore open to the trial judge on the evidence.
334 Finally, there is the question whether his Honour adopted an inconsistent approach in that on the one hand he characterised D20 as having the attributes of an `informer', but in reality assessed his evidence as if he were an informer [AS 169] and thereby treated his evidence with greater caution than it deserved.
335 His Honour at J 2832 stated, "[i]n light of D20's status as an informer his evidence should be treated with added caution". In his Conclusions, his Honour said that, because "of his criminal antecedents and his otherwise being an informer", his evidence should be viewed "with much caution" [J 2887]. He then referred to him as having the "attributes of an informer" and to "his astonishing criminal antecedents" at J 2888 and concluded that "reservations undoubtedly intrude".
336 There was a basis for treating D20's evidence with caution. He had a significant criminal record for dishonesty and he had sought and received a benefit from giving information to Inspector Woodhouse. Accordingly, we do not consider that his Honour's `shift' between using the expressions "informer" and "attributes of an informer" should be viewed over-critically.
337 Associated with this complaint is a further complaint that his Honour erred in categorising D20 as "a victim/complainant" [J 4835; AS 166].
338 We do not consider that there was any error in his Honour doing so in the context he did. His Honour had used that expression so as to distinguish D20's circumstances from those discussed in Pollitt and Clough. In those cases, the witnesses were prisoners and gave evidence that an accused person confessed his guilt to them. Here D20 alleged he had had a sexual encounter with the respondent when he was 15. In that sense he was a victim.
Credibility Findings in Relation to Pseudonym Order
339 At the commencement of D20's evidence, the appellant made an application that D20 give his evidence under a pseudonym. D20 gave evidence in support of the application to the effect that, if he gave evidence in the hearing without a pseudonym, he feared for his life and he feared rape; if he sought protective custody he would lose wages and remissions; and that any publicity arising out of his evidence would be embarrassing to his family and detrimental to the health of his family.
340 The trial judge, although implicitly accepting this evidence, rejected the application. The Court of Appeal upheld an appeal: Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429, on the basis that his Honour erred in his discretion in rejecting the application. In doing so, the Court, at 456, referred to the convincing nature of D20's evidence on the application.
341 The appellant submitted that the trial judge's adverse credibility finding was thus the more remarkable because D20's evidence was accepted as truthful by the Court of Appeal in relation to the application for a pseudonym order [AS 172].
342 The respondent contended that this assertion is an over-statement and, in any event, the fact that the Court of Appeal believed the evidence given by D20 in his application for a pseudonym order on an issue other than the fact in issue is of no weight whatsoever [RS 124].
343 We see little of substance in the appellant's submission. It really amounts to a submission that, having accepted a witness in one area of his evidence, his Honour should have accepted the whole of his evidence, with the added feature that it was not his Honour who accepted the witness in one area of his evidence but another court. To state the proposition is sufficient to demonstrate the false premise upon which it is based.
Conversations with Fellow Inmates
344 It was submitted his Honour misconstrued D20's evidence and cross-examination in respect of discussions with fellow inmates in relation to the respondent and it was unclear what he meant when he said D20 had been "caught out again in relation to informing" in his cross-examination. It seems the essence of this complaint is that his Honour was unfair in his assessment of D20's evidence in this regard.
345 This complaint is not made out. D20 said he had not discussed the evidence with inmates and then conceded he had discussed the matter with Lilburn and Muntz-Summons. Whilst his Honour may have overstated the effect of the evidence set out in J 2682, D20 did not agree that he had asked a fellow prisoner "what sort of information [one] would have to give, to be let out of gaol" [J2682], but did agree he had been given a book on prison informers. He had not asserted otherwise.
Identification Evidence Relating to D20
346 His Honour considered that D20's identification of the respondent was "weak to say the least". He also considered that identification in D20's case was a "critical issue" [J 2881]. Earlier, having observed that at no time did D20 give a physical description to the court, he said:
"... as to 22 March 200 when D20 was recounting [the incident and what he remembered] to the Court, the value to be attached to his `in-court identification' is virtually zero."
347 We refer to our earlier observations about in-court identification in this case. However, there is a more significant point made on the appellant's case in relation to D20 and that is that his Honour, in weighing up the identification evidence, did not weigh in the balance D20's evidence as to the house. It was unlikely, on the appellant's submission that D20 could be correct in his detail as to the house but "have the wrong person". But we see no reason to conclude that his Honour failed to pay regard to that evidence in the overall assessment of whether he was persuaded D20 was to be believed in his evidence of a sexual encounter with the respondent.
Inconsistent Treatment of Credibility of Witness
348 The appellant submitted that the trial judge was excessively critical of D20's evidence especially in contrast to "the more forgiving approach to the frailties of the respondent's witnesses" [AS 199]. The following examples are used.
349 Avzarradel worked at Costello's behind the bar and in the sauna for approximately eighteen months between August 1978 and February 1980 [J 569]. The appellant submitted [AS 200] his evidence had virtually no probative value as he had no clear recollection of the dates he worked at Costello's, no idea of the appearance of the respondent, what he looked like in the 1970s and no recollection of seeing the Murphy brothers at Costello's, even though there was undisputed evidence that they worked there. He could not correctly remember Elomari's first name (Elomari having worked at Costello's), and in any event, did not work at Costello's during the period when the justification witnesses said they saw the respondent involved in sexual activity there, that is, in the period between 1976 and 1978.
350 Notwithstanding these matters, his Honour found Avzarradel's evidence to be credible, adding [J 571]:
"This witness' evidence, even allowing for this fact, I find, was credible; any frailty of recollection not, detracting from its weight, in a common sense way."
351 This finding was in contrast to his Honour's treatment of any lapse or inaccuracy in D20's evidence to which we have already referred in some detail.
352 It was submitted that his Honour was similarly forgiving in respect of the evidence of Shinkwin. Shinkwin was called to give evidence to corroborate the respondent's evidence that he did not attend Costello's during the 1970s when Homes, Russell and Leary gave evidence they saw him there. Shinkwin said he was able to give this evidence because he had been there, he would have recognised him - the respondent having a high profile in the gay media at the time.
353 That was not the case. His Honour held, however, that Shinkwin's evidence was not [AS 122]:
"fatally infected by his being erroneous in considering that he knew the [respondent] by reason of what turns out to be non-existent publicity in the 1970s. He has got to know the [respondent] since. Even if he is mistaken as to the original basis for the identification, his position subsequent to the institution of these proceedings is such that he did know the [respondent] and was able to give evidence negativing the [respondent's] presence at Costello's in a way that I found credible for a witness of his age and aspect."
354 He had introduced this finding with the comment "he was a very interesting witness in terms of demeanour, the way he conducted himself and indeed his testimony". Although it is not entirely clear what his Honour meant by this, he found him "credible for a witness of his age and aspect". Shinkwin was 53 when he gave his evidence; it is also not entirely clear what his Honour meant by this.
355 How then is this approach to Shinkwin's credit to be compared to the approach taken in respect of, for example, D20? The appellant submitted that it was relevant to bear in mind that Shinkwin was both a customer and an employee at Costello's, which to his knowledge was unlicensed, and more significantly, where underage boys were used for sexual encounters with adult homosexual males and where he knew of, and it would seem actively participated in, corrupt police practices. None of this was referred to in his Honour's reasons. By contrast, D20's criminal record was a basis for treating his evidence "with added caution" and eventually formed a basis for an adverse credit finding against him.
356 It was also apparent that Shinkwin was also unsure of dates - particularly as to the period he was overseas in the mid 1970s. Shinkwin gave this date variously as 1974, 1975 and 1976. There was at one stage enormous confusion in his evidence as to whether he had been overseas for about 11 days from 24 December 1975 to 9 January 1975 - a confusion engendered by the respondent's counsel showing Shinkwin a Department of Immigration document which Shinkwin read incorrectly and counsel failed to rectify the error, a situation redolent of the error D20 made about going to Cairns.
357 However, during the course of Shinkwin's re-examination this occurred [T 7736]:
"HIS HONOUR: Why the objection? This is where I think I might have to cut in and say something. It is clear on the totality of Mr Shinkwin's evidence, that he was abroad for a period of up to 11 months, and it was in 1976. He is prepared to concede that. I don't know what the issue is. If it is seriously going to be suggested that he can't be believed because he made a mistake about a ten day trip, that is, I think, a fair assessment of the totality of this. If you want to dispute it, now is your chance, Mr Stitt. To end, in my view, what is a disproportionate amount of time spent on a document."
358 Although the confusion about whether Shinkin was overseas for eleven days in 1975/76 was of little moment of itself, Shinkwin's lack of a reliable memory as to dates twenty to thirty years previously was not a matter of comment by his Honour. Perhaps one could retort rhetorically "and understandably so". His Honour had taken a like approach to Avzarradel. However, the point the appellant seeks to make is that the same approach was not taken to the appellant's witnesses. His Honour's treatment of D20's evidence as to having gone to Queensland in 1985 is an example. His Honour said [J 2805; 2863]:
"`Late 1985' is as specific as D20's evidence ever got. Mr Stitt did not ask D20 to explain whether this meant the whole of the second half of 1985 or was confined only to the last days of December 1985. What is clear, however, is that D20's evidence about the timing of the incident and his move to Cairns was contradictory (having said he moved to Cairns in mid 1985) and inconsistent with statement that he had previously made to the police.
...
This preoccupation on the part of the [appellant] is the more explicable when its own witness could do no better than `late 1985' on the one hand and on the other, in chief, contradict subsequent evidence in chief namely, that he went to Queensland to obtain work in the fishing industry."
359 The assessment of the credit of a witness is peculiarly within the province of the trial judge. However, this principle cannot overcome the basic requirement that a trial judge is to approach the evidence fairly and without a predisposition towards one side or another. There is a sense in his Honour's judgment, revealed in the matters discussed above, that his Honour may have taken a harsher view of any lapse or mistakes in the evidence of the appellant's witnesses. If that impression is correct, then unless his Honour's approach is explicable in some way - for example, because of the nature of the evidence a particular witness was giving - then that would be some basis for the appellant's point that his Honour's fact finding approach was flawed. We shall return to this point as part of our Conclusions.
Failure to Weigh the Respondent's Credit
360 The appellant also complained that although the trial judge did not accept certain of the respondent's evidence on several matters which were relevant to D20's testimony, his Honour did not take these matters into account in deciding whether to accept D20's testimony or to reject the respondent's denials [AS 206].
361 Examples of the respondent's inaccurate evidence in relation to D20 include: the respondent's evidence about the presence of police outside the house 24 hours a day and his evidence that in late 1985 his house "was a total wreck ... [t]here were tarpaulins everywhere" and they were not removed until the last week before Christmas [AS 60].
362 We agree that an assessment of the respondent's credit was relevant to an overall determination of the question whether this incident occurred. However, as we read his Honour's reasons, he did take into account these aspects of the respondent's evidence which were found not to be accurate. It is correct to say that his Honour did not make a specific demeanour finding in respect of the appellant. However, for reasons discussed later in this judgment we do not consider that it was incumbent upon his Honour to do so.
Conclusions re D20
363 We have identified a number of areas in his Honour's findings in respect of D20's evidence which raise the question whether, giving full weight to the Abalos principle, his Honour erred in his assessment of that evidence and we deal with our final deliberation on this as part of our Conclusions.
D18
364 D18 was called as a witness in the appellant's justification case to prove the substantial truth of Today Tonight imputation 1(a).
365 D18 alleged he had a sexual encounter with the respondent about 6 months before his eighteenth birthday at the Regent Hotel, having been picked up by the respondent in his Mercedes at the Wall. D18 turned eighteen on 30 August 1990 [T 6121]. He said the `pick up' was the result of his having solicited the respondent. In a statement made to Detective Sergeant Panich of the Child Protection Agency on 14 September 1998 [Blue 1032] D18 said the incident occurred in February 1990. In order for D18's evidence to be proof of the imputation, it was necessary for the trial judge to find not only that the incident occurred but that the respondent knew D18 was under age at that time [J 1617].
366 The respondent denied having ever met D18 [T 6117].
367 The trial judge held that there was no evidence capable of proving that the respondent knew that D18 was under eighteen and no basis from which an inference to that effect could be drawn [J 1575-6; J 1535]. His Honour also held that he was not satisfied "on the balance of probabilities that what D18 asserted was in fact the case" [J 1640].
368 The appellant challenged his Honour's findings. It submitted that he applied the wrong test of `knowledge' for the purposes of determining whether, if such an incident did occur, the respondent `knew' D18 was under 18 years of age, erroneously dealt with credit issues, failed to properly deal with evidence relating to admissions by conduct and failed to give proper weight to D18's identification evidence.
369 The respondent submitted that if his Honour was correct in relation to the question that it had not been proved he had `knowledge' that D18 was underage on the assumption the incident did occur, the other grounds of appeal in relation to D18 are irrelevant. It is thus convenient to first deal with the issue of the respondent's knowledge of D18's age.
Knowledge
370 The appellant submitted the appropriate basis for determining knowledge was by application of the `Equiticorp test'. Had that test been applied it was submitted his Honour would have found that the respondent knew D18 was underage in the sense that he had wilfully and recklessly failed to make enquiries as to D18's age when the circumstances were such that he should have been put on enquiry as to D18's age.
371 In Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 at 103, Kirby P adopted the five tier test of knowledge enunciated by Peter Gibson J in Baden v Societe Generale pour Favoriser le Developpement du Commerce et de L'Industrie en France SA (1983) [1992] 4 All ER 161 for the purposes of fixing a third party with sufficient knowledge of a breach of trust by others to render the third party liable for the breach. Under the Baden test, anyone of the following was sufficient for that purpose [J 141]:
"(1) actual knowledge;
(2) wilfully shutting one's eyes to the obvious;
(3) wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make;
(4) knowledge of the circumstances which would indicate the facts to an honest and reasonable man; and
(5) knowledge of the circumstances which would put an honest and reasonable man on inquiry."
372 Levine J did not embrace the five part dissection of knowledge in Baden. In particular, he expressly rejected points three, four and five as having any application to the determination of the question whether the respondent knew D18 was under 18. His Honour considered that the appropriate test to apply was "the sensible and straightforward common law approach to `knowledge' as a matter to be proved, on the balance of probabilities, as a component of a cause of action in a defamation action constituted by an imputation of grave misconduct" [J 147]. On that basis he considered that wilful blindness could amount to knowledge "if the evidentiary foundation for coming to [that] conclusion ... [was] laid" [J 152]. In other words, his Honour considered that "actual knowledge ... could be established as a matter of inference from the [surrounding] circumstances": see Pereira at 3.
373 His Honour also considered that where, in a civil case, knowledge was to be inferred from the surrounding circumstances, it had to be the more probable inference available, in contrast to being the only rational inference as was required in a criminal case: see Pereira at 3.
374 It should be said at the outset that the Baden analysis of knowledge no longer survives in England or Australia as the determinative test of what constitutes knowledge for the purposes of accessorial liability in a breach of trust case. Rather, the generally adopted test is one of dishonesty. Thus, in Royal Brunei Airlines Sdn Bhd v Tan Mok Ming [1995] UKPC 4; [1995] 2 AC 378 Lord Nicholls found that dishonesty, or not acting as an honest person would in the circumstances, was a necessary and sufficient element to prove accessory liability in respect of a breach of trust and rejected the Baden "scale of knowledge", saying it was "best forgotten". Dishonesty was defined in an objective sense. This is now the accepted approach in England: see Twinsectra Ltd v Yardley [2002] UKHL 12; [2002] 2 AC 164; and in Australia: see Linton v Telnet Pty Ltd [1999] NSWCA 33; (1999) 30 ACSR 465; Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1, where the Court also observed there was a distinction between a "prudent person" and a "dishonest person". The Baden `tiers of knowledge' are, however, sometimes resorted to as a "useful guide": see Idoport Pty Ltd v National Australia Bank Limited [2001] NSWSC 328 where Einstein J at 101 considered the first four Baden elements to be useful indicators of when such dishonesty can be found.
375 In our opinion, there is not a great deal of attraction in seeking to adopt concepts of knowledge from the areas of breach of trust and breach of fiduciary duty to a situation such as this. Those areas involve special relationships and duties. The principles which govern those relationships and duties and, in particular, whether there has been breach of duty, are very much defined by the nature of the special relationships and duties. Here the question does not, or at least does not necessarily, involve a determination as to whether a person has been objectively dishonest about a particular matter. The question is: "did" the respondent "know" something - namely that he was having sex with a person he knew to be under the age of 18 years? In our opinion, subject to one matter to which we refer below, his Honour was correct to apply the test in Pereira. We do not consider that test is too restrictive, nor do we consider it involves an application of a criminal standard, as was suggested by the appellant. Rather, it involves a well accepted judicial method of inferential fact finding from proved facts. His Honour made the necessary `adjustment' to accommodate the different standards of proof required in a civil trial.
376 That raises the question, however, as to what is required or necessary or sufficient for an inference of knowledge to be drawn where actual knowledge cannot be proved. Here, clearly, the appellant did not establish that the respondent had actual knowledge of D18's age.
377 In Pereira, in dealing with knowledge proved by inference from surrounding circumstances, the Court said at 3:
"... a combination of suspicious circumstances and failure to make enquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter."
The Court further commented that lawyers frequently described this concept by the shorthand phrase "wilful blindness".
378 Levine J, in finding that the test of knowledge to be applied in this case was that stated in Pereira, also used the shorthand phrase "wilful blindness". We draw attention to this because, on the High Court's explanation of the test, it includes "failure to make enquiries" in circumstances of suspicion. To this extent, it includes the third of the Baden categories, "wilful blindness" being a distinct category encapsulated by the second category. His Honour however rejected the third category as being a relevant test of knowledge. The question arises therefore, whether his Honour, in applying the Pereira test erred in doing so because he failed to understand what may constitute "knowledge" under that test.
379 His Honour held, leaving aside the admissions by conduct component of the appellant's case, that there was no evidence of the fact that the appellant knew or was told of the age of the complainant. He said:
"no evidence, for example, was led as to this witnesses' appearance as pointing to age." [J 1618]
380 The appellant contended, however, that there were circumstances which should have put the respondent on enquiry. The submission was made in the context that the Baden test applied and it would seem was based on the premise that the circumstances were such that either the third or fourth of the Baden categories applied. As we have rejected Baden it is necessary to consider the circumstances on the basis of the principles we have just discussed.
381 The particular matters upon which the appellant relied and which, on the Pereira test, would have either singly or in combination amounted to "suspicious circumstances" were that D18 solicited the respondent at the Wall, a known homosexual beat and one which the respondent frequented and knew was a `pick up' place for underage boys; that D18 directly solicited the respondent on the basis of being a `boy', "I said, `Do you want a boy?' He said, `Yes'" [T 6089.26]; it was said D18's description of himself as a `boy' should have rung an alarm bell; and that D18 was dressed in casual, youthful attire consistent with being a `boy' [AS 289].
382 It was submitted that this combination of factors, in conjunction with the respondent's attempts to have D18 reconsider the statement he made to police, leads to the conclusion that more probably than not, at all relevant times, the respondent knew D18 was underage.
383 Solicitation at the Wall. The inference sought to be drawn from the fact the respondent was said to have solicited D18 at the Wall was that the Wall was a place where child prostitutes worked. This submission has two aspects: first, as it related directly to D18 and secondly, generally in relation to evidence about the Wall. As to the first, D18 admitted in cross-examination that he had been charged with soliciting at the Wall in January 1991 [T 6123]. He was about 18 years and 4 months at the time of that offence. The trial judge also found that D18 said he worked at the Wall when he was 20 [J 1577]. This finding was based on evidence that D18 was charged and convicted of a further solicitation offence in April 1993. However, contrary to the implication in his Honour's finding, there is no evidence that this occurred at the Wall [T 6123] and accordingly, this finding probably cannot stand. There was also evidence from the respondent and others that the age of prostitutes at the Wall ranged over 18 [J 1577]. Those were all relevant circumstances to take into account. However, `knowledge' for the purposes of the Pereira test requires that there be circumstances which are suspicious. A pick up from the Wall, where boys of a range of ages worked is not, in our view, at least of itself, "suspicious".
384 The respondent was asked did he want a `boy'. Taken on its own, a solicitation in these terms might be considered to be a suspicious circumstance. However, the evidence had to be considered in conjunction with D18's evidence in cross-examination that he solicited at the Wall when he was 18 years and 4 months, and with the fact that there was no evidence elucidating what was meant by the expression `boy' (for example, was it an expression known to be used by prostitutes under the age of 18). However, the expression itself could be regarded as raising a circumstance of suspicion and was a matter for consideration by the trial judge.
385 D18's attire. D18 said he was wearing a pair of football shorts and thin long sleeved white Fila top with a hood [T 6088]. He wore this outfit "all the time, day in day out". Such attire is consistent with his being under 18 but of itself, would not be sufficient to cause "an alarm bell to ring" or, for the respondent to be wilfully blind to D18's age.
386 Although two of these matters relied upon, taken singly, might be considered to be neutral circumstances, the circumstances also had to be assessed in combination.
387 His Honour was not satisfied that the circumstances were suspicious. He concluded that the evidence advanced in support of the inference that the respondent knew D18 was underage "was tenuous" and thus rejected the allegation. There were other factors which reinforced his Honour in his conclusion on knowledge. For example, D18 was not examined as to his appearance in early 1990, in contrast to the approach taken by the appellant with some other witnesses [J 1578]. In reaching this conclusion his Honour said [J 1579]:
"The Court would be most reluctant to find an essential element of the imputation - knowledge - proven by any method other than direct evidence."
Taken in isolation, the last portion of this conclusion is problematical, for the very reason that knowledge may be proved inferentially as well as directly. However, because his Honour expressed the view that he considered the inference "tenuous", we consider he was doing no more than saying that the evidence was not sufficient for him to draw the inference which may be drawn given the Pereira combination of suspicious circumstances and failure to enquire. That this was his approach is clarified by J 1575 where he said:
"There is no evidence capable of proving knowledge that D18 was under 18 and no basis from which any inference could be drawn."
388 In our opinion, his Honour's finding was open to him and broad enough to encompass the `third Baden category', so far as it is within the concept of `wilful blindness' in Pereira. To put this another way, even had his Honour not rejected the third Baden category as being within that concept, there is no basis for this Court to accept that he would have reached any other conclusion. On his findings, the only conclusion he could have reached was that he was not satisfied that, on the assumption the incident occurred, the respondent had `knowledge' that D18 was under 18. Accordingly, we do not consider that his Honour's statement of what was involved in the Pereira test of knowledge has any consequences for the appeal.
389 The respondent submitted that his Honour's finding in respect of knowledge, which it supported as correct, meant that any other error in this part of his Honour's judgment (and the respondent did not accept of course that there was such error) was irrelevant.
390 This must be correct. It was an essential part of the appellant's justification case that it prove that the respondent had `knowledge'. We consider that his Honour's finding was open to him on a proper application of the Pereira test. However, as considerable time and energy was devoted to the other grounds of appeal it is appropriate to consider them in full.
D18's Evidence
391 D18's evidence was that the incident took place at the Regent Hotel in February [T 6121]. His Honour found that there was no evidence that the guest records for the Hotel for the period January-February 1990 [Exh EO] record the respondent as being a guest there during that time [J 1619]. The appellant challenges this finding on the basis that the records for 17 February and 28 February could not be read from the microfilm.
392 D18 gave evidence that they travelled from the Wall to the Regent Hotel in a Mercedes motor vehicle with a black exterior and a brown leather interior, matters about which he had "no doubt" [T 6125]. However, the evidence tendered by the respondent as to his cars, and which was not challenged, revealed that the respondent's car at that time was beige. The respondent said it had a grey fluffy wool interior. His Honour made a finding to that effect [J 1547; Exh EM]. In oral submissions the appellant said it challenged this finding [J 1621] on the basis that the respondent had admitted to the police he had a dark coloured Mercedes in 1990. This is correct. However, on the unchallenged evidence the dark coloured car was acquired in March 1990. There is nothing, therefore, in this specific challenge.
393 In his statement to police [Exh 207] D18 gave evidence that the hotel room they used in the Regent had a ceiling to floor window. He was taken on a tour of the hotel by Detective Sergeant Panich and a member of the hotel staff, but no room could be located which had that type of window [T 6128].
394 Other evidence weighed against an acceptance of D18's evidence. He said the respondent's penis was "uncut". This was incorrect. His Honour found this error to be significant. He was entitled to so treat it. The respondent said he did not have a mobile phone in 1990 as was asserted by D18. This evidence was corroborated by his personal staff and his Law Society staff. There was evidence that the respondent had a car phone. However, his Honour found that the respondent did not have a small hand-held or mobile phone as alleged by D18. This finding was open on the evidence.
395 The appellant also contended that the respondent's own records identified that he was at the Regent on 10 January 1990. This came from an entry in his diary for 10 January 1990 "Seminar: A Whole New Ball Game 8.45am Regent Hotel Sydney" [Exh FD]. The appellant also relied upon a supposed admission by the respondent to the police that the only time he had `stayed' at the Regent in 1990 was on 10 January. The respondent said he did not attend the seminar referred to in his diary. His statement to police was made at any early time by direct reference to his diary before, it would appear, he had time to check whether he had in fact attended. In any event, other records reveal that in the afternoon of 10 January the respondent was at Leppington at 2.30pm and that he met Mr O'Keefe QC that evening [J 1558; Exh FD].
396 However, D18 never asserted the incident took place in January 1990 and especially early January. His evidence was that for the first half of January 1990 he was staying with his mother.
397 Accordingly, significant parts of D18's evidence were inconsistent with the objective evidence in the case.
398 However, the appellant also relied in proof of its case upon the fact that the respondent made inconsistent statements about whether he knew D18, as well as upon an `admission by conduct' in having D18 approached by two persons, Rainey and Bailey, to change his statement. It is necessary to consider, therefore, whether these matters impact at all on his Honour's rejection of this aspect of the appellant's case.
Rainey and Bailey
399 Keith Rainey was a former client of the respondent, who owned and operated a brothel in Rush Street Woollahra. D18 had worked in the brothel [J 1410; 1473]. Rainey gave evidence that in about April or May 1999 he was told by his solicitor that the respondent wanted to speak to him. He telephoned the respondent, who asked him if he knew the whereabouts of D18 [T 6334]. Rainey agreed in a number of subsequent conversations with the respondent that he would attempt to locate D18. He enlisted the help of a friend, Mark Bailey, to do so. Rainey said that during this period the respondent was phoning him on a daily and sometimes twice daily basis, both at his home and place of work [T 6335], seeking to ascertain whether he had been able to locate D18 [T 6336]. It appears that after some little time and fortuitously, Rainey obtained D18's telephone number and rang him. He said when he informed the respondent of this, he also asked him why he wanted to contact D18. He said that the respondent replied "D18 had made a certain statement about him which [the respondent] believed to be untrue as to dates contained within that statement" [T 6336].
400 His Honour dealt somewhat acerbically with this part of Rainey's evidence. Having accepted the respondent's submission that Rainey's "coy enquiries", "John what is all this about" was implausible, he said [J 1632]:
"Mr Rainey's dealings with Mr Panich, unless Mr Rainey was totally devoid of memory at all, would have laid a substantial foundation to obviate the necessity for the inquiry he said of [the respondent] `John, what is this all about?'."
401 This was a credit based finding open to his Honour on the whole of the evidence.
402 Rainey said the respondent asked him to approach D18 "as to the dates in question which [the respondent] believed were incorrect". Rainey agreed to do so. He made arrangements to meet D18 at the Madison Hotel in Surry Hills. Before that meeting he met the respondent in a coffee shop in Ultimo where the respondent gave Rainey a copy of D18's statement to the police [T 6337]. Rainey said that the respondent reiterated that the dates in the statement were wrong and he believed that D18 may have been influenced by the police. He said that the respondent asked him to contact D18 and to put it to D18 that he was mistaken as to the dates and venue [T 6338].
403 Rainey gave evidence that when he suggested to D18 at the meeting at the Madison Hotel that the dates were wrong D18 said "they may have been but if I go back on my statement, I want $25,000 to buy a unit". Rainey said that he responded that he had "no brief whatsoever from [the respondent] to offer [D18] any money at all".
404 Rainey said that he telephoned the respondent later that day and informed him that D18 required $25,000 to put a deposit on a unit. He said the respondent said "I can't offer any money at all while this case is pending, I would be struck off". Rainey said that the respondent urged him to meet with D18 again and try to persuade him that the dates were wrong and although he was financially, professionally and ethically unable to make any settlement "he would deal with such matters ... when he won the case". [T 6339]. When Rainey was pressed as to the actual words used, he said that the respondent said "I can't pay D18 anything now but when the case is won I will look after him".
405 Rainey said that he had frequent telephone calls from the respondent before the second meeting. He said that in each of those phone calls there was a discussion about money and the respondent reiterated that at that stage he could do nothing for D18 financially but he would later when the case was won [T 6343].
406 Rainey arranged to meet D18 at a hotel at Parramatta, Lucky Lil's, on 1 July 1999. Prior to that meeting, the respondent delivered a document to Rainey dated 9 July 1999 in which he said:
"Keith I don't know [D18]
I also have to advise that: -
1. I did not stay in the Regent Hotel in 1990.
2. My own personal diaries show that. I stayed at the Sebel Town House.
3. The Law Society diaries show that.
4. The Regent's own records show that.
Therefore, he has to be wrong in that regard. I have no recollection of the person, but I don't deny that I could have met him, but certainly not in 1990.
The reason for that being is that during 1990 I was involved in a permanent relationship and there would have been no way that I would meet in a one off situation.
In addition to that, the February period that he talks about is a period when I was away for a short time.
Therefore, I think if he still says he knows me he has got the dates wrong. It is not unusual, there have been four or five people who have got the dates wrong and have admitted they have and just corrected it."
407 We pause to note that the respondent's assertion that he "was involved in a permanent relationship and there would have been no way that I would meet in a one off situation" is contrary to his sworn evidence to which we refer below.
408 The memorandum continued to the effect that the respondent would call adverse evidence about D18 and that he would also call evidence that throughout the whole of 1990 the respondent was never seen at the Wall. The memorandum concluded [Blue 1057-8]:
"In other words there is going to be a hell of a lot of drama ... I will not be giving up easily.
I will be fighting to the death. It is quite clear that I can't and I will not under any circumstances offer him any money. That would be perverting the course of justice and I wouldn't do it.
In fact, there will be no money either way, because if I am not successful I will be an undischarged bankrupt."
409 Rainey said that having read the document he said to the respondent that he understood the respondent's position to be covered by what was said in the memorandum. He said that the respondent replied "that he could not offer any money at this stage ... but that at a future time when the case was over he would look after D18".
410 Rainey also said that the reference in the memorandum to not knowing D18 was new and was not something that the respondent had raised with him before. Rather, the respondent had only previously said that D18 was mistaken about his dates [T 6344-5].
411 Rainey said that when he met D18 at Lucky Lil's on 15 August 1999, he told him that if D18 believed he was mistaken, the respondent would certainly look after him and arrange for a sum of money to be paid to him, "but only when the case was over" [T 6346]. This meeting was recorded as a result of D18 using a listening device authorised under the Listening Devices Act. The relevant portions are as follows [Blue 836]:
"[Rainey]: Yeah, I mean er John's got himself into this situation by whatever means, ... I don't enquire into the rights or wrongs of John's conduct. I mean I know that on at least one occasion I worked with someone under age by accident. I'm not saying he did or didn't but I said I don't believe anyone should be put through the shit he's been put through ... And none of us want to get dragged through the mire. I don't want my name and picture in the paper and I'm sure you don't want yours.
[D18]: No, of course, of course not. I already said that to you.
[Rainey]: ... If John wins this case against Seven it's mega, and then we'll all benefit. Believe me.
...
[Rainey]: ... do you think there's a possibility you could've got the dates wrong?
[D18]: No. No ... But like naturally he, he wants me to sign somethin' like, what, a retraction or whatever it is but then I'm gonna be called as a witness anyway.
...
[Rainey]: ... let me put this to you. Marsden has been through the Hotel Regent records. They've subpoenaed the records and it shows he didn't go there till about two and a half years after you claim he did.
...
[D18]: But if that's true why does he need me to retract then?
...
[Bailey]: Cause if you, if you retract, you don't get involved, if you don't retract you ...
...
[D18]: ... The coppers, they're gonna fucken give me grief, mate. That's what I don't want from `em. I've been out of trouble for a long time now and that's why I'm workin' on it mate.
...
[Bailey]: what [Rainey] and I would be prepared to do Marsden can't do but what [Rainey] and I'd be prepared to do is certainly get a good lawyer for you, all right?
...
[Rainey]: ... It's worth it to get out of it. Right? Because Marsden has, has uhmm...
...
[D18]: Well like I told you I don't trust no one man. Not when it comes to this `cause I don't know who's really lookin' out for me or how I'm getting' looked after sort of thing or what's gonna happen. You know what I mean `cause when ... basically, look I know what it comes down to mate, once I sign that thing. That's it mate, he's set. He doesn't have to look after me at all mate. He doesn't have to give me anything. He's set. Once he's got that signature mate, bang.
[Rainey]: I am gonna charge him a fee as well.
...
[D18]: ... I know Marsden's runnin' out of money.
...
[Rainey]: ... Anyway ... what I'm saying to you is if he wins, if he wins I'll be sending him a bill for some insurance fees, OK, that's my ti.. I'm being quite honest, [Bailey's] time, my time. `Cause he wants out and I'm prepared to give it but I mean, you know, we've all got to live.
...
[D18]: But then I'm goin' on his word or your word.
[Rainey]: No, you're going on mine. Yes, you are I'm afraid.
...
... if ... which I very much doubt, if Marsden then reneges and tells me to fuck off then I'll say `OK we'll re-open the whole fucken thing for ya'.
[D18]: No, it'd be too late.
...
[D18]: They're gonna call me and they're gonna say fucken `Did you make, did you make the first Statement?'.
[Bailey]: If they do you get in the Witness Box and say `I made that Statement, yes, and my subsequent Statement says I was mistaken over dates. I have nothing more to say'. End of story.
[Rainey]: You were just mistaken about the dates.
...
... One by one all the witnesses are dropping off for whatever reason. ... Two other guys dropped off.
[Bailey]: There's quite a few of them.
[Rainey]: You know, they've just got their dates wrong. And Marsden keeps, you told us, you .. Marsden keeps very detailed diaries and on at least two of the occasions he was actually out of the country.
[Bailey]: Well, the February one ... He wasn't even in Australia.
...
[D18]: Well, how can I be crucial then? ... if that was me I wouldn't have anythin' to worry about. That's the think like. I wouldn't be going around chasin, you know, doin' all this sort of.
...
[Bailey]: Just sign an interim Statement today so we can get that to the Solicitor and he can get you in to talk about it. ...
...
[Rainey]: ... We'll keep in touch and then er when it's all washed up as I believe it will be and I have a got a feeling about it, then er then we'll see about some er recompense for all concerned. But it can't happen ...
...
but it cannot happen, but it cannot happen before. As Marsden said, and he's quite right, he'd be struck off and we, we'd all be put in the fucken jail. All three of us.
...
[D18]: ... I told [Rainey] when I was on the phone, I said `I'm dropping out and that's it. I don't want nothin' to do with it', you know.
...
[Bailey]: But hang on, you've gotta let them know you're dropping out.
...
... you gotta do ... go that next step. You've gotta say that ...
[D18]: It's better for Marsden. It's not better for me.
...
[Rainey]: Be better for you in the end.
...
And take my word, in six or eight months time I'd be a lot better for you.
...
[D18]: But I made a Statement which was true. ...
[Bailey]: Exactly, but obviously you mucked up on the dates.
...
[Rainey]: ... down the track a bit, can't make promises, but down the track a bit after the case is won then that's another matter. ...
...
[D18]: I'll just tell `em I don't wanna testify mate. If I get up there well, my memory's gone. Simple.
...
[tape 2]
[Bailey]: ... let [Rainey] make an appointment for you to go see this solicitor.
[D18]: Now what's the solicitor going, to tell me what you guys haven't told me today
...
[Bailey]: He may say to you sign the retraction, or he may say to you sign something else, right, I don't know what he's gonna do as I said he's independent. I'm not paying, Keith's not paying right.
[Rainey]: Marsden's not paying.
...
[D18]: I'll go an talk to him.
...
I just wanna get sort of looked after me self sort of thing, that's what I mean, and you know all this sort of, I I'm not out of pocket, but I'm out of pocket in time, like even this morning.
[Bailey]: [Rainey] listen to me, listen [D18], look at me, [Rainey] will look after you, he's just gotta wait till its over, if anyone seen to be looking after you now
[D18]: I know I know like you said last time he couldn't just turn up with twenty grand in a briefcase and Bang.
...
[Bailey]: ... You've gotta decide after talking to [the solicitor] what you want to do. If you have made a mistake with the dates and from what I've seen it would appear that you have made a innocent mistake with the dates.
[D18]: So if I said I was wrong it'd match up with is records anyway.
..." (emphasis added)
412 Rainey, at the respondent's request, arranged a further meeting with D18, again at Lucky Lil's Hotel. On this occasion he requested that Bailey accompany him. Prior to that meeting, the respondent told Rainey he would deliver a draft retraction for D18 to rewrite in his own handwriting, withdrawing or retracting his statement to Detective Sergeant Panich.
413 Sometime between the telephone conversation with the respondent and the meeting at Lucky Lil's, the respondent had another draft document delivered to Rainey [T 6345]. The terms of that document were as follows [Blue 1059]:
"DRAFT
Dear Mr Marsden
I have not met you over these matters but I have been talking to people and checking some facts and I have doubts in relation to the year when I went to the Regent Hotel and doubts in relation to the details. These doubts have arisen for a number of reasons including a serious accident I had.
I am advising Channel 7 and the police that because of these doubts I am not prepared to give evidence or to stand by what I have said in my statement to the police dated the 14th September 1998.
I am giving this letter to a person who knows where your office is and he will deliver it. I do not wish to meet you or discuss this matter."
It was intended that the document be given to D18, and, according to Rainey, the respondent emphasised that it was "extremely important that D18 did write it in his own hand ... and if necessary change some words to use his own vernacular" [T 6347].
414 After the second meeting, Rainey telephoned the respondent and informed him that D18 would not sign the draft retraction.
415 It appears that at some stage the respondent gave the name of a solicitor, Warren Ball to Rainey. D18 saw Ball on 25 August 1999.
416 Prior to that interview, the respondent wrote to Ball in the following terms:
"I asked you some weeks ago whether you would see a person by the name of [D18].
[D18] made allegations to the police about myself and also to Channel 7 about myself ... I am ... battling the Court case ... I am going to fight this to the end.
I enclose a statement made by [D18].
I can tell you that its not true. It is not my thing. I can promise you that and I don't remember the guy even though I have now seen him.
I have not met him or spoken to him since he made these allegations.
My solicitors have searched the records of the Regent Hotel and I didn't stay there in that period in 1990 ...
Therefore, for him to suggest it was 1990 is wrong.
I need him to sign some type of Statutory Declaration saying that he has reconsidered his situation, the allegations contained in his statement, he now realises are mistakes, he made a mistake about the dates and he got his dates wrong and it was 1992 or something like that when he was over 18 years. I don't care if he signs something like that, as long as I get something like that ... I can offer him nothing.
I did say that you wouldn't charge him for any legal advice ...
[D18] is scared that he will get into trouble if he withdraws his statement. Well, he can't get into trouble. He didn't put it into a Statutory Declaration form and in addition to that he says that he made a mistake and people are entitled to make mistakes." (emphasis added)
417 Ball gave evidence. He said the respondent rang him and asked him to see D18. His evidence was [T 6217]:
"He said, `There are people who have been making serious false allegations about myself and Justice Michael Kirby. There are about six or eight of those people and some of them want to make and are making retractions.' I said, `yes.' He said, `Dick Gulley', who he knew was a friend and respected colleague of mine, `has been assisting me and he has seen one of them.' I said, `Yes.' He said, `I am going to ask you, would you see another one of them for me? His name is D18. He has made two statements to police and he has thought about it and he wants to retract those statements. The dates in them are wrong and I know they are wrong because he alleges certain things happened at the Regent Hotel and I know I wasn't staying there at that time.'" (emphasis added)
The respondent told him he "would not be able to organise the appointment" but that "a person by the name of Keith Rainey" would do so [T 6218]. Ball said he subsequently received the draft letter referred to above [Blue 1059].
418 The interview between D18 and Ball was also recorded on a listening device. Rainey was present at the commencement of the interview. The relevant portions of this interview are [Blue 903]:
"[Rainey]: ... I've said to [Ball] that ... I felt under the circumstances that it's important that you have independent legal advice ...
...
And ... that you've said to me ... you wish to be ... `out of the whole thing'.
...
And I explained to you to the best of my understanding that having made a statement that meant ah retracting it ...
...
And ah that's what [Ball] will advise you upon. [Ball] I think has all the relevant documents. ...
...
[Ball]: ... but am I right in saying that you know have some doubts as to whether or not at the time that you say you have this encounter with Marsden, whether or not you were seventeen years old? Is that what this is all about?
...
[D18]: ... no I was seventeen. That's for sure yeah, I worked it out with dates, criminal records ...
...
[Ball]: ...well mate you're not going to sign a retraction, you're certainly not going to sign a retraction that I prepare ... unless you tell me ... that there is something in here that is not true.
...
... because it was said to me that you had had a change of mind...
[D18]: ...no that's not true...
[Ball]: ...about what you have said in here and that you are now `not sure' of dates.
[D18]...No I'm sure, no he ... came to me ... Rainey came to me straight up, offered me money for a retraction first up and...
[Ball]: ...Don't tell me about it mate...
...
...Marsden would go to gaol and so will ...
...
You know what's in those documents ... And if you say what is in there is the truth then that's that finish! ... Alright pal, end of the section. You won't be signing nothing. ... Alright pal, I'll ring John and tell him. ..."
419 In his evidence in relation to D18, the respondent denied D18's account of the sexual encounter at the Regent Hotel. The respondent said:
"None of it is true. The day I came home, went home sick, I saw the man. That is the first time I have ever seen the man, your Honour. It is just all false."
420 The reference to going home sick was a reference to the respondent going home sick during the course of D18's evidence. This evidence is inconsistent with the respondent's statement in his letter to Ball of 16 August 1999, that "I don't remember the guy even though I have now seen him" (emphasis added) [Blue 958; T 6751].
421 The respondent also denied Rainey's version of the various conversations the two had in respect of D18. In particular, he said that when they met at the coffee shop on the first occasion, he said to Rainey:
"Mate, I can tell you I was not at the Regent during that period. I have checked it out both with the Law Society, and my own diaries. I am subpoenaing their records and I wasn't there. I am not into whipping I am sure you know that. I am not into underage people, I am sure you know that, this is bullshit. Do you know whether you can contact him and see if he has got the wrong person." (emphasis added)
422 The respondent conceded that he rang Rainey a number of times thereafter but not every day. He said that in the telephone conversations he said "he has obviously got it wrong, because I wasn't at the Regent ... and you can put all that to him, he has got the wrong guy" (emphasis added) [T 6754].
423 The respondent also denied that he made any promises of money. He said on the contrary he made it quite clear that "there was nothing that could be forthcoming, nothing" [T 6756]. The respondent also asserted that he did not intend that either Rainey or Bailey should use any improper persuasion or inducement and said that that is why he required an independent solicitor to be present if D18 retracted his statement. He also said that he had no control over their conversations with D18, nor did he give them any direction about how they should deal with him [T 6772].
424 The appellant submitted that his Honour failed to take into account D18's assertions in the taped interviews that his statements to the police were true and he had not got his dates wrong when assessing D18's evidence other than in relation to the admissions by conduct case and did not address the appellant's submission on this point [AS 224, 226; J 1513-1520].
425 This part of the appellant's challenge is not easy to resolve because of the manner in which his Honour approached his judgment writing task, namely, by setting out extensively the submissions of each party which included extensive references to the evidence and then, for the most part, coming to his conclusion in a summary way in a separate section at the end. This poses a particular difficulty in relation to this submission, as we attempt to explain.
426 His Honour's conclusions in respect of D18 are contained in J 1617 to J 1640. At J 1617 he states the issue as he saw it pertained to D18. He then stated at J 1618:
"Leaving to one side for the moment, the admissions by conduct component, there is no evidence of the fact that the [respondent] knew or was told of the age of this complainant. No evidence, for example, was led as to this witness' appearance as pointing to age."
427 His Honour then proceeded [J 1619 to J 1625] in summary form to point to the inconsistencies and deficiencies in D18's evidence and in evidence called in support of this part of the justification case. At J 1623 he made an adverse demeanour finding. He concluded at J 1626:
"All these matters heretofore mentioned, would easily prevent my being satisfied that the defendant had discharged his onus of proof. That would and should be the end of the matter."
428 His Honour next dealt with the `admissions by conduct' case as it related to D18. In the course of that consideration he adopted, generally, the appellant's submissions and then said [J 1637]:
"I find that more probably than not [the respondent] did use initially the services of Mr Rainey and subsequently that of Mr Bailey to take steps to have D18 reconsider his position in light of [the respondent's] bona fide belief that no such incident as alleged by D18 took place and that he was wrong at least in relation to the dates. I am not persuaded that such inconsistency as there is between emphasis on incorrect dates on the one hand and denial of the event at all, on the other, derogates from the available view I have formed. Thereafter I can easily come to the view having seen Mr Rainey and Mr Bailey give their evidence that things got out of control as far as [the respondent] was concerned; there is no evidence that persuades me that [the respondent] offered to pay though, as the [respondent] concedes, it is uncertain as to whether the suggested deposit for a home unit was in the first instance from the mouth of D18 or from that of Mr Rainey."
429 His Honour then concluded at J 1639:
"Objectively, D18 has been found, by me to have advanced a case of [a]n event that was false. The [appellant] has been found by me, without the intrusion of the so-called case of admissions by conduct, to have failed to prove on the balance of probabilities the very matter in respect of which the conduct was said to have been embarked upon by reason of a consciousness of guilt."
430 There is no doubt that his Honour did not, in the course of his Conclusions, refer to D18's assertions in the recorded conversations that he was not mistaken as to his dates. The point may be technically correct in the sense that a party is entitled to have its case, as put, considered. However, the trial judge's `omission' has to be seen in context. This was a long trial and a long judgment. His Honour had quoted extensively from the taped conversations as part of his consideration of the appellant's submission [J 1512 - 1530]. In his Conclusions, he set out the reasons why he did not accept D18. His finding on the matters referred to in his Conclusions that he was not satisfied the incident occurred was clearly open to him. Indeed, on those matters any other conclusion would have been surprising.
431 The omission of which the appellant complained was that his Honour failed in express terms to take into account, when assessing the veracity of D18's evidence, statements he made in an interview recorded at the instance of the police. For our part, we cannot see how a specific consideration of that evidence in his Conclusions was necessary, or would have affected his Honour's adverse credit finding. Even if there was error in his Honour's omission, we do not see it was an error which had any bearing on his Honour's finding. It follows that it does not have any relevance to the appeal.
Inconsistent Approach to Evidence
432 The appellant also claimed that his Honour's reasons in respect of D18 provide another example of his Honour's inconsistent approach to the evidence of the appellant's witnesses and the evidence of the respondent. The appellant relies upon the inconsistency in the respondent's evidence disputing that the incident happened at all, compared to disputing the date, and his evidence that he had never seen D18 before D18 gave evidence, compared to the statement in his letter to Mr Ball that he had "now seen him".
433 The respondent certainly made inconsistent statements as to when he first saw D18. In his memorandum to Rainey (set out above) the respondent stated that "he could have met D18 but not in 1990". The appellant submitted that the word "met" in context included a sexual encounter. That is an available although not necessary interpretation. In the letter to Ball (set out above), the respondent said he had "now seen him". In his evidence, however, he said the first time he saw him was when D18 gave evidence [T 6751.19]. The trial judge appears to have dismissed the appellant's use of this inconsistency to attack the respondent's credit on the basis of a failure to comply with the rule in Browne v Dunn, commenting, "I could not however find any cross-examination of [the respondent] on this point" [J 1528].
434 The appellant submitted this was an error. The documents in which the inconsistent statements were made were in evidence before the respondent gave evidence. The respondent advanced the inconsistency in his evidence in chief. The appellant argued that there was no requirement in that circumstance to cross-examine on the documents - he could have dealt with them in his examination in chief and he did not - and it was open to the appellant to rely upon the inconsistency as going to a matter of credit.
435 In Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362, Gibbs J at 370 (Stephen and Murphy JJ agreeing) stated that the rule in Browne v Dunn required that if it was intended to suggest that a witness was not speaking the truth, it was incumbent upon the opposing party to cross-examine on that matter so as to provide the witness with an opportunity to explain.
436 In Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1, Hunt J said at 26:
"... unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings."
437 His Honour added:
"The consequence of ... non-compliance does not, of course, mean that I cannot accept the submission by the Commissioner that, by reason of the inferences available from the evidence as a whole, I should disbelieve the evidence led on behalf of the taxpayer. It is clear from all the cases that it does not mean that. But, as it was said by the Court of Appeal in Poricanin's case [1979] 2 NSWLR 419, at pp 426, 427, it would in many cases be wrong, unreasonable or even perverse for a tribunal of fact to reject evidence upon which there has been no relevant cross-examination. I am satisfied with the description that it would usually be unfair to do so where the rule in Browne v Dunn has not been complied with, and where the witness has not otherwise been given the opportunity to deal with the suggestion now made for the first time in the final address." (emphasis added)
438 We consider that the appellant's submission is technically correct. The inconsistent material was already in evidence before the respondent gave evidence. He could have dealt with it and chose not to. However, the error is a minor one.
439 The more apparently significant inconsistency in relation to D18 relates to whether the respondent disputed the date of any sexual encounter with D18 or whether he disputed that there had ever been such an incident. The appellant relies upon the respondent's pre-trial conduct in seeking to arrange, through Rainey and Bailey, to have D18 retract his statements to the Child Protection Agency.
440 We have already referred to that evidence in some detail. However, the focus of the appellant's argument on this point was in respect of the draft letter (set out above) [Blue 1059], the 9 July memorandum to Rainey (set out above) and the respondent's letter to Ball (set out above).
441 The respondent requested Rainey to give the draft letter to D18 to use as a guide as to what to say. The appellant submitted that the "unequivocal statement" in this document is not that the incident did not occur but that there were "doubts" in relation to the year. It was, on the appellant's submission, an unusual document for the respondent to write in circumstances where his case was that he had never met D18 and denied that any encounter had occurred. The appellant also submitted that the document was not referred to by his Honour in the judgment. That is not precisely correct as his Honour did refer to the document in his statement of the facts [J 1452] but he did not expressly deal with its contents or its relevance in his Conclusions, except in very general terms at J 1633, when he said:
"A matter of initial attraction in the [appellant's] position is what it asserts to be an apparent shift in the [respondent's] position: namely, D18 is wrong in the sense that the incident did not happen at all, to, D18 has the dates wrong. As the [respondent] makes clear [his] position is that this incident did not happen at all. It is `bullshit'. He has got the `wrong person': the last statement on my findings on the evidence has been shown to be absolutely correct."
442 The 9 July memorandum is not as straightforward for the appellant, as it commences with the respondent's assertion that he "does not know D18". The respondent then said he has no recollection of the person and put forward a number of reasons why he would not have had a sexual encounter with him in 1990. As we have already indicated, one of those assertions is, on the respondent's own evidence, at least debatable if not false.
443 The appellant submitted that when read as a whole, the respondent's emphasis in this document is on the date alleged by D18 and it is in respect of that that he, by a combination of persuasion and threats, seeks to have it conveyed to D18 that the dates were wrong - not that D18 was mistaken about, or falsifying, the occurrence of the incident. Whilst that submission is understandable, it cannot be overlooked that its opening premise was the assertion that the respondent did not know D18. The document, indeed, rather detracts from the force of the draft letter. The respondent's approach was that it was sufficient that D18 acknowledged error in dates, even though the respondent denied knowing D18.
444 The appellant also submitted that his Honour made no reference to this document in his judgment. This is not correct, although his Honour's reference to the document was in the context that it contained an assertion that he, the respondent, would not pay any money. His Honour then reached the conclusion in J 1633 to which we refer above.
445 The letter to Ball is also not in quite the same unequivocal terms as the draft letter. However, on a fair reading, we agree with the appellant's submission that the emphasis is on the date. It should also be added that Ball in his evidence said that his information from the respondent was that D18 had got the date wrong. The trial judge accepted Ball as a witness of the utmost truth. What we said about detracting from the force of the draft letter should, however, be borne in mind. This is also an appropriate place to note that that the effect of Rainey's evidence was that the respondent was asserting the date was wrong. The trial judge did not accept Rainey.
446 The appellant submitted that was another example of his Honour's `two stage' approach to his fact finding. The first stage was a finding as to whether or not, on D18's evidence with occasional reference to the respondent's evidence, his Honour believed D18. The appellant submitted that it was only after having made that determination that his Honour considered the relevance or impact of the inconsistent statements. He resolved the inconsistency in favour of the respondent. The appellant contends that his Honour's finding at "stage one" pre-disposed him to assess the evidence in respect of the inconsistency on the assumption that the respondent's denial at trial was correct. It was submitted that his Honour's finding that the respondent had a bona fide belief that no such incident took place and that D18 was wrong, at least in relation to the dates, was against the weight of the evidence and incorrect and that the only reason that he was able to reach that conclusion was that he had already predetermined that issue. It was submitted that no such belief is evident from the terms of the contemporaneous documents.
447 We do not agree with the baldness of the assertion in the last sentence. The "contemporaneous documents" upon which the appellant relied referred variously to the respondent not knowing D18 and D18 having the dates wrong for the reasons advanced, although overall, there was more emphasis on him having got the dates wrong. However, that observation does not deal with what is the nub of the submission, which is that his Honour engaged in a two stage approach in determining whether an alleged incident occurred. This submission again engages the manner in which his Honour reached his Conclusions.
448 An analysis of the way his Honour reached his ultimate conclusion rejecting this part of the appellant's case reveals the following. First, his Honour posed for himself the question he was required to determine [J 1617]. He then found there was no evidence that the respondent knew D18's age [J 1618]. Although his Honour's reasoning is cryptic, this paragraph should be read merely as a summation of his earlier finding at J 1575.
449 In the immediately following paragraphs his Honour then recorded a number of `no evidence findings' [J 1619-1620]; made a number of findings contrary to D18's evidence [J 1621]; noted there had been no supporting evidence called in respect of D18's identification evidence [J 1622]; and then made an adverse demeanour finding [J 1623]. He made further findings between J 1624 and J 1626.
450 Each of the matters referred to by his Honour was a relevant consideration in determining whether to accept D18's evidence. His Honour then expressed his view at J 1626 that:
"All these matters heretofore mentioned, would easily prevent my being satisfied that the defendant had discharged his onus of proof. That would and should be the end of the matter."
451 He then moved to the admission by conduct component. In his consideration of that issue, having referred to the factors which he considered relevant, he said at J 1639:
"Objectively, D18 has been found, by me to have advanced a case of on event that was false. The defendant has been found by me, without the intrusion of the so-called case of admissions by conduct, to have failed to prove on the balance of probabilities the very matter in respect of which the conduct was said to have been embarked upon by reason of a consciousness of guilt."
452 He concluded at J 1640:
"For these reasons the defendant has failed to discharge it onus of proof in relation to satisfying me on the balance of probabilities that what D18 asserted was in the fact the case."
453 We do not consider that his Honour's reasoning involved a two stage approach. A trial judge's reasons have to be organised in some way. It is not an error to deal with the main thrust of a case - here the case sought to be made through D18 - and express a view arrived at after a consideration of that evidence, and then to deal with another aspect of the case to determine whether that aspect has any impact on the preliminary conclusion. Here his Honour, in respect of the admissions by conduct case, dealt with it and did not accept any conduct of the respondent was directed at having D18 change his evidence. That was therefore the end of that part of his reasoning.
454 His Honour's reasoning at J 1639 does no more than state what is obvious from his reasons - that at the end of the day, the admissions by conduct case had no role to play in establishing the imputation advanced through D18 because his Honour found the incident did not occur.
Trial Judge's Approach to Respondent's Credit
455 The appellant made a general attack on the way in which his Honour dealt, or failed to deal, with the respondent's credit. On the appellant's submission, notwithstanding a number of adverse credit findings against the respondent, especially in his "very bad choice" in using Rainey and Bailey and the wrong date/wrong person inconsistency, his Honour failed to weigh that in the balance "in determining ... whether D18's testimony should be accepted".
456 Given the generality of this contention we do not see that it advances the appellant's case. There are other issues of substance relating to and affecting the trial judge's treatment of credit issues and we prefer, therefore, to deal with credit in those contexts.
Failure To Deal Properly With Admissions By Conduct
457 The appellant contended that his Honour's "two-stage" approach is also manifested by the way he dealt with the appellant's case based on admissions by conduct. The appellant contends that as a result of this approach his Honour gave no weight or consideration to the "offer to pay" evidence in reaching his conclusion at J 1637, that although the respondent initially engaged Rainey and Bailey, things "got out of control" and they went on "a frolic of their own" [AS 267]. It was submitted, however, that evidence of the taped conversations between Rainey, Bailey and D18 revealed that Rainey and Bailey were seeking to `suborn' D18 by "putting to him arguments and reasons why D18 got his dates wrong", which it was said followed closely the detail contained in the respondent's memorandum.
458 We should mention at this stage that a further matter arises on this issue particularly related to his Honour's finding that "there is no evidence which persuades me that [the respondent] offered to pay". We deal later with the evidence of Elomari, another of the justification witnesses who recorded a conversation with the respondent on a listening device installed by the police. It was submitted by the appellant that the Elomari tape had relevance to the admissions by conduct case relating to D18. We deal with this submission when dealing with the witness Elomari.
459 The contention that his Honour gave no consideration to this evidence cannot be made good. However, the manner in which his Honour did deal with it and the weight he gave it requires more detailed examination.
460 His Honour considered it to be significant that the respondent's conduct in dealing with Rainey and Bailey and in preparing the various documents was "open". Although this finding ignores the fact that the respondent used `agents' to undertake the task, including, at least at face value, of having Rainey and Bailey make arrangements to `retain' Ball. It is apparent from the evidence, especially from the taped conversations, that D18 was in no doubt that Rainey and Bailey were dealing with him at the behest of the respondent. In this sense, the respondent's conduct could fairly be described as "open". His Honour then found [J 1630]:
"... as a matter of common sense one ingredient for the seeking to suborn a witness one would think namely a level of secrecy and security, is entirely absent in each case as far as [the respondent] is concerned."
461 His Honour then remarked at J 1634:
"[t]he view to which I have come insofar as it is necessary to come to any view about this remarkable exercise on the part of the [appellant] and indeed, on the part of the [respondent] and Messrs Rainey and Bailey, is that Rainey and Bailey went on a frolic of their own (drunk or sober) and the [respondent's] analysis [that for the alleged admission to play a role in the case it had to be consistent only with a consciousness of guilt] is an attractive and persuasive way of looking at this bizarre component of the case"
462 On one view, the test applied by his Honour was too onerous. The correct test in our view was stated in Bank of WA Ltd v Ocean Trawlers Pty Ltd (1995) 16 ACSR 501 at 507, where Owen J said:
"This case ultimately falls to be decided on inferences. In the context of a civil case, `the circumstances must, but need do no more than, raise a more probable inference in favour of what is alleged': see Thiess v TCN Channel Nine Pty Ltd (No 5) Qd R 156 at 174. Where a case is to be decided on the civil standard `the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved': see Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 211 ..."
Owen J further observed that in determining whether the matter has been proved on the balance of probabilities, it is relevant for the Court to bear in mind the gravity of the allegation in accordance with the principles in Briginshaw v Briginshaw and Neat Holdings discussed earlier. See also Lustre Hosiery Ltd v York [1935] HCA 71; (1935) 54 CLR 134, especially at 143.
463 On another view, his Honour meant only that on the facts before him he would not be satisfied, to the civil standard and bearing in mind the gravity of the allegation, that the respondent's conduct was attributable to a consciousness of guilt, unless no explanation for the conduct consistent with an innocent mind was reasonably available. Given the doubt concerning whether the consciousness of guilt would go to the critical question of a sexual encounter, there was good reason for restraint. We do not think it matters which view is adopted. There would be no error in the latter view, and even on the former view, we consider that on the findings his Honour made, his Honour would have inevitably come to the same conclusion, had he applied the test stated in Bank of WA v Ocean Trawlers. Accordingly, as the basic findings made by his Honour on this issue have either not been challenged or the challenges have not been made good, we do not consider that any application of the wrong test resulted in a miscarriage of justice.
Conclusion on D18
464 In our opinion, the appellant has not demonstrated that his Honour's reasons in respect of D18 call for appellate intervention. However, as the appellant contends that the Elomari tape has consequences for Rainey and Bailey's evidence and the admissions by conduct case, we deal further with that issue later in these reasons.
STEVENS
465 Jason Stevens' was called as a witness in the appellant's justification case to prove the substantial truth of Today Tonight imputation 1(a).
466 Stevens alleged that on an occasion in October 1990 he and a friend Sean met the respondent at a pub near the Wall, being introduced to him as `John', and that the respondent offered him a lift home to Condell Park, as it was on the respondent's way home. Once in the car the respondent started fondling Stevens, then stopped the car and started performing oral sex on him. Stevens resisted, the respondent hit him, he tried to jump out of the car and eventually the respondent let him out near Central railway station [J 1248 - 1251]. Before the altercation, Stevens said `John' asked him how old he was and he told him he was "16 and in Year 10 at school" [J 1249; T 4209].
467 The respondent denied the encounter and denied knowing Stevens at all.
468 The trial judge was not satisfied the incident occurred.
469 The appellant contends his Honour erred in reaching that conclusion in that he [AS 305]:
(i) failed to give proper weight to Stevens' evidence of identification of the respondent;
(ii) failed to give proper weight to Stevens' and other evidence concerning the respondent's sexual behaviour and modus operandi; and
(iii) failed to deal properly with issues relating to the respondent's credit.
470 Stevens said the incident occurred during the September/October school holidays when he was 16 and at school. In his evidence in chief he said he had completed Year 10.
471 The records from Condell Park High School showed Stevens as having entered the school on 31 July 1989 and having left on 25 July 1990 to go into employment [Exh CA, Blue 1463]. A report dated 10 February 1991 prepared by the Department of Family and Community Services for the Children's Court recorded Stevens as having left school "midway through Year 10" [Exh AY]. Stevens acknowledged in cross-examination that he had not completed Year 10 but alleged he had remained at school until at least October [T 4218;RS 185].
472 Stevens gave evidence that he travelled out to the respondent's home on one occasion in 1990 and viewed it from outside. He described the house as being painted in a "peachy" colour. There was other evidence that it was white at that time. The appellant eventually abandoned this part of Stevens' evidence in attempting to prove identification.
473 On about 1 April 1998 Stevens made an application to the Victims Compensation Tribunal claiming compensation as a result of a number of alleged sexual assaults on him [Exh BE]. The circumstances said to give rise to the claim were contained in three statements made to police in early 1998. The respondent`s name did not appear in any of those statements. At about the same time, in early 1998, Stevens did a "paedophile tour" around Sydney with police in which he did not nominate the respondent as being involved with the paedophile group he knew.
474 Stevens did not raise the respondent's name until 15 April 1998 in an interview with police a few days before being released from gaol [J 1320]. The respondent argued that this amounted to recent invention and should not be believed. His Honour, in effect, accepted this to be the case.
Identification
475 The appellant's first challenge to his Honour's judgment in respect of Stevens was to the manner in which he dealt with the identification evidence.
476 In his evidence, Stevens described the physical appearance of the man he met called `John' as having "browny hair, a bit of a pot belly, overweight slightly" [J 1331]. Stevens said he later saw the person concerned in "newspapers and on TV" [T 4212], at Campbelltown Court and on educational videos when he was in gaol. He further identified the respondent in court in the course of giving evidence in these proceedings [T 4215].
477 The trial judge said that Stevens' description of the person `John' who picked him up was "rather limited" [J 1331] and that he "disregarded [this] nondescript description" [J 1385].
478 It is not at first clear what his Honour meant when he said that he disregarded Stevens' evidence of the respondent's appearance. He said the same in relation to the in-court identification. However, in an earlier paragraph of his Honour's reasons he said, at least in relation to the in-court identification, that "it will receive no weight" [J 1342]. Accordingly, we understand his Honour's "disregarding" of the evidence in that sense.
479 It seems that the effect of his Honour's reasoning in J 1331 and J 1385 is that having considered Stevens' description as "rather limited", he concluded that it effectively had no probative value. Indeed, it appears that his Honour had reached that conclusion at J 1331, when he said "the physical description that Mr Stevens gave of `John' does not assist the [appellant]" and that the statement at J 1385 that the evidence had "no weight" was merely a recording of the finding he had already made.
480 It is, essentially, a matter for the trial judge to determine the weight to be given to evidence and it is not sufficient for an appellate court merely to have a different view of the matter for there to be appellable error. With that qualification, can it be said that Stevens' description of the respondent should have been given "no weight"? We do not think so. Certainly, as his Honour said, a goodly proportion of the male population could fit the description of "browny hair" or having "a bit of a pot belly" or being "overweight slightly", or of fitting more than one of those descriptions. But a description has to start somewhere and hair colour is always relevant. Likewise with build and weight. The respondent fitted each of the descriptions given. To that extent, the description should at least have been given some weight, the overall significance of which would then have to be considered along with all the other identification evidence.
481 His Honour likewise "disregarded" the in-court identification [J 1342]. The appellant complains that his Honour's dismissal of the in-court identification failed adequately to assess and deal with Stevens' evidence, which, it was said, was given directly and without hesitation and also failed to take into account that he had previously seen the respondent. It is, of course, a difficult matter for an appellate court to assess the effect that evidence might have had, let alone should have had, merely from reading a transcript, although, to the extent the transcript reveals anything it supports the submission. But the transcript does not reveal the courtroom dynamics in other but a limited way. An appellate court is therefore considerably constrained in giving any different interpretation to evidence, particularly evidence such as this, or in placing any different weight on it. Here his Honour was not only able to observe the witness, he was aware of where and with whom the respondent was sitting in the courtroom. This is apparent from his Honour's acceptance of the respondent's submission at J 1341:
"The [respondent] makes the submission that the in court identification is hardly surprising given that the only other person sitting at the solicitors' table behind Messrs Barker and Hall was Ms Gillingham."
482 Accordingly, we see no error in the way in which his Honour dealt with the in-court identification.
483 There was then the identification at Campbelltown Court. Stevens said he was at Campbelltown Court on various dates in 1996 in respect of a matter in which he was up for trial [J 1259]. His Honour was satisfied "on the balance of probabilities" that one of those days was 6 March 1996.
484 The respondent denied being at court on any of the days in question and said that was supported by his diaries. In fact, the respondent's diaries revealed that he had been at Campbelltown Court on 6 March [J1256-8; J 1273-87]. The respondent then asserted that notwithstanding his diary entries, he was not in fact at court on any of the days alleged by Stevens, including 6 March [J 1345].
485 The appellant contended that his Honour failed to make any finding as to whether Stevens saw the respondent at Campbelltown Court as he claimed. To understand this submission it is necessary to refer in some detail to his Honour's reasons, especially at J 1343 to J 1359 and J 1390 to J 1398.
486 His Honour reviewed Stevens' evidence as to sighting the respondent at Campbelltown Court at J 1343. He summarised the respondent's evidence at J 1345 and then spent some time referring to the submissions of each of the parties in relation to this issue, including cross-allegations by the parties as to misunderstanding and/or misstating the other's submission. His Honour then said, at J 1360:
"At this point, frankly to me of some confusion, I will move to [another] component of the [appellant's] case on Mr Stevens."
487 His Honour did not return to this issue until the Conclusions section of his judgment in relation to Stevens. In his Conclusions, his Honour found that both Stevens and the respondent were at Campbelltown Court on 6 March 1996 [J 1390]. In relation to his finding that the respondent was there, he considered that given the cross-examination of the respondent together with the evidence of one of the respondent's staff members, a Mrs Kirk, whose duties included the preparation and management of the respondent's diaries and programmes, he could come to no other conclusion in relation to the respondent's evidence about being at court on that day.
488 His Honour continued [J 1392-3]:
"What I do not know is whether the response given by [the respondent] in chief, upon which the [appellant] places great reliance, was a response given to the oral testimony of Mr Stevens which was unexpected. I make this comment only in the context that Mr Stevens when he had the benefit of the designation D21 was a witness in respect of whom I directed the [appellant] to provide a proof of evidence in the Directions given by me on Friday 25 June 1999. If there was no reference in the proof then the evidence from Mr Stevens would require rapid consideration as to whether the respective presence of Mr Stevens and [the respondent] coincided at Campbelltown Court. This I simply do not know and I am not prepared further to speculate upon it.
The whole of the [appellant's] attack upon the [respondent] and his denial of being at Court is predicated on the proposition that it was on 6 March 1996 that the sighting by Jason Stevens took place. Mr Stevens was unable to identify a date upon which he said, he said, the person `John' at Campbelltown (I leave to one side as I must the conjecture as to whenever it occurred that Jason Stevens was merely identifying the person who was otherwise the subject of much publicity in relation to allegations of paedophilia as they wee then called the more so after 7 May 1996, the date of the `Witness' telecast).
489 His Honour then dealt with the appellant's submission that the respondent had deliberately lied in his evidence that he was not at court on that day. His Honour said that he would not be "quick to draw that inference". The "best conclusion" to which he was prepared to come was that the respondent was "extremely careless" in relation to the material before the court. His Honour added [J 1395]:
"... (notwithstanding that I have found that on the probabilities [the respondent] was there on 6 March - though as I have said it is difficult to come to a view on the probabilities as to what day of the many which Mr Stevens said he was at Campbelltown Court that he said he saw `John')."
490 His Honour next expressly [J 1396]:
"accede[d] to the [appellant's] proposition and reject[ed] that to the contrary made by the [respondent], that if it was the case that the [respondent] was physically disabled - in a wheelchair even - that would have been something for [the respondent] to have given evidence about in chief together with the denial."
491 His Honour viewed the denial with concern. He then said [J 1398]:
"The reservations I have just expressed is about the most favourable feature of the whole of the Stevens' case, for the [appellant]. Assuming that Mr Stevens' attendance at Campbelltown on 6 March was the one where he saw `John' (and that leaves aside the vagary as to the precise date) I have already expressed concern as to the quality of that identification or recognition, more correctly, by reason of the other foundations, publicity, for example, not more probably than not being excluded." (emphasis added)
492 That was the end of his Honour's dealing with this part of Stevens' identification evidence.
493 The appellant submitted that none of these observations amounts to a finding as to whether Stevens identified the respondent at Campbelltown Court. We think this is correct. His Honour certainly did not make any finding in J 1395, where he referred to the difficulties he was having in coming to a conclusion. The closest his Honour came to making any finding is the assumption he made in J 1398. But that was not a finding. Nor do we consider it to be sufficient, in respect to an issue such as identification, to assume the fact and then discount it. Identification evidence is either reliable and thereby accepted or it is not. With respect to his Honour, we do not see how the identification could be assumed and then discounted because of its "quality".
494 It is possible that his Honour's expression of concern repeated in the latter portion of J 1398, set out above, amounts to an ultimate rejection of the Campbelltown Court identification. If it does, it suffers from the same flaw to which we have referred in our preceding paragraph.
495 The appellant made another complaint in respect of this aspect of his Honour's judgment, namely, that having said at J 1393 that he must "leave to one side the conjecture whether Stevens ... identified [the respondent] by reason of publicity ... rather than a `true identification', his Honour then relied on that very conjecture in the bolded portion of J 1398 set out above.
496 The appellant's submission may only be stating, in different words, what we have already considered to be the case. To the extent that it is an independent point, it points to an inconsistency in his Honour's reasoning, an inconsistency which we agree exists.
497 That leads us to make one further comment. His Honour had commented at J 1393 that Stevens was unable to identify "a date upon which he saw ... `John' at Campbelltown". He then, as we have said, made no finding on the issue. It was not, of course, critical that 6 March was the date upon which Stevens saw the respondent. But that was the only date in 1996 that the two were in the same place together. It cannot be a criticism of Stevens' evidence, however, that he could not precisely identify the date. In this regard, because of the correspondence of the one day that both were at Campbelltown Court, the date spoke for itself. What was critical to the appellant's case was that there be a finding. The appellant submitted that the finding should be that Stevens did see the respondent there. Such a finding was open on the evidence. But, we reiterate, as this was a critical factor in the appellant's identification case in so far as it related to Stevens, it was incumbent upon his Honour to make a finding one way or another. It follows that his Honour's failure to do so was an error.
498 There was one further piece of identification evidence. Stevens said that, after the incident in the car, he had seen the respondent "in newspapers and, on TV", both outside the prison and on a video shown whilst he was in gaol. He said this was a video about the court system [AS 309].
499 When dealing with this part of Stevens' identification evidence, his Honour noted that Stevens had been cross-examined on the issue; that the respondent did not even mention it in his evidence; and that "otherwise, there was no evidence of the identity of the man on the television programme or video" [J 1257]. The cross-examination on this issue was as follows [T 4244]:
"Q When did you see him on television?
A I seen him on TV outside. I seen him in papers.
...
Q What was he doing on television? Reading the news?
...
A Reporting someone's case.
Q What case?
A How would I know?
Q Are you telling the truth about this?
A Yes.
Q How many times did you see him on television?
A Just the once, or twice.
Q When?
A And I seen him on video.
Q A video?
A Yeah.
Q What video?
A A video was in the Correctional Centre.
Q What was that about?
A The Court system."
500 It was not suggested to Stevens in this cross-examination that he was lying or mistaken about this evidence. Rather, it was a `testing' of the detail of his evidence.
501 In his Conclusions his Honour found, in respect of this part of the identification case, that there was no evidence that it was the respondent on television or on video tape, adding that "the vagueness of the viewing of which by Mr Stevens being of little assistance for the [appellant] on this important issue" [J 1385]. The appellant contended that the finding that there was "no evidence" that it was the respondent was an error. There was evidence - that of Stevens. With respect to this submission, we think that his Honour's reference to "no evidence" was a reference to there being no evidence other than that of Stevens. This is apparent from the phrase of his judgment which we have just quoted.
502 However, that is not the end of the matter. The respondent neither conceded that he had appeared in such a video nor, more importantly, did he deny it. He simply did not raise it in his evidence. For obvious reasons he was not cross-examined on it. The appellant submitted, therefore, that the evidence on this issue was all one way and should have resulted in a finding that Stevens had seen him as he had said.
503 A judge is not required to accept the evidence of a witness even if it is not met by contrary evidence. However, there are a number of principles which are relevant to a trial judge's determination in such circumstances.
504 The first is that where evidence has not been the subject of cross-examination, the court will usually accept it unless there is some good reason not to do so: see Paric v John Holland Constructions Pty Ltd to which we have referred earlier and Allied Pastoral Holdings Pty Limited v Federal Commissioner of Taxation especially at 26 where Hunt J remarked that "it would in many cases be wrong, unreasonable or even perverse for a tribunal of fact to reject evidence upon which there has been no relevant cross-examination". Here there was no cross-examination.
505 Next, if a court is invited to disbelieve a witness the basis upon which that assertion is made should as a matter of fairness be put to the witness: Allied Pastoral. As there was no cross-examination on the issue that was not done. The reason why there was no cross-examination is undoubtedly explained by the fact that the respondent did not deny that he had appeared in such a video.
506 Accordingly, there is merit in both complaints made by the appellant, namely that his Honour failed to make a finding on the Campbelltown Court identification and that there does not seem to be any adequate basis to reject Stevens' evidence that he had seen the respondent on TV and on a video. As to the latter, in the circumstances there must be doubt as to whether his Honour's dismissal of the evidence, because of the "vagueness of the viewing" without giving full effect to the principles we have just discussed, can be sustained.
Conclusion on Identification Evidence
507 It follows from what we have said that we consider his Honour erred in the manner in which he dealt with Stevens' identification evidence, except in relation to the in-court identification. Some errors are more significant than others. The more important error, we believe, is in respect of the Campbelltown Court identification. However, the other concerns which we have raised remain relevant.
508 All that said, the critical question for his Honour was whether the sexual encounter occurred at all. The identification evidence was not essential to that, in that Stevens could well have seen the respondent at Campbelltown Court and seen him on TV and on video, but not been the subject of the incident in the car. That there was such an incident and that the other party to it was the respondent in the end depended on Stevens' credibility.
509 His Honour made several adverse findings against Stevens. The most important, however, for the purposes of our present consideration, is that his Honour accepted that his allegation against the respondent was a matter of recent invention. That finding was well based. The question is whether that finding might have been affected had his Honour attached a different weight to or made a finding in respect of the identification evidence. We do not see that it would have. As his Honour pointed out, Stevens' identification of the respondent at Campbelltown Court could have been identification based upon some prior identification, for example, his appearance on TV or on the video. Even if Stevens' evidence that he had identified the `person' John at Campbelltown, had seen him on TV and on a video, was accepted, that evidence would not have materially supported his evidence that the incident alleged occurred. If anything, it may have supported the case of recent invention in the sense that, having seen the respondent in a number of situations, he then, in March/April 1998 raised, for the first time, the allegation against the person whom he then recognised.
510 Accordingly, we are not satisfied that there was any substantial wrong or miscarriage occasioned by his Honour's errors in relation to the identification evidence.
Modus Operandi Argument
511 The appellant next submitted that the principal basis for the trial judge's rejection of Stevens' evidence appears to have been that the incident was "extraordinarily different" from the modus operandi sought to be established by the appellant [AS 327]. His Honour's conclusion in that regard was set out at J 1381 at the commencement of his Conclusions in relation to Stevens.
512 We do not agree that this was the principal basis upon which his Honour rejected the case sought to be advanced through Stevens. There were other reasons including his Honour's rejection of the identification evidence, his rejection of Stevens' evidence that he was at school at the time of the alleged incident, and the fact that Stevens did not raise any allegation against the respondent until a late stage in his providing assistance to police and after he had made a claim under the Victims' Compensation Act. His Honour also rejected the evidence of W2, who gave evidence in this part of the appellant's case.
513 Although we do not accept that the lack of correlation with the modus operandi was the principal reason for rejecting Stevens' evidence, it was clearly a significant reason. This is apparent both from his Honour's use of language - "extraordinarily different" - and from his reference to it as the first of his conclusions. The appellant's real point, however, is that there was other evidence which should have been accepted whereby Stevens fitted the pattern of the respondent's modus operandi and thus his Honour was wrong in failing to so find.
514 There is no doubt that there were factors in Stevens' case which were different from other alleged incidents. There was, for example, no other occasion where the respondent was said to have offered to drive a potential sexual partner home without telling him of any intention he may have had; to have attempted to have sex in the car; and then to have dropped the person off when the person responded unwillingly.
515 The appellant contended however, that against this evidence there was evidence which should have been weighed in the balance and that his Honour failed to do so. In summary, that evidence was as follows. Stevens nominated the name of the person who picked him up as a person called "John". He gave a description of the person, to which we have referred, which was generally accurate. Stevens said he met the respondent as a "pick up" at a hotel near the Wall at Darlinghurst. This was in fact consistent with the respondent's own evidence as to his sexual practices and was also consistent with the evidence of the other justification witnesses in the case. The respondent picked him up in a car - a factor which, the appellant submitted, was common to the evidence of Lilburn, D18, the Maynards, Kinchela, Pearce and D20. Stevens identified the car as being large, as it was, and black. Its technical colour was blue/black and his Honour treated the distinction between black and blue/black at night as being irrelevant.
516 Stevens said that the respondent told him he lived at Campbelltown. This was correct. On Stevens' evidence the respondent said he was going home, that is, to Campbelltown. His Honour dismissed "as farcical" an attempt by the respondent to assert that his address was Denham Court, as this was contrary to the way in which the evidence had been given in the case and which had been accepted by the respondent as being correct. The respondent's rough sexual contact with Stevens was consistent with the evidence of "rough treatment" (although not in detail) of Leary, Russell, Stals, D18, the Maynards, Kinchela and Elomari. Finally on this point, the appellant contended that "any further execution of the modus operandi was precluded by Stevens bringing the encounter to an abrupt end". It was submitted therefore, that his Honour's rejection of Stevens' evidence on the basis that it did not "comply" with the modus operandi was contrary to the evidence and the weight of it.
517 We have already expressed our general view as to the use the appellant sought to make of the modus operandi argument. The use sought to be made of it in this instance well illustrates the flaw in the so-called modus operandi argument. Many of the matters relied on by the appellant were nothing to do with modus operandi. They were facts which may have assisted in finding that what Stevens said was true. But leaving that and our general comments aside, and approaching it on the basis the appellant put forward, we are not attracted to an argument which attempts to include this particular part of the appellant's case as part of a modus operandi. We consider that there were enough differences to make it different from cases said to fall squarely within the modus operandi. In particular the respondent's conduct in inviting Stevens into his car, was quite different from what was put forward as an essential part of the "modus operandi" of inviting the person home or elsewhere for casual sex.
Failure to Make Adverse Credit Finding Against the Respondent
518 We have already referred to his Honour's finding that, contrary to the respondent's denials, he was at Campbelltown Court on 6 March. Both at trial and on appeal, the appellant submitted that the respondent's denial was not only contrary to the objective evidence, as was found by his Honour, but was a deliberate falsehood and that his Honour should have made an adverse credit finding against the respondent on this matter. It should have been further accepted by his Honour that the respondent's deliberate falsehood was an acknowledgment that his case was weak and also capable of being regarded as an admission of his involvement in sexual conduct with Stevens as alleged [AS 333-336].
519 His Honour rejected the appellant's submission that this was a deliberate falsehood, describing it at the most as being "extremely careless". His reason for so doing is contained principally at J 1392 set out above. The appellant submitted, however, that his Honour was misguided in that approach and overlooked certain evidence which was relevant to the appellant's submission and which would have repelled any suggestion that this was a response given as a result of a rapid consideration of a new allegation.
520 The appellant submitted that this was clear from the following set of circumstances. Stevens gave evidence on 23 February 2000. The records from Campbelltown Court proving the dates upon which Stevens was at that court were tendered on that date [T 4212]. Further, the respondent had been aware of Stevens' allegation prior to this, as on 23 February he was also cross-examined about having given a statement to the police about having seen the respondent at Campbelltown Court [T 4223]. The respondent's evidence on this issue was not given until 2 June 2000 and he was not cross-examined on it until 20 June 2000. This gave the respondent ample time, according to the appellant, to consider his diaries and make a considered response.
521 It was submitted that the respondent was, therefore, aware that this allegation was going to be made so that there was no basis for finding that the evidence in relation to identification at Campbelltown Court was either unexpected or that it had taken the respondent by surprise. Overall we think this criticism of his Honour's finding has some validity, although it appears from all the evidence the date of the 6 March was not established until the Campbelltown Court records were tendered.
522 Further, the appellant submitted that the respondent neither gave evidence nor did he make any submission that he was either taken by surprise or that he had had to respond "rapidly" to the allegation. Rather, it was submitted that the respondent refused to concede that he might have made a mistake when looking at his diaries and presented an alternative case based on the evidence of other witnesses, Adam and Nicholson, that he was incapacitated and in a wheelchair and thus could not have attended Campbelltown Court or have been correctly identified by Stevens. No such assertion was put to Stevens in cross-examination and, in order properly to rely upon such a case, the respondent was, on the appellant's submission, required to do so under the rule in Browne v Dunn.
523 The appellant further submitted that there is another basis upon which there was no reason for his Honour to even "wonder" whether the respondent had been required to give rapid consideration to this part of Stevens' evidence, and that related to the question of the discovery of and access to the respondent's diary documents. It is apparent from the trial transcript that the question of discovery of and access to the diaries was a live one at about the time that the respondent gave his evidence on this issue in June 2000. It is also apparent from the transcript that the appellant was not provided with access to some of the relevant diary material until 20 June 2000 - that is, after the respondent gave evidence on the issue
524 It seems to us that the appellant is making two complaints in relation to this part of his Honour's judgment. The first is that, on all of the material, his Honour should have found that the respondent was deliberately lying on the issue. The second relates to his Honour's alleged inconsistent treatment of the witnesses.
525 As we have already commented, not every piece of erroneous or false evidence is the product of deliberate lying. Even with deliberate lies, human experience informs us that that may be due to a variety of motives. Shame or a wish to conceal matters from friends and family are typical reasons for lies: see R v Lucas at 724.
526 His Honour was troubled by the respondent's denial [J 1397]. As his Honour observed, faced with the diary entry it might have been expected that the respondent would concede the possibility of his being at court on that day.
527 However, the appellant never put to the respondent in cross-examination that he was deliberately lying. That failure undermines the submission, although no point to this effect was taken at trial. But in any event, his Honour found that the documentation kept by the respondent's office of his movements was confusing [J 1395]. Thus, although his Honour found that the respondent was "extremely careless", this finding was sufficient of itself to allow his Honour to reject the submission that the respondent deliberately lied. We do not see any error, therefore, in his Honour refusing to make a finding of deliberate lying on this issue.
528 Notwithstanding that we have come to this conclusion, we agree with the appellant's submission that there was no basis for his Honour to enter into the discussion at J 1392 which we have set out above and to the extent that it reveals anything in his Honour's thinking it was contrary to the facts. Having said that, we do not think anything flows from it. His Honour said that he did not know what the position was, which as we have said was not precisely correct. More relevantly, though, for the consideration of the issue, he added that he was not prepared to speculate upon it. As his Honour did not engage in any speculation on it, we do not see that this paragraph indicates any appellable error.
529 The second complaint was that, whilst making every allowance for the respondent's incorrect evidence, the trial judge made no such allowance for any deficiencies of memory in Stevens' evidence (and for other of the appellant's witnesses). For example, his Honour found Stevens' evidence that he left school in October 1990 was "false" - making no allowance for the fact that the `difference' in Stevens' evidence and the records of the Department of Education which indicated he left in July was only a period of 6-8 weeks [J 1299; AS 341] and notwithstanding that the event occurred 10 years previously. The appellant also pointed out his Honour's finding was made on the basis of evidence (the departmental records) which were not his own personal records and were never put to Stevens.
530 The point of contrast was that the respondent had been found to have made a mistake notwithstanding that his evidence was incorrect and incorrect on the basis of his own documents, whereas Stevens' evidence was found to be false on the basis of documents which Stevens had never seen. This submission is correct, although, of itself, not very important. Its real significance is as part of the appellant's challenge to his Honour's approach or attitude to the appellant's witnesses, namely that it was inconsistent and therefore unfair. We deal with our overall conclusion on this later. It should be noted, however, that a Browne v Dunn inference was also involved here - a matter taken into account elsewhere by his Honour in favour of the respondent but not adverted to in this instance [AS 341].
531 It was also submitted that his Honour made an adverse demeanour finding against Stevens based on an inadequate foundation. The particular evidence his Honour relied upon is set out at J 1403 and included comments such as:
"A Do you remember what you were doing 10 years ago?
Q I don't try to and don't pretend to Mr Stevens.
A There you go."
532 We have already adverted to the difficulty of interfering with credit findings based on a different view of what is portrayed by the transcript: see generally Rosenberg v Percival per McHugh J at 448. The passage quoted by his Honour at J 1403 puts this Court in no more favourable position than the trial judge to appreciate the evidence. We do not therefore see any error in this specific point.
533 The appellant further complained that without any medical evidence his Honour at J 1402 acted upon his "own thoughts" in rejecting Stevens' evidence that whilst his memory was affected after he commenced taking drugs (at about age 20-22) he could remember his "childhood perfectly: probably up to about 20, 22".
534 His Honour at J 1402 does appear to dismiss Stevens' ability to distinguish between his pre and post drug taking memory. He ultimately rejected Stevens' evidence. His Honour said [J 1402]:
"I can add further that I am unimpressed by the submissions in the light of the evidence that this witness Craig Stevens despite an appalling history of drug and alcohol abuse is able to discriminate to the year, namely when he turned 20, the time within which he had a good memory, from the time in which he did [not], which time on his own evidence, would seem to include more probably than not, the time of the so-called identification at Campbelltown Court."
535 The appellant submitted that when this finding is compared with his Honour's assessment of, for example, Avzarradel's evidence, it is apparent he gave the respondent's witnesses the benefit of the doubt but did not do so in respect of the appellant's witnesses.
536 On its face this might appear to be an invitation to appellate adjudication by transcript. However, it must be said that his Honour's comments fail to take into account that Stevens said his memory was good until he was "20, 22" - in which case the Campbelltown Court identification would not necessarily have fallen outside the period. It also appears to overlook that there was evidence of Stevens which turned out to be correct - namely that he was at Campbelltown Court in 1996.
Conclusion on Stevens
537 We consider later in these reasons whether his Honour erred in the manner in which he approached the assessment of the evidence of the witnesses for the appellant and respondent respectively. However, his Honour's finding of recent invention which, on our consideration, has not been undermined by the challenge to his Honour's approach to and findings in respect of the identification evidence, is such that his Honour's Conclusion in respect of Stevens is unlikely to be upset.
ELOMARI
538 Steven Elomari was called as a witness in the appellant's justification case to prove the substantial truth of the Today Tonight imputation 1(a).
539 Elomari was born on 15 January 1965. He and the respondent had a sexual relationship over a period of at least 12 years (12 - 13 years on the respondent's version; 14 - 15 years on Elomari's version). Elomari said that the relationship commenced in November 1982, shortly after the respondent appeared for him at Campbelltown District Court. Elomari was then 17 years and 10 months old. The respondent accepted that he first met Elomari on 4 November 1982 at Campbelltown District Court. He said, however, that their sexual relationship commenced in November 1984. It was common ground between them that their relationship was one of regular and frequent "casual sex" [J 187-6]. The respondent's evidence was, however, that their relationship "did not involve anal sex at any stage" [T 6775].
540 His Honour identified as being central for determination the date of the commencement of the relationship. [J 1880]
541 In late 1995 Elomari consented to be "wired up" with a listening device by officers of the Wood Royal Commission for the purpose of recording conversations between him and the respondent. Conversations were recorded in this way on 4 December 1995, 12 December 1995, 11 January 1996, 29 March 1996 and 30 March 1996 [T 4160]. The appellant contended at trial that conversations recorded on the tapes were relevant to its justification defence and for use in the cross-examination of the respondent (see para 10 of [2000] NSWCA 167). His Honour rejected the tender of the tapes. That ruling was held to have been erroneous: Amalgamated Television Services Pty Limited v Marsden [2000] NSWCA 167. By the time the Court of Appeal had so determined, the appellant had closed its case. Accordingly, on 17 July 2000, the appellant, by leave, filed a Notice of Motion seeking an order "that it be given leave to re-open its case to adduce further evidence in support of the tender of MFI 189 and a transcript thereof". [Red 555]
542 His Honour refused the application. The appellant appeals against that refusal (Ground 53). It should be noted at this point that only the tape recording of 11 January 1996 is in issue on the appeal.
543 There are two other grounds of appeal in relation to Elomari's evidence [AS 535]. First, that the trial judge erred in his treatment of the evidence of admissions by conduct (Ground 54) and secondly, that, given the content of the tape recording, the trial judge erred in his treatment of the credit of the respondent (Ground 1(e)).
544 The appellant contends that had the Elomari tape been admitted and properly dealt with his Honour would have found that the first imputation carried by the Today Tonight programme was substantially true.
545 Elomari's evidence and the appeal issues arising from it need to be reviewed in the context of the appellant's particulars. The final form of particulars relied upon by the appellant in respect of Elomari were contained in the letters of particulars referred to below:
Amended Second Consolidated Particulars of Truth, 26 October 1999, para 5(2):
"In or about November 1982 when [Elomari] was 17 years of age the [respondent] had anal intercourse with [Elomari]." [Para 5(2) Red 426]
Particulars of Truth (Admissions), 25 January 2000, para 4:
"In or about 1996, the [respondent] instructed or directed Steven Elomari not to tell any Police Officer or any person connected with the Royal Commission conducted by the Hon Mr Justice Wood into the NSW Police Service that he had sexual intercourse with the [respondent] before he was 18 years of age." [Para 4 Red 444]
Further Particulars of Admissions by Conduct: Steven Elomari, para 6:
"The [respondent] attempted to influence Elomari to give false evidence to the Commission because he was concerned that officers of the Commission were in possession of a tape recording made by the defendant[?] in which Elomari stated he had been raped by the [respondent] when Elomari was less than 18 years of age." [452]
Further Particulars of Admissions by Conduct: Steven Elomari, para 7:
"To influence the evidence of Elomari, in a conversation between the [respondent] and Elomari on 11 January 1996, the [respondent] said:
(a) if the [respondent] wins a defamation action brought by him against the [appellant], the [respondent] and Elomari would get money out of the [appellant];
(b) Elomari did not come out to the [respondent's] house until 1983 when he was 18, which statement was false;
(c) Elomari could not have met Phillip Chown when he came out to the [respondent's] house in 1982 because:
(i) the plaintiff did not meet Chown until 1 January 1983; and
(ii) Chown had never been to the [respondent's] house until 1983 and Phillip Chown did not come out to stay until 1985
each of which statements was false.
(d) if the Commission calls Elomari to give evidence, Elomari was to stay he met Phillip Chown in 1983, which the [respondent] knew, if the evidence was given, would be false." (emphasis added)
[Red 453]
This particular is bolded for ease of reference because of the significance it assumes in the consideration of the re-opening application to which we next refer.
Refusal of Application to Re-Open to Tender the Elomari Tape
546 The appellant had subpoenaed the tapes from the police service, and these were produced to the court on 15 February 2000. The police service had previously informed the appellant, however, that it proposed to claim public interest immunity in order to protect the identity of Elomari as a police informer.
547 The appellant had then entered into negotiations with Elomari [Blue 99-100] which resulted in it entering into an agreement with him on 14 February 2000, whereby the appellant agreed to pay the costs of relocating Elomari, his wife, their children and their household goods and furniture from Sydney to a specified location; to provide rental accommodation for Elomari and his family for the duration of the agreement and pay him the sum of $1000.00 per week for the duration of the agreement for the purpose of assisting in his relocation. In return, Elomari agreed to waive the protection which he had been given by the Police Integrity Commission and to give evidence in the defamation proceedings. In that respect, the agreement recorded that, according to Elomari, the tapes contained a conversation in which the respondent acknowledged to Elomari that he and a companion known as "Phillip" engaged in the homosexual anal rape of Elomari when Elomari was seventeen years of age, and that the respondent further exhorted Elomari not to disclose that information or alternatively to give false evidence about it to the police or the Wood Royal Commission. The agreement was enforceable for a period of five years but could be terminated by the appellant if the tape did not contain a conversation to the effect alleged.
548 The appellant submitted that the entry into this agreement signified that at all times it intended to adduce evidence of the tape.
549 On 21 February 2000 Elomari was called in the appellant's case and gave evidence of his first meeting with the respondent in November 1982, of having gone to the respondent's home shortly after the first meeting, of being given a beer and "next minute I woke up with blood all over my legs", describing himself on that occasion of having been "tampered with" or "raped". He said when he woke up he asked the respondent "what happened to me" to which the respondent replied [T 4149]:
"Nothing, nothing. It's okay. You'll be all right."
550 He then gave evidence of a listening device being attached to his body by police and of recording a number of conversations with the respondent [T 4152]. He did not give evidence of the conversations, as distinct from the fact of their taping.
551 On 22 February 2000, during the course of Elomari's evidence in chief, the appellant tendered the transcript of the tape recording. The respondent objected to the tender of the tape on the basis that it was inadmissible unless the subject of a valid warrant issued under the Listening Devices Act 1984 (NSW), ss 5 and 13. The tape (together with other tapes, an accompanying schedule and transcripts of the tapes) were marked for identification in the trial MFI 101 and MFI 102.
552 Elomari's cross-examination commenced later that day [T 4165]. He was stood down at the end of that day and his cross-examination did not resume until 28 February 2000.
553 At that stage the appellant had not tendered any warrants obtained under s 16 authorising the use of the listening device. Senior counsel for the respondent submitted to the trial judge that there was "a complete absence of any evidence that the tapes were legally used to intercept the conversations" [T 4160]. He expanded upon this argument at T 4161:
"At the moment we seem to have no evidence at all of the circumstances in which the tapes were obtained, ... the onus is squarely on the [appellant] to show that all this was done legally."
He also submitted that even if a valid warrant had been issued, any material obtained pursuant to the warrant could only be used for the purposes specified in Pt 4 of the Listening Devices Act [T 4160], being those specified in s 16 to which reference will shortly be made.
554 Senior counsel for the appellant, "to save time", withdrew the tender of the tapes, noting that it was open to the respondent to take "the technical point that we would have to prove the warrant ... and we will get the warrant". [T 4161]
555 A listening device is defined in s 3 of the Listening Devices Act to mean "any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with its taking place". A person may apply to an "eligible judge" under Pt 4 of the Act for the issue of a warrant authorising the use of a listening device where the person suspects or believes that a prescribed offence has been or is likely to be committed: s 16(1)(a); and the use of a listening device is necessary for the purpose of an investigation of that offence or to enable evidence to be obtained of the commission of the offence or the identity of the offender: s 16(1)(b).
556 Section 5(1) proscribes the use by a person of a listening device to record a conversation, inter alia, to which that person is a party. Section 5(2) provides that s 5(1) does not apply to the use of listening devices pursuant to a warrant granted under Pt 4. Section 13 makes inadmissible in any civil or criminal proceeding, evidence of any private conversation which came to the knowledge of a person directly or indirectly as a result of the use of a listening device in contravention of s 5. Such evidence is not inadmissible if the private conversation also came to the knowledge of the person otherwise than through the use of a listening device: s 13(2)(b).
557 On 28 February 2000, the appellant again sought to tender the tapes and accompanying warrants [T 4298], this time accompanied by a certificate dated 24 February 2000 from the Commissioner of the Police Integrity Commission, under s 56(4)(c) of the Police Integrity Commission Act 1996 (NSW) (the Commissioner's certificate). The certificate and warrants (and other warrants said to relate to the tapes not now in issue) were admitted as exhibit 53 on the limited basis that [T 4298]:
"Their present relevance is limited to the issue of the admissibility of what the defendant further seeks to tender."
558 The appellant again tendered the tapes [T 4298]. The respondent objected [T 4314].
559 Levine J rejected the tender of the warrants. In his judgment [2000] NSWSC 98, 28 February 2000, he said at paras 10 and 11:
"... The documents produced to this Court today, on their face, cannot be described as complying either with the form, or as indicating on their face, the content as required by s 16 [of the Listening Devices Act]. The whole of page 2 of each warrant has been deleted. Significant parts of page 3 have been deleted, and portions of the first page of the documents have been deleted.
Insofar as the admissibility of the tapes depends upon the proof of the validity of the warrants, my present view is that the documents tendered in that regard do not establish that."
560 His Honour also noted [at para 16] that subject to questions of relevance and statutory admissibility, there was no impediment to a participant to such taped conversations giving evidence of them. Elomari had given no such evidence. His Honour thus rejected the tender of the tapes as well as the warrants. As a matter of convenience, the warrants remained on the record as exhibit 53, but were not admitted as evidence in the proceedings.
561 Senior counsel for the appellant said that in light of that ruling, it might be necessary to make an application to re-open Elomari's evidence in chief. He reserved his position until after the luncheon adjournment. After the luncheon adjournment, senior counsel for the appellant made no application or any mention of any application and Elomari's cross-examination resumed. At the conclusion of the cross-examination there was no re-examination and his Honour stated [T 4332]:
"You are free to leave. If the occasion arises to get you back, it will happen."
562 On 14 March 2000, senior counsel for the appellant informed the court he wished to call the police witness who had been involved in obtaining the tape recording between Elomari and the respondent [T 4807] but that the appellant was awaiting further advice from the Police Integrity Commissioner.
563 On 20 April 2000, further certificates were issued by the Police Integrity Commissioner certifying that it was "in the public interest to divulge to the parties in [these] proceedings edited copies of the warrants".
564 On 22 May 2000, senior counsel for the appellant sought to tender the Police Integrity Commission certificates dated 19 April 2000 and the edited warrants, on the basis that it would lead to the "ultimate forensic" step [T 6310] of having the tapes admitted. Senior counsel submitted to the trial judge that it was "the start of an evidentiary linking process" to achieve that end [T 6313]. The trial judge admitted the certificates and warrants on the same basis as he had done under his ruling of 28 February 2000. Senior counsel for the appellant also tendered the reports required by s 19 of the Listening Devices Act together with a schedule of the warrants. The tender was rejected: [2000] NSWSC 436.
565 On 24 May 2000, the Police Integrity Commissioner issued a further certificate, under s 56(4)(c) of the Police Integrity Commission Act authorising evidence to be given by the police officers concerned with the tape recording "in accordance with their statements". Their "statements" were attached. At the close of proceedings on that day, senior counsel for the appellant informed the court that the officers were available "to establish the necessary evidentiary nexus in relation to the Elomari tapes". [T 6448]
566 On 25 May 2000, the appellant called the police officer concerned, Detective French [T 6483], who in 1996 was an investigator attached to the Wood Royal Commission. He said that on 11 January 1996, he attended Elomari's address and placed a listening device on him [T 6484]. The listening device was covered by warrants 345 and 346 of 1995 [Exh 162; T 6485]. Detective French was asked to identify his signature on the tape. The question was objected to on the basis that it was not evidence which was covered by the terms of the Commissioner's certificate [T 6487]. A further problem arose in that the warrant in the form in which it was tendered did not authorise the witness to install and activate the device [T 6491]. The witness was then asked [T 6491]:
"Mr French, did you use a listening device which was installed on or about the body of Steven Elomari?"
567 The question was objected to and rejected: [2000] NSWSC 451. Mr French was then asked [T 6493]:
"Would you look at this tape that I show you (shown). Can you identify your signature on that tape."
568 The question was objected to and rejected on the same basis. Mr Stitt QC, senior counsel for the appellant, then informed the court that in light of those rulings he could not take the witness' evidence any further [T 6495].
569 Next, Detective Sergeant Marzio Da Re, an Australian Federal Police officer who had been seconded to the Wood Royal Commission, was called to give evidence as to the obtaining of warrants for the use of a listening device to record and listen to conversations between Elomari and the respondent. His evidence was objected to on the basis that senior counsel for the appellant was attempting to obtain evidence outside the terms of the Commissioner's certificate, contrary to his Honour's earlier ruling in relation to Mr French [T 6499] and further, that the particular warrant in this case (warrant 308 of 1995), which it was sought to tender through this witness, was not mentioned in his statement or authorised by the Commissioner's certificate. The tender of that warrant was rejected. No further evidence was sought to be obtained from Detective Sergeant Da Re.
570 At the commencement of the proceedings the next day, 26 May 2000, his Honour stated [T 6501]:
"There was delivered to my chambers within the last three-quarters of an hour a letter from the [appellant's] solicitors to the Registrar of the Common Law Division of this Court, a copy of which has been provided to senior counsel for the [respondent]. The letter requested that certain files relating to listening device warrants be delivered to me as early as possible this morning. I understand that a copy of the letter has been delivered to the Police Integrity Commission.
I have directed the Executive staff of this court to discontinue their search for the files, and insofar as two were delivered to my chambers, they have been returned. I will say no more about that at this stage."
571 The letter to which his Honour referred was from the appellant's solicitor to the Registrar, dated 26 May 2000 requesting the Registrar to [Blue 1558]:
"... please arrange to have the following files delivered to [the trial judge] as early as possible this morning ..."
572 Eight files in relation to obtaining warrants under the Listening Devices Act were nominated. This letter was marked MFI 192 in the proceedings.
573 Mr Stitt QC informed his Honour there was an officer from the Police Integrity Commission in court who had indicated she may have had an application to make in respect of the warrants, but given his Honour's comment he did not know the status of the application. His Honour said:
"It is a matter for the PIC or the [appellant]. It is not part of my function, and I am saying it is not part of the Executive Office's function to comply with the terms of such a communication."
574 The appellant submitted to this Court that the letter represented another step taken by the appellant to overcome the order made in the judgment of 28 February 2000, so as to be able to adduce evidence of the content of the tapes, and that they had followed the direction in the annotations to Pt 37 r 2 of the Supreme Court Rules 1973 (NSW) relating to subpoenas. That annotation states that it is not appropriate to issue a subpoena to obtain production of documents held by the Court. If such documents are relevant to proceedings, production "may be obtained by a request to the court registry officer. A request should go from one part of the Court to another": B v N (1994) 35 NSWLR 140 at 144.
575 It seems the appellant's solicitors observed the first part of the direction but did not pay heed to the second part. Whatever be the reason for that omission, and it appears to have derived from a misunderstanding of the correct procedure, the form of the appellant's request was inappropriate and it clearly aggravated his Honour. There were undoubtedly other ways his Honour could have dealt with the matter. By the same token, it was incumbent upon the appellant, if it wanted the material, to take appropriate steps to have the files brought before the court.
576 The appellant, in fact, took further steps to do so. First, senior counsel for the appellant tendered fresh certificates from the Police Integrity Commission. These certificates were `wider' - in the sense they authorised the police officers to give evidence in accordance with their statements and on any matter of fact relating to the issue of the warrants, recording and identification of the tapes and voices. The new certificates were admitted [Exh 174]. The tapes were again tendered but rejected on the basis that s 5(3)(b)(i) of the Listening Devices Act had not been satisfied.
577 Later on 26 May 2000, senior counsel for the appellant informed the court he had had discussions with the respondent's senior counsel in relation to making certain admissions in respect of the tapes. He further informed the court [T 6509]:
"My learned friend is prepared to admit that on the relevant tapes there are the signatures of the officers who participated in obtaining the tapes, and that the relevant voice on the tape is that of Elomari. I was hoping to avoid having to call these officers. What I want to do is simply to link up the tape with the warrant. I have got a schedule. I have asked my learned friend to admit that, but he will not, so I have to call the officers. When I have done that exercise, that will then conclude the defendant's oral case. ..."
578 The following exchange then occurred [T 6509-6510]:
"HIS HONOUR: I might be jumping the gun, but if they are not admissible under the section in which I have just ruled and there is no warrant, where do we go?
STITT: The exercise is directed to establishing that the tapes were obtained pursuant to a particular warrant. Your Honour has ruled that warrant is invalid. I don't want to be caught in the position where there is --
HIS HONOUR: I have not ruled it is invalid, I just ruled that it was not a warrant. What you tendered was not a warrant.
STITT: It doesn't fall within part 4.
HIS HONOUR: What you tendered was not a warrant issued by a judge of this court. That is what I said.
STITT The exercise that I want to do is simply just to link up the tapes with the document which your Honour has ruled is not a warrant. So that, as I say, we don't get caught short later.
HIS HONOUR: I don't want that to happen.
STITT: I just don't have a choice, because if my friend won't make the admission, then I have got to establish it. We have got the schedule, we have got the thing from the police. We have got all the numbers and the dates and the officers and so on. I just have to go through the exercise of calling the officers. They have been sitting around now for days. I can't really believe that this aspect is seriously an issue. My friend has got his submissions, and your Honour has made the rulings. As I say, when I finish that exercise, that will be the end of our oral testimony.
HIS HONOUR: I will just check with Mr Barker to see what his position in relation to admissions are, first of all.
BARKER: We are prepared to admit that the signatures on the tapes produced are respectfully(sic?) those of Mr Da Re, Miss McGinlay and Mr French. We are prepared to admit that the tapes contain a voice which is that of Elomari. That is the extent of my instructions, your Honour.
HIS HONOUR: Very well. You can start to call whom you wish to call."
579 Mr French was then recalled and gave evidence of the listening device being used on 11 January 1996, of removing the tape from Elomari and of putting his signature on the removed tape.
580 The tape was again tendered and rejected [T 6512] on the basis there was no evidence that it was lawfully obtained [T 6513]. The respondent asked one question in cross-examination - namely whether the tape had been continually in his possession since he retrieved it. French answered "no" [T 6513]
581 Detective Sergeant Da Re was also recalled and an attempt was made to tender tape MFI 195 (being the tape recording of 4 December 1995). The tender was rejected on the same basis.
582 The warrants were again tendered and were rejected [T 6517].
583 Another police officer was called in respect of the tape used on 30 March 1996. The tender of that tape was also rejected.
584 On 31 May 2000, the appellant filed a summons seeking leave to appeal from his Honour's orders rejecting the tender of the copy warrants together with a motion for expedition in the Court of Appeal. Expedition was ordered.
585 On 8 June 2000, the appellant sought to cross-examine the respondent on the contents of one of the tapes. His Honour refused to allow that cross-examination on the basis that it was not permissible under s 13(2)(b) of the Listening Devices Act. He also indicated that had it become necessary for him to do so, he would have disallowed the cross-examination as a matter of discretion under s 135(a) of the Evidence Act, given the absence of any evidence from Elomari and otherwise the absence of any proof in relation to compliance with s 5 of the Listening Devices Act - "the probative value of any such evidence being substantially outweighed by the danger of prejudice".
586 In the course of submissions about that line of cross-examination, senior counsel for the appellant informed his Honour that the material on the tape was relevant to witnesses other than Elomari, namely D18, Bailey, Rainey, W2 and others [T 7029.20]. At this stage, none of those witnesses had been called.
587 On 14 June 2000, the appellant applied to have the cross-examination of the respondent deferred pending the outcome of the appeal. The application was refused. During the course of argument on the topic, his Honour said [T 7197]:
"If they find in your favour, in the normal course presumably you would make an application to reopen, which I would venture to suggest would be successful, tender the evidence, the [respondent] would make an application to reopen the case in reply to that evidence. Why can't that happen at the conclusion of your cross-examination? If you are successful, the status quo remains. But delayed at cost to the litigants and waste of the Court's time, these are matters that are concerning me."
588 On 16 June 2000 senior counsel for the appellant again raised with his Honour the question of having the warrants brought into the court. This followed comments made by the Court of Appeal that possibly the appellant had not exhausted all possible means of achieving this.
589 On this occasion, senior counsel for the appellant made two applications: first, that his Honour request the executive officer to produce the material to the court [T 7341] or alternatively that his Honour order the executive officer to do so [T 7343]. The applications were resisted by the respondent and argument was heard over three days, interspersed with the taking of evidence from other witnesses.
590 On 20 June 2000, his Honour directed the Chief Executive Officer of the Supreme Court to deliver the relevant warrant files to the court. The files were produced on 22 June 2000 [T 7598]. Access was sought by and granted to the appellant and to the Police Integrity Commission, at which point the appellant encountered its next difficulty - the files only contained unsigned copy warrants.
591 At this point, on 22 June 2000, the Police Integrity Commission produced in court the original warrants, but indicated it made a claim for public interest immunity as to part of the contents of the warrants. Levine J considered he had no power to require the Commissioner to divulge any information in the warrants without a certificate under s 56(4): see s 56(2) of the Police Integrity Commission Act. Those documents were then not produced.
592 His Honour finally rejected the appellant's application relating to the warrant files as the unsigned warrants were neither warrants nor copy warrants.
593 On 6 and 7 July 2000, the Court of Appeal heard the appellant's appeal against Levine J's various rulings relating to the admissibility of the warrants, the tapes and the transcripts.
594 On 13 July 200 the Court of Appeal delivered judgment: [2000] NSWCA 167. In doing so, it observed at para 10:
"The rulings made by his Honour and which are sought to be appealed from have prevented the [appellant] using the material in this way."
595 The Court held that his Honour erred in rejecting the tender of the copy warrants [para 33] and concluded [para 40]:
"The next question is what should be the result of the claimant's application having regard to the opinion we have formed and to the fact that leave must be granted before the claimant can be entitled to any relief. ... We have upheld the submission that the copy warrants, for the reasons already expressed, should have been admitted but it does not necessarily follow that this decision ensures their admission at this stage or that if they were now to be admitted that would produce the result that the Elomari tapes and transcripts would also necessarily be admitted into evidence. It is clear that considerable further evidence would be needed before that result could be achieved. The defendant's case is closed. The whole evidence phase of the case is approaching completion. An application would have to be made to his Honour to reopen the claimant's case to enable the extra evidence to be given. This Court can make no orders which could affect the exercise of the trial judge's discretion in this regard. Moreover, it is clear that there would be considerable argument as to the extent and nature of the evidence necessary to link the copy warrants to the Elomari tapes and transcripts."
596 Following the Court of Appeal's decision the appellant moved on a Notice of Motion to re-open its case. On 17 July 2000, Levine J rejected the application: [2000] NSWSC 702. It is necessary to consider in some detail the course of the application and his Honour's reasons for rejecting it. We start with the reasons. The references below to paragraphs are to paragraphs in his Honour's judgment.
597 At para 4 his Honour set out para 40 of the Court of Appeal's judgment. He then referred to the history of his rulings on the "Elomari tapes" issue by reference to his judgment of 13 June 2000: [2000] NSWSC 530.
598 His Honour next observed that the evidence adduced on the Notice of Motion to re-open was tendered "as indicative only of the evidence the [appellant] proposes to call in the event of the grant of leave" [para 6]. That evidence was:
(i) A Certificate of the Police Integrity Commissioner dated 14 July 2000 and five statements, also of that date, of relevant officers referred to in that Certificate and what we will describe as the "PIC transcript" of the conversation recorded from the tape of the listening device affixed to Elomari on 11 January 1996 (78 pages) [para 7];
(ii) An affidavit sworn by Mr David Price of the defendant's solicitors. This was, in effect, a proof of evidence that would be given by Mr Price as to issues of "continuity" and "provenance" of the relevant tape [para 8];
(iii) A statement of Mr Jim Astley, Audio Supervisor and Head of the Audio Department of the appellant in relation to his "dealing," on 9 June 2000, with the cassette, MFI 189 to produce an "improved transcript" ("Hamilton transcript") prepared by the solicitors for the appellant [para 10];
(iv) An affidavit by Ms Hamilton, solicitor, relating to the handling of the Elomari tapes by Mr Astley [para 10];
(v) Exhibit E, MFI 193, being the two warrants 345/95; 346/95 [para 11];
(vi) A certificate under s 56 of the Listening Devices Act issued by order of PIC on or about 24 April 2000 being Exhibit 161 [para 12];
(vii) A letter dated 19 April 2000 from the PIC to the defendant's solicitors [para 13];
(vii) The tape (MFI 189), which became exhibit H on the application.
599 At para 15 his Honour identified the issue to which the proposed evidence was directed:
"The proposed evidence relates to the defence of justification. It relates to that component of the [appellant's] case on justification constituted by Mr Elomari and his allegations against the [respondent] in respect of alleged under age sex. It relates to that component of that part of the defence case described as `Admissions by Condust' in respect of that witness pursuant to particulars initially delivered on 25 January 2000."
600 Those particulars are set out earlier in these reasons.
601 His Honour next noted that Elomari had given no evidence of the terms of any conversation on 11 January 1996 with the respondent (para16).
602 His Honour then posed the question [para 18]:
"At what stage of the proceedings is the application made?"
603 He noted [paras 19-22]:
"The defence case has closed (the last witnesses were called on 25 May 2000).
The plaintiff's case in reply has closed (the last witness was called on 12 July 2000). The closure of the respective cases was subject to the usual matter of the finalisation of the tender of certain documentary material ...
The 12th of July 2000 was the one hundred and twenty fourth day of trial hearing ...
But for the present application, the point of the trial has been reached where directions would otherwise be given as to the delivery of written submissions, the fixing of a time for oral submissions upon the conclusion of which I will reserve my decision."
604 His Honour referred at para 26 to the appellant's submission that if leave was granted to re-open it would extend the trial "by a short time" and that the proposed evidence would be adduced "within a day". His Honour accepted that the respondent had had access to the tape and PIC transcript since 21 February 2000 and had had access to the other evidence intended to be called, although acknowledging that some of that evidence had only been given to the respondent shortly beforehand [para 27].
605 His Honour referred to the concession made by senior counsel for the respondent at T 6510 on 25 May 2000, that the signature on the 11 January 1996 tape was that of Mr French and that the tape contained Elomari's voice [para 29]. That concession was not, in his Honour's view [para 31]:
"of so compelling a nature either by itself or together with other factors [to] warrant the exercise of my discretion in favour of the [appellant]."
606 His Honour at para 32 likewise dismissed, as being of little relevance, a comment by Mr Barker QC during the course of the proceedings that he could understand his Honour granting leave to re-open if the Court of Appeal held that the warrant had been wrongly rejected and the appellant was thereby denied the benefit of some evidence. That comment had been made in the context of the application to the Court of Appeal in relation to the production and admissibility of the warrants and the tender of the tapes. The Court of Appeal, however, as mentioned above, had indicated it would not hear that application until other avenues to resolve the issue of the warrants had been explored.
607 His Honour accepted at para 34 that there was a significant public interest in the resolution of the case on its merits. However, he defined the "real issue" as being:
"Whether or not the resolution of this case on its merits in the public interest would be compromised by the continued exclusion by the adverse exercise of my discretion of this one component of one part in relation to one witness in respect of the whole of the defendant's case in the trial of the dimensions to which I have referred." (emphasis added)
608 He referred to Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471, stating at para 35:
"The guiding principle for a Court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application."
609 His Honour then dealt with the respondent's arguments on the re-opening application.
610 The respondent had resisted the application to re-open for the following reasons:
(i) The appellant had taken a deliberate tactical decision not to pursue the admissibility of the Elomari tapes after the adverse ruling on 28 February 2000 [para 37]
(ii) It was open to infer that there had been a deliberate or unexplained failure to ask any additional questions of Elomari [para 38];
(iii) It appeared that Elomari would not be recalled [para 38];
(iv) The appellant had not until July 2000 made any application to the Police Integrity Commissioner to obtain the necessary evidence regarding the provenance and continuance of the storage of the tapes [para 38];
(v) The appellant had failed to make any effort while the case was still open to prove the steps leading to the transcription of the tape [para 38].
611 His Honour summarised the respondent's submissions in these terms [para 40]:
"What is here happening is not merely an application for leave to re-open to tender the warrants I wrongly rejected as the Court of Appeal has said, but to tender the warrants as part of a course of evidence for which hitherto the [appellant] took no steps by way of preparation at all. It is one thing to seek leave to re-open to have admitted that which was said to have been wrongly excluded and then embark upon a course of evidence which would otherwise have been embarked upon but another to have admitted those warrants and then embark upon a course of evidence that the [appellant] had not intended to take at all. The more so is this the case when one considers the objections taken to evidence in the light of PIC Certificates at the time of the determination of the issues in late May leading ultimately to the formulisation of the leave applications to the Court of Appeal dealt with on 13 July 2000."
612 We understand the reference to "embark[ing] upon a course of evidence that the [appellant] had not intended to take at all" to be a reference to the intention to call the evidence referred to items (iv) and (v) in the evidence adduced on the Notice of Motion to re-open.
613 The appellant's response to this submission had been that there had been no point in taking the steps of which complaint was then made, because it had failed at the threshold in relation to the tender of the warrants [para 43]. It reiterated this position before this Court.
614 It seems to us, without intending to be exhaustive, that the following evidence was required in order for the tape to be admitted into evidence:
(i) evidence that the tape was obtained as the result of the valid issue of a warrant or warrants;
(ii) the warrants being admitted to evidence;
(iii) evidence of the listening device having been attached to Elomari;
(iv) evidence as to the non tampering of the tape whilst attached;
(v) evidence as to the removal of the tape from Elomari;
(vi) evidence as to "the keeping" of the tape subsequent to the removal;
(vii) evidence as to the transcription of the tape by the PIC;
(viii) the tape;
(ix) the PIC transcript.
We pause to note the PIC transcript was not, technically, necessary, but evidence of its transcription would have formed part of the continuity evidence.
615 Steps (iii) and following logically followed upon the tender of the warrant. Evidence of (iii) to (vii) required a certificate by the PIC under s 56 of the Police Integrity Commission Act before it could be adduced.
616 His Honour's ruling on 28 February 2000 rejecting the tender of the copy warrants made the evidence in (iii) to (vii) irrelevant and therefore inadmissible. The tapes and transcript were inadmissible without the warrants having been proved. Nonetheless, attempts had been made to adduce evidence of each of these matters [paras 328-350]. The attempts were unsuccessful mainly because of limitations in the terms of the s 56 certificates issued by the PIC and his Honour's error in refusing to admit the copy warrants. The reason why the certificates were so limited is not apparent. Presumably, however, the limitations were overcome in the new certificates proposed to be tendered on the re-opening. Interestingly, by the time of the re-opening application, senior counsel for the respondent had made the limited concession to which we have referred.
617 At the time the limited concession was made an attempt was made to adduce evidence which in due course would be necessary to permit the tape to be tendered. But, as we have said, given the rejection of the warrants, that evidence at the time it was sought to be adduced was irrelevant and therefore inadmissible. Whether the appellant would have `got it's house in order' in May 2000, had the evidence been relevant and had adequate s 56 certificates been obtained, is not the subject of evidence nor was it raised in submissions. However, it is to be borne in mind that the PIC had, as the proceedings evolved, given wider certificates apparently accommodating the objections being taken by the respondent's counsel.
618 His Honour accepted at para 42 the respondent's submission that there was no evidence that the appellant was ever going to call evidence in respect of the provenance, continuity and transcription of the tapes. He was persuaded that the appellant's failure to call such evidence was cognate with a deliberate forensic decision not to call such evidence in the sense referred to by Clarke JA in Nweiser. His Honour found at para 44 that to be a "very relevant consideration", one he said he "[did] not find to be determinative by itself but is very persuasive".
619 In Nweiser, the appellant sought leave to re-open its case shortly after the commencement of addresses. The evidence then sought to be adduced was from a witness who had been at court and available to give evidence. The appellant's counsel had decided not to call the witness because he believed his evidence would be ruled inadmissible. Overnight reflection led him to a different view. The application was opposed on the basis that the appellant had made a deliberate tactical decision not to call the witness.
620 Clarke JA (Mahoney and Meagher JJA agreeing) noted the discretionary nature of the decision to allow or refuse such application, the need, in order to ground appellate intervention, to prove error in accordance with House v The King at 504-505, and the principle which governed the exercise of the discretion. In this regard, Clarke JA said at 478:
"The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not to call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately considered as one in which the application has resulted from an error by counsel."
621 Earlier, his Honour had noted at 476-477:
"For my part I can see nothing in the facts of this case which would indicate that, provided that the evidence sought to be led was relevant and admissible, the interests of justice would be better served by excluding the evidence. On the contrary on the assumption that the evidence was admissible I would have concluded that all the factors in the case favoured the grant of the application. The appellant would, if the application had been granted, have gained no tactical advantage and the respondent would not have been prejudiced in any way. All that had relevantly occurred was that the appellant sought to call the evidence some time after it had formally closed its case rather than before it had done so.
...
In my view the case could more appropriately be described as one in which the application resulted from the mistake of counsel. This is not to say that if a judge places weight upon the deliberate nature of the decision to call the witness he or she would necessarily have erred. For instance, if the evidence which it is sought to call upon the re-opened case, while relevant, could not possibly affect the outcome of the trial or is peripheral to the main issues then a trial judge may well be justified in declining leave to re-open. It may be otherwise if the evidence is crucial and would, if believed, lead to a different result. In a circumstance such as that, the interests of justice would seem to require the grant of leave to re-open where the earlier failure to all the evidence had resulted from some type of mistake.
In this case it could not be said that the evidence which the appellant sought to lead could not have had any impact upon the result and was peripheral and unimportant. While it is true to say that it did not deal with the incident upon which the claim was based it assumed considerable significance in the light of the defence raised and the issue joined between the parties. The respondent asserted that there was an incident on 13 August 1985 which led to permanent and severe disability. The appellant denied that there had been any such incident and asserted that the respondent was falsely seeking to blame it for a disability from which he suffered. In other words the respondent was asserting that the claim was a fraud. While matters of credit assumed great significance in the light of the primary issue between the parties it should not be overlooked that the real question was whether the respondent had established that the incident occurred and that he was genuinely claiming a causal link between that incident and his disability. In these circumstances the assertion by the appellant that the respondent had earlier admitted a serious back disability and had endeavoured to mount a false claim with support from fellow workers was of no little relevance. If, for instance, the witness had given evidence along the lines suggested by counsel in his submissions to his Honour and this evidence had been accepted by the trial judge then the result of the case may well have been different." (emphasis added)
622 Clarke JA considered that as the evidence which the appellant sought to lead was "relevant and important" the trial judge had erred in not granting leave to re-open.
623 Clarke JA had considered the principles governing a re-opening application in the earlier decision of Brown v Petranker (1991) 22 NSWLR 717. After noting that a decision to re-open was discretionary but that, in accordance with the principles in House v The King, it was "vulnerable if inter alia, the judge acts upon a wrong principle or if he allows extraneous matters to guide him", his Honour continued at 728:
"In my opinion there is an overriding principle which should be applied and that requires the court to inquire whether the interests of justice require that leave be granted or refused. There is no rule or, as far as I am are, practice of the court which requires a party seeking to recall a witness to show that that party has been taken by surprise. Nor is there any rule to the effect that it is only rarely that `a court will permit a witness who has completed his evidence to be recalled'.
On the contrary the court is concerned to consider what is just between the parties. Ordinarily the interests of justice would favour the grant of leave where the evidence sought to be adduced had been overlooked and the other party would not be prejudiced by the fact that the additional evidence is to be given after cross-examination and re-examination of the witness has been completed.
On the other hand if counsel had deliberately refrained from leading the evidence when the witness was being examined in chief in the hope of gaining some tactical advantage or it appeared that the opposing party would suffer prejudice if leave was granted there would be sound reasons for rejecting the application."
624 There is a question whether his Honour erred in regarding what had occurred as a failure to call evidence cognate with a deliberate forensic decision in the sense referred to by Clarke JA in Nweiser. On one view, the stance adopted by the appellant at various stages of the trial and to which we have referred is not to be treated as cognate with a deliberate forensic decision not to call evidence as his Honour found it to be. Rather, despite a number of attempts to call the evidence, including evidence of the warrants and the provenance and continuity of the tapes, it failed in having that evidence admitted. A substantial reason for that failure was his Honour's error in refusing to admit the copy warrants. That error was pivotal as everything else flowed from it, including senior counsel's decision at various times not to attempt to `force' the issue before his Honour, and/or to defer the matter or to take some alternative course.
625 His Honour next rejected the argument put to him by the respondent that it would be futile to admit the tapes because the appellant would not be able to prove provenance and continuity, and because there was an issue as to the width of the warrants [paras 47-49].
626 His Honour at para 50 then turned to what he described as the "stage of trial" point. He said "by doing so [I] return to an observation I made earlier". We think the observation was the "one component of one part in relation to one witness" in para 34 which we have set out. His Honour said [para 51]:
"Mr Nicholas approached the application on the basis that the exercise of my discretion whether or not to grant leave should not involve the consideration of questions of admissibility or the quality of the evidence. Those questions of admissibility would be dealt with following the grant of leave. This approach was not disputed for the [respondent] except in the areas, essentially, of futility to which I have referred above."
(And which, it should be noted, were rejected)
627 His Honour considered that if the application was granted it would involve "many days" of further evidence. He concluded [paras 57-59]:
"Given the issue to which the evidence relates, given the dimensions of the trial generally, given in particular the stage of the trial at which the application is made, given that the proposed evidence as I have said relates to but one component of one part of the [appellant's] case in relation to one witness, I do not see the interests of justice in terms of finality being reached at trial, on the issue litigated in the light of the evidence presently available, being compromised by rejecting the application.
As Mr Nicholas submitted there is a significant public interest in the resolution of this case on the merits. I am of the view that there is a sufficiency of a case (especially after the length of time), an abundance of evidence on all issues in relation to all relevant people to permit the resolution by me of it all on its merits. The resolution of this litigation on its merits will not, I am comfortably persuaded, be impugned by the dismissal of an application with the result that the [appellant] has not been able to lead evidence on this one issue in relation to one witness in relation to one part of its defence at this stage of this lengthy trial. it would be unjustly disproportionate to the dimensions of this case in every respect, especially in duration and quantum of evidence, further to permit its prosecution to allow the tendering of evidence on this discrete issue.
The `failure to pursue admissibility' point, as I have described it is persuasive as I have said. Of itself it would not be sufficient. The stage of trial point is sufficient; it combined with the persuasive point, leads me to the view that this is a case where the interests of justice are better served by rejecting rather than allowing the application."
628 It should be noted that, in the result, the determinative matter in his Honour's refusal of the application to re-open was the "stage of trial" point. The "failure to pursue admissibility" point was not sufficient. It added to the "stage of trial" point but, as we read the reasons, the "stage of trial" point was itself sufficient for refusal of the application.
629 The appellant submitted that his Honour's decision stands in stark contrast to the "assurances" he gave during the trial that if the Court of Appeal ruled in favour of the appellant in respect of the warrants "in the normal course presumably you would make an application to re-open, which I would venture to suggest would be successful, tender the evidence, the plaintiff would make an application to re-open the case in reply to that evidence. Why can't that happen at the conclusion of your cross-examination [of the respondent]?" [T 7197; AS 544]. Given his Honour's refusal of the application, this complaint is understandable. However, we do not see that it involves any appellable error. It was a comment made by his Honour during the course of an exchange with counsel. It was not made as part of a determination of an application, nor did it lull the appellant into not making an application. Once the application to re-open was made, evidence was given in support of it and full argument was heard. There was thus no denial of natural justice nor was the re-opening application made on a false premise. The most that happened was that the comment understandably engendered `hope' in the appellant as to the likely outcome of such application. As is not uncommon in litigation, the `hope' did not, after evidence and full argument, come to fruition.
630 The appellant also submitted that his Honour erred in attaching the significance which he did to his own estimation of the extended length of trial should he grant the application. In particular it was submitted that any such extension of time would not be of significance in the way his Honour found. There was argument before his Honour, to which we have already referred, that if the re-opening application was granted, other applications might need to be considered, for example, an application that the respondent be recalled for further cross-examination, or that he be permitted to re-open his own case in chief. The matter was essentially a matter for assessment by the trial judge. The matters argued before him would certainly indicate that any re-opening could extend the trial as his Honour considered would be likely [AS 550 - 551]. Accordingly, no appellable error on this question has been demonstrated.
631 Complaint was also made that his Honour erred in finding that it appeared that Elomari would not be recalled. We deal with this more fully later in these reasons when considering the course that the application to re-open took before his Honour. It is sufficient for us to record at this point that that material demonstrates that as the matter was put to his Honour, it appeared that Elomari was not going to be recalled. Accordingly, we do not see any error in this part of his Honour's decision.
632 The appellant next submitted that his Honour erred in finding that the interests of justice would not be compromised by rejecting the application. It was submitted that in so concluding his Honour failed to have regard and did not give any weight or consideration to the appellant's submission that the evidence of the tape went to two crucial and highly relevant issues: first, whether the respondent had sexual relations with Elomari at a time when he knew that Elomari was under-age and secondly whether the respondent counselled Elomari to give false evidence to the Wood Royal Commission about the relationship [AS 553]. Had that evidence been given, it was said, the appellant would have had direct material in its case, by way of admission from the respondent, that the first Today Tonight imputation was true. Had his Honour accepted the evidence on the tape, assuming that it did contain an express admission by the respondent, that would have established at least part of the appellant's justification case. The significance of that, of course, is that, had that justification defence been made out, it would have been a complete answer to at least one of the respondent's causes of action [AS 555].
633 On the view that his Honour's resort to Nweiser was inappropriate as an analogy and involved a wrong application of principle, it is open to the Court then to determine whether his Honour's order refusing leave to re-open should be set aside. There are other factors involved in that consideration, including the effect that the errors had on the ultimate outcome. The real question is whether his Honour's finding that the interests of justice would not be compromised by rejecting the application on the basis that the "stage of trial" point was sufficient involved appellable error.
634 At this stage we go to the course of the re-opening application.
635 Senior counsel, at the commencement of the making of the application to re-open, said to his Honour "can I perhaps outline the object of the exercise" [T 8391]. He identified as the "first step" in that exercise proof that the warrants were issued. The second step was "to put evidence before the Court which will establish the admissibility of the tape". He identified the tape as being "a conversation of 11 January 1996". He then said [T 8391]:
"Ultimately, we are seeking to lead evidence to prove the content of the conversation which we allege took place between Mr Elomari and Mr Marsden on 11 January 1996, and that a tape is an acceptable means, a well-recognised means of proving such a conversation. That is the essence of it. It is the proof of this conversation in the defendant's case in chief, and the issue is the presentation to the court of evidence which enables that conversation to be proved." (emphasis added)
636 Senior counsel indicated at T 8392 that he proposed to tender the evidence intended to be called in the proceedings "for the purpose of demonstrating to the Court what, if leave is granted, the exercise will entail". The evidence referred to is set out above (being the evidence referred to in paras 7-14 of his Honour's judgment [2000] NSWSC 530). He confirmed that that evidence would go to meet arguments of "inconvenience, delay and the like" which might be put against the appellant. He said "if it is an issue" he would expect the court would want to be seised "of what is likely to be involved in the relevant factors in the exercise of [the] discretion".
637 Senior counsel pointed out that Ms Hamilton's affidavit "goes to the proof of the content of the tape and attached to it the transcript, which is the transcript we will be seeking to have admitted into evidence" [T 8393]. He reiterated at T 8395:
"What we are seeking to do in this application is to indicate the evidence that we would be seeking to tender. Whether or not it survived objection as to relevance or anything else, in my submission, is not for determination in this application."
638 The tape was then tendered.
639 In support of its argument that leave to re-open should be granted, senior counsel for the appellant submitted there was no prejudice to the respondent. In so far as that submission related to tendering the tape, and it followed, having its contents before the court, he pointed out that no amendment would be required and that the respondent had had the tape at least since 21 February 2000 [T 8400].
640 Senior counsel reminded his Honour that, before the Court of Appeal, the respondent had informed the Court that he "would offer himself for further cross-examination in respect of the Elomari conversations": [2000] NSWCA 167, para 18.
641 Senior counsel again reminded his Honour that the application for leave to re-open was [T 8402]:
"... brought about as a consequence of the rejection of the attempt to tender during the course of this trial the warrants, or the material to prove the issuing of the warrants, which was regarded by your Honour as [an] essential first step. Our failure to persuade your Honour as to their admissibility led to the basis of the rejection of subsequent testimony relevant to our contention to establishing the admissibility ultimately of the tapes and thus to prove the conversation. In all of the circumstances, our submission is that the orders sought in the notice of motion should be made." (emphasis added)
There was, he submitted, "a significant public interest in the resolution of this case on its merits" [T 8402].
642 A question then arose as to the admissibility of the tape. His Honour was referred to Cross on Evidence para 1305 and R v Chen [1993] 2 VR 139, and senior counsel submitted that he believed that the evidence that the appellant indicated would be called if leave was granted was "sufficient to establish admissibility" of the tape [T 8403]. This was again a reference to the material to which we have referred. Senior counsel submitted that that was all that was necessary to be established at that time - that it was not necessary affirmatively to establish admissibility and the ultimate relevant weight of the material. He said [T 8403]:
"This is not the occasion for your Honour, as it were, to entertain ruling in advance questions going to admissibility and ultimately what this material might establish. We are indicating this is the boundary of the evidence we are calling."
643 His Honour pointed out that he did not know what was in the tape. The position of both parties was that it was not necessary for him to know the contents of the tape in order to determine the re-opening application. Indeed, counsel for the respondent submitted it was "perhaps more desirable" if his Honour did not. Subject to matters which we discuss later, it was technically correct to say that on an application of this nature, it only needed to be established at a prima facie level that the evidence was admissible and relevant. In relation to relevance, however, the material would have to be "important" in the sense used in Brown v Petranker and Nweiser. That called for some knowledge of what was in the tape, even it if did not require his Honour to listen to the tape or read the whole of the transcript.
644 Counsel for the respondent, in the course of his submissions, obviously recognised that the appellant's point in seeking to re-open was to get before the court the contents of the 11 January 1996 conversation. He said [T 8408]:
"... your Honour would adjudicate this application on the basis that if the tape were admitted into evidence, the likelihood is that that would have the consequence that there would then be further examination and cross-examination of the [respondent] and, indeed, that the [respondent] might in that circumstance, or would in that circumstance have to consider the contents of other tapes as to whether there was additional material that he and his advisers considered should then be tendered in his case as explaining or in some way dealing with that part of the Elomari material that Mr Nicholas or the [appellant] would seek to tender. I do not take a position on that. I simply raise the point in this context that this is not an application that is to be dealt with in a single day because while the material specifically sought to be reopened is undoubtedly of narrow compass, the consequences of, first of all, success on this application and then success in seeking to have that evidence admitted and ultimately tape 189 admitted, would have further consequences for the conduct of the trial and that is the additional delay, extension of trial, increase in cost - that was my next point of prejudice."
645 Counsel for the respondent informed his Honour, however, that the respondent's concession in the Court of Appeal that he would make himself available for cross-examination was not "currently binding".
646 The submission of counsel for the respondent stated "the issue of futility or of the likelihood that the evidence, if admitted, would affect the result of the case or of the issue on which the re-opening is led" [T 8405]. Notwithstanding the statement of the issue, it was not developed in the submissions.
647 At T 8415 his Honour asked counsel for the respondent when was it, after the initiation of the first set of proceedings, that the appellant first particularised the case in relation to Elomari. In raising this question, his Honour said [T 8415]:
"Could you assist me with this, the information and then what is anything I should do with it."
His Honour added:
"The point is this, and it is falls under the rubric of your futility submission, if it was not until after 11 January 1996 that [the respondent] knew about the details of the allegation of Mr Elomari, it might be a very real question that would attend the admissibility of these tapes."
648 His Honour then referred to the "chronology of the particulars" pointing out at T 8416 that although in a defence filed prior to 11 January 1996 there was a reference to D6, Elomari's original pseudonym in the proceedings, his identity was not appreciated until after that date and the particulars of his allegations were not given until 14 November 1997. In referring to this, his Honour made it clear that he was only concerned with particular 7, being the particular provided by the appellant in support of its admissions by conduct case in so far as it related to Elomari giving evidence in the proceedings.
649 Relevantly for present purposes his Honour raised a final point which directly related to the contents of the tape. He said [T 8416]:
"The particulars of admission of conduct were delivered on 25 January. That is well within everyone's memory. The particulars in relation to Mr Elomari appear on page 4 and are three lines long. They were then expanded on 22 February 2000 and of the expanded particulars, as I understand it, I am only concerned with particular number 7 because it is the one that relates to a conversation on 11 January 1996."
650 Counsel for the respondent replied in the affirmative, saying that "my apprehension is that that is the basis on which it is said the tape would be ultimately relevant" [T 8416]. After some other remarks, he said that "as well as the point of futility" there was the additional factor that [T 8416]:
"... even if the tape were ultimately admitted, it could not provide evidence of particular 7 because there is no basis on which your Honour could infer that on the date of the conversation in January 1996 that [the respondent] would have had in mind that Elomari would ever give evidence in a defamation trial." (emphasis added)
651 In his reply, senior counsel for the appellant dealt immediately with the matters last discussed by his Honour and counsel for the respondent [T 8417]:
"I make plain that it is not clear to me what point is sought to be made by reference back to the pleadings and the furnishing of particulars in relation to our application for leave. I simply do not appreciate the significance of the reference back to those matters as relevant to the merits of the application that is presently before your Honour.
However, I understood that my friend had no objection to you reading the transcript of the tape, he will correct me if I am wrong about that, but on the assumption that I am right, then it will become apparent that from the content of the tape taken on 11 January 1996 that the Channel 7 matter was discussed and the question - the whole point of it, that is why we are here, because we are seeking to prove a conversation." (emphasis added)
652 He said he would take his Honour to the tape after lunch to:
"... make it abundantly plain that [the respondent] was addressing himself to the prospect of Elomari giving evidence as to his encounter and the timing of it in relation to the Channel 7 libel case. I find it difficult that my friend would put a submission to the effect that as an additional factor there could be no evidence to enable the court to infer that [the respondent] would have had in mind that Mr Elomari would give evidence in the defamation case. We simply say one goes straight to the tape to make that abundantly plain." (emphasis added)
653 He then moved to another matter.
654 During the further course of his submissions in reply, senior counsel for the appellant sought guidance from his Honour as to whether his Honour considered final admissibility points were relevant on the re-opening application. His Honour indicated they were not, "leaving aside the closing part of [counsel for the respondent's] submissions" and the point taken as to whether the warrants authorised the installation of the tapes. He indicated he was only concerned with that issue at a prima facie level [T 8421].
655 Senior counsel then referred his Honour to certain portions of the Hamilton transcript of the tape in response to the point last raised by counsel for the respondent, that the court would not infer that in the date of the conversation in January 1996 the respondent would have had in mind that Elomari would give evidence in a defamation trial. His Honour indicated he had "skimmed" both transcripts for the purpose of understanding that submission. Senior counsel submitted that it was apparent from the references to which he took his Honour that the prospect of Elomari giving evidence in the defamation trial was raised in the conversation on the tape.
656 After a short number of references to the transcript his Honour indicated he had been shown "sufficient for present purposes" [T 8424]. Senior counsel responded that there were many more references to which he could take his Honour "to refute that point" [T 8424]. Mr Nicholas QC then dealt with the "installation of the tape" point. Towards the end of his submissions in reply, senior counsel said [T 8427]:
"There were, I think, a couple of other matters that I should deal with. This application is, of course, for leave to reopen our case to enable us to prove a conversation by means of this evidence." (emphasis added)
657 He then dealt with the submissions made in respect of the further cross-examination of the respondent. In the course of that he stated that the appellant's intention was, if its application was successful, to call the proposed evidence which included the tape, in which case, "assuming [everything] in our favour, there is evidence there of a conversation" [T 8428]. He submitted that what then followed would depend upon what applications were made and granted. The likely applications were, he indicated, for the appellant to further cross-examine the respondent and for the respondent to re-open his case. He submitted that the consideration of those matters "was a separate exercise" from the determination of the re-opening application [T 8428]. He concluded [T 8429]:
"I have endeavoured to meet the matters raised against us but I invite the court to put to me anything else that may be troubling it."
658 His Honour sought assistance with the chronology of this aspect of the proceedings and further raised a question whether this Court had indicated "that the rejection of the Elomari tapes would be a new trial point" [T 8430] and then commented:
"I am really not concerned with that in a strict sense, am I?"
659 Senior counsel for the appellant responded [T 8430]:
"It is for me to persuade you, going to Nweiser, that the evidence has sufficient importance in the case to enable it to be said that the administration of justice in this case requires affording the [appellant] the opportunity of tendering it."
660 Whilst the above has been a lengthy exercise it has been important to establish what issues the parties put before the court for consideration on the re-opening application. Two possible views emerge from the matters put to his Honour. The first may be summarised relevantly for present purposes as follows.
First View of Refusal of Re-opening Application
661 It was always clear that the appellant's ultimate goal was to have admitted into evidence the conversation on the Elomari tape. There were preceding questions of admissibility which related to that which needed to be attended to. The evidence earlier tabulated was relevant (although not all was necessary) to answer that question.
662 It is also relevant that in this Court's judgment: see [2000] NSWCA 167, the Court recorded at para 10 the basis upon which the appellant submitted the conversation on the tape was relevant, namely to "the defences of justification and ... [to] be used in the cross-examination of the opponent". The Court further observed:
"The rulings made by his Honour and which are sought to be appealed from have prevented the claimant using the material in this way."
Senior counsel for the appellant indicated that it was likely that an application to further cross-examine the respondent would be made if leave to re-open was granted.
663 In his submissions, counsel for the respondent raised a specific issue in opposition to the re-opening, namely that the conversation on the tape could never be relevant as an admission by conduct. In the course of that argument, a question arose as to when the specific Elomari allegations were raised. That led his Honour back to the particulars and specifically to particular 7 (the admissions by conduct particular). However, it must be remembered that the relevance of that particular was founded in the particular given on 26 October 1999 that "in or about November 1982, when [Elomari] was 17 years of age the [respondent] had anal intercourse with [Elomari]". In the course of further submissions to this Court in relation to the re-opening issue, the respondent also conceded that particular 6 was relevant, namely that the respondent had attempted to influence Elomari to give false evidence to the Wood Royal Commission.
664 Senior counsel for the appellant, in his submissions in reply, took his Honour to certain portions of the tape to deal with the respondent's particular submission that the conversation on the tape could never be relevant as an admission by conduct. In doing so he did not abandon his submission that the purpose of the re-opening application was to prove a conversation between Elomari and the respondent which would prove its particularised justification case in relation to Elomari or confine himself to a case that the respondent knew that Elomari was going to be called as a witness in the defamation proceedings. The submission was one strictly in reply.
665 On this view, in refusing the application to re-open, his Honour had effectively `laid the blame' at the feet of the appellant and equated the appellant's position during the period February to May with a deliberate tactical decision not to call evidence. Then, in placing ultimate reliance on the `stage of trial' point, he failed to recognise the significant part his erroneous rulings had played in the trial reaching that point without the evidence being adduced. In those circumstances, and given the "point" of the exercise, namely to get before the court evidence of the conversation as part of the particularised justification case, his Honour's refusal of the application denied the appellant the opportunity of having relevant and important evidence before the court. On this view, the interests of justice were such that his Honour should have granted leave to re-open. This view of course is based solely on the appellant's submission that the tape was relevant to the particulars. His Honour did not know, except to a limited extent, what was on the tape. We return to a further consideration of this issue later as the Court has heard the tape and read the PIC transcript for the purposes of determining this part of the appeal.
Second View of the Re-opening Application
666 As we have shown, the position of both parties was that it was not necessary for the trial judge to know the contents of the tape. That was modified to the extent of dealing with whether the respondent would have had in mind that Elomari would have given evidence in a defamation trial, but no further.
667 As well, it will be recalled that senior counsel for the appellant indicated that the appellant might seek leave to recall the respondent for further cross-examination and that there could be an application by the respondent to re-open his evidence, his submission being that the judge should not worry about whether that would be so. He said [at T 8428]:
"My submission to you is that it would be inappropriate for your Honour to look beyond the merits of this application to speculate about what might happen `if' when dealing with the merits of this application because one simply just does not know. One does not know how successful or otherwise ultimately we will be in getting our material in and what the plaintiff's reaction to it might be, once if at all it is admitted."
668 Thus the appellant deliberately held back from going into the significance of the contents of the tape in the proceedings, substantively and procedurally. At the end of the submissions of senior counsel there was again reference to "the importance of getting the matter properly decided". In the course of that senior counsel for the appellant said:
"Nweiser made it plain that perhaps reopening wouldn't be concerned with the peripheral or trivial matters and I think it is trite to put that is not the territory we are in with these matters and that is all I wanted to say about that."
That is all that the appellant did say about it.
669 In the course of the discussion between his Honour and senior counsel for the appellant as to the transcript references to which his Honour was taken, his Honour said:
"As I understand it, Mr Nicholas, the purpose of referring to the tapes or the transcript is to rebut the submission that the plaintiff, as at the date of the recording, had no knowledge that Mr Elomari would be called in the defamation case."
670 This comment by his Honour might indicate that he may have had an incorrect understanding at this point. On the submissions of counsel for the respondent "there was no basis" on which his Honour was going to be able to "infer that on the date of the conversation ... [the respondent] would have had in mind that Elomari would ever give evidence in a defamation trial". He submitted that that factor was relevant to the ultimate admissibility of the tape. In effect, he said that the tape should not be admitted because it was not relevant; it was not relevant because it was tendered only as to particular 7 of the admissions by conduct; whatever the respondent said to Elomari could not be an admission by conduct because the respondent did not know at that time that Elomari would be called in the defamation case.
671 The submission was incorrect, both in logic (because suborning Elomari in relation to the Wood Royal Commission could be just as much an admission by conduct) and in fact (because the tape showed the respondent knew that Elomari was likely to be a witness in the proceedings: at that time he had been interviewed by the appellant). So, there had to be more point to tendering the tape than proving knowledge that Elomari was to give evidence.
672 Notwithstanding that on this view his Honour seems to have misunderstood the purpose of tendering the tape, senior counsel for the appellant did not correct Levine J's understanding or otherwise explain the significance of the conversation. In particular, he left the significance of the conversation as it had been understood by counsel for the respondent, going only to the particular 7 admissions by conduct.
673 In the result it remained the appellant's position that there was no need for his Honour to pay regard to what the conversation was and the appellant never explained the significance of the conversation - it only said that it was important. In what the respondent said about the significance of the conversation it went only to the particular 7 admission by conduct, and his Honour may have misunderstood what was being said about that and seen the significance as in some way being only part of the proof of the admission by conduct. As we have said, the appellant did not correct his Honour's misunderstanding.
674 Returning then to his Honour's judgment, this explains why his Honour seems to have seen very little significance in the tape if admitted. Thus in para 15 he narrows what the proposed evidence relates to, to the particularised admissions by conduct case in respect of Elomari, and in para 34 he refers to "one component of one part in relation to one witness in respect of the whole of the [appellant's] case". He does say in para 34 that "that one evidentiary component must be taken to be seen as important". However, "be seen as" is rather different from "be". If his Honour understood the purpose of having the tape admitted was to prove a conversation, the significance of which was limited, as this view of his Honour's reasons would have it, then the principle in Nweiser would not be offended and the appellant can not now complain about his Honour's finding that the interests of justice would not be compromised by rejecting the application.
675 That would then leave in place his Honour's "sufficient reason" for refusing the application - the stage of trial point. His Honour correctly stated the stage at which the trial had reached. Even if it be assumed that the stage of the trial at which the application was made was contributed to by his Honour's erroneous rulings, the reason why his Honour considered that was sufficient of itself to refuse the application was because, on the view of his reasons presently under discussion, the minor significance of the conversation on the tape was such that the balance favoured refusal of the application to reopen. On this view there is no appellable error.
676 Giles and Santow JJA prefer the second view and are of the opinion that in the circumstances error has not been shown in the trial judge's exercise of discretion in refusing the application to re-open. Beazley JA would prefer to determine this matter by regard to the discretionary considerations to which we now go. Giles and Santow JJA join also, as an alternative, in the determination by regard to the discretionary considerations.
If there is appellable error should this Court interfere?
677 We return at this point to consider the matter on the basis that his Honour did err in the two respects previously identified, first, in his application of Nweiser and secondly by failing to recognise the extent to which his own rulings contributed to the "state of trial" point.
678 The next question is whether the Court ought to interfere with his Honour's exercise of discretion. In this regard, the fact there is error does not require appellate intervention. In House v The King at 504-505 per Dixon, Evatt and McTiernan JJ, it is said that if there is error:
"the appellate court may exercise its own discretion in substitution for [the trial judge's ] if it has the materials for doing so." (emphasis added)
See also Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; In re the Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 at 322-323.
679 The appellant relied upon the High Court's decision in State of Queensland v JL Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146 at 155 and 157. In that case, Dawson, Gaudron and McHugh JJ, in holding that the trial judge had been in error in refusing leave to amend a defence prior to trial, said at 155:
"Justice is the paramount consideration in determining an application such as the one in question."
680 If the Court does consider it appropriate to interfere the only appropriate order in this case would be a new trial (although the extent of the new trial would depend upon a variety of matters extending beyond this issue).
681 The respondent submitted that his Honour's determination to refuse the re-opening was well based for the reason that the appellant was never precluded from calling the relevant evidence, through Elomari. During the course of the argument on the appeal, this became known as the `best evidence rule' point. He further submitted that this Court should not, in any event, order a new trial because there has been no substantial wrong or miscarriage caused by the wrongful exercise of discretion: Supreme Court Rules, Pt 51 r 23(1).
Best Evidence Rule
682 The appellant responded to the respondent's assertion that it was always open to the appellant to call Elomari to give evidence of the conversation he had with the respondent on 11 January 1996 which was the subject of the tape recording by submitting that the tape was the `best evidence of the conversation'. The appellant contended that it was entitled to adduce evidence of the conversation(s) between Elomari and the respondent recorded on the tape by the tender of the tape. It was entitled, it said, and possibly even obliged, to produce the `best evidence' of the conversation. That evidence was to be found on the tape. It resisted the argument that the same evidence could have been adduced by having Elomari give evidence on the basis that Elomari's evidence would not have been the `best evidence'.
683 As Lord Hardwick commented in Omychund v Barker (1745) 1 A&K 21 at 49[1744] EngR 927; ; 26 ER 15 at 33:
"... there is but one general rule of evidence, the best that the nature of the case will allow."
684 The best evidence rule is of ancient origin and, it appears, of doubtful modern relevance: see Kajala v Noble (1982) 75 Cr App R 149 at 152; R v Governor of Pentonville Prison, Ex parte Osman [1989] 3 All ER 701 at 728; Masquerade Music Ltd v Springsteen (2001) 51 IPR 650 at para 71.
685 The general rule that an original of a document should be produced is sometimes spoken of as the most important survival of the best evidence rule. In Masquerade Music v Springsteen at para 77 Parker LJ described the `best evidence rule' as
"... no more than a rule of practice to the effect that the court would attach no weight to secondary evidence of the contents of a document unless the party seeking to adduce such evidence had first accounted to the satisfaction of the court for the non-production of the document itself."
686 Parker LJ went on to consider the modern operation of the rule, noting, as Balcombe LJ said in Ventouris v Mountain (No 2) [1992] 3 All ER 414 at 426:
"The modern tendency in civil proceedings is to admit all relevant evidence, and the judge should be trusted to give only proper weight to evidence which is not the best evidence."
687 He concluded that the rule no longer existed at least in its stricter form. As he explained at para 85:
"... where a party seeks to adduce secondary evidence of the contents of a document, it is a matter for the court to decide, in the light of all the circumstances of the case, what (if any) weight to attach to that evidence. Where the party seeking to adduce the secondary evidence could readily produce the document, it may be expected that (absent some special circumstance) the court will decline to admit the secondary evidence on the ground that it is worthless. At the other extreme, where the party seeking to adduce the secondary evidence genuinely cannot produce the document, it may be expected that (absent some special circumstances) the court will admit the secondary evidence and attach such weight to it as it considers appropriate in all the circumstances. In cases falling between the two extremes, it is for the court to make a judgment as to whether in all the circumstances any weight should be attached to the secondary evidence. Thus, the `admissibility' of secondary evidence of the contents of documents is, in my judgment, entirely dependent upon whether or not any weight is to be attached to that evidence. And whether or not any weight is to be attached to such secondary evidence is a matter for the court to decide, taking into account all the circumstances of the particular case."
688 The best evidence rule, even in its `modern formulation', only applies where words in a document are relevant: see Cross on Evidence at para 39010. It has been applied by analogy to tape recordings.
689 However, resort to the `best evidence rule', whatever be its present day application, is not necessary as the position is now governed by the provisions of the Evidence Act. Under that Act, "document" is defined to include "(c) anything from which sounds can be reproduced with or without the aid of anything else". This includes tape recordings. Section 48 then deals with proof of contents of documents. It provides, relevantly:
"(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:
...
(c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing) - tendering a document that is or purports to be a transcript of the words
..."
690 Accordingly, the tape was admissible under s 48(1)(c). Section 48 does not, however, govern any need to satisfy the court of the authenticity of the `document': see National Australia Bank Ltd v Rusu & Ors [1999] NSWSC 539; (1999) 47 NSWLR 309. Nor does it have anything to say about validity, being the matter in issue here, which would also have to be independently established.
691 It follows that the tape and the transcript were admissible, subject to proof that the tape recording was validly authorised. Strictly, therefore, it was not even necessary to call Elomari for the purpose of having the tape admitted and questions involving the `best evidence rule' are superfluous.
692 We consider, however, that the respondent's argument is directed to a different point - namely, that as a matter of the exercise of discretion, the tape and transcript ought not now be admitted because there was another means whereby that evidence could have been led at trial - namely, directly from Elomari.
693 The submission that Elomari could have given the evidence is correct, but, with respect, is one devoid of practical reality. The Court would have been little assisted by an attempt to have Elomari give this evidence. We now know that the tape recording was of approximately two hours duration. It covers 78 pages of transcript. It is unrealistic to contend that anyone could give accurate evidence of a conversation of such duration. And, accuracy was particularly important in respect of this conversation. When there is added to that the factors that the conversation occurred over four years prior to Elomari giving evidence and that Elomari is virtually illiterate in both his own language, Arabic, and in English and was a drug addict with all the implications that has as to memory recall, we do not consider that the appellant should now be penalised for having not sought to have adduced the evidence of the conversation directly through Elomari. We think that any rational litigator would have considered it folly to have attempted to do so rather than (attempt to) have the tape admitted.
694 In later submissions, made at the time of the further argument in the matter, the respondent submitted that any problems Elomari may have had in giving evidence could have been overcome by having Elomari revive his memory in court by use of the relevant tape. It said there could be no dispute the tape would have fallen within the provisions of s 32 of the Evidence Act. That section provides:
"32 Attempts to revive memory in court
(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account:
(a) whether the witness will be able to recall the fact or opinion adequately without using the document; and
(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that:
(i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or
(ii) was, at such a time, found by the witness to be accurate.
(3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.
(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party."
695 As already mentioned, a tape recording comes within the definition of `document' for the purposes of the Evidence Act.
696 There are a number of difficulties with the respondent's argument. Section 32 is directed to a document made `after' the event, which is not admissible per se apart from the provisions of s 32 and was formerly admissible under the general law of evidence on essentially the same basis. The tape recording was, for reasons we have already explained and subject only to proof it was validly authorised, directly admissible.
697 It is also arguable that the tape does not satisfy s 32(2)(b)(i). That, of course, is probably only reflective of what we have already said, that the tape recording is not a document to which s 32 is directed.
698 Next, the section is a discretionary one. If the tape, albeit admissible under s 48, was not admitted because it had not been proved the recording was validly authorised, we have serious doubts that a discretion would then have been exercised in favour of permitting the tape to be used to refresh memory. We are certainly satisfied that given the respondent's robust opposition to the admission of the tape as primary evidence, there would have been an equally vigorous opposition to it being used to refresh memory.
699 Accordingly, we do not see that there is anything in this argument.
Whether Substantial Wrong or Miscarriage Caused by Refusing the Re-opening Application
700 We return to the respondent's submissions, that, in any event, the Court would not now order a new trial because there was no "substantial wrong or miscarriage" in refusing the re-opening application: Supreme Court Rules Pt 51 r 23(1). This of course is the ultimate question for the Court's consideration.
701 As we indicated, subsequent to the conclusion of the hearing of the appeal the Court determined that, in order to properly consider the issues on this part of the appeal, it was necessary to listen to the tape. It did so and at the same time had access to the PIC transcript. Thereafter, the matter was re-listed for further submissions as to the relevance of the contents of the tape to the issues on the appeal.
702 In its further argument, the appellant submitted that the tape was relevant in four respects, which to a significant extent overlap. First, the contents of the tape corroborated Elomari's evidence at trial; secondly, they contradicted the respondent's evidence in relation to Elomari in material respects; and thirdly, they contradicted the respondent's evidence in relation to offering financial benefits to justification witnesses. These three matters were relevant, it was said, not only as to the actual material contained on the tapes, but also as important evidence tending to corroborate Elomari generally and to contradict the respondent so as to affect the trial judge's general assessment of the evidence of each.
703 The fourth matter of relevance, on the appellant's further argument, was that the contents of the tape so undermined the credibility of the respondent as to materially increase the probability that the trial judge would have accepted the evidence of other witnesses in preference to the respondent's evidence. It is worth noting at this point that if the tape goes merely to credit, that would only be evidence concerning a collateral fact, a collateral fact unlikely to afford sufficient basis to disturb the trial judge's refusal to permit re-opening: see Goldsmith v Sandilands, where the High Court, by majority, upheld a judicial commissioner's refusal to allow re-opening to permit further evidence on just such a credit matter, holding that such evidence concerned a collateral fact not directly relevant to a fact in issue.
704 We turn to a consideration of each of these submissions.
Tapes as Corroboration of Elomari's Evidence
705 We have earlier referred to his Honour's consideration that the date of the commencement of the relationship between Elomari and the respondent was the central issue in relation to this part of the appellant's case. The appellant submitted that the taped conversation tended to support Elomari's contention that the first sexual contact with the respondent was in November 1982, a few weeks after the respondent had appeared for him in court and on an occasion when Philip Chown was present at the respondent's home.
706 It was submitted that had the tape been admitted it would have been difficult for the trial judge to have found other than that the sexual contact between Elomari and the respondent commenced when Elomari alleged, namely about November 1982. In that case, it was probable that his Honour would have been satisfied that the Today Tonight imputation 1(a) that:
"the respondent has had sexual intercourse with boys who are under the age of 18 knowing them to be under the age of 18"
was true.
707 This submission raises the immediate question as to precisely what was the nature of Elomari's evidence at trial. We have referred to that evidence above. In essence, it was evidence of a non-consensual sexual encounter involving, by necessary inference, anal intercourse occurring in circumstances where sometime prior to it he was in the company of the respondent and Chown, and when on waking up, he was at least in the company of the respondent [T 4148-4149]. There is no evidence of who was the other party to the direct encounter.
708 The material on the tape (using the PIC transcript) records Elomari as asserting a sexual encounter with the respondent commencing from the second weekend after he commenced going to the respondent's house in November 1982. The relevant portions of the transcript are at PIC 31-32 and PIC 41 (the material "ui", as we understand it, indicates something on the tape which could not be transcribed):
PIC 31-32
"[Elomari]: The first, when you when you got me out of court right?
[Marsden]: Yeah.
[Elomari]: When my mum was standing right next to me, you gave me the card right?
[Marsden]: Yeah.
[Elomari]: You said "Ring me on Sunday".
[Marsden]: Yeah.
[Elomari]: alright, I rang you on Sunday when I done this clean up and this you gave me 50 bucks or something.
[Marsden]: Yeah that's right.
[Elomari]: And that was big, right. Big for me mate. Alright?
[Marsden]: Yeah.
[Elomari]: and me, I fucking come back the second week right and then (ui), oh, believe me mate, I remember everything.
[Marsden]: And Philip was here, was he?
[Elomari]: Yes it was a big night ...
[Marsden]: (ui) Philip was here?
[Elomari]: Yeah.
[Marsden]: OK do you want to know when I met Phil?
[Elomari]: When?
[Marsden]: 1st of January 1983.
[Elomari]: Right listen to me right.
[Marsden]: Yeah.
[Elomari]: OK now, if Philip was your man in here in '83 right.
[Marsden]: '83 yeah.
[Elomari]: Right, now when you met me right, the time you went to court for me right.
[Marsden]: Yes.
[Elomari]: Right, you told me (ui) right and you and I, sort of, you know, ah ...
[Marsden]: Yeah.
[Elomari]: ... like, you wanted to suck me off you know and fucking, you wanted to have a joint and I said "Mate it's your fucking house, you do what ..." Remember that?" [emphasis added]
PIC 41
"[Elomari]: There's from the second weekend but I I come to your house back when we started making love."
709 There was also a reference in the earlier part of the tape to Chown being involved on that weekend. That reference appears to be a reference to a sexual encounter:
PIC 25-26
"[Marsden]: Right OK. ... You didn't come back for a long time. You were never regular up here until you had the car accident and that was in 1983, I got your files out and indicated the date you had the car accident, right?
[Elomari]: Right. Strong memories of that mate. Second week, you and Phillip and (ui)
[Marsden]: No it was not that time. No you're wrong (ui)"
710 Leaving aside the question of the date, there is nothing in this exchange or in the intelligible portions on the tape to indicate that there was a non-consensual sexual encounter - in fact, the reverse is the case. Nor is there an audible statement on the tape either by Elomari or the respondent that Elomari and the respondent had anal intercourse. This is relevant because the particularised allegation is of anal intercourse and the respondent denies that his sexual relationship with Elomari ever involved anal intercourse.
711 The PIC transcript also has a number of references where Elomari denies that rape occurred or that he had said to a representative of the appellant in a tape recorded conversation that he had been raped. For example, in the PIC transcript at page 14, after earlier referring to an interview he had with Quail from the appellant (at p 12 of PIC transcript) the following exchange occurred:
"[Marsden]: where you said `Oh no he raped me,' Right? Now I don't know what you said, it doesn't matter what you said because I know that's not true, you know it's not true right?
[Elomari]: but John John John John
[Marsden]: So it doesn't matter but when you ... Steve, do you want, I I can't talk to you sometimes, you just don't want to hear. I'm trying to explain to you something mate that's going to ...
(ui) what you said is not important. That's not important
[Elomari]: But I didn't say that.
[Marsden]: Well what does it matter if you said it, I don't care.
[Elomari]: I did not fucking say it
[Marsden]: But Steve, does it matter whether you said it or not?
[Elomari]: No it does, I never said it."
712 There are further denials that he did not say to a representative of the appellant that he had been raped at 15-16 of the PIC transcript.
713 Then at page 45 of the PIC transcript there is the following description of a meeting with Quail on 22 January 1995, that is a year before the Elomari tape.
"[Elomari]: They sort of put words in your mouth, like they go ...
[Marsden]: Yeah
[Elomari]: Did he rape ya, Oh did he rape, Oh your saying he raped you, Oh yeah, raped you, did he, you know what I mean?
[Marsden]: Yeah
[Elomari]: They'll do that ... "
714 Accordingly, the tape does not support Elomari's evidence at trial of anal rape. It supports only an allegation of a consensual sexual encounter. That difference, had the tape been admitted, would have been a fertile area for cross-examination of Elomari. However, a more difficult question arises. The trial judge rejected Elomari's evidence at trial. The appellant continually asserted, however, that its purpose in seeking to have the tape tendered was to get evidence of a conversation before the court. Although it was never articulated, we have always understood the appellant to be asserting that its purpose was to tender the tapes as original evidence of the conversation so as to prove the substantial truth of the imputation. We will proceed on that basis and leave aside whether any question would have arisen as to hearsay and the giving of notice under the hearsay provisions of the Evidence Act before the tape was admissible.
715 Assuming the purpose of the tender was as we have stated, it must be remembered that the court was dealing with a discretionary application. In addition, a trial judge has an overriding discretion as to whether to admit evidence: s 135 of the Evidence Act. We consider that in the interests of justice an appropriate exercise of discretion in both respects would have required that Elomari be made available for cross-examination on the tape. That offer was never made. His Honour found that Elomari was not going to be recalled. Certainly the appellant gave no indication to his Honour during the re-opening application that Elomari was going to be recalled in examination in chief if leave to reopen was given. Even more pointedly, counsel for the respondent specifically addressed the court on the basis that Elomari was "not going to be recalled" [T 8408]. He did so in a context where there was nothing before the court on the re-opening application to indicate Elomari would be recalled for any purpose at all. To the extent there was an indication, it was the reverse. The submission of counsel for the respondent appears to reflect that position. The appellant did not reply to it. It is not surprising that the appellant was not proposing, so it appeared, to recall Elomari. Looked at from the appellant's viewpoint, Elomari was a most unsatisfactory witness whose answers did much to damage the appellant's case and who was held to be a liar.
716 The appellant contended on the appeal that his Honour's finding that Elomari was not going to be recalled was wrong. For the reasons just given, we do not consider it was. However, the appellant put further submissions to the effect that any consideration of matters, other than those directly relevant to the admissibility of the tape, should be left for later consideration by his Honour depending upon whether the tape was admitted. The submission on appeal continued on the basis that "if the tapes were admitted then it may not be necessary to recall Elomari at all" [AT 477]. But if some dispute arose, for example as to whether it was the respondent's voice on the tape then "it would be ... legitimate for Elomari to be recalled to deal with that aspect, but absent such an issue arising there was nothing further for Elomari to do" [AT 477].
717 Senior counsel for the appellant also submitted to this Court that if the respondent required Elomari for cross-examination "of course he would be called" [AT 477]. As we have said, no such indication that that was the appellant's position was given to his Honour. Further, as we have said, it appears to us the opposite was the case. That this was so is reinforced by the appellant's contention before his Honour that if leave to re-open was granted, the evidence proposed to be tendered, including cross-examination of any witnesses "up hill and down dale" would only take a day. That submission would be fatuous had the appellant intended to recall Elomari or make him available for cross-examination. If he was to be made available for cross-examination that `offer' would, almost indisputably, have been taken up. That would not, on any reasonable assessment, have been achieved within a day. We do not accuse senior counsel of making fatuous submissions. Rather, we consider that a consideration of the material tendered to his Honour and of the submissions made is such that his Honour would have readily understood that the appellant was not proposing to call Elomari for any purpose.
718 In our opinion, it would have been unfairly prejudicial to the respondent if Elomari was not recalled for cross-examination if leave to re-open was granted and the tape was admitted into evidence. Not only were there the inconsistencies between his evidence (an allegation of rape) and his statements on the tape (of consensual intercourse), there were also a number of unidentified and inaudible portions of the tape on which cross-examination could be expected. There was also material on the tape whose purport could only be tested by cross-examination.
719 If Elomari was not recalled in cross-examination, the respondent would have found himself in the unfairly prejudicial position of most likely having, on the one hand, to give further evidence, insofar as he wished to controvert any matter said to arise from the tape, and submit to cross-examination himself. Yet his counsel would have been denied the opportunity of cross-examining Elomari.
720 The application to re-open must self-evidently be judged by reference to the circumstances prevailing at the time. It is no answer for the appellant now to proffer Elomari as a witness. What is in question is whether a substantial miscarriage of justice was occasioned by the trial judge refusing leave to re-open on the position as it was then put before him. The appellant bore the onus to put to his Honour the basis for leave being justified. Whether Elomari would be made available would have been highly relevant to that issue. In those circumstances the unfair forensic choice which the application to re-open, if granted, would have imposed on the respondent is readily apparent. It is no answer to say that the trial judge might have made it a condition of leave that Elomari be made available. As the matter was put to his Honour, that was not on the table.
721 We consider, therefore, at this point that, not only has the appellant failed to satisfy us that the material on the tape would corroborate Elomari's evidence at trial, but a consideration of the application to re-open indicates that, on the basis it was made, the prejudice to the respondent if leave to re-open was given, was substantial. The second of these matters, of itself, would be sufficient for us to refuse to now interfere with his Honour's refusal of the application to re-open. The prejudice would be of such a nature that it would not have been in the interests of justice to permit the re-opening: see Brown v Petranker and Nweiser and no substantial miscarriage of justice was occasioned.
722 This leads us to make a further observation. His Honour referred to the fact that Elomari would not be recalled. His Honour is a highly experienced trial judge who in the normal course would be well apprised of the significance of that. The matters we have advanced as to the prejudice to the respondent if Elomari was not recalled are hardly novel or particularly sophisticated. We consider them to be obvious. However, his Honour did not base his decision to refuse the application on those matters. As our reasons would indicate, that could be considered to be surprising in the circumstances. It perhaps might be explained, however, by the fact that his Honour did not need to attach any particular significance to it if the alternate view of his reasons is correct. In other words, if his Honour's judgment is predicated on the basis that the purpose of tendering the tape was to prove a matter of relatively minor importance, then he did not need to turn his attention to the consequences which flowed from the fact that Elomari was not going to be recalled. It was sufficient to reject the application given the "stage of trial" and that the re-opening related to a relatively insignificant matter.
723 The first matter to which we referred, that is that the material on the tape does not corroborate Elomari's evidence, in another way indicates that there was no substantial wrong or miscarriage in his Honour's refusal of the application.
724 It cannot, in our opinion, be suggested that when rape was refuted by Elomari's own statements on the tape, his evidence of underage rape while asleep should simply be replaced by another supposed underage incident of consensual intercourse when awake. The tape is powerful evidence against the account given by Elomari in evidence and thus supportive of its denial by the respondent and it adds to the numerous reasons given by the trial judge for disbelieving Elomari's evidence. Thus, insofar as the tape bears on the justification defence based on Elomari's evidence, prima facie it weakens rather than strengthens that defence.
725 It follows on our consideration of both these matters that his Honour's refusal did not result in any substantial wrong or miscarriage. However, we propose to consider the other bases advanced by the appellant as to the relevance of the tape, given the importance this issue has had in the appeal.
Tape as Contradicting the Respondent's Evidence
726 In its written submissions of 19 September 2002, the appellant contended that the contents of the Elomari tape contradicted the respondent's evidence at trial in relation to Elomari in three respects. We consider each in turn.
727 The first submission was made in the following terms [AS 16]:
"First, at trial, the Respondent denied that Elomari had ever raised with him the date on which the relationship with Chown had commenced. At T, 7376.20
Q. Of course, the date that you met Phillip Chown and your relationship with him was relevant to Mr Elomari's allegations against you, wasn't it?
A. No, not that he ever raised with me.
Clearly, this was a major topic of conversation between the Respondent and Elomari, as recorded on the Elomari tape."
728 In the first part of this submission it is contended that at trial the respondent denied that Elomari had ever raised with him the date on which the relationship with Chown had commenced. This does not accurately record the evidence. The respondent's evidence was that Elomari did not raise the topic with him. That was correct. The PIC transcript makes it clear that the respondent raised that date with Elomari, not the other way round. There is thus nothing in the quoted evidence at T 7376.20 which is false. Other parts of the PIC transcript bear this out: see PIC 31: "[Marsden]: And Philip was here, was he?". That was later repeated at, for example, PIC 71. Strictly, the respondent's evidence was non-responsive to the precise question asked. But no objection was taken to that. Accordingly, as it stands, his evidence was not false. Nor could it be fairly interpreted as a denial of the question asked.
729 The appellant in the quoted submission is correct in stating, "[c]learly this was a major topic of conversation between the respondent and Elomari, as recorded in the Elomari tape". But that does not amount to any contradiction of the respondent's evidence at trial, when that evidence is read properly.
730 The second submission was made in the following terms [AS 17]:
"Second, at trial, the Respondent denied that he had ever heard the allegation of having sex with Elomari and Chown, until Elomari gave evidence of the event at trial. At T, 7377.10 (see also T, 7361.00):
Q. By January 1996, you knew that Steven Elomari was saying that he had had a sexual encounter with you and Phillip Chown at your house after you had appeared for him at the Campbelltown District Court?
A. No, he never said to me he had a sexual encounter with Phillip Chown and I at the - at that time. The first I heard Phillip Chown was anywhere floating around at that time in a sexual encounter was when he said it from this witness box, first time. Phillip Chown. "
731 In his evidence at trial Elomari referred to the respondent and "the man Philip" being present, then of Elomari drinking a beer, and the next minute waking up with blood on his legs. He said it was rape. He left it to be inferred that the respondent raped him. The Elomari tape, however, had no reference to any sex that was not consensual. Nor was there anything on the tape that directly refers to a joint sexual encounter. There is only Elomari's assertion that Chown was present at the time.
732 The cross examination of the respondent does not accurately reflect this state of affairs. He was asked: "[b]y January 1996 you knew that Steven Elomari was saying that he had had a sexual encounter with you and Philip Chown at your house ...", that is to say with both of them. The respondent's answers on the quoted passage at T 7377.10 (see also T 7361.00) were not in contradiction to the contents of the Elomari tape in the way the appellant contends.
733 The third submission was [AS 18]:
"Third, the contents of the Elomari tape contradicted the Respondent's denial at trial that Elomari had ever washed the Respondent's car: T, 6774.05. At PIC Transcript page 25:
Respondent: ...I appeared for you in court, right?
Elomari: Yeah
Respondent: OK? You came out here and you mowed the laws, the lawn was moved so you actually washed the car, right?
Elomari: Yeah.
See also at PIC Transcript, page 31."
734 This supposed contradiction between the respondent's evidence at trial and the tape is said to be the respondent's asserted denial at trial that Elomari had ever washed the respondent's car [T 6774.05]. The tape refers to Elomari washing the car rather than mowing the lawn as the lawn was already mowed [PIC transcript 25 see also 31].
735 There are several things to be said about that. First, the supposed contradiction is trivial and without significance. It concerns a classic collateral fact of no probative relevance to a fact in issue. Like the other two supposed contradictions between trial evidence and the Elomari tape, it provides no basis for the appellant's submission that "if the Elomari tape had been admitted into evidence, then it is likely that the trial judge would have rejected the respondent's evidence on this and other issues, and accepted the appellant's case in respect of Elomari".
736 But in any event, the trial judge was in no way misled. Levine J quotes from the respondent's own letter to Frank Bach, who was then acting for Elomari in respect of his appearance before the Wood Royal Commission investigators. That letter was written on 11 December 1995 [J 1906]. He records that "the plaintiff had retained Bach and instructed him as to the relevant facts". In that letter, the respondent states:
"shortly thereafter that week or the week after his elder brother drove him to my place to say thank you and he offered to mow the lawn and I said "no I have a gardener but he could wash the car" and he did. After he washed the car I drove him home ..."
737 The trial judge makes further reference to this at J 1907 and J 1908 including a further document which again refers to washing the car.
738 It appears incidentally that the respondent initially believed Elomari was fourteen when he appeared for him in the District Court [Exh 43]. The trial judge accepted the respondent's explanation, namely, that he mistakenly believed five years to have passed between his first representing Elomari and the third party claim in 1983 [T 7345.20; J 2019; J 2024] where the trial judge confirms that the "plaintiff's submission above offers a reasonable explanation, which I accept".
739 There is thus nothing in this supposed contradiction, nor in the three together which ought to have, or could have, affected the trial judge's assessment of the evidence.
Tape as Undermining the Respondent's Credit
740 The appellant next contended that there were three bases upon which it could "challenge the credit of the respondent by reason of the contents of the Elomari tape". As we have pointed out earlier, should these matters only go to credit they would concern collateral facts which are unlikely to justify an application to re-open. In the first two cases (but not the third), not only is the relevant basis said to undermine the credit of the respondent but also was "evidence of a consciousness of guilt on the respondent's part".
741 It was submitted that the conversation on the tape was sufficient to have supported a line of cross-examination, and ultimately a submission to the trial judge, that the respondent put certain suggestions to Elomari in relation to the date he had first come to the house so as to convince Elomari their sexual relationship commenced at a later time than November 1982; and that the respondent's credit was thereby undermined and that the subject matter of the conversation, with particular emphasis on the wrong dates, was evidence of a consciousness of guilt on the respondent's part.
742 It was submitted that it would also have been open to the appellant to make a submission that the recorded conversation demonstrated that the respondent was coaching Elomari for the purpose of preparing Elomari for interviews with Royal Commission investigators. In this regard, the appellant relies upon the following exchange:
"[PIC 28-33]
[Marsden]: You've got your dates mixed, it was '83.
...
So that's what, so the Royal Commission could call you in and give evidence right, and you just have to hang in and if they say, well you know, Mr Marsden says when you first started to go up there was when he met Philip it was about '83...
...
... you'd not disagree with that.
[Elomari]: I won't disagree with nothing John. Believe me.
[Marsden]: Well I've got to anyway, that doesn't matter as long as you know that when you started to come here it was about 1983, and we took you to Noosa it was 1984 and the first person that interfered with you was that bloody Dunbier and...
...
[PIC 35]
The first time you came up and stayed here was when Philip was here.
[Elomari]: Right, now he could have been here, right, in '82 on the weekend.
[Marsden]: He said he wasn't.
[Elomari]: He said he wasn't right.
[Marsden]: Yeah, he told the Royal Commission he wasn't." (emphasis added)
743 The respondent's evidence was that his sexual relationship with Chown commenced shortly after Christmas 1981 [T 7312.30]. In giving this evidence the respondent acknowledged that he had at one stage been asserting wrong dates on this issue. He said [T 7375-7376]:
"... I am aware that there has been some confusion in my mind in both my interviews with the police, Royal Commission and talking to everyone as to when I met Phillip Chown. I am aware that I have confused that to a lot of people and I had it a year later.
...
... I certainly have given my lawyers and everyone else wrong information as to when I met Phillip Chown so I could have given it to Elomari. Probably to everyone."
744 Overall, the better view of the conversation on the tape is that the respondent does place a later date on the commencement of his relationship with Chown than he gave in evidence.
745 However, there is some confusion on the issue, which is not aided by the fact there are some unintelligible portions of the tape. To the extent relevant, the conversation was:
"[Marsden]: I met him in '82.
[Elomari]: Yeah.
[Marsden]: He came to live here in '83.
[Elomari]: If you met him in '82 right?
[Marsden]: Yeah.
[Elomari]: Right.
[Marsden]: Yeah.
[Elomari]: That doesn't mean he would have to be living here when I was here?
[Marsden]: I know that's true.
[Elomari]: You know he could have been here on the weekend I was here.
[Marsden]: No he didn't come out.
[Elomari]: Friday night. It could have been on the weekend here?
[Marsden]: It could have been (ui) yeah (ui)
[Elomari]: (ui) he could have been here, he could have been, he probably could have been here mate.
[Marsden]: He didn't come out and stay.
[Elomari]: I know, I'm just saying John. I don't know what you, what you think, I don't know what you're thinking sometimes.
[Marsden]: What I'm trying to think is I'm trying to get you to understand the dates.
[Elomari]: Yes, I do understand the dates John, now you're making me understand the dates. You know you're telling me that this, you met him here, and then I remember when you told me in the car you met him in '82...
[Marsden]: Yes, and then I said...
[Elomari]: ...and then fucking, now you're saying your ...
[Marsden]: No, he came to live here in '83.
[Elomari]: Then I'm putting my memories together...
[Marsden]: Mmm.
[Elomari]: ...and you're saying '83.
[Marsden]: No, no.
[Elomari]: And I'm going, yeah alright, '83."
746 There is another relevant part of the conversation at PIC 35:
"[Marsden]: He came here to live in '83.
[Elomari]: He lived here in '83.
[Marsden]: The first time you came up and stayed here was when Philip was here.
[Elomari]: Right, now he could have been here, right, in '82 on the weekend.
[Marsden]: He said he wasn't.
[Elomari]: He said he wasn't right.
[Marsden]: Yeah, he told the Royal Commission he wasn't.
[Elomari]: Alright, well I'll say he wasn't too. OK?
[Marsden]: Oh, you gotta tell the truth ...
[Elomari]: Well fucking, well I'm telling the truth mate. Same as you."
747 There is a sense gained from listening to the tape that the respondent was insistent that Elomari "get his dates right" and that he was insisting that the correct date was 1983. That raises the question whether Elomari was wrong in relation to his dates and whether the respondent was attempting to convince him of the correct date or whether Elomari was correct and the respondent was trying to get him to adopt a false date as to the commencement of their sexual relationship.
748 In dealing with this issue, it has to be kept in mind that his Honour knew that the respondent had given out `wrong information' about the date of the commencement of his relationship with Chown, including to Elomari. He did not draw any adverse credit finding because of that. More fundamentally, his Honour did not accept Elomari's allegations. As we have said, the tender of the tape would not have affected that finding. There was, therefore, no accepted evidence before his Honour and no evidence on the tape of the particularised allegation upon which this part of the appellant's justification defence was based. The respondent's insistence on the tape of a wrong date could not be corroborative of Elomari's evidence of the alleged incident. It was evidence of the date of the alleged incident. But as his Honour disbelieved Elomari's evidence that any such incident occurred, there was no basis provided on the tape to advance the appellant's admissions by conduct case.
Tape as Supporting Evidence of Other Witnesses in Relation to Payment of Money After the Case was Over
749 It was next submitted that the contents of the tape had implications for the evidence of other witnesses. Most significantly, the appellant refers to the fact that in the taped conversation the respondent offered Elomari a financial reward after the conclusion of the case. Evidence had been given in relation to some other of the justification witnesses that the respondent had made a similar offer.
750 The conversation between Elomari and the respondent relating to the offer of money occurred in the following circumstances. The respondent had picked Elomari up from his home for the purpose of taking him to his office to make a statement relating to a charge of, it would appear, driving whilst disqualified. Having dealt with that and after some conversation about Christmas presents for Elomari and his family, the respondent said:
"[Marsden]: So then, just getting back to the, I'll tell you about another thing in relation to the defamation. If the defamation is successful I get money out of it, alright?
[Elomari]: Oh
[Marsden]: If I win, I get money out of it, alright?
[Elomari]: You do?
[Marsden]: Yes, right?
[Elomari]: Well, what about me?
[Marsden]: Well, you will too, alright if I win.
[Elomari]: Yeah.
[Marsden]: Okay? Fine. So I've got to win the court case
..." (emphasis added)
751 This, on the appellant's submission, was of particular significance as it was claimed that Pearce, D18, W2, Lilburn and Les Murphy had been offered them money or other benefits after the defamation case concluded. The respondent denied this was so. For example, in cross-examination he gave the following evidence [T 7002]:
"Q Did you say to [Pearce] that you would look after him after this case was over?
A No.
Q Have you said to any witness who has given evidence in this case that you would pay them money when this case was over?
A Certainly not, your Honour, no.
Q Have you said to anybody who has given evidence in this case that when you won your defamation case you would pay money to them?
A Certainly not, your Honour, no." (emphases added)
752 It has to be accepted that this was "important material" in the hands of the appellant. It would have provided considerable ammunition to it for cross-examination purposes. Having said that, its importance at this stage has become significantly diminished by reason of the fact that there is no appeal in respect of Pearce and the appellant did not try to support the evidence of W2. To put the matter bluntly, the credit of each was overwhelmingly impeached at trial.
753 His Honour also found Rainey and Bailey to be thoroughly discreditable. It followed he disbelieved his evidence that the respondent had said he would pay money to D18 when the case was over. That evidence was contradicted by the respondent's statement in his memorandum to Rainey of 9 July that "it is quite clear that I can't and I will not under any circumstances offer him any money" and the respondent's own evidence. His Honour's rejection of Rainey's evidence was a credit based finding not amenable to appellate review other than in accordance with the Abalos principle. The appellant has not demonstrated any appellable error on this ground.
754 It has to be acknowledged that in assessing this part of Rainey's evidence his Honour only had before him the respondent's denial he had ever made an offer to pay money after the case was over to any witness. That denial is contradicted by this part of the conversation on the tape. That would have been a relevant consideration in his Honour's acceptance or rejection of the respondent's evidence on this point.
755 Notwithstanding that to be so, the content of the tape of Rainey and Bailey's conversation with D18 does not support the appellant's case that the respondent offered to pay money to D18 after the case was over. Rather, it indicates that they were proposing to seek a payment from the share of the defamation verdict and would include D18 in their request. D18 was aware that the respondent was running out of money. We will not repeat all the relevant passages - it is sufficient to refer to the following to demonstrate the point:
"[Rainey]: ... Anyway ... what I'm saying to you is if he wins, if he wins I'll be sending him a bill for some insurance fees, OK, that's my ti.. I'm being quite honest, [Bailey's] time, my time. `Cause he wants out and I'm prepared to give it but I mean, you know, we've all got to live.
...
[D18]: But then I'm goin' on his word or your word.
[Rainey]: No, you're going on mine. Yes, you are I'm afraid.
...
[Rainey]: ... We'll keep in touch and then er when it's all washed up as I believe it will be and I have a got a feeling about it, then er then we'll see about some er recompense for all concerned. But it can't happen ..."
756 This was not evidence of the appellant offering money and undoubtedly formed part at least of his Honour's conclusion that Rainey and Bailey were on "a frolic of their own".
757 But in any event, D18's evidence was comprehensively rejected by the trial judge and is not capable of rescue by reference to the Elomari conversation, even if there had been an offer to pay D18.
758 Similar comments can be made in respect of Stevens. His evidence was rejected by the trial judge for reasons which are unappellable. More importantly, W2, who claimed the respondent said to him that "he couldn't do anything for me now because of all the shit that was going on" [T 6207] was thoroughly rejected as a witness of credit and the appellant did not seek to resurrect him on the appeal. But in any event, the offer was an offer to look after W2 and it is doubtful whether, even on W2's evidence, there was an offer of money as opposed to an offer to assist him in gaining employment.
759 That leaves only Lilburn, whose evidence on this was not considered by the trial judge. Whilst arguably, in a world of perfection a trial judge should have considered this evidence, authority is not so demanding. A judge's reasons have to be adequate to disclose the basis upon which the final judicial determination is reached. Within that context the case advanced by a party has to be considered. The admissions by conduct case had been an important aspect of the appellant's case. However, as has been demonstrated in the end result that case failed. The failure specifically to refer to Lilburn's evidence of the respondent offering to pay money, when balanced with the overwhelming grounds for not accepting Lilburn is, in our view, of little account, and we think, that explains his Honour's failure to refer to it. Nor do we think that there was thereby a material failure to properly evaluate the wider admissions by conduct case.
760 Even the offer made to Elomari is not obviously sinister. It is worth noting that Elomari had previously been the recipient of the respondent's generosity. The fact that the respondent was responsive to Elomari's entreaty is consistent with that background. Further, on the tape the respondent vehemently denied the circumstances which would have implicated him in underage sex and he told Elomari to tell the truth. Accordingly, accepting that the offer of money from the verdict was made, the conversation on the tape is consistent with the respondent insisting that Elomari tell the truth.
761 However, there is a more fundamental reason why the offer of money would not necessarily, and we believe not likely, be evidence of an admission by conduct. An admission by conduct must involve behaviour which is evidence of a consciousness of guilt. For the offer of money to Elomari to be evidence of a consciousness of guilt, it would have to have been made in circumstances whereby it was offered if Elomari told a certain story. That condition could have been explicit or implicit. That is not the way the conversation occurred. The question of money came up towards the end of the particular conversation in which it was made and the offer was only made in response to a direct request by Elomari. The request itself was not associated with any conversation relating to what Elomari should say if questioned about the date their sexual relationship commenced. At best, the conversation on the tape was equivocal evidence of a consciousness of guilt. In those circumstances, it is not sufficient in our opinion to warrant any interference with his Honour's refusal of the re-opening application.
762 What we have just said, however, does not deal with the fact that it appears that the respondent's evidence to which we have referred was false. However, for the reasons we have just explained, the tape would at best have been a forensic tool available to aid the appellant in impugning the respondent's credit. That, in our view, would not in the circumstances have been a sufficient basis to grant leave to re-open.
763 There were other arguments put forwards by the appellant. For example, it said that:
"the respondent repeatedly asserted to Elomari on the tape that:
(a) Elomari did not become a regular visitor to the respondent's home until after a car accident, in which Elomari had been involved;
(b) By reference to the respondent's files in relation to the accident, that accident occurred in April 1983."
[PIC transcript, 26, 27 and 38]
764 The appellant pointed out that, according to the respondent's files, Elomari visited the respondent's offices on 9 January 1983, after being involved in a motor vehicle accident [Exh FB; T 6774.15-.55]. It was said that this evidence was sufficient to have supported a line of cross-examination and, ultimately, a submission to the trial judge that the respondent did this in order to convince Elomari that their sexual relationship commenced at a later time in 1983 than the respondent's files indicated was possible. It was submitted this both undermined the credit of the respondent and was evidence of a consciousness of guilt on the respondent's part.
765 The submission does not further the appellant's case to the extent it relates to the respondent's credit. In any event, even had the respondent used the right date, that would not have assisted in establishing the November incident, being the incident relied upon. We reject this submission as providing any basis to interfere with his Honour's refusal to re-open.
Conclusion on the Elomari Tape
766 In our view the appellant has not established any basis for this Court to interfere with his Honour's order refusing the appellant leave to re-open its case.
767 There are two reasons for this. First, as we have said, Giles and Santow JJA consider that no error has been shown in the trial judge's exercise of his discretion.
768 Secondly, if his Honour erred in law in refusing leave, there were powerful discretionary reasons that would, in any event, have told against the grant of leave. Further, the content of the tape is such that on most issues it did not advance or aid the appellant's case as the appellant contended it would. To the extent that there were parts of the conversation which might have aided the appellant forensically at trial, those matters (for example, supporting the evidence of other witnesses) are not of sufficient importance to cause the Court to interfere or are equivocal (for example, whether the offer to pay Elomari was an inducement to Elomari to give the wrong date). Accordingly, if there was error, an order for a new trial is not warranted because there has been no "substantial wrong or miscarriage".
CONCLUSION ON JUSTIFICATION
769 At the commencement of these reasons, we indicated that we would adopt the approach of dealing with the appellant's challenge to his Honour's rejection of the justification defence in categories. We concluded that there was no error in the first of those categories, namely in his Honour's `self-directions'.
770 That leaves for consideration the errors his Honour made in respect of the evidence of individual witnesses and any `methodology' errors. As to the individual witnesses, only D20 remains for further consideration, as we have concluded in respect of the other witnesses that no appellable error has been demonstrated. As to `methodology' errors, by their very nature, they are revealed through his Honour's approach to the evidence of the witnesses.
771 We first deal with the two outstanding challenges of a general nature: first, the appellant's challenge that his Honour erred in not making an adverse credit finding against the respondent; and secondly, his Honour's inconsistent treatment of the appellant's witnesses as compared with the respondent's witnesses.
The Respondent's Credit
772 During the course of his judgment, his Honour rejected certain aspects of the respondent's evidence. On occasions he did so because he considered the respondent was confused or mistaken. On other occasions he found deliberate falsity. Both findings are relevant to a judge's assessment of the evidence. In the former case, the false evidence is unreliable evidence but would not for that reason alone call for an adverse credit finding, nor could it point to a consciousness of guilt. Deliberately false evidence is a matter which goes to credit, and as we have explained earlier, may also be evidence of a consciousness of guilt. However, unless the deliberately false evidence pointed to or was evidence of a consciousness of guilt, it would not assist in proof of the appellant's case: see R v Lucas; R v Liddy discussed earlier.
773 The appellant made a concerted attack on the trial judge's findings in this area. It submitted at AS 56:
"The respondent placed his own credibility in the scales to be weighed against the credibility of [the justification] witnesses. ... In this juxtaposition of credit, the trial judge's findings as to the respondent's credibility should have played an important, if not determinative, role in the factual findings on these disputed issues."
And further at AS 57:
"The trial judge should have logically and rationally approached the question of the respondent's veracity and integrity as a witness on all relevant issues of justification in the trial."
774 As finally formulated, the appellant's complaint was twofold. First, it was submitted his Honour failed to assess the cumulative effect of the successful attacks on the respondent's credit [AS 52]. Secondly, the appellant contended that in reaching his determination on the justification case his Honour gave little or no weight to the appellant's false evidence. A more particular aspect of this complaint was that his Honour in effect `quarantined' any finding of falsity to the particular matter under consideration.
775 In its written submissions the appellant relied on ten specific matters to demonstrate the underlying thrust of its submission that the respondent was a person who lied or would lie to protect himself from the possibility of an adverse finding relating to allegations of underage sex.
776 The first of the ten specific matters were:
(a) the respondent announced a false appearance in the Court of Petty Sessions on 18 May 1967 and gave false evidence from the bar table;
(b) the respondent gave false evidence to the Court by asserting that he did not appear before the Court of Petty Sessions on 18 May 1967 for the fictitious Mr Martin;
(c) the respondent gave false information to Inspector Inkster by asserting that he did not appear before the Court of Petty Sessions on 18 May 1967 for the fictitious Mr Martin;
We will refer to these as the Martin/Marsden allegations. In passing, we observe that the reference in item (c) to Inspector Inkster was a reference to a police investigation conducted in 1995 into the allegation that the respondent had used a false name when charged with an offence in 1967.
777 The balance of the `list' of adverse credit matters were:
(d) the respondent's use of marijuana was unlawful;
(e) the respondent's evidence to the Court that he had never heard of Costello's was improbable and should be rejected;
(f) the respondent prepared a false statutory declaration for John Maynard;
(g) the respondent gave unacceptable and false evidence to the Court as to his ignorance of the circumstances of preparation and coming into existence of Ex 21 concerning John Maynard;
(h) the respondent employed the services of Les Murphy at Goulburn Gaol to persuade Lilburn to recant the allegations made in Ex 76 concerning the respondent;
(i) the respondent's evidence to the Court in which he denied that he attended the Campbelltown Court on 6 March 1996 was not rational, was viewed with concern, and should be rejected;
(j) the respondent had a role in causing an expert witness, Dr M Dent, to place before the Court evidence in support of the respondent's case which was false and which, although unintentional, had the likely effect of misleading the Court.
778 In addition, during the course of his submissions, counsel for the appellant identified other areas where his Honour found, or it was said, should have found, the respondent deliberately lied or where his credit should have been taken into account. We have dealt with these matters in the course of our consideration of the five justification witnesses.
779 It is thus necessary to now consider the specific `items' of false evidence in turn.
The Martin/Marsden allegations: items (a) to (c)
780 A brief explanation of this is required. In May 1967 the respondent was charged with behaving in an offensive manner following his arrest in a men's lavatory in the city. Upon his arrest he gave a false name and address, a circumstance he permitted to be perpetuated when the matter came before the court. On the day the charge was listed for hearing, a Mr Marsden `appeared for' `the defendant', that is, the person named in the charge, Mr Martin. Mr Marsden informed the magistrate he had told `the defendant' it was not necessary for him to come to court. The magistrate considered `the defendant' should have been in attendance and stood the matter over to the following day, on which occasion there was no appearance by `the defendant' and no legal representation for him. The respondent maintained in his interview with Inspector Inkster that he did not appear as the legal representative for J Martin on the first occasion the charge was before the magistrate. He maintained that was the case in his evidence before his Honour.
781 His Honour found that the respondent's evidence that the Mr Marsden who appeared for J Martin was not him, was false [J 763]:
"I do not accept Mr Marsden's evidence that he did not attend Court. When he denied doing so he gave false information to Inspector Inkster and false evidence to myself."
782 The appellant relied on the respondent's false evidence and false statement to the police on this matter as proof that the respondent:
"by his past conduct ... has proved that he is prepared to lie and `to go to quite extensive lengths of duplicity and falsehood' to protect himself from adverse consequences, such as criminal prosecution, particularly where his sexual conduct and reputation are involved."
783 His Honour rejected this submission. He said [J 765]:
"What is the effect of this? Does it follow from my adverse finding on this aspect of the plaintiff's credit that his conduct or character is of such a nature as to tend logically and rationally to weaken confidence in his veracity or his trustworthiness as a witness of truth on all issues in this trial? In my clear view it cannot and does not."
784 His Honour considered that the falsehood to Inspector Inkster was [J 766]:
"more probably than not conformable with a fear in the plaintiff as to his professional position. He was being interviewed about an event in Court (twenty seven years previously) that touched upon his professional activity."
785 In dealing with the respondent's false evidence given before him, his Honour said [J 767]:
"Certainly, before me, the nature of the defendant's allegations were known to the plaintiff but the finding of giving false evidence in the one respect to which I have referred cannot amount to corroboration and does not and cannot amount to a consciousness of guilt, of any and every allegation. On the probabilities, the true explanation for the maintenance of the falsity lies in the very circumstances that attended the plaintiff's reaction to his arrest over thirty years ago."
786 His Honour was entitled to come to these conclusions. As we have already explained, the Court recognises that witnesses lie for a variety of reasons: R v Lucas. The reasons his Honour attributed to the appellant's lie and false evidence, serious as that conduct was, was open to him.
The unlawful use of marijuana: item (d)
787 His Honour considered that the respondent [J 768]:
"by his demeanour did strike me as being forthright, if not arrogant, in relation to his admitted use of this drug which is still illegal."
788 His Honour stated his disapproval of the conduct "of a person who breaks the law and admits to so doing". His Honour concluded, however [J 772]:
"that, illegal though the conduct was, it is not of the nature that I would form the view that thereby [the respondent], by that alone, or together with the falsity in relation to "Marsden/Martin," is a person who is to be disbelieved entirely on anything he says on his oath. In coming to this conclusion I have brought to be bear [sic] my knowledge and experience as a member of our community, of pot smoking and of what "goes on in the world" in that regard. I am not prepared to elevate [the respondent's] frank admissions on this subject into the "big deal" the [appellant] seeks to make of it."
789 We consider this view of the respondent's conduct was open.
Finding that the respondent had never heard of Costello's: item (e)
790 We have dealt with this issue in relation to our consideration of the justification case based on Homes' evidence. There is nothing of a specific nature which we consider requires further comment to that which we have already made, other than to repeat that this evidence, although relevant, was not pivotal. The essential issue was whether the respondent had been to Costello's. As we have already observed, there was a substantial body of evidence on that issue with which his Honour dealt in circumstances disclosing no appellable error.
False evidence as to engaging Les Murphy: item (h)
791 This matter raises more extensive issues than the previous matters.
792 The respondent's conduct in having Murphy approach Lilburn to retract his pimping allegations and his denial that he did so were serious matters in themselves. The false evidence was particularly serious and on his Honour's finding could only have been deliberate. However, the essential question for his Honour was whether the fact that the respondent lied about approaching Lilburn could have amounted to an admission by conduct. That question was directly relevant to the larger question of whether the justification defence advanced through Lilburn had been made out [AS 58].
793 We have concluded that the respondent's conduct in employing the services of Les Murphy to have Lilburn withdraw the pimping allegations did not constitute an admission by conduct in relation to the particular case that there were three occasions of underage sex between Lilburn and the respondent. In other words, as the lie did not go to the substantive allegation made by Lilburn (an allegation which we consider has not been made out), it could not constitute an admission by conduct of that allegation. There is no basis therefore for accepting that this lie relating to a subsidiary issue could so affect the credibility of the respondent as to require Lilburn to be believed on the substantive allegation. In the end, it became irrelevant as to whether Lilburn was believed on the pimping allegation as that allegation did not prove the substantive allegations.
False evidence as to Campbelltown Court
794 We have already dealt with the evidence given by the appellant as to his attendance at Campbelltown Court. It was false evidence. But his Honour unappellably accepted that the falsity was not deliberate lying. Accordingly, this was not evidence which could point to a consciousness of guilt.
1. That leaves three items from the appellant's `list' - items (f), (g) and (j). The adverse matters of credit complained of in these items related to witnesses or matters not in issue on the appeal. There was no elaboration of the matters beyond the itemisation in AS 51, so that we have been given no insight into their relevance beyond their being adverse to the respondent's credit. That makes an evaluation of the appellant's submission difficult. A witness may lie for a variety of reasons. The appellant seeks to rely on the lies as going to proof of part of its justification case. If, however, evidence is false but is either not deliberately so or is false for reasons not related to the matters in issue, it cannot amount to an admission by conduct as we earlier explained. However, for the purposes of this part of our deliberation we propose to accept that items (f) and (g) were deliberately false. As item (j) is expressed, it is not an allegation of deliberate falsity. Accordingly, we will read it as an unintentional falsity resulting in unreliable evidence being placed before the court.
795 It follows from what we have said that there was nothing in the lies, considered in the context of that part of the justification case, to which the false evidence specifically related. However, the appellant makes the further complaint that his Honour failed to consider the cumulative effect of the lies and in effect erred in `quarantining' the lies to the specific issue to which they related. However, in assessing the cumulative effect of the evidence the relevance of the lie to the issue remains relevant. A lie or a number of lies on inconsequential matters, for example, may not, and in a normal case would not, have such an impact on that witness' evidence as to require that the evidence be treated with added caution: see Cureton v Blackshaw. An accumulation of lies, or matters which are not peripheral or inconsequential but which do not go to the precise matter in issue may impact upon the witness' evidence. The extent of the impact, however, is a matter for the trial judge. It is usually not the matter of appellate intervention unless it meets the Abalos test.
796 There is a particular difficulty with the appellant's submission because of the limited number of lies or discreditable matters relied on. This was a case of considerable proportions. In our opinion, it would have been unrealistic for his Honour to introduce, into the exercise of assessing the evidence of the particular justification witnesses, in an express way, the specific matters relied upon. Accordingly, it was not necessary, as the evidence fell out, for his Honour to make a specific overarching adverse credit finding in respect of the respondent.
797 It is apparent from his Honour's detailed reasons that there were some aspects of the respondent's evidence, being evidence he disbelieved, which particularly worried him. In other words, when considering, on the whole of the evidence, whether a particular allegation was made out, he weighed up in that process the false evidence of the respondent - regardless of whether the evidence was deliberately false or not. There was no error in the way in which his Honour approached his task and no error in the result.
798 Our conclusion on this has another relevance. His Honour's approach to those aspects of the evidence where the respondent's false evidence, deliberate or not, was relevant, and the manner in which his Honour approached his consideration of the evidence including an assessment of the false evidence, demonstrate that he reached his conclusions on a consideration of the whole of the evidence. This refutes a suggestion of any two stage approach to his fact finding.
Inconsistent Treatment of Witnesses
799 The appellant contended that his Honour applied an inconsistent approach to his assessment of the credibility of the appellant's and the respondent's witnesses. It was submitted that of itself was an error. The complaint is made in respect of D20 and Stevens, although the comparison sought to be made related to witnesses who had no connection with either D20's or Stevens' evidence.
800 We have in earlier paragraphs made reference to some of the evidence upon which the appellant relied. We have to say at the outset that the appellant's forensic choice in isolating the evidence of Avzarradel and Shinkwin from the aspects of the case to which their evidence directly related, makes the appellant's submission difficult to assess. The appellant sought to make the connection by reference to the issue of identification, claiming that his Honour applied a stricter approach to the identification evidence of D20 and Stevens than he did to the evidence of Avzarradel and Shinkwin. We do not see that this submission overcomes the problem to which we have just referred. The identification evidence in the case of Avzarradel and Shinkwin was for a different purpose, and therefore had a very different relevance in his Honour's overall consideration of the case. Accordingly, the asserted comparison is not a true comparison. That reason alone is probably sufficient for this Court not to find appellable error. It is perhaps also significant that this was not a case where there was any express submission made that his Honour was biased in favour of the respondent.
801 In so far as the submission is made in relation to Stevens' evidence, the allegation of an inconsistent approach by his Honour is as between the evidence of Stevens and the evidence of the respondent. We have found no appellable error as such in his Honour's credit findings in relation to either witness. We have indicated, however, that there were occasions when the respondent's reaction in the witness box might, at least on a selective reading of the evidence, have invited an unfavourable comment. That does not mean that there was appellable error in a failure to make any such comment or the failure to make an overarching adverse demeanour finding. The respondent was examined and cross-examined over an extensive period. It was for his Honour to assess his evidence. There is a danger, if evidence is extracted selectively, especially in a case of such proportions as this was, for an impression to be gained from it which is not an accurate impression of the evidence considered as a whole. The assessment of the evidence was a matter for his Honour and the appellant has not demonstrated any appellable error in his Honour's approach.
802 That leaves a consideration of the errors and concerns we have expressed in relation to the individual witnesses. Only D20 is relevant to this exercise as we have concluded in respect of the other witnesses that no appellable error has been demonstrated.
D20
803 We go then to the individual witness D20. D20 was relied upon in the appellant's case in respect of all imputations.
804 There were aspects of the trial judge's dealing with the evidence of D20 that raise concern. Those matters have been detailed. However, for an appellate court to intervene in such cases without contravening the Abalos principle, what was said in Agbaba v Witter as to grounds for interference must be remembered:
"There are cases, very rare cases, where an appeal court is justified in displacing primary findings based on credibility of witnesses ... but they are cases where a whole body of evidence points inescapably to a conclusion different from that reached by the judge at first instance, where in a complex pattern of events incontrovertible evidence can only be fitted into the pattern if a different view of the credibility of a witness is taken by the court on appeal. The films in the present case show no more than that the appellant and her witnesses exaggerated, either consciously or otherwise, in their evidence. A case is seldom, if ever, black or white, especially cases on damages for physical injury. In the days of assessment by juries, the defendant would attempt to cast a fatal shadow over the plaintiff's case by presenting him or her in a bad light as a malingerer or a prevaricator. Judges are more accustomed to careful sorting out of the probabilities, little affected by the prejudice which exaggeration can often raise." (at 508)
805 That is, the appellant must establish "a whole body of evidence points inescapably to a conclusion different from that reached by the judge at first instance".
806 There has been earlier explanation of the Abalos principle, to which may be added the comprehensive discussion by Allsop J in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833. The trial judge's advantage is marked when the witness has the criminal history enjoyed by D20 and the so-called demeanour is of great importance - that is, the impression gained from seeing and hearing the witness.
807 We consider that, given that in many respects D20's evidence was not in accord with the other evidence of the respondent's sexual habits, was shown to be incorrect or open to considerable doubt, or was lacking in the detail which might have been expected, the need for D20's evidence to fit into a complex pattern of events only if a different view of his credibility be taken is particularly acute. The evidence that the appellant contended was incontrovertible must not only truly answer that description but also lead inescapably, notwithstanding all the other evidence, to a conclusion different from that reached by the trial judge. In the present case, the knowledge of the house so far as shown to be correct was not incontrovertibly acquired only in the circumstances D20 related. The respondent was, as D20 conceded, the subject of discussion amongst inmates of Berrima gaol. When the tally of knowledge with its correctness is made, and weighed in the balance with the deficiencies in D20's evidence and in particular with his credibility, and when the trial judge's advantage in seeing and hearing D20 is recognised, we do not think that within the principles of appellate review, the trial judge's conclusion that he "was not satisfied that more probably than not, what D20 said took place" [J 2892] was attended with appellable error.
JUSTIFICATION IN RESPECT OF PUBLICATION IN STATES AND TERRITORIES OF AUSTRALIA OTHER THAN NSW
808 The appellant pleaded the defence of justification in respect of the broadcast of both programs in all States and Territories of Australia.
809 In all States and Territories the truth of the imputations need to be established for the defences to be made out. We have stated that requirement generally without reference to the specific provisions of the legislation, that being sufficient for present purposes.
810 In Queensland, Tasmania and the Australian Capital Territory it is also necessary to prove that it was for the public benefit that the imputation was made. The trial judge found that "public benefit" had been established.
811 Given that his Honour rejected the appellant's justification defence under s 15 of the NSW Act, it followed on his Honour's judgment that the allegations pleaded in respect of publications in other States and Territories also failed because the appellant had failed to establish the substantial truth of the imputations.
812 As we have found no appellable error in respect of his Honour's rejection of the justification defence, it follows that the defence also fails in respect of publications in other States and Territories.
CONTEXTUAL JUSTIFICATION
813 Section 16 of the Defamation Act provides, inter alia, that to establish the defence of contextual truth "one or more imputations contextual to the imputation complained of must be a matter of substantial truth". The appellants submitted that his Honour erred in finding that it was not necessary to consider the defence of contextual justification, in submissions which are set out at AS 581-632. Given our conclusions, it is not necessary for us to go to the detail of those submissions.
814 The Court has found no appellable error in his Honour's rejection of the justification defence. His Honour's rejection of the justification defence meant that the appellant failed to establish the substantial truth of any one of the imputations. Accordingly, it had not established a necessary element under s16(2) and thus has not established the defence under that section.
QUALIFIED PRIVILEGE
815 We turn now to the defence of qualified privilege upon which the appellant failed at trial, and in relation to which it now appeals. As his Honour recorded [J 2918], the appellant, at trial, relied upon the defence of qualified privilege on four bases:
(a) the defence afforded by s22 of the Defamation Act 1974 and Code or cognate interstate defences;
(b) qualified privilege at common law by reference to what was described as the "response" basis;
(c) qualified privilege founded upon the decision of the High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; and
(d) a defence at common law incorporating what was held by the House of Lords in Reynolds v Times Newspapers Limited [2001] 2 AC 127.
Introduction
816 The appellant's grounds of appeal in relation to this defence are set out in the appellant's Further Amended Notice of Appeal at paras 55 to 114 inclusive. They cover the defence of qualified privilege, including malice, both by statute and at common law, and both within New South Wales and in other States and Territories. These grounds of appeal are dealt with for the two programmes as follows (paras referring to the relevant grounds of appeal). In the interests of clarity, we have chosen in this section to set out the grounds of appeal more fully, because they are so voluminous.
(a) Defence under s22 Defamation Act 1974 (NSW)
To-day Tonight programme at paras 55 to 63
Witness programme at paras 64 to 73.
(b) common law Privilege: the Lange basis
To-day Tonight programme at paras 74 to 76 and earlier (as to "reasonable conduct") at paras 55 to 62.
Witness programme at paras 77 to 79 and earlier (as to "reasonable conduct") paras 64 to 72.
(c) common law Qualified Privilege: the "response" basis
Both programmes at paras 80, 82 to 88.
To-day Tonight programme at para 81.
(d) common law Qualified Privilege: the Reynolds basis
Both programmes at paras 89 to 91.
(e) Qualified Privilege in respect of publications in States and Territories of Australia other than New South Wales
Both programmes at paras 92 to 103 (with para 96 amended without objection at trial to add an additional sub-paragraph (c)).
(f) Malice
Both programmes at para 104
To-day Tonight programme at paras 105 to 108.
Witness programme at paras 109 to 114.
817 The corresponding paragraphs of the judgment of Levine J are to be found between J 2918 and J 4498 grouped as described in the index to the reasons -
"QUALIFIED PRIVILEGE
Part II: Volume 4
Topic Page Para
* Qualified Privilege 1265 2918
- Section 22(1)(c) Principles 1266 2922
- Today Tonight (s 22) 1272 2937
- Witness (s 22) 1535 3400
- Qualified Privilege - at common law -
The `Response' Basis 1751 3832
- Conclusions - Qualified Privilege at
common law - The `Response' Basis 1775 3895
- Conclusion - Qualified Privilege at
common law - Lange 1787 3928
- Conclusions - Reynolds Basis 1806 3985
Part II: Volume 5
Topic Page Para
* Malice 1809 3989
- Conclusion (Qualified Privilege),
Reasonableness 1994
- Today Tonight 1994 4373
- Witness 2010 4411
- Conclusions (Qualified Privilege),
Malice 2030
- Today Tonight 2030 4458
- Witness 2032 4465
- Qualified Privilege - Code Defences of
Qualified Privilege - Interstate 2038 4479"
818 The appellant's written submissions are similarly grouped around these headings, as are the respondent's written submissions and finally the appellant's written reply. Each was supplemented orally.
819 After the close of argument both parties were invited to make submissions on the recent important High Court decision in Roberts v Bass [2002] HCA 57 (unreported, 12 December 2002). Both did so, focussing on that part of the judgment pertaining to malice at common law, for the purpose of the defence of qualified privilege. The appellant particularly relied on it as precluding a finding of malice in relation to either programme, the respondent joining issue on that. A brief description of relevant aspects of that case is therefore warranted before later considering its potential application to the present appeal.
820 The respondent, Mr Bass, was a member of the South Australian Parliament who was seeking re-election at a state election. The first appellant, Mr Roberts, authored three publications in the nature of "how to vote cards" and electioneering pamphlets. These were held to contain defamatory imputations and that finding was not challenged on appeal. The second appellant, Mr Case, handed out one of the pamphlets at election polling booths.
821 His Honour, and the South Australian Full Court by majority, found in favour of the respondent and held that the appellants were not able to satisfy the requirements of the defence of qualified privilege.
822 The argument in the High Court focussed upon whether, in that political context of communications to electors in the course of an election (as distinct from the mass communication by television programme applicable here) the appellants, in publishing the defamatory statements, had been actuated by malice. That involved, as the case was argued, pre-Lange common law malice. The appeal in Roberts v Bass took that course because of what happened below. At trial it was found that neither of the appellants had acted reasonably. For that reason it was held that the Lange extended defence of qualified privilege afforded no defence, a conclusion not subsequently challenged on appeal. That a pre-Lange common law privilege continued unaffected was the common assumption on which the case was then argued. There are indications, particularly in the judgment of the Chief Justice at [4], that this assumption of two versions of the common law, one pre-Lange for electoral communication and one post-Lange for political discourse particularly as may be conveyed to a wider audience, was open to future challenge.
823 The High Court by majority held that his Honour and the South Australian Full Court erred in its formulation of the test of malice. There was a verdict in favour of the second appellant, Mr Case (who handed out the pamphlets), on the holding that the common law pre-Lange defence of qualified privilege was available to Mr Case (by 6:1, Callinan J in dissent). By a smaller majority the High Court set aside the verdict against the first appellant (the author of the defamatory publication) and ordered a new trial (4:3, with Gleeson CJ, Hayne and Callinan JJ in dissent). In the latter case, this was because the defence of qualified privilege remained still capable of application, depending on whether malice was properly found. The courts below had applied the wrong test of malice in requiring, for malice to be found, merely that there be an absence of positive belief in the truth of what was said.
824 The test for whether qualified privilege is lost was explained in the joint judgment of Gaudron, McHugh and Gummow JJ. In distilling the conclusions they reached, relevant to the present case, reference is made to the relevant part of the joint judgment for greater elaboration.
(i) Qualified privilege is lost if the publication is actuated by an improper motive - that is, if the occasion is used for a purpose other than that for which the privilege is granted. The qualified privilege occasion must not be used for a purpose or motive foreign to the interest or duty that protects the making of the statement [62] and [75].
(ii) It is not improper to target an election candidate as part of the electoral process in the privileged context of electoral communication; see also Kirby J [171].
(iii) Improper motive in making the defamatory publication must not be confused with the appellant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest in making the publication [76].
(iv) If one of these matters is proved it usually provides a premise for inferring that the appellant was actuated by an improper motive in making the publication, but mere proof of one of them is not sufficient to establish malice [66].
(v) Knowledge of falsity is a special case. The making of a statement that the author knows is false is almost invariably conclusive evidence of malice, because an appellant who knowingly publishes false and defamatory material almost certainly has some improper motive for doing so despite the respondent's inability to identify the motive [76], [77].
(vi) As to the other cases, the evidence of the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed and actuated the publication [76].
(vii) While (like knowledge of falsity) lack of honest belief in what has been published is not a separate head of, or equivalent to, malice, it may be evidence of malice. It is not by itself sufficient to establish malice but in some circumstances lack of honest belief in what has been published may give rise to the inference that the matter was published for a motive or purpose foreign to the occasion of qualified privilege [78].
(viii) Where the appellant's recklessness (as to the truth or falsity of the statement) is so gross as to constitute wilful blindness, in the sense of deliberately refraining from making enquiries because he prefers not to have the result, or learn the truth, the law will treat that recklessness as equivalent to knowledge of falsity [84]. However, recklessness short of wilful blindness is not of itself enough to destroy the privilege. It must be accompanied by some other state of mind, such as anger, hatred, bias or unreasoning prejudice. Recklessness so accompanied may be cogent evidence that the publication was actuated by that accompanying state of mind and thus actuated by malice [87].
825 Kirby J expressed general agreement with the joint judgment in the circumstances attracting the protection of the constitutional freedom of political communication, but reserved the common law position outside these circumstances [185]. The other members of the court did not give the principles the same detailed consideration, but Gleeson CJ seems to have agreed that lack of belief in the truth of what was published does not constitute malice [32] and may have accepted that reckless indifference to truth or falsity constituted malice [44]. Hayne J relevantly agreed with Gleeson CJ [230]. Callinan J observed that "Recklessness is and has always been available as providing a basis for a finding of malice" [288], and seems to have regarded "utter indifference or recklessness (the two may be equated with each other) with respect to truth or falsity" as sufficient for malice [303-5].
826 Here, unlike Roberts v Bass, any interest in the subject matter of communication pertains not to political communication within the electoral process. Rather it concerns mass communication outside political discourse though on a topic likely to engage its audience about a public figure. The appellant would characterise the subject matter of communication, and thus the communication itself, as in the public interest carrying a duty to publish, with a reciprocal interest to receive it on the part of its viewers. The respondent would characterise the present publications as merely evoking interest from the public, published by a commercial enterprise for commercial profit, and involving no reciprocal duty and interest between publisher and mass audience (the so-called "response" basis for qualified privilege). We shall return to these competing contentions when considering qualified privilege at common law in its various aspects.
827 The appellant relies upon the judgment in Roberts v Bass to attack his Honour's findings that each of the two programmes, To-day Tonight and Witness, was actuated by malice. The respondent contends that given his Honour's factual findings in relation to the state of mind of the agents of the respondent, it is plain that support for the finding of malice is not dependent upon the vice exposed by the High Court, of equating malice with mere lack of belief in the truth of the communication. We discuss these competing contentions when dealing with relevant appeal grounds concerning malice.
828 For the purposes of considering the grounds of appeal thus raised and elaborated, reference where relevant should be made to the discussion of justification witnesses contained in the earlier sections of this judgment. To the extent any elaboration is required in dealing with qualified privilege, this is conveniently done when considering the relevant grounds of appeal in relation to each programme, to be dealt with later. We start with an overview, first of the statutory defence and then of his Honour's overall approach.
Overview - Qualified Privilege - Defence under s22 Defamation Act 1974 (NSW)
829 Section 22(1) of the Defamation Act reads as follows:
"22. Information
(1) Where, in respect of matter published to any person:
(a) the recipient has an interest or apparent interest in having information on some subject,
(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and
(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances,
there is a defence of qualified privilege for that publication. "
830 The trial, as also this appeal, was conducted on the basis that, for the purposes of s22(1) only subparagraph (c) was relevantly in dispute, namely whether "the conduct of the publisher in publishing that matter is reasonable in the circumstances". Thus at T 5199 the respondent at trial concedes that the imputations relate to matters of public interest, doing so for the purposes of the justification defence and in particular its second element in s15(2)(b) of the Act (namely that "the imputation either relates to a matter of public interest or is published under qualified privilege"). Although there was no formal admission by the then respondent as to satisfaction of the requirements for qualified privilege in ss22(1)(a) and (b), from the submissions at trial no issue was taken about it [AT 266]. The appellant acknowledged that whatever concession might have been made by the respondent in relation to s22(1)(a) and (b), it did not foreclose whether the requirement was satisfied for the necessary reciprocity of duty and interest. This is to establish qualified privilege at common law, founded on the so-called "response" basis.
831 Thus, as was identified by his Honour, the only issue between the parties on s22 of the Act was whether the appellant established that its conduct in publishing the To-day Tonight and the Witness programmes was "reasonable" within the meaning of s22(1)(c). In relation to both programmes, his Honour held that the appellant had failed to establish that its conduct in publishing the relevant programme was reasonable in the circumstances pursuant to s22(1)(c) of the Act, on grounds which are challenged by the appellant in its grounds of appeal. The appellant seeks to substantiate those grounds by reference to the relevant submissions it made at trial, including viewing the tapes of, in the case of To-day Tonight Pearce, Kinchela and Dunbier [Exhibits 55, 56, 63, 118, 112 and 123] and reading the transcripts of those interviews. In the case of Witness an important part of the appeal, according to the appellant, includes viewing the tapes and reading the transcripts of interviews with Pearce, Lewis, Russell, Stals and Homes [Exh 58, 59, 60, 126 to 132, 136A and B].
832 After a detailed and lengthy review of the evidence and both party's submissions, and after directing himself as to the applicable principles and considerations involved in the application of s22(1)(c) his Honour made the following critical finding in relation to the To-day Tonight programme:
"4394 In summary, the imputations were of the upmost [sic - probably `utmost'] gravity; they were intended to be conveyed. The imputations were of underage sex. I find that the [appellant] unreasonably failed to make any inquiry independent of the information provided by its sources fairly to explore, let alone find out, whether there was substance in the most critical component namely that the events occurred when the complainants were underage. That, shortly stated, is the valid point made by the [respondent] which I accept and in this respect find the [appellant] to have conducted itself unreasonably. As to Hall having a belief in the truth of the information and the imputations: I have exposed sufficiently I would like to think, enough of Hall's testimony and commented sufficiently I should like to think on its quality, to explain the view that I have come to namely, that I do not believe at all that Hall had an honest belief in the information or in the truth of the imputations. Hall had a conviction (which I do not find to have been based upon prejudice) that was merely concerned with his acceptance of what people said (`ghastly experiences in the hands of this man'); was otherwise very busy by reason of the importance of his position or, if not busy, was concerned with other considerations which in the end, I find, were identified as the self corroborating non-independently checked common thread statements by the informants. Thus I find in fact he did not have an honest belief and that his approach to the whole exercise was such that he could not and did not reasonably have grounds therefor. Quail insofar as he said he had an honest belief did so in a way that does not lead me to accept that statement. There simply was no grounds for him having such a belief. "
833 That paragraph contains the core of his Honour's conclusion, namely, the unreasonable failure by the appellant to make adequate enquiry concerning the most critical temporal component of the imputations complained of, that is, when the events occurred in relation to whether the complainants were under-age. Thus at J 4395 Levine J repeats, "... it was fundamental, given the gravity of the charges, for the [appellant] to make inquiries beyond the complainants to seek information that could corroborate the temporal element. This the [appellant] unreasonably failed to do."
834 Levine J then turned to other factors which he relied upon in support of his conclusion that the appellant had failed to discharge the onus of demonstrating that it had acted reasonably for the purposes of s22(1)(c) of the Act. We summarise these matters as follows:
(a) the appellant put an "irrational and unreasonable construction" upon the statement made by the respondent in the course of the 7.30 Report on 28 February 1995 ("as far as I know I have not had sex with a person under-age") in contrasting it with his earlier more categoric statement in his Press Conference of 4 February 1995 where in answer to a reporter he said, "I have never had sex with anyone under-age" [see Exh 114]. This was in the appellant then concluding that "therefore he [the respondent] has had sex with fourteen and fifteen year olds". That represented "an irrational leaping to conclusions" [see J 4398] by both Quail and Hall. The former was a television reporter employed by the appellant in respect of the To-day Tonight programme and a consultant to the appellant in respect of the Witness programme and the latter was Executive Producer of the To-day Tonight programme. This was "unreasonable" and, as such, an unreasonable component of Hall's and Quail's conduct as Channel 7's servants in the publication of To-day Tonight [J 4400].
(b) in relation to the "denials" attributed to the respondent, a fair viewing of the programme quickly and easily disposed of the construction that these "constituted a fair statement of the [respondent's] position to be weighed by the viewer when the viewer considered the position of the complainants". His Honour determined that these denials were "not included by way of balance but to be used by juxtaposition of the assertions of the complainants, as a mechanism for identifying and exposing the [respondent] as a liar notwithstanding that the information provided by the complainants and published by the [appellant] was `new'" [see J 4399].
(c) the respondent was denied an opportunity to respond, since he was offered an opportunity to do so only on terms that were not reasonable, for reasons his Honour elaborated. Those were that with disguised complainants it was an irrational assumption on the part of the appellant that the respondent would have known who they were or that they were going to be on the programme, or what they were going to say. This was, moreover, in circumstances where the programme was not an "in the heat of the moment publication", rather it was weeks in the making such that it was reasonable and practicable (and necessary) for the appellant to have provided the respondent with an opportunity to respond to the "new" allegations which would have been brought to his attention specifically [see J 4401 and J 3063 to J 3091].
(d) while the form and manner of presentation in respect to To-Day Tonight and Witness as to matters such as lighting and music and the obscuring of the faces of the complainants are the techniques of telecasting and are not unreasonable in themselves, they did involve the false fiction that Superintendent Small (who had in fact been interviewed at length by Quail for the To-day Tonight programme [Exh AO, J 4455]) had declined to comment. That gave to the viewer the misleading impression that Superintendent Small was a "detached police officer behaving in accordance with the requirements of his duties and not communicating at all with instruments of the media on operational matters" when "[t]he truth was the exact opposite" [J 4404]. This was more particularly so "when it is understood that Superintendent Small's [source] was a source not to be disclosed ..., the information he provided on no rational basis founded a belief in the truth of under-age sex allegations". Yet "[S]mall was nonetheless named in the programme, and filmed (after rehearsal) first, to have a picture to put to the name" and secondly, "to have created the fiction of absolute non-involvement" [J 4405].
(e) the use of the material supplied by Dunbier, "an informant of questionable motivation" was "unreasonable in that it was used to give effect and force to Quail's narration as to the right thing being done by Dunbier in providing names to the Royal Commission which was not the case" [see J 4408] he being a person who "was open about his dislike of the [respondent]" [J 3308] but "there was no disclosure on the programme `of the deep enmity Dunbier felt towards the [respondent] (and known to the [appellant])" such that "the public had little reason to doubt Dunbier's sincerity and truthfulness" [J 3307]. See generally, J 3325 to J 3332 and in particular J 3329.
835 Levine J agreed with the respondent's submissions as to each of these matters being components of the form of the programme To-day Tonight and as "evidencing unreasonableness in the conduct of the [appellant]" [J 4409].
836 Turning to the Witness programme, his Honour's conclusions are to be found at J 4453:
"4453 In summary, the [appellant] fails on the defence under s 22 of the Defamation Act 1974 in relation to Witness by reason of being unable to satisfy me that more probably than not its conduct in publishing was reasonable by reason of: first, what I have referred to as the failure properly and reasonably to examine the information the [appellant] by its servants and agent (Quail) had prior to the telecast; secondly, the failure to make any independent inquiry given the gravity of the imputations intended to be conveyed as to the critical temporal component; thirdly, the reliance on the denials; fourthly, the failure to provide the [respondent] with an opportunity to respond, and, fifthly, the format aspects to which I have referred."
837 After a detailed and lengthy review of the evidence and both parties' submissions, and after directing himself to the applicable principles and considerations involved in the application of s22(1)(c), his Honour made the following critical findings in relation to Witness:
(a) O'Donnell, the Producer of the Witness programme, as at 12 February 1996, knew and suggested that there should be obtained from Quail (with whom the contract ("the Contract") to assist Channel 7 in the production of its programme was made on 13 February 1996), "tapes of interview with Russell McNamara, the Speedo Cop, and Stals", yet neither O'Donnell nor McClellan (Head of Production, Witness programme), knowing that Quail "its agent" had this research and information which was available to the appellant via its Contract, actually availed themselves of this information but chose only to pursue their own independent enquiries [J 4412 to J 4413].
(b) The appellant cannot be criticised in its conduct by wishing to do its own interviews for the new programme [Witness]; "it can be criticised for not pursuing the result of its agent's research required both by contract and pursuant to need as perceived by McClellan" [J 4412]. Thus at J 4457 his Honour concluded:
"... the belief forming process of everyone was affected by the failure properly to examine the material from the very person [Quail] who had it and who was engaged as an agent before he had it, and the state of mind of that agent was affected by his deliberate failure to disclose it irrespective of whether he understood O'Donnell to be asking for it and notwithstanding was a clear breach of his contractual obligation as an agent."
(c) Nor was the conduct of the appellant reasonable in that, notwithstanding that O'Donnell expressly considered that the information in relation to Stals should be obtained, it did not obtain it nor did it consider the tapes Quail had made of Stals [J 4414, and see also J 4415 and J 4416].
(d) "as to the state of mind of this relevant personnel", the appellant failed to call as a witness Graeme Davis and "no acceptable explanation was given" [J 4454]; he was the journalist employed by the appellant working on the Witness programme, who conducted interviews in the presence of Quail and O'Donnell as well as sometimes in the absence of one or other or both and whose role was critical in the production of Witness and was found to be "a vital component of the Witness team, even if he did not have a part to play in the decision to publish" [J 4454].
(e) there was a reckless failure to make enquiries both in relation to "the temporal component" (when did the alleged underage sex occur so as to establish whether or not it was in fact underage) and especially to make enquiries in relation to the information that Quail had with respect to Stals whose account in Exh AO had included elements of apparent fantasy that his Honour concluded affected the credibility of the rest of his account, in particular of underage sex involving the respondent [J 4455 but see also J 4420].
(f) as to O'Donnell, McClellan and Manning (the latter being Executive Producer of the Witness programme) each failed to make proper objective independent enquiries and each held an irrational belief based on what the respondent said by way of denial in the 7.30 Report as somehow admitting to underage sex below the age of 16 years (to the effect that "so far as he knew" he had never ever slept with anyone underage) [J 3791, J 4437 to J 4440, J 4447, J 4456].
(g) O'Donnell was prepared to work on favourable assumptions (of the veracity of a witnesses' account) of Russell, who was one of the sources or informants relied upon by the appellant, "notwithstanding information available to him that Russell was an active participant in under-age sex at Costello's", such that the belief O'Donnell had "as to the truth of the information and the imputations conveyed was unfounded on any rational and reasonable basis" [J 4456].
838 It is these conclusions to which the appellant's grounds of appeal (particularly grounds 55 and 62) are directed as are the appellant's detailed written submissions. Subject to one qualification, that challenge does not point to any failure on the part of his Honour in his articulation of the principles, nor in any major degree does it dispute the considerations applicable to determining whether s22(1)(c) of the Act (reasonable conduct) has been satisfied. Rather, the thrust of both the grounds of appeal and the supporting submissions are directed to the application of those principles in seeking to establish that the relevant findings, including findings on intermediate facts that lead to the ultimate finding (that statutory qualified privilege was not made out), were "contrary to the evidence or against the weight of the evidence". There is also challenge to inferences which his Honour drew from the evidence as found by him. However, the earlier acceptance is subject to one qualification. At para 11 of the appellant's written submissions, it is said:
"11 His Honour's evaluation of the evidence was guided by wrong principle in that he held (¶4379) that the appellant had failed to discharge the onus it bears to establish that the inquiries and checks were sufficient and that its omissions were not unreasonable. There is no such general principle. Requirement for inquiry depends upon the circumstances of the case. Thus if it is reasonable for the publisher to conclude that the informant has provided credible or reliable information there may be no requirement to test the veracity of his information by making further inquiries.
839 In so contending, the appellant is dealing specifically with appeal grounds 55 and 62 relating to the enquiries that his Honour held should have been made to satisfy s22(1)(c) by the appellant, those holdings being summarised by the appellant in these terms [AS 9]:
"9 His Honour held:
(i) (¶4379) that the appellant failed to discharge the onus it bears to establish that the inquiries and checks were sufficient and that its omissions were not unreasonable.
(ii) (¶4380, 4395) that the temporal component was fundamental and the appellant was obliged to make inquiries otherwise than of the complainants to locate corroboration of the fact that when the sex took place (with the respondent) the complainant was aged 14 or 15.
(iii) (¶4381) that it was unreasonable to rely upon the common thread of sex, amyl nitrate, marijuana, and that each informant (except Tasker) was underage.
(iv) (¶4383) that it was unreasonable to rely on the common thread when it could not support the underage component essential for belief in truth of the imputations."
840 While the above appeal grounds relate to the To-day Tonight programme, as do the holdings, the failure to make sufficient enquiry was also relevant to his Honour's findings in relation to Witness, as regards Quail, where at J 4455 his Honour concluded:
"4455 As to Quail, notwithstanding that the [appellant's] unsuccessful attempt to distance him, the [appellant] led evidence from Quail as to his honest belief which I am not prepared to accept as available as a matter of fact or as available on a reasonable basis by reason of the reckless failure to make inquiries especially in relation to the temporal component, and especially in relation to the information that Quail had with respect to Stals."
841 Appeal ground 68, and so far as Quail is concerned, appeal ground 64, take issue with that holding and the related holdings.
842 The only other suggestion in the appellant's written submissions of resort to wrong principles tends to shade into an allegation of misapplication of the relevant principles. Thus at AS 15 it is contended that:
"15 His Honour's approach indicates that he (wrongly) regarded the publisher as under an obligation to establish satisfaction as to truth beyond reasonable doubt, or at least to a very high standard, and treats the informants as accusers of criminal charges. This imposes an unduly restrictive test upon the publisher and one not imposed by the Act."
843 The appellant also contends in relation both to To-day Tonight and Witness that "there is no requirement that an opportunity to respond be given in order to establish that conduct in publishing, taken overall, is reasonable" [see AS 5.1 and 5.2 respectively, repeating submissions which failed at trial].
844 Essentially, the appellant's submissions are that an opportunity to respond depends upon the circumstances, there being no universal requirement of an opportunity to respond, nor such a requirement in the present circumstances, his Honour being in error in concluding to the contrary.
845 There is otherwise no issue taken with the self-directions of his Honour, as to the guiding principles to be applied in determining whether the conduct of the appellant publisher meets the standard of reasonableness required by s22(1)(c). We record those self-directions (omitting footnotes), as they are important insofar as they bear upon the way in which his Honour set about his task:
"Before an omission to make an enquiry could be found to be unreasonable in the circumstances, it is necessary to find that such an enquiry ought to have been made. It is necessary that there be evidence which shows that the [appellant] knew or should have known of facts which indicated that the information given was untrue or so doubtful as to warrant further inquiry. The question is not determined by reference to the hypothetical outcome of some enquiry and importantly it is not a judgment to be made in hindsight.
`Further it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment." [J 2929]
846 Accepting that these self-directions properly express the principles and considerations applicable to s22(1)(c) to the Act, the gravamen of the appellant's challenge is essentially that his Honour did not apply these principles correctly in the particular circumstances that applied, making findings on questions of fact that were "contrary to the evidence and to the weight of it". At this point it is convenient that we commence by first setting out below the grounds of appeal (grounds 55 to 73 inclusive) relied upon by the appellant in relation to statutory qualified privilege in the defence under s22 of the Act. We shall then take each of the specific grounds and deal with them in the order in which they appear in the appellant's written submissions.
Grounds of Appeal
"QUALIFIED PRIVILEGE
Defence under s. 22 Defamation Act 1974
Today Tonight programme
55 His Honour's finding that the appellant's failure to make any inquiry independent of the information provided by its sources was unreasonable was contrary to the evidence, and to the weight of it (Vol 5, para 4381).
56 His Honour's finding that neither Hall nor Quail had an honest belief in the information and/or in the truth of the imputations published was contrary to the evidence, and to the weight of it (Vol 5, para 4394). He should have found that the evidence established that the belief of each in the truth of the imputations was reasonably based on the totality of the information obtained, and was honestly held.
57 His Honour should have held that it was reasonable in all the circumstances for each of Quail and Hall to form the view that the informants Messrs Pearce, Burns, Tasker, Kinchela, Small and Dunbier, and the information obtained from them and elsewhere as to the conduct encapsulated in the imputations, were credible and reliable.
58 His Honour's finding that the inclusion in the programme Today Tonight of the segment recording Mr Small and his `no comment' response was misleading or otherwise detracted from the reasonableness of the conduct in publishing the imputation was contrary to the evidence, and to the weight of it (Vol 5, paras 4404, 4405).
59 His Honour misdirected himself as to, or disregarded, the evidence given by Quail and Hall to the effect that the information obtained from Mr Small reasonably supported the belief that the respondent was a dishonest person who would break the law in furtherance of his sexual proclivities, and whose denials should not be accepted (Vol 5, para 4405).
60 His Honour's finding in holding that the inclusion in the programme Today Tonight of the segment of Dunbier was unreasonable was contrary to the evidence, and to the weight of it (Vol 5, para 4408).
61 His Honour erred in holding that the publication of the programme without the respondent's participation was not reasonable (Vol 5, paras 4401-4402). On the evidence, he should have found that the respondent's conditions for participation were not reasonable.
62 Had he had due regard to the evidence as to the totality of the information obtained, His Honour should have found that the judgment made by each of Quail and Hall that sufficient inquiry had been made to establish the credibility of the informants and the information was a fair and reasonable judgment in the circumstances.
63 His Honour should have held that the conduct of the appellant in publishing Today Tonight was reasonable in the circumstances pursuant to s.22(1)(c) Defamation Act 1974, and accordingly he should have upheld the defence of qualified privilege for the publication Today Tonight.
Witness programme
64 On the issue of reasonableness of the appellant's conduct in publishing the Witness programme, His Honour erroneously took into account the conduct of Quail. His Honour should have found that Quail played no part in, and was not responsible for, publication of the programme and was outside the class of those who were so responsible. Accordingly, he should have held that Quail's conduct in failing to communicate the information concerning Stals and Exh AO to those involved in the production of the programme was irrelevant to the issue of the appellant's conduct in publishing it (Vol 5, paras 4412-4415).
65 His Honour's finding that the inclusion of the segment of Russell was unreasonable was contrary to the evidence, and to the weight of it (Vol 5, paras 4432-4434). He should have held that the inclusion of this segment and of passages from Exh 128 was reasonable in the circumstances, and constituted directly relevant information concerning Russell and the respondent.
66 His Honour should have found that the publication of the programme without inviting the respondent to respond was reasonable in the circumstances (Vol 5, para 4453). His finding to the contrary resulted, inter alia, from his failure to give due weight to the evidence as to the significance of the respondent's denials published on other occasions, and to the inclusion of his denials in the programme Witness.
67 His Honour should have held that, on the evidence, it was reasonable in the circumstances for each of Messrs O'Donnell, McClellan and Manning to conclude that each informant was credible, and that his information was reliable (Vol 5, para 4456).
68 Having regard to the evidence as to the totality of the information obtained by the appellant's servants and agents, His Honour should have held it was reasonable to publish the programme Witness without undertaking further inquiry. Further, he should have held that failure to make further inquiry was not unreasonable in the circumstances.
69 His Honour's finding that neither Messrs Quail, O'Donnell, McClellan nor Manning held an honest belief in the truth of the information and/or in the truth of the imputations was contrary to the evidence, and to the weight of it (Vol 5, paras 4455-4456). His Honour should have found that the evidence established that the belief of each in the truth of the imputations was reasonably founded on the totality of the information obtained, and was honestly held.
70 Having regard to the lack of evidence that any person involved in the publication of, or the decision to publish, the Witness programme was aware of the contents of Exh AO and/or because it was not the respondent's case that Quail in fact showed Exh AO to any person or that any relevant person saw it, it was not open to His Honour to find that proceeding to publish without reference to Exh AO was unreasonable.
71 His Honour's finding that the conduct of Messrs O'Donnell and McClellan to obtain Exh AO from Quail was unreasonable, was contrary to the evidence, and to the weight of it (Vol 5, para 4414).
72 His Honour's finding that the belief forming process (sic) of everyone was affected by the failure to examine material from Quail (particularly Exh AO) is a conclusion not open on the evidence, and not open because it was not the respondent's case that Quail in fact showed Exh AO to any person or that any relevant person saw it.
73 His Honour should have held that the conduct of the appellant in publishing the programme Witness was reasonable in the circumstances pursuant to s.22(1)(c) Defamation Act 1974, and, accordingly, he should have upheld the defence of qualified privilege for the publication Witness.
847 The appellant in its written submissions first relied on the appeal grounds 55 to 63 collectively applicable to the programme To-day Tonight and repeats its submissions made at the trial [AS 4 to 8]. At para 8 the appellant invited a finding as to s22(1)(c) in these terms:
"... the evidence amply satisfied each of the requirements identified in Morgan v John Fairfax & Sons (1991) 23 NSWLR 374 at 387D to 388F, particularly those numbered (1), (2) and (4). The appellant believed in the truth of each of the imputations conveyed. Before publishing, it exercised reasonable care to ensure that the conclusions were right. Such enquiries as to the accuracy of sources as the circumstances required were made. The conclusions followed logically, fairly and reasonably from the information obtained."
848 We should note at this point in relation both to To-day Tonight and Witness that the appellant undertook the responsibility of identifying which tapes of interview, and which parts of those tapes with the accompanying transcript, this Court needed to review. We have limited ourselves to such review as was so identified. This is relevant to para 2 of the appellant's written submissions concerning To-day Tonight where it is stated that: "An important part of the review includes viewing the tapes of interviews with Pearce, Kinchela and Dunbier [Exh 55, 56, 63, 118, 112 and 123] and reading the transcripts of those interviews." That submission therefore must now be taken to be qualified by the fact that the appellant undertook responsibility for which tapes, and parts of tapes with accompanying transcript, need be so reviewed in order to get a sufficient sampling of the approach taken by the appellant, for the purpose of considering the appellant's grounds of appeal. We viewed the tapes of interviews with the transcript so selected by the appellant, with no additions from the respondent proffered, alongside, as recorded in the appeal transcript [AT 120 to 126].
849 Similarly, in relation to Witness, the appellant undertook that responsibility of selection and identification for purposes of appeal grounds 64 to 73. Thus para 48 of the appellant's written submissions, quoted below, must likewise be understood as subject to that selection and identification; "An important part of the review includes viewing the tapes, and reading the transcripts, of interviews with Pearce, Lewis, Russell, Stals and Homes [Exh 58, 59, 60, 126 to 132, 136A & B]." We followed a similar procedure for Witness as earlier for To-day Tonight, as recorded in the appeal transcript [AT 155 to 158].
850 Finally we should record that we viewed the whole of the tape of To-day Tonight and Witness. The tapes of interviews (as so selected) pre-date the relevant television programme and are to be understood as an important part of the appellant's prior enquiry of those claiming to have had under-age sex with the respondent or as being familiar with his having done so.
851 The starting point is the imputations found in the Judgment [J 2937]:
"(a) The [respondent] has had sexual intercourse with boys who are under the age of 18, knowing them to be under the age of 18;
(b) The [respondent] has had sexual intercourse with a 15 year old boy who was then under the influence of drugs which had been given to him by the [respondent]."
852 The information upon which the programme To-day Tonight was based was obtained in the course of investigations by Quail, a television reporter then employed by the appellant and specifically in relation to the To-day Tonight programme. Quail worked under the supervision of his Executive Producer of To-day Tonight, Hall. The relevant investigation was conducted from about 17 January 1995 until about 10 April 1995.
853 As we have explained earlier, the background events stemmed from the reading in Parliament on 1 December 1994 by Mrs Diedre Grusovin, a New South Wales Labour Party MP, of a statutory declaration of a Mr Colin Fisk which named the respondent (and others) as someone who had sex with under-age boys [Exh 103 (Blue 325)]. The aftermath generated much public interest and discussion, exemplified by some of the newspaper clippings in Exh 264 [Blue 1126].
854 Quail was requested to investigate the matters raised by Grusovin. On 17 January 1995 he asked her what support she had for her statement in Parliament and was referred to the journalist Ron Hicks, who had interviewed one of the sources relied upon by Quail, and Pearce, who had said that he had had sexual contact with the respondent when aged 15 or 16 [Exh 57, Exh 63]. Pearce was a boy prostitute at the Bottoms Up Bar. Pearce was subsequently interviewed for the To-day Tonight programme [Exh 55, Exh 56, Exh 63] and by a journalist employed by the appellant to work on the Witness programme (with Davis).
855 Quail had met Hicks on 19 January 1995 and was shown Pearce's statutory declaration [Exh 57] in which he described having sex with the respondent from the age of 15 [T 5746-47]. Quail again met Hicks on 20 January 1995 [T 5748] when Hicks provided Fisk's declaration [Exh 103], which was later discredited, and the so-called Speedo Report [Exh 104].
856 Thereafter Quail's investigation was principally directed to establishing whether or not the respondent had engaged in under-age sex. It involved recording interviews with Fisk, Pearce, Dunbier and Kinchela and having conversations and interviews with a number of people including Grusovin, Burns (a source who said he had had a relationship with the respondent from age 16 to 17, when he was a prostitute), Tasker (a source who said he had had a relationship with the respondent from 1992 and was a prostitute at the time) and Superintendent Small. In addition, some documentary information relevant to the respondent's alleged conduct was obtained.
857 The appellant asserts that by the time the investigation was complete and the matter ready for publication, each of Quail and Hall had come to the view that the informants were credible and the information obtained was reliable. The appellant asserts that based on the information obtained, each believed that the imputations were true.
858 His Honour's conclusion [J 4394] in relation to those contentions has been earlier quoted. In short, as to Quail, his Honour concluded that "insofar as he said he had an honest belief, did so in a way that does not lead me to accept that statement. There simply was [sic] no grounds for him having such a belief." And then so far as Hall was concerned his Honour concluded, "[a]s to Hall having a belief in the truth of the information and the imputations: ... I do not believe at all that Hall had an honest belief in the information or in the truth of the imputations. ... thus I find in fact he did not have an honest belief and that his approach to the whole exercise was such that he could not and did not reasonably have grounds therefor."
859 Both Quail and Hall were witnesses whose demeanour his Honour had the opportunity of observing and whose evidence was extensively tested in cross-examination. These conclusions of his Honour are challenged in a context where the appellant has to bear the onus of establishing its reasonable conduct for the purpose of s22(1)(c). Disturbing that factually based conclusion on the basis that his finding "was contrary to the evidence, and to the weight of it", and substituting the opposite conclusion on the limited grounds of appellate review calls for the caution expressed by Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588 at 619 [90]:
"The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence whilst the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified." [footnotes omitted]
860 As Heydon JA noted in Williams v the Minister Aboriginal Land Rights Act 1993 and the State of New South Wales [2000] NSWCA 255 at [138], Kirby J's opinions on the role of appellate courts are not universally shared but these propositions "have never been doubted". All the factors identified as "adding force" to traditional notions of appellate caution, including its mammoth length, were also present in this case.
861 The respondent pressed upon us that the appellant's submissions are deserving of the criticism by Heydon JA of the appellant's approach in Williams (supra):
"The appeal was by way of rehearing: Supreme Court Act 1970 (NSW) s75A(5). It was not a trial de novo or a trial of the case afresh on the record. The plaintiff bore the burden in the appeal not merely of showing that on the facts her contentions might be available or even correct, but of showing that the trial judge's conclusions ought to be reversed. The plaintiff made only limited challenges to the credit-based findings of the trial judge. Most of her challenges were to inferences drawn, or characterisations made, by the trial judge. Even in relation to those challenges, however, the Court of Appeal is in the same position as that ascribed to the Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; (1992) 35 FCR 359 at 369 per Beaumont and Lee JJ:
"... the court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes [1979] HCA 9; [(1979) 142 CLR 531] (at 552-553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected. (See also Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296, per Barwick CJ (at 304), per Menzies J (at 308-309) and per Walsh J (at 318-319).)"
The plaintiff's approach sometimes invited the court to survey for itself, afresh, all the evidence on particular points and arrive for itself at particular conclusions about them, without essaying the necessary task of positively demonstrating that the trial judge was wrong. ...
But discharge of the burden of proof depends on experience by the trial judge of an actual persuasion of the existence of the matter to be proved. There must be an appropriate degree of confidence in its existence: Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 227 per Mahoney JA. In a case of the antiquity of the present one, it is quite possible that there are many issues on which a trial judge, or an appellate court, would find it impossible to come to a conclusion one way or the other." [at 60-61]
Appeal Grounds 55, 57 and 58 other than Superintendent Small and Dunbier
862 We now consider the specific grounds of attack by the appellant on his Honour's findings, starting with the roles of Hall and Quail in relation to the To-day Tonight programme. As a convenient approach to the appellant's challenge to his Honour's findings, we repeat appeal ground 57:
"57 His Honour should have held that it was reasonable in all the circumstances for each of Quail and Hall to form the view that the informants Messrs Pearce, Burns, Tasker, Kinchela, Small and Dunbier, and the information obtained from them and elsewhere as to the conduct encapsulated in the imputations, were credible and reliable."
That requires consideration of each of these sources or informants and the information obtained.
863 The respondent described the approach of the appellant as being "to invite this Court to weigh into the minutiae of part of the evidence on the question of reasonableness and arrive for itself at the opposite conclusion about the issue ... postulating a different finding on the intermediate facts and the fact in issue in this part of the case" but so that, "no attempt is made to confront the necessary task of demonstrating positively that his Honour fell into recognisable error." [RS]
864 It is however necessary, without an elaborate revisiting of the facts, to review his Honour's process of reasoning in order to determine whether any of the available bases for setting aside his Honour's findings are made out, usefully distilled by Heydon JA in Damberg v Damberg at [89]:
"89. It would be unusual to set aside, or order a new trial on the ground of, the trial judge's findings based on the husband's credibility unless it could be concluded that the trial judge failed to use or palpably misused the advantage he had of seeing and hearing the witnesses, or that the trial judge relied on evidence which was inconsistent with facts incontrovertibly established by the evidence, or that the trial judge acted on evidence which was glaringly improbable, or that the trial judge fell into some error of principle, or that the trial judge mistook or misapprehended the facts, or if the effect of the overall evidence was such that it was not reasonably open to make the findings he did: Abalos v Australia Postal Commission [1990] HCA 47; (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; Rosenberg v Percival [2001] HCA 18 at [37]- [42] and [92] per McHugh J and Gummow J. However, it is possible to set aside, or order a new trial on the ground of, credibility-based findings in other circumstances, because "no short exhaustive formula" of the above kinds can meet every case: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588 at [3] per Gaudron, Gummow and Hayne JJ, quoting Devries v Australian National Railways Commission (1993) 177 CLR 472 at 480 per Deane and Dawson JJ. Another instance where this appellate intervention can take place is "where in a complex pattern of events incontrovertible evidence can only be fitted into the pattern if a different view of the credibility of a witness is taken by the court on appeal": Agbaba v Witter (1977) 51 ALJR 503 at 508 per Jacobs J, approved in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588 at [4] by Gaudron, Gummow and Hayne JJ."
865 In reviewing his Honour's process of reasoning and fact finding, we shall follow the appellant's oral submissions in which it used the Pearce interview with Quail. This was used by the appellant to illustrate what it described as the scheme of its submissions, being a scheme repeated with each of the other individuals [AT 113]. If the attack of the appellant fails in relation to Pearce as a source reasonable in the circumstances to rely upon, this has implications for the other sources. The converse also applies. That should obviate the need, once Pearce has been considered, for further excessive attention to the evidentiary basis for his Honour's conclusions, with its dangers for transgressing the proper scope of appellate review. That does not mean, however, that the cumulative effect of the sources and their material is not of relevance, within the parameters of what constitutes appellable error in this context.
866 As background to the process followed in relation to Pearce, brief attention needs to be given to the roles of Hall and Quail. Hall was the Executive Producer of To-day Tonight from January 1995. He had extensive experience as a journalist involved in reporting and producing television news and current affairs programmes in Australia and New Zealand. He won four Walkley Awards for excellence in journalism [T 5109].
867 As Executive Producer of To-day Tonight, his duties involved hiring staff and the responsibility for the editorial content of the publication of the programme. He had employed Quail and regarded him as a competent journalist, who was honest and determined [T 5111]. Quail's investigations were under his supervision. The practice was that Quail would report to him from time to time as to progress and he would view taped interviews as they became available.
868 Hall was responsible for authorising the content of the publication and for determining its accuracy and truth and obtaining advice where appropriate. He read the script compiled by Quail and assisted him in preparing its final version [T 5190]. We should interpolate here that in so describing Hall's responsibility, we would not understand it to be suggested in relation to To-day Tonight that Quail did not himself share in the responsibility for the programme though under Hall's supervision. We deal later with the position in regard to Witness.
869 Quail was also an experienced journalist who joined the appellant to work on a weekly current affairs programme "The Times" [T 5745]. This led to his involvement as a reporter for To-day Tonight [T 5746]. By 7 March 1995 he had assessed the taped interviews and transcripts to decide the material to be included in the broadcast. He was the scriptwriter, assisted by Hall. The composition of the programme as broadcast involved the working together of Hall and Quail [T 5830.32 to .35].
870 Turning now to Pearce, his initial information is to be found in his Statutory Declaration made 17 January 1995 [Exh 57] and his interviews taped at the Sebel Townhouse on 23 January 1995 [Exh 55, Exh 56]. Some twenty minutes of the first tape [Exh 55] was played to us by the appellant [AT 122-3].
871 The appellant both in submissions at trial and then in the written submissions on appeal summarised the effect of the interviews. These include the subsequent interview on 25 January 1995 following the earlier interview on 23 January 1995, as well as Quail and Hall's evidence about the salient features of their interaction in putting together the To-day Tonight programme. It is convenient that we quote the submissions, as repeated on appeal starting with the summation of the first two interviews taped at the Sebel Townhouse [Exh 55, 56]:
"(i) Pearce was motivated to tell Quail of his experience because of the unfair treatment of Grusovin and the false denials of the respondent when he knew that what Grusovin had said about the respondent was the truth.
(ii) That by the time he was 15 years old, he was a street kid prostitute working out of the Rex Hotel, Kings Cross.
(iii) He was picked up by the respondent at the Rex Hotel on many occasions over a four year period, taken to the respondent's home at Campbelltown for sex, slept the night, taken to Ingleburn Railway Station to return to Kings Cross and paid $50 each time.
(iv) He and the respondent were driven in a Mercedes Benz car by a driver. Often they stopped at a Chinese restaurant for a take-away meal and proceeded to the house. It was two-storey, big and beautiful. From the upstairs bedroom there was a view back to the city.
(v) Before sex took place it was the respondent's practice to go into the big walk-in wardrobe, produce a tin from which he took marijuana, rolled joints and both would smoke them. The respondent also provided amyl nitrate taken from a little bottle and sniffed from a rag.
(vi) the respondent mixed with other lawyers engaged in under-age sex namely Ian Marshall-Moore and Trevor Beazley.
1.2 From the interviews it is to be noted that:
(i) Although the respondent never asked Pearce his age, Pearce asserted that he would have known because he was obviously fairly young (Exh 55 p.8,9, 1 Blue 146R-147J).
(ii) He agreed to go with Quail to look for some of his former friends with whom the respondent had sex when they were under-age boys (Exh 55, p.15,16, 1 Blue 153W-154G).
(iii) He was ready to adhere on camera to the contents of Exh 57 (1 Blue 174) and assert the truth of them (Exh 56, p.13,14, 1 Blue 172K-173K).
1.3 On or about 24 January 1995 Pearce accompanied Quail on a walk through Kings Cross pointing out familiar locations. He gave Quail Exh BN, the Adoption Order, which shows his date of birth. He told of his criminal record (T5770-71).
1.4 On 25 January 1995 Pearce walked with Quail to a number of places to locate people he nominated who would corroborate his story. The attempts were unsuccessful (T5775). Also, Pearce located and introduced Quail to his friend Tony. Tony asserted that the Grusovin allegations concerning the respondent were true (T5777). He was the person referred to in Exh 62 (1 Blue 237M) (T5828).
1.5 On 25 January 1995 Pearce accompanied Quail to locate the respondent's house and the Chinese restaurant. The recorded interview is Exh 63 (1 Blue 238) (T5775-6). It contains:
(i) The location by Pearce of the restaurant.
(ii) The location by Pearce of the house and a detailed description of its interior consistent with that previously given by him.
(iii) An account of his sexual contact with the respondent from age 15 and details of the modus operandi consistent with that previously given.
1.6 On 1 March 1995 Pearce told Quail he was interested in talking to the Royal Commission `... if it would help to get the truth out'. Quail took him to an investigator at the Commission's premises (T5825). Some days afterwards Pearce gave Quail his signed statement of 3 March 1995, Exh 62 (1 Blue 236), apparently made for legal purposes (T5826-28). Its information is substantially similar to that in Exh 57 and entirely consistent with that in Exh 55, 56 and 63.
1.7 In late January/February 1995, Pearce met Hall in the appellant's office. He gave to Hall information to the same effect and detail as his earlier information (Exh 55, 56, 57, 63). In particular (T5152-53):
(i) His concern that Grusovin was in trouble in naming the respondent as a pederast which he knew to be true because he had had under-age sex with the respondent.
(ii) He asserted the respondent would have known he was under-age because he was picked up from the Bottoms Up Bar of the Rex Hotel, a known haunt for paedophiles and a place visited for the purpose of picking up boys for sex.
(iii) He had been an under-age prostitute but it was embarrassing to recall these years now that he had a child and family. `There's nothing in it for me to lie' (T5153).
(iv) He would appear in a television report if his face was obscured and his name protected (T5154)."
872 Then, again in both sets of written submissions, the appellant set out why Quail's and Hall's belief in and reliance on Pearce was made out and was reasonable. Again, we quote:
"Belief in and reliance on Pearce is reasonable
1.1 By any objective test it is reasonable to accept Pearce as an informant of truth and his information as reliable. This is so even without information from other sources as to the respondent's conduct. In any event, the test is whether it was reasonable, from the standpoint of Quail and Hall, to conclude that he was telling the truth.
1.2 Relevant factors for this conclusion are:
(i) The sworn declaration, Exh 57 (1 Blue 174) and the signed statement, Exh 62 (1 Blue 236)and his willingness to attend the Royal Commission.
(ii) The consistency of the account as to his history and background, the details of his sexual encounters with the respondent and, for example, of the interior of the house.
(iii) The content of each interview presents Pearce as entirely plausible. The tapes (Exh 55, 56, 63) plainly show his demeanour as that of a person giving a candid account of embarrassing events in circumstances where he has nothing to gain from doing so. Attention to the form of the questions and answers shows that the questions were not leading and answers were neither prompted nor foreseeable. Responses are made with apparent confidence. Recollection as to details of names and locations is apparently sound.
(iv) Nothing about Pearce's demeanour, observed on a number of occasions, would engender in a fair minded person suspicion or distrust. Having regard, inter alia, to his willingness to look for former boy associates and to participate in the exercise recorded in Exh 63 (1 Blue 238) and, generally, to the totality of his meetings with Hall and Quail, it is plain that there is no rational basis for disbelieving Pearce or for not accepting him as a credible informant.
The assessments by Quail and Hall
1.3 Quail regarded as significant the following matters:
* the consistency of the information Pearce provided in his interviews, his statutory declaration and statement (T5769, 5831);
* Pearce gave clear and detailed information, under oath (in the declaration) and showed that he was motivated to expose the truth and vindicate Deirdre Grusovin (T5769,5770, 5771, 5827);
* the information regarding the respondent's routine - pick up from a known spot, long drive to Campbelltown, given marijuana, alcohol and amyl nitrate prior to sex, location of marijuana, payment/assistance to get back to Kings Cross (T5769 -70, 5831);
* Pearce's impressive knowledge of the interior of the respondent's house (T5776);
* Pearce's honesty in admitting his involvement in criminal activities, previous heroin use and admission to boys' homes (T5770).
Quail's assessment of Pearce was that he accepted the information provided by Pearce in relation to the respondent as true (T5830). He did so on the basis of the material referred to above.
1.4 Hall regarded as significant the following matters:
* in his recorded interviews, Pearce looked at ease and not pressured or manipulated and answered freely and honestly (T5148);
* he led Quail to the respondent's house without prompting (T5151);
* Pearce's answers were consistent with information given in a previous statutory declaration which had been sworn under oath, suggesting that Pearce took the matter seriously (T5148, 5255, 5258);
* order for adoption confirmed Pearce's age (T5150).
* Hall had the opportunity of meeting with Pearce and testing his reliability, credibility and authenticity. In the meeting, Pearce withstood strenuous questioning by Hall and maintained a consistent and believable position and version of events (T5152-5154, 5258).
Hall's assessment of Pearce was that he believed Pearce was telling the truth (T5190, 5258). He did so on the basis of the material referred to above."
873 To summarise, the appellant's submissions identified the information relied upon by Quail and Hall collectively which led them to conclude that Pearce was truthful, whereby the appellant's conduct was reasonable, as follows:
(a) the Statutory Declaration [Exh 57 (Blue 174)];
(b) consistency of the account;
(c) demeanour;
(d) no rational basis for disbelief.
874 The further submission as to the assessments made severally by Quail and Hall of Pearce relied on the following:
(a) Quail
(i) consistency of Pearce's story whenever told;
(ii) his motivation to vindicate Mrs Grusovin;
(iii) "modus operandi";
(iv) impressive knowledge of the interior of house;
(v) openness about criminal convictions.
(b) Hall
(i) Pearce looked at ease and answered freely;
(ii) He got to the respondent's house without prompting;
(iii) He swore a Statutory Declaration suggesting he took it seriously;
(iv) He gave his adoption certificate;
(v) Hall met him in person.
875 As to this, his Honour's central concern [J 4380] was that he agreed with the [respondent] that
"the temporal component was fundamental ... [I]n relation to each complainant there was a clear obligation on the [appellant] to make enquiries otherwise than of the complainant himself, to locate corroboration of the essential fact that when the sex took place (and with the [respondent]) the complainant was aged 14 or 15."
876 The evidence disclosed that no independent corroboration of the temporal component was carried out by Hall or Quail and this, moreover, in an interview, noted by his Honour [J 3168] where Pearce was asked if the respondent asked how old he was. To this he replied: "No". Pearce was then asked if the respondent ever told Pearce how old he was and again, Pearce said: "No" [Exh 55 p8]. Given that Quail was only told the respondent would "have had a rough idea" of his age, the written submissions on behalf of the respondent correctly pointed out that without further corroboration this was a "very shaky foundation of knowledge" that, as the imputation sought to convey, the respondent "knew" he was having sex with males under 18 [see RS para 324].
877 The respondent moreover submitted correctly, that no effort was made by either Quail or Hall to carry out any investigation beyond interviewing the witnesses to check the dates given by Pearce, despite the undoubted fundamentality of temporal aspects in determining whether the respondent did have under-age sex. As his Honour recorded at J 3132, at T 5220.35, Hall, for example, was asked:
"Q. Will you agree that it is extremely important, in assessing the credibility of such material, to make what inquiries may be made of an objective nature, to see what support can be found objectively to the truth?
A. Certainly.
Q. What objective inquiries did you make or cause to be made concerning Pearce and his story?
A. I instructed the reporter involved, Quail, to seek any official records of corroboration he could as to the background of Pearce, including any criminal offences; any official record at all, which might point to corroboration; elucidation of his life."
878 Hall said that he thought that Quail had obtained an authority from Pearce to release information about his criminal past but that no one would provide any information. His Honour noted that Pearce was not asked to confirm that permission had been sought. He added that but for the word of Quail, there was no evidence that any inquiries were made of any authority by the appellant and no evidence of any response [J 3133]. His Honour noted the submission of the respondent that this illustrated that the appellant was prepared to publish grievously damaging allegations without any objective temporal evidence to verify their truth [J 3138].
879 There were a number of matters in Pearce's account which were both readily available to be checked and which if checked would have refuted that the claimed underage sexual encounter with the respondent occurred in 1976 in the circumstances alleged. Pearce said he was born on 13 April 1961 [Exh 62 para 1] and that he met the respondent one year after coming to Kings Cross at the age of fourteen, so that when Pearce claimed to have had under-age sex at the age of fifteen the year would have had to be in 1976.
880 His Honour then identified a number of circumstances in Pearce's account which could not have occurred in 1976. These examples demonstrate that there were a number of matters readily available to be checked. Any reasonable enquiry would have picked up at least one, if not more.
881 The first and most obvious enquiry related to Pearce's claim to have been picked up by the respondent at the Bottoms Up Bar of the Rex Hotel [Exh 57 and Exh 68]. In fact the Bottoms Up Bar came into existence not in 1976 or 1977 but between 1980 and 1983; respondent at T 6593, Pearce at T 4718 [J 4052]. That conclusively refutes Pearce's account.
882 Then there was the consistent claim by Pearce that from at least the second visit he made to respondent's home, still in relation to claimed under-age sex at the age of fifteen, they would stop together at a Chinese restaurant at Liverpool identified as Chan's Canton Village restaurant on the Hume Highway at the Crossroads in Liverpool; [Exhs 55, 56, 57, 62, 63, 70]. Chan's Canton Village did not open until 1980 when Pearce was nineteen. There was no other restaurant serving Chinese foods in the vicinity until that date. [J 2173 and J 4047-8].
883 Pearce consistently claimed that the respondent told him, on their first meeting, that the respondent had a legal office in Paddington [Exhs 57 and 70]. However, the Paddington office of "Marsden's The Attorneys" did not open until April 1978 [J 2228].
884 The next example is that Pearce consistently claimed that the respondent told him at their first meeting that he was the solicitor for the Newtown Rugby League Club [Exhs 55, 57, 62]. However, the respondent first represented the Newtown Rugby League Club in 1984. [See respondent T 6645 and J 2179 and J 2228.]
885 A further instance of falsification is that Pearce at page 5 of Exh 55, said, "... when we went upstairs to the bedroom, he pulled the curtains back, the drapes and I could see right through to Sydney Centrepoint Tower, and I said to him, `you know, wow. Look at this' because I knew we were a long way out of Sydney, right out near Ingleburn, Liverpool ...". His Honour placed some emphasis on the fact that no effort was made to check whether the Centrepoint Tower existed in 1976, especially as Hall said [T 5294] that it was no surprise to him at all that Centrepoint Tower did not then exist. His Honour found that Centrepoint Tower was not constructed even as of 1979, much less 1976, and that was so to Hall's knowledge [J 2183, J 2228, and J 4055-6].
886 The respondent in his written submissions (RS 325), demonstrated how the judgment [J 3172 to J 3206] detailed, with particularity, a number of other matters relied upon by the respondent to demonstrate the obvious difficulties in asserting that the respondent's conduct was reasonable. Without need to refer to the specific items of evidence, which bear out his Honour's carefully particularised conclusions, we set out those matters as summarised by the respondent:
* the failure to make basic checks to corroborate detail as to dates, such as the date Pearce's father died in May 1974 and subsequent events, which were "out" [J 3172];
* the failure to ensure that Quail verified Pearce's version of his criminal background and homes in which he was placed by the Department of Juvenile Justice [J 3177];
* the fact that reliance was placed on an (unparticularised and heard for the first time on 4 May 2000) unsuccessful visit to "number of places in the Kings Cross area" when, even on the appellant's case nothing was obtained to corroborate Pearce's story bit this did not make any difference to the decision to broadcast [J 3178];
* the reliance on "Tony" indicating to Quail he knew Pearce from his days at the Bottoms Up Bar without ascertaining whether the Bottoms Up Bar and the Rex Hotel existed at the relevant time [J 3182];
* the fact that Quail must have known that Pearce went to see a barrister for a legal reason which could only be to seek money whether by suing the respondent or claiming victim's compensation [J 3186];
* the mistaken reliance on the alleged "candour" and "consistency" of Pearce's accounts betraying, as it did, an unreasonable process of reasoning which assumed the ability to tell the same story convincingly and more than once, lent veracity to the tale to an extent that it excused the appellant undertaking objective tests to verify the accuracy of the facts contained in the imputations [J 3187, J 3195];
* the reliance on the contention that there was no rational basis for disbelieving Pearce, as a factor reducing the obligation to take reasonable steps to check the truth of serious and grave allegations particularly in circumstances where the informant was a former heroin addict and a criminal who had been in and out of prison [J 3196].
887 The purpose of the foregoing, we emphasise, is not with hindsight to refute the truth of Pearce's statements. Rather it is to demonstrate that the absence of any enquiry going to the fundamental matter of temporality, when relatively superficial enquiry would have refuted Pearce's allegation of under-age sex quite readily, being a person whose position as a former heroin addict and a criminal who had been in and out of prison strongly indicated caution in accepting his statements at face value, point to his Honour being wholly entitled to conclude that in relation to Pearce the conduct of the appellant was not reasonable in the circumstances of publishing the imputations in question.
888 Taking now the position of the other sources, the question remains whether, considering their accounts, they provide any basis for overturning his Honour's decision that the absence of external enquiry beyond those sources in relation to the fundamental temporality matter precluded the appellant satisfying the onus of demonstrating its conduct was reasonable in the circumstances for the purposes of s22(1)(c).
889 Thus consider the next source, Burns. His Honour pointed out that the statement of Burns [Exh 111] was not even signed and that Burns never gave evidence and refused to assist the appellant. His Honour also pointed out that one of the things which impressed Hall was that Quail told him that Burns gave Quail a copy of the unsigned statement but refused to be interviewed as he was embarrassed [T 5164.18]. His Honour pointed out that Hall was in fact wrong to be impressed by such an event as it did not happen. Quail agreed that in fact Dunbier gave him the unsigned statement (Dunbier being a hostile former law partner and colleague of the respondent) and Quail then showed the unsigned statement to Burns. Hall, as found by his Honour, "therefore gave this statement some credence by virtue of the fact that he thought it was handed to Quail by Burns, thereby holding the contents out to be true (despite his refusal to sign it)" [J 3207].
890 There is thus, as his Honour points out, only Quail's evidence that Burns told him that the statement was accurate, even though he would not sign it [J 3208].
891 Turning to the information in the statement itself, this is conveniently summarised by the appellant in its written submissions at para 415 from which we quote:
"(i) He began a sexual relationship with the respondent from when he was about 16/17 years old. He was a prostitute at The Wall and the respondent paid $100 and a taxi fare to his house at Ingleburn for his services. He was introduced to the respondent by Wayne Flynn.
(ii) Before sex, the respondent offered him alcohol, joints of marijuana and amyl nitrate.
1.2 During the conversation Burns said, in addition to the above:
(i) That the contents of the statement were true and accurate (T5779).
(ii) Prior to sex, the respondent gave him alcohol, marijuana and amyl nitrate. The marijuana was located in the respondent's bedroom in either an alcove in the walk-in wardrobe or in the bedside cabinet.
(iii) He was paid for the sexual occurrences and given taxi money for the fare home (T5779). This was at the time he got his driver's licence (T5930).
(iv) He described the nature of the sex on some occasions as involving either Burns whipping the respondent or the respondent whipping Burns and there was an occasion when the respondent had him dress up in cowboy outfits with cracking whips (T5579-80).
(v) On occasions when he required legal assistance the respondent represented him in return for sex (T5780).
(vi) These events happened when Burns was under 18 (T5928-30).
(vii) He declined Quail's request to be interviewed for television as he was afraid of the respondent and also had a girlfriend ignorant of his bisexual past and he did not want public revelation of that (T5781)."
892 The appellant then summarised the assessments of Quail and Hall in these terms:
"4.17 Quail regarded as significant the following matters (T5832):
* Burns was picked up from a known spot - consistent with Pearce and Kinchela;
* he described a routine of alcohol, amyl nitrate and marijuana - consistent with Pearce, Kinchela and Dunbier;
* he described role playing and whipping - consistent with Kinchela;
* he described the location of marijuana in the walk-in wardrobe - consistent with Pearce and Tasker;
* he received legal representation in return for sex - consistent with Dunbier;
* he was certain of his age.
Quail's assessment of Burns was that he believed that Burns was a credible informant (T5832). He did so on the basis of the material referred to above.
4.18 Hall regarded as significant the following matters:
* consistency of the information with that provided by other informants regarding the pattern of the respondent's behaviour, in particular the respondent offering alcohol, marijuana and amyl nitrate prior to sex (T5165);
* Burns, like Pearce, was given a fare home by the respondent(T5165).
Hall's assessment of the information provided by Burns was that he was telling the truth (T5190). He did so on the basis of the material referred to above."
893 His Honour [J 3207 to J 3225] highlighted a number of matters leading to the conclusion that the appellant had failed to satisfy the onus of demonstrating reasonable conduct in the circumstances. These are summarised as follows:
(a) Hall being mistakenly impressed that Burns gave a copy of his unsigned statement to Quail. Quail in fact gave Burns this document after obtaining it from Dunbier;
(b) According too much weight to Burns, who was not even prepared to sign a statement, let alone appear on television;
(c) According little or no weight to the fact that Burns was an habitually convicted criminal.
(d) According any weight to evidence of the presence of marijuana, amyl nitrate and alcohol (Pearce, Kinchela, Burns) as corroboration of the matters contained in the imputations. The presence of these substances has no relevance to the truth of the imputations, being as they are allegations not of homosexual acts per se, but of knowing underage sex;
(e) Quail's failure to tell Hall about evidence which he believed to be very relevant to the truth of the imputation (see (a) above) with the effect that this was never a factor in Hall's mind when he decided to publish;
(f) According weight to the consistency between the statement of Burns and Pearce that they were given the taxi fare home;
(g) According weight to Dunbier's statement that clients received legal representation in return for sex when Burns implied the opposite in his statement;
(h) Failure to carry out checks in relation to any matter which Burns raised in either his statement or his discussion with Quail concerning incidents between himself and the respondent;
(i) Failure to take into account and give weight to the fact that Burns openly disclosed his anger with the respondent.
894 We consider that the conclusion reached by his Honour in relation to Burn's evidence was properly open to him. In particular, such routines of alcohol, amyl nitrate and marijuana as were described and the location of the marijuana in the walk-in wardrobe and receiving legal representation in return for sex, though they may reflect a consistency with other witnesses, did not impress his Honour as providing a sufficient basis for the conduct of the appellant to have been reasonable in failing to look further than these consistencies, in particular in failing to make enquiry bearing upon the fundamental temporal aspect.
895 The next source is Tasker. It is not in dispute that Quail knew that Tasker was just under 24 years old when he met the respondent. Thus for Tasker's statement to support the appellant in its contention that it took reasonable steps with regard to publication, the significance of what Tasker said would not be as an instance of underage sex (that could not be alleged) but rather to be found, if at all, in consistency between Tasker's account of the sexual encounter that he describes with other accounts of alleged underage sex.
896 The information from Tasker is in his statement given to the Kings Cross police on 16 May 1994 [Exh 107] and in a conversation with Quail at Potts Point at the end of January [T 5802].
897 Summarised, the information in the statement was:
(a) He was a prostitute working from the Bottoms Up Bar of the Rex Hotel. In May 1992 he was picked up there by the respondent and paid for sex. The respondent told him he was President of the Law Society.
(b) From June 1992 until about May 1994 he lived with the respondent at Denham Court, apparently as a lover.
(c) In para 13 he described the location of marijuana and the respondent's use of it. It was kept in the walk-in wardrobe of his bedroom and also in the top drawer of the bedside cabinet. A large supply was kept in the fridge of the kitchen. The respondent did not like being without marijuana and would take it with him when flying. The respondent and Tasker would usually smoke joints. Always before sex the respondent used amyl nitrate which was also kept in the bedside cabinet.
(d) Tasker was motivated to provide the statement because he was fearful for his safety at the respondent's hands as a consequence of his breaking into the house at Denham Court and retrieving some of his property [paras 20 to 22].
898 During the meeting with Quail, Tasker confirmed [Exh 107] that the statement was his statement and that everything in it was true [T 5802]. In particular, he confirmed the truth of the information in para 13 and that the respondent always used amyl nitrate before sex with him [T 5803]. He declined to be interviewed for a television programme stating that he feared for his safety at the respondent's hands [T 5803].
899 Quail stated that he regarded as significant the following matters.
(a) the information provided in Tasker's statement to the police included a description of the location of marijuana in the respondent's walk-in wardrobe, consistent with information provided by Pearce and Burns on the location in which Superintendent Small found green vegetable matter which he believed to be marijuana [T 5801];
(b) Tasker's statement referred to the respondent's use of amyl nitrate before sex, as had been described by other informants [T 5801];
(c) Tasker confirmed that the information in his statement was true when he met with Quail [T 5802].
900 Quail stated that his assessment of Tasker was that he believed Tasker was telling the truth [T 5832]. He said he did so on the basis of the material referred to above.
901 Hall stated that he regarded as significant the consistency of information provided by Tasker with that of other interviewees about the marijuana (and its location) and amyl nitrate given to him by the respondent before sex [T 5188].
902 Hall stated that his assessment of Tasker was to accept his information as true [T 5188]. He said that he did so on the basis of the material referred to above.
903 His Honour noted that Tasker had been 24 (or possibly 23) when he moved into the house with the respondent, according to Tasker's statement, and this incidentally explained his familiarity with the location of marijuana and the use by the respondent of amyl nitrate before sex. But his Honour took issue with Tasker's statement as providing any substitute for the failure to investigate obvious issues going to the fundamental matter of under-age sex. His Honour [J 3228 and 3230] made these critical observations:
"3228 Instead of investigating obvious issues, the [appellant] viewed the so-called `modus operandi' as confirmation that underage sex existed. The [appellant] was blind to any other conclusion. Tasker's evidence should have reminded the [appellant] that the so-called `modus operandi' of picking up a person for sex from a known pick up spot, smoking marijuana and taking amyl nitrate was also, unsurprisingly, a feature which could apply equally to overage as underage sex. Tasker of course did not give evidence nor would he assist the [appellant]. Quail agreed that Tasker said that he was not prepared to help the [appellant] as he had `made peace with John Marsden'. Quail was aware, as with Burns, that Tasker had an axe to grind with the [respondent] and any information passed to Quail by Tasker should have been treated with suspicion. Regardless of this, the information provided to Quail was afforded relevance to belief in the truth of the imputations.
.....
3230 It meant nothing to Quail that the `modus operandi' could apply to a relationship involving overage people. Nor did it mean anything that the [respondent's] attitude in wanting a permanent relationship with someone considerably over age would perhaps infer that he was not interested in young adolescent children. At the very least this should have had some effect on Quail but it meant nothing. Perversely, the [respondent] says, in fact it added more fuel to Quail's belief in the truth of the imputations.'
904 Again, we consider it was well open to his Honour to conclude that Tasker's statement as to `modus operandi' did not advance the appellant's case (or do so sufficiently) that it had taken reasonable steps in relation to the application concerning under-age sex, in terms of s22(1)(c).
905 The next source is Kinchela. Information from Kinchela is contained in a taped interview with Quail, made on 14 February 1995 [Exh 118]. Summarised, the information is:
(a) He was picked up by the respondent when a street kid about 15 years old. It was at a park at Kings Cross frequented by men looking for sex.
(b) He went to the respondent's house which he remembered as a big, white two-storey mansion.
(c) On the four or five occasions over a five month period that he was taken home by the respondent for sex, the practice was that prior to and during sex they would use amyl nitrate and prior to sex would smoke marijuana joints and drink alcohol.
(d) The sexual encounters are described at pp4, 5, 11 and 26 of the transcript of the tape which is Exh 118. They were said to involve acts by the respondent of violence, beating with a leather strap or belt, leaving welts, and urination by the respondent.
(d) He thought the respondent was in his middle 20's at the time.
(e) The respondent was the first man with whom he had sex and the only person with whom he slept and stayed. The respondent did not pay him. He remembered the respondent's name because the respondent told him.
(f) The respondent lied when he asserted on national television that he had never had sex with anyone under-age. Kinchela was living proof of the lie. He would be prepared to testify in court to what he was saying.
(g) He well remembered the occasions with the respondent and had had nightmares about him. Had it not been for the respondent he would not have become a male prostitute.
906 Kinchela was one of those interviewed in advance and appeared in footage used in the To-day Tonight programme, with his identity concealed.
907 As is apparent from the summary of Kinchela's account, his Honour said that he attributed to the respondent `degrading and violent' sexual conduct [J 3253]. Indeed Kinchela went to such lengths to be as graphic as possible that Quail asked him not to describe it so graphically [Exh 118].
908 Yet, as his Honour pointed out, by the time Kinchela was interviewed on 14 February 1995 Quail had had the benefit of listening to Pearce's story. His Honour pointed out that at p16 of the transcript of Exh 55 (the interview with Pearce) Pearce said that the respondent `seemed like a reasonably nice person'. Quail asked Pearce if anything out of the ordinary happened or which wasn't usual, and Pearce responded `no, not really' [see J 3254].
909 However, though there were these `striking dissimilarities with Pearce's account' [T 5978.31], Quail said he saw a link between Kinchela's and Mr Burn's stories. However, as his Honour pointed out, `this was not of course a factor for Hall as Quail did not tell Hall that Burns told him that the respondent liked role-playing and dressed up in cowboy suits requesting Burns to hit him with a whip and vice versa'.
910 His Honour pointed out [J 3528] that -
`in the mind of Quail this was identical conduct to that described as above. The fact is there is little if any similarity between the two types of conduct and no grounds for suggesting on that basis that the person being talked about was the same individual described by Pearce, Kinchela and Burns'.
911 So far as distinctions in "modus operandi" were concerned, his Honour pointed out that, "It was put to Hall that he ignored the distinctions and clung to the similarities" [T 5305.55]. Hall replied, "I noticed a distinction. I'm not trying to explain an understanding of Marsden's sexual peccadillos" [J 3261].
912 A further factor noted by his Honour (from the respondent's submissions at trial) was that the appellant did not, "even require Kinchela to make a statutory declaration swearing that the contents of his interview were in fact true", though "the [appellant] seemed to place great faith in it as a guarantee of truth" [see J 3276 where his Honour went on to quote from the respondent's submission that, "This begs the question why Kinchela was exempted from the process whilst it was `lauded as conclusive of truth' in Pearce's case."]
913 Nonetheless, Quail regarded as significant the following matters:
(a) in his interview, Kinchela was relaxed and decisive, volunteered information freely without prompting and withstood pressure in the questioning [T 5818, 5819];
(b) information about the pick-up point, the description of the respondent's house and location, references to amyl nitrate, marijuana and alcohol was consistent with information provided by Tasker, Pearce and Burns [T 5820];
(c) Kinchela's description of violence during sex was consistent with information provided by Burns [T 5820];
(d) Kinchela was certain about his age and Quail confirmed Kinchela's date of birth from his driver's licence [T 5819, 5822];
(e) Kinchela told Quail he was prepared to testify in court if necessary [T 5821].
914 Quail stated that his assessment of Kinchela was that he believed Kinchela was telling the truth and that the information provided by him was credible [T 5817, 5831]. He said he did so on the basis of the material referred to above.
915 Hall stated that he regarded as significant the following matters:
(a) the consistency with the information provided by Pearce, Dunbier and Burns, namely the well-known pick-up location, the drive in the car to the respondent's house, and a cocktail of drugs and alcohol before sex [T 5179, 5363];
(b) Kinchela's demeanour, which he considered to be believable, not manipulated or coerced [T 5180].
Hall stated that his assessment of Kinchela was that he believed the information given by Kinchela concerning sexual encounters with the respondent to be true and accurate [T 5180, 5190]. He did so on the basis of the material referred to above.
916 His Honour set out at considerable length the then respondent's submissions in relation to Kinchela [J 3231 to J 3287], summarising his conclusions regarding Kinchela at J 4387 to J 4388. One of the most telling pieces of evidence to which his Honour made reference was:
"... the [appellant] considered it important enough to take Pearce on a journey to locate the [respondent's] house as it was in 1995 but apparently saw no reason to do the same kind of exercise for the complainant Kinchela (oldest in terms of chronology) to locate a place said by him to have been the [respondent's] home at a different address to that given by Pearce."
917 The importance of that evidence was again that obvious checks of the informers were never made but if made would have falsified the account of Kinchela of underage sex with the respondent. Thus, on the date of the first alleged sexual encounter, some time near 20 November 1970 [T 3917], Kinchela was, according to his own account, taken to the respondent's house, with the respondent telling him that he lived on Camden Valley Way at the time of the alleged sexual encounters [T 3945 to 3945]. This account was falsified by the fact that
(a) the respondent did not complete the construction of his house until 2 April 1971; their fourth sexual encounter as Kinchela alleged, was only four weeks after the first; that is
(c) still prior to the construction of the house [T 3953 to 3953].
Leaving aside other discrepancies such as there being no swimming pool at the house until 21 April 1971 [Exh AQ] although Kinchela remembered the swimming pool [T 3953 to 3953], the most striking falsification was that the respondent has never lived on Camden Valley Way [respondent: T 6617]. Moreover, the relevant stretch of road was not named "Camden Valley Way" until the early 1980's [Exh FV, Exh EJ; T 7881 to 7887, respondent; T 6607].
918 His Honour, referring to the appellant's submissions, stated that a simple check by the appellant at the Land Titles Office would have ascertained whether at the relevant time the respondent or his parents owned the house in Camden Valley Way or for that matter whether that road existed at the time, as would have a check of historic electoral rolls, Council records, etc. [J 3244]. This was not done notwithstanding that, for the appellant, it apparently meant a great deal that Pearce could take Quail to the respondent's house as it was in 1995. Yet no such importance was attached to Kinchela doing likewise [J 3245]. His Honour clearly had ample material before him to conclude that the steps taken in relation to Kinchela were not sufficient to satisfy the requirements of s22(1)(c).
919 His Honour quotes [J 3246] the following telling cross-examination of Quail [T 5977]:
"Q. Did it cross your mind that it was as important with Kinchela as with Pearce to have him identify the house?
A. Yes.
Q. But you didn't do that, did you?
A. No.
Q. In fact you didn't have any means of identifying Mr Marsden, did you, that you put to Kinchela?
A. No.
Q. He told you of a house in a different location to the house in Denham Court Road, didn't he?
A. Yes.
Q. He told you it was in a road which didn't exist in 1971?
A. So you say.
Q. Did you inquire whether Camden Valley Way existed in 1971?
A. No.
Q. Did you think to inquire?
A. No.
Q. Did you think to inquire whether Kinchela had really visited Mr Marsden's parents' home?
A. No.
Q. Did you think to inquire whether Mr Marsden's parents had a home in Camden Valley Way?
A. No.
Q. Did you think to inquire whether Mr Marsden's parents had a home in Camden Valley Way?
A. No.
Q. You didn't ask Mr Angus or anybody to do any title searches?
A. No.
Q. You didn't take Kinchela along Camden Valley Way?
A. No.
Q. You didn't take him along Denham Court Road?
A. No.
Q. Were you frightened that he would identify the wrong house?
A. Definitely not.
Q. Why didn't you do any of those things?
A. Because I relied upon other factors in Kinchela's interview.
Q. Why was the question of identification of the house any less important in his case than in Pearce's case?
A. I'm not saying it is or it isn't.
Q. Well if you thought it was important in Pearce's case why wasn't it important in his case?
A. Because I was satisfied that details concerning Kinchela's events, if you like, with Mr Marsden corroborated what Pearce's did, and I was satisfied that he had identified Mr Marsden".
920 Finally, it should be noted that in no instance in any of the interviews was any attempt made to have Kinchela actually identify the respondent, reliance being placed on the matters noted earlier.
921 In circumstances where there were clear differences involving violence and other matters between Kinchela's account and that of other informants, there was even more reason for the appellant to take the elementary investigative steps of checking Kinchela's account; in particular, by reference to whether his identification of the house was correct, the latter being, we consider, a particularly glaring omission.
922 The conclusion was well open to his Honour that the steps taken in relation to Kinchela were not such as to render the conduct reasonable either by themselves or taking into account the steps taken in regard to the other sources or informants.
923 We should add, without elaborating on it, that so far as the appellant submitted that from our viewing of the tapes of the interviews with Pearce and Kinchela we would be assisted in accepting that Quail and Hall were entitled to regard them as believable, we do not agree. Our reaction to the tapes to which we were taken was the reverse, and was not made more favourable by the at times obvious rehearsal and stage-management required by the interviewer of the interviewee.
Grounds 55, 57 and 59 - Superintendent Small
924 There are two aspects of the grounds of appeal relevant to Superintendent Small. The first relates to the appellant's reliance on Superintendent Small and the information he provided to the appellant, in support of the appellant's contention that its conduct was reasonable [Grounds 55, 56, 57 and 59]. The second disputes the finding that the segment of To-day Tonight recording Superintendent Small was misleading and detracted from the reasonableness of the conduct. [Ground 58].
925 The information of which Superintendent Small was the source was given in his interview with Quail on about 29 January 1995. It is contained in the documents being the report on execution of search warrant [Exh 101], his statements of 23 May 1994 [Exh 102] and 24 May 1994 [Exh 105], the copy search warrant [Exh 106], the Tasker statement [Exh 107] and the Shane Wheal statement [Exh 108]. Quail agreed with Superintendent Small that their meeting would be kept confidential as Superintendent Small could face disciplinary action for talking about operational matters [T 5371, T 5703].
926 The information received by Quail from Superintendent Small can be fairly summarised as follows:
(a) twenty eight years before the Today Tonight programme, the respondent gave a false name after being arrested for offensive behaviour and did not turn up at court; subsequently he was arrested at Campbelltown and gave his true name, and the fingerprints matched with those taken in the previous matter [T 5372, T 5784];
(b) the respondent used his personal influence to delay a search warrant of his house in May 1994;
(c) the respondent once kept an unknown quantity of marijuana in the alcove of his walk-in wardrobe;
(d) Superintendent Small confirmed that Exh 100 (the respondent's fingerprint document) was not a fake and told Quail that "old hands" knew the details of an unsavoury story relating to the respondent in 1967 ((a) above);
(e) Superintendent Small confirmed that he leaked documents to Mrs Grusovin who gave them to Hicks who in turn gave them to Quail [Exh 101 - copy search warrant, Exh 102 - report to authorised Justice on execution of search warrant, Exh 105 - extract of report from Superintendent Small, Exh 106 - search warrant, Exh 107 - statement of Tasker and Exh 108 - statement of Wheal providing information concerning the respondent's alleged supply of marijuana to Tasker and the storage of it in his home];
(f) Superintendent Small said he believed that there had once been marijuana in the walk-in wardrobe which Quail and Hall believed were consistent with the stories of Pearce, Burns and Tasker;
(g) Superintendent Small believed his transfer from Kings Cross resulted from influence exerted at the respondent's behest; [T 5374, 5788] (whereby Hall and Quail believed that something was "not right" about Superintendent Small's transfer).
927 The appellant submitted the following as relevant factors supporting that it was reasonable, from the standpoint of Quail and Hall, to conclude that Superintendent Small was a credible informant whose information was truthful.
(a) At the time of the interview and at the time of the drug search, Superintendent Small was a high-ranking serving police officer. He can fairly be described as an unimpeachable source able to give the best account of these matters.
(b) He was directly involved in the search warrant operations and thus able to provide direct evidence of events from the time of issue of the warrant until the end of the search. His oral evidence was entirely consistent with the accompanying reports and statements the authenticity of which was established.
(c) There was no rational basis for a conclusion other than Superintendent Small was a credible informant who provided truthful and reliable information.
928 To this should be added what was recounted as Quail's inquiries re Superintendent Small:
(a) On about 1 February 1995 Quail spoke to District Commander Cluff, Superintendent Small's commander, and inquired as to the drug search and Superintendent Small's transfer. Cluff said he was not in a position to talk about the drug search, but that the transfer resulted from concerns expressed by Clover Moore as to Superintendent Small's operations in Kings Cross [T 5792].
(b) Subsequently Quail spoke to Mr Andrew White, a senior member of the Police Media Liaison Unit, and made the same inquiry. White could only talk about the transfer, as to which he said there was a lot of politics involved and that Moore played a role in the transfer. White refused Quail permission to interview Superintendent Small [Exh 141].
(c) On about 6 February 1995 Quail spoke to Assistant Commissioner Peat and made the same inquiry. Peat denied Moore had played a role in the transfer and said the transfer was related to Superintendent Small's health. He said that the drug search was OK, that the DPP was approached for advice and that the matter was being looked at [T 5795].
(d) On 7 February 1995 Quail spoke to State Commander Bruce Gibson and made the same inquiry. He was told no more than that both matters were being investigated [T 5792, 5942].
(e) Quail subsequently read the press reports in Exh 119 relating to Superintendent Small's transfer [T 5796-7].
929 In his assessment of Superintendent Small, Quail regarded as significant the following matters:
(a) Superintendent Small confirmed to Quail the information given in his signed statements [T 5802] and confirmed the authenticity of the other documents Quail discussed with him [T 5783];
(b) Superintendent Small found what he believed to be cannabis in the walk-in wardrobe, consistent with Pearce, Burns and Tasker [T 5801-02];
(c) Newspaper articles and Quail's conversations with police staff revealed that something was not right about Superintendent Small's transfer [T 5797-5800];
(d) Superintendent Small was an experienced, long serving police officer [T 5933].
Quail's assessment of Superintendent Small's information about the respondent was that he was credible [T 5800, 5934]. He made his assessment on the basis of the material referred to above.
930 Hall regarded as significant that Superintendent Small's information was consistent with that given by Pearce, Kinchella, Burns and Dunbier [T 5188]. Hall's assessment of the information which Superintendent Small provided to Quail, including the information in the documents, was that Superintendent Small was believable [T 5188]. His assessment was made on the basis of the material referred to above.
931 We have set this out in some detail because it is illustrative of the appellant's mode of argument. His Honour noted the submissions by the respondent [J 3293], to the effect that even if the allegations were true in every respect (and Superintendent Small had no first hand knowledge at all of this), the knowledge that the respondent provided false information as to his identity in 1967 because of embarrassment in relation to his sexuality could not, as submitted, be relevant information used to convince the appellant, via Hall and Quail, that the imputations of under-age sex intended to be conveyed were in fact true.
932 His Honour also noted the submissions of the respondent that even if the allegations in relation to the search warrant were true (which were denied in fact) it was not even suggested by the appellant that this allegation could be relevant to its decision to publish the allegations of under-age sex as set out in the imputations. At their most salient, these two matters evidenced uncorroborated allegations of dubious conduct on the part of the respondent which had no connection with sexual intercourse with a 15 year old boy or for that matter any boy under the age of 18.
933 His Honour can be taken to have accepted these submissions, as is apparent from his conclusion in relation to Superintendent Small [J 4393] which we quote below:
"4393 With respect to Mr Small, a real question arises as to information and the [appellant's] attitude to it in relation to the imputations published. Mr Small provided police information on the [respondent] in relation to the search warrant that was the fundamental component of his role in the affair. That fundamental component links only with the marijuana aspect and the statements of persons as to the location of that drug in the [respondent's] house. On no reasonable basis could information by Mr Small reinforce any belief in the truth of the imputations that the [respondent] had had underage sex. Mr Small's complaint was related to his treatment and what he perceived to be the favourable treatment of which the [respondent] was a beneficiary in relation to the execution of the search warrant. A reasonable appreciation of the essence of Mr Small's contribution points to it having no rational or reasonable connection with the imputations or any belief in their truth, despite the protestations of value. Mr Small's part in this case, certainly on this issue, requires and is worthy of no further remark from me."
934 His Honour's conclusions are even clearer in his judgments DLJT 131 (3 April 2000) and DLJT 135 (7 April 2000) where, following Morgan (supra) his Honour held that qualified privilege under s22 does not operate so that all matters relating to reasonable conduct must strictly relate directly to the imputations. However, they must nonetheless bear some relationship.
935 We are satisfied that there was ample reason for his Honour to reach the conclusions he did concerning the enquiries of Superintendent Small and their lack of any rational or reasonable connection with the imputations or any belief in their truth. Consequently, so much of these appeal grounds as relate to Superintendent Small fail.
Appeal Ground 58 - Superintendent Small
936 The second aspect concerning Superintendent Small relates to appeal ground 58, which disputes the finding that the segment of To-day Tonight recording Superintendent Small was misleading.
937 Here, the issue is whether the recorded part of Superintendent Small's interview, where he states on the To-day Tonight programme in answer to questions asked of him, "no comment", was misleading insofar as it involved "a staged answer and response which was a contrivance". His Honour found that the whole exercise was a "fiction" and that -
"the impression deliberately was given, with the effect of being misleading, that Superintendent Small was a detached police officer behaving in accordance with the requirements of his duties and not communicating at all with instruments of the media on operational matters. The truth was the exact opposite" [J 4404].
938 His Honour noted the respondent's submission that there could be no justification in misleading the public in this way, saying [J 3305] -
"Quail did not even need to choose between the protection of sources on the one hand and the need to present a truthful account to the public. He could have refrained from revealing his sources to anyone and emphasised on the programme that the source was highly confidential. There was no need to present his source acting out an implied denial of his involvement. What this does illustrate is the lengths to which the [appellant] was prepared to go to publish the allegations contained in the imputations: on no account should this conduct be regarded reasonable, says the [respondent]."
939 Appeal ground 58 challenges his Honour's findings concerning the use of Superintendent Small as being misleading or as having "otherwise detracted from the reasonableness of the conduct in publishing the imputation". His Honour's conclusions on this matter, which we consider well open to his Honour, were these:
"4404 There are however several components of the manner of presentation which I consider to be unreasonable. Firstly, the filming of Mr Small created fiction - it was false. Small was knowingly involved in the creation of the fiction and the impression deliberately was given, with the effect of being misleading, that Small was a detached police officer behaving in accordance with the requirements of his duties and not communicating at all with instruments of the media on operational matters. The truth was the exact opposite.
4405 I have found the information provided by Small to be irrelevant to the formation of a belief in the truth of the imputations of under age sex which Hall and Quail intended to convey. It can only be described as being, at least, unreasonable, gratuitously to include this fiction, in the context of the imputations of underage sex intended to be conveyed, merely on the basis that they needed a visual image of someone who they had named. And someone who they had `named,' namely Small, was a person whose identity as a `source' was to have been protected, yet whose identity was in fact exposed. The hypocrisy of Hall, Quail and Small amongst themselves and the hoax perpetrated on the viewing public, is exposed when it is understood that Small's was a source not to be disclosed (that was his condition), the information he provided on no rational basis founded a belief in the truth of under age sex allegations, Small was nonetheless named in the programme, and filmed (after rehearsal) first, to have a `picture' to put to the `name' and secondly, to have created the fiction of absolute non-involvement."
940 We pause to note that yet again this appeal ground is that his Honour's finding "was contrary to the evidence, and to the weight of it". A review of the evidence clearly illustrates the paucity of any basis for that assertion in light of his Honour's careful review of the evidence. Appeal ground 58 must fail.
Appeal Grounds 57 and 60 - Dunbier
941 As well as reliance on the information Dunbier gave of others, in support of it being reasonable to form the view that these other sources and their information "were credible and reliable" [appeal ground 57], the appellant relies on appeal ground 60. It challenges his Honour's finding that "inclusion in the programme To-day Tonight of the segment of Dunbier was unreasonable" as being contrary to the evidence and to the weight of it.
942 At J 4408-9 his Honour accepted the respondent's submissions at trial as to the Dunbier component of the programme "evidencing unreasonableness in the conduct of the [appellant]" -
"4408 The next component of the [respondent's] case on reasonableness based upon the form of the programme relates to the use of the material supplied by Dunbier (see paragraphs 3325 - 3332 above and see in particular paragraph 3329). The juxtaposition and use of the extracts from Dunbier, an informant of questionable motivation was unreasonable in that it was used to give effect and force to Mr Quail's narration as to the right thing being done by Dunbier in providing names to the Royal Commission which was not the case.
4409 I agree with the [respondent's] submissions as to these components of the form of the programme as evidencing unreasonableness in the conduct of the [appellant]."
943 The appellant's submissions commence at para 4.36 (original trial submissions). They described the information relied upon by Quail and Hall and the factors which led them to conclude that Dunbier was a truthful and reliable witness, and can be summarised as follows:
(a) The information was obtained in taped interviews made 31 January and 10 March 1995 [Exh 123, which contains the transcript of both interviews and Exh 112 which contains the transcript of the first] and a statement [Exh 113]. Dunbier also provided the Burns statement [Exh 111].
(b) The information in the statement [Exh 113] was:
(i) A detailed history of the relationship between Dunbier's family and the respondent. The relationship was long and included personal, political, professional and business aspects.
(ii) He commenced full time employment in the respondent's legal firm in November 1981 at 17½ years of age upon completing the HSC exam. He was involved with the firm as a law student and as a solicitor. He became a partner in May 1992. His personal relationship is described at p9 ff. A sexual relationship developed over a number of years from about 1983 to 1989.
(iii) The respondent's usage of alcohol, marijuana and amyl nitrate with sex is referred to. A description of the respondent's and Dunbier's sexual contact with Burns which involved the use of alcohol, marijuana and amyl nitrate was given.
(iv) There were many statements which demonstrated the ill will of Dunbier towards the respondent.
(c) The information from Dunbier in the tapes [Exh 123] was:
(i) A description of the nature and extent of his association with the respondent as a lawyer, house guest and sexual partner. He ceased association with the respondent in November 1992.
(ii) That the respondent had sexual relations with some of his clients. Dunbier knew this because the respondent talked about them to him and sometimes would tell him their ages. Dunbier often worked on their files and otherwise got to know them.
(iii) The respondent's sex partners included lovers and prostitutes. Prostitutes tended to be over 18 years whilst clients were (according to Dunbier) obviously of 16, 17 and 18 years of age. Dunbier was prepared to name underage people in the appropriate forum. He declined to reveal identities on television having already given evidence before the Royal Commission as to those identities. He could name five people but a dozen faces came to mind. He named "Fenton, Elomari, Elomari, Erlich and Burns" (there were two Elomaris, see J 3327).
(iv) He considered the respondent to be an evil, manipulating and bad man. He wanted him brought down and made accountable for his conduct as a solicitor and as a member of the community.
(v) He gave details of many people in various circles with whom the respondent associated and entertained at home.
(vi) His view was that Grusovin was brave to have made the statement in Parliament and that it was accurate. Although his relationship with the respondent since the end of 1992 was acrimonious, his motivation was to support Grusovin.
944 We are satisfied that there was again, on the evidence, sufficient basis for his Honour to reach the conclusions he did concerning Dunbier.
945 First, there was the use by the appellant of Dunbier without disclosure of the deep enmity Dunbier felt towards the respondent. His Honour specifically noted his "questionable motivation" and concluded that the juxtaposition and use of extracts from Dunbier's interviews was unreasonable [J 4408].
946 His Honour referred to the respondent's submission about recounting of the evidence of Quail in relation to Exh CV [J 3309]. Exh CV was a large bundle of material given to Quail by Dunbier. At T 6013.24 Quail was asked whether he had read Exh CV. He said, "I wouldn't say that I pored over each word, no." His Honour [J 3310] went on to include that, "This information was available for Quail to consider and he exercised a choice not to consider it carefully. Rather he simply extracted the Dunbier statement [Exh 113] from the material which was obviously the most damaging so far as the respondent is concerned." As his Honour noted, it was only in Exh 113 that there were allegations of under-age sex; the rest of the material had nothing to say on that. However, the rest of Exh CV included information that showed a campaign by Dunbier to damage the respondent. As recorded at J 3312, it contained details of a series of dismissed Law Society complaints. It also contained an ICAC complaint. A fair reading of that material demonstrated the "questionable motivation" which his Honour had ample reason to find, showing sustained animosity to the respondent.
947 The statement [Exh 113] was apparently prepared by Dunbier, along with the rest of Exh CV, to be presented to the Wood Royal Commission. As recorded at J 3314, the statement clearly revealed the depth of Dunbier's hatred for the respondent. While the fact that Dunbier was "open" in his dislike is relied upon by Quail and was noted by Hall, there was no mention of that fact in the To-day Tonight interview. Nor, along with the important information in Dunbier's statement that prostitutes picked up by the respondent were over 18, did this induce Quail or the appellant to have any further checks made to verify the truth of the allegations of under-age sex made by Dunbier. Dunbier's own bona fides in the matter is difficult to reconcile with the fact that, if he were appalled as he said he was by the respondent's behaviour in this context, he yet maintained a close relationship including a sexual relationship with the respondent according to his own statement from about 1983 to 1989. Indeed he only ceased association with the respondent in November 1992, during which time he must have been well familiar with matters which he contended lead him to consider the respondent to be "an evil, manipulating and bad man".
948 His Honour [J 3316] quoted from the cross-examination of Hall where he was asked whether he had taken into account that Dunbier had an obsessive hatred of the respondent. Hall stated in his evidence,
"No, because I don't necessarily accept that he did. I could see that they had fallen out. They had been lovers. Had a tiff. The guy had an axe to grind. I get plenty of people who have axes to grind. I sought out what I think is useful, in the exercise of my professional judgment." [T 5315.10].
949 The respondent's submissions were then quoted at J 3317, in particular,
"how on the evidence Hall managed to convince himself that Dunbier had a `tiff' with the [respondent] is `beyond all reason'. The information available was obvious and no journalist exercising reasonable conduct could have possibly have come to this conclusion."
950 While his Honour made no explicit finding on this part of the respondent's submissions, he clearly enough must have taken it into account in reaching the conclusion he did about Dunbier as "an informant of questionable motivation" upon whom reliance was "unreasonable".
951 The further issue concerned what is described in the respondent's submissions as "the unreasonable narration". This related to the appellant recanting on To-day Tonight from the statement by Dunbier that a dozen faces came to mind and he could name five people. On the programme it was said [at line 190]: -
"Dunbier has been interviewed by the Police Royal Commission, he has supplied the names of five boys. Others have also told their stories to the Commission."
952 This conveyed that Dunbier had provided the names of five boys to the Royal Commission but not to the appellant. Hall, as to the stated willingness to supply the names of five boys, denied that he had been deliberately misleading [T 5332]. He said that what he regarded as significant, and the meaning he intended to convey, was that Dunbier was prepared, should it come to it, to name the five boys in a court of law [T 5332].
953 Quail was cross-examined along similar lines, namely to suggest that the viewer was invited to conclude that Dunbier had named, "... five sure to the Royal Commission, but he wasn't going to name them on the broadcast." It was put, in effect, that what was not suggested, was that the names supplied by Dunbier may or may not be of boys who had sex with the respondent [T 6012]. Quail's answer was: "I just noted a point of fact, which was that `Dunbier has been interviewed by the Police Royal Commission. He has supplied the names of five boys'. That is a simple statement of fact." [T 6013].
954 Let it be accepted that this was the state of mind of Hall and Quail. But their failure, as his Honour noted at J 3327, to interview Burns but rather to rely on his unsigned statement, and their failure to speak to either of the two Elomaris because Quail admitted [T 5181.55] that as one Elomari was hostile then the other would be similarly disposed, and finally, Quail's failure to check whether Erlich was in the telephone book, did not indicate any real attempt to follow up the five supposedly certain names. This was beyond Quail's attempt to trace Fenton and Erlich using telephone books and electoral rolls (admitting that Erlich's name may "well have been" in the telephone book being rather inconsistent with his statement that he checked this) [J 3327].
955 Clearly the reference to Dunbier providing the five names to the Commission was to add verisimilitude to Dunbier's allegations so as to give them added force, as the respondent submitted [J 3329]. Yet apart from Burns, who in fact never signed a statement and was unwilling to appear on television and was an habitually convicted criminal, the appellant made no attempt to interview those named, namely "Fenton, Elomari, Elomari, Erlich and Burns" [J 3327]. As to Burns, the appellant simply relied on his unsigned statement furnished by Dunbier, making no allowance for Dunbier's clearly apparent animosity to the respondent.
956 His Honour had before him the submission of the respondent, noted at J 3333, that rather than present the public with the inference that Dunbier had supplied to the Royal Commission five witnesses who would offer proof that the allegations were true, the appellant, if it were to act reasonably, should have informed viewers of the actual position. That is, that it had partially tried to check the various stories by Dunbier, and come up with little or nothing, let alone clear evidence that the allegations set out in the imputations intended to be conveyed by the appellant were in fact true.
957 The other matter relied upon by the appellant was that Dunbier could describe accurately the respondent's sexual partners and their ages. But this was not verified. Nor did the "modus operandi" verify the truth of imputations of under-age sex, as distinct from elements of behaviour common to homosexual sexual encounters with not only the respondent but other people as well.
958 We should also note that the correspondence between the respondent's solicitors and the appellant's solicitors of 13 February 1995, 7 March 1995 and 13 March 1995 [Exh 122] clearly put the appellant on notice of Dunbier's intention to attack the respondent at every opportunity.
959 We are satisfied that his Honour's finding referred to in appeal ground 60 [J 4408] was open to him, and that appeal ground 60 must fail. As to appeal ground 57, so far as Dunbier is concerned as well as so far as each of the other informants Pearce, Burns, Tasker, Kinchela and Small is concerned, that appeal ground must also fail.
960 We add, again without elaborating it, that so far as the appellant submitted that from our viewing of the tape of the interview with Dunbier we would be assisted in accepting that Quail and Hall were entitled to regard him as believable, again we do not agree. Dunbier's hostility to the respondent stood out. Any apparent credibility could not overcome the consequent need to verify the truth of his allegations of underage sex.
Mrs Diedre Grusovin and Mr Colin Fisk
961 There is no appeal ground specifically referring to Grusovin; the nearest is appeal ground 55, which in general terms challenges his Honour's finding that "the appellant's failure to make any inquiry independent of the information provided by its sources was unreasonable" [emphasis added], as being once again contrary to the evidence and to the weight of evidence.
962 The short point is this. Grusovin's allegations were made based on two sources, primarily the Fisk declaration [Exh 103] naming the respondent as a pederast and the Speedo Report [Exh 104] which, in more general terms, simply revealed that paedophile rings could be protected by police and children could suffer as a consequence.
963 Yet, after investigating the matter, and before the To-day Tonight programme went to air, both Quail and Hall reached the conclusion that Fisk was a liar and could not be trusted. On 8 February 1995 Quail taped an interview with Fisk [Exh 117] at the end of which Fisk asked: "Do I get the Academy Award now?" [T 5808]. That led to Quail's reaction that he could not rely on Fisk thereafter [T 5809], with Hall's reaction being similar [T 5174].
964 Given that the footage of and references to Fisk in the programme, taken in context, originally backed the Grusovin allegations, his retraction and change of story [Exh 115] and the denials in the respondent's Press Conference in Parliament House of 3 February 1995 (so leading to Fisk being described in the programme as "no angel, he is a convicted drug dealer, convicted pederast and, he is a police informer") should have put the appellant on notice that the allegations generally required more thorough investigation, particularly as to the under-age sex. Certainly they provided no basis for reliance on Grusovin's statements in Parliament as supportive of the allegations, though Grusovin was not called as a witness and Grusovin's allegations were made in respect of Fisk's discredited declaration. Thus if Quail and Hall believed, as they claimed, that Grusovin was "credible and reliable", that could in those circumstances provide no sufficient basis for concluding that the steps the appellant took were reasonable.
965 The appellant [AS 4.44 quoting J 3346] submitted that the involvement with Fisk was not conduct that would suggest lack of reasonableness but was rather illustrative of "the care and caution with which Quail and Hall undertook the investigation and their readiness to act decisively and responsibly upon finding that their trust had been betrayed". His Honour stated at J 3346:
"3346 .... As it is the conduct of the [appellant] in publishing the matter complained of that is to be tested, the [appellant] cannot state that its conduct overall in relation to publishing the matter complained of was reasonable because it discarded Fisk from the programme before it was put together in its final form. The converse is not automatically true, that is, to omit an interview from the published matter is evidence of reasonableness. Evidence of reasonableness would have been evidence of thorough checks before publishing any of the material giving rise to the imputations. It is clear that this did not occur, the [respondent] says."
966 We agree with that reasoning. We would also conclude that in circumstances where Grusovin's allegations were made in respect of Fisk's discredited declaration [Exh 103], they could not, in logic, give any support for the appellant claiming that it had acted reasonably in terms of s22(1)(c) of the Act.
967 So far as ground of appeal 62 next mentioned might involve Grusovin and Fisk, the unreliability of Fisk's evidence should, if anything, have cast doubt as to the sufficiency of enquiry made to establish the credibility of the informants and the information, rather than confirming it as a reasonably reached judgment in the circumstances.
Grounds of Appeal 55 and 62 - general grounds
968 We have substantially dealt with the basis for these grounds in what we have already said.
969 By way of further support for the appellant's contention that the steps it had taken were reasonable and that his Honour committed appellable error by failing to accept that contention, the appellant relied upon what it called "the conclusions as to the respondent's credit". These can be taken from para 4.45 of the appellant's submissions to be conclusions reached by the appellant through Hall and Quail. That in turn is said to justify "the conclusion of each of Messrs Hall and Quail that the respondent's denial should not be accepted, was well-founded, and reasonable." That denial can be taken to be a denial of the subject matter of the relevant imputations, namely under-age sex with boys.
970 The relevant grounds of appeal can be taken to be the general grounds 55 and 62.
971 At para 4.45 the appellant sets out the matters which according to the appellant, would have justified Hall and Quail reasonably failing to believe the respondent's denials, and, presumably as justification for making no other enquiry than those in fact made, that being implicit in this group of submissions.
972 It was said that "the former [Hall] had seen the recording of the Press Conference at Parliament House [Exh 114] in which the respondent denied engaging in under-age sex" (3 February 1995). "He had also seen the Press statement [Exh 115]", of the same date. "He did not believe the respondent's denials [T 5192]. His opinion was that the wealth of evidence was with the witnesses and he believed them [T 5193, 5215]."
973 Para 4.45 went on to state,
"Hall had seen Exh 100 from which it appeared to him that the respondents had given a false name on one of the occasions on which he had been charged [T 5146, 5185]. It showed he was capable of lying to a police officer over a criminal offence and that this was a fact that he took into account [T 5215]."
974 The incident of the false name occurred 28 years before the To-day Tonight programme when the respondent gave a false name (John Martin) after being arrested for offensive behaviour in a toilet and failed to turn up at court. When he subsequently was arrested at Campbelltown, he did give his true name and his fingerprints were found to match with those taken in the previous matter [T 5372, T 5784]. Information concerning this came from Superintendent Small. It is difficult to see how such a distant incident, readily enough explicable as reflecting the embarrassment of the respondent at that time, would of itself justify accepting at face value allegations of underage sex or disregarding the denial of such activity, of more serious gravity, by the respondent.
975 Para 4.45 went on to say, "Quail reported to Hall the information from Small as to Exh 100 and the drug search. To Hall the circumstances seemed odd" [T 5188].
976 The matter of the drug search amounted to an allegation by Superintendent Small that the respondent had been alerted to the warrant and had been given three clear days to clear his house out, and that there were vestiges of marijuana which led him to believe that the alcove and the wardrobe had contained marijuana. That, even if true, could hardly support the veracity or otherwise of the very grave imputations, or the reasonableness in making no further enquiry than was done and disregarding or giving no or little weight to the respondent's denial of under-age sex. That is not to say that the denial should have been blindly accepted, but the matter of the drug search did not remove its credence.
977 Para 4.45 then went on to state:
"Hall also saw the 7.30 Report (Exh 120). It appeared to Hall that the respondent shifted his ground from the unqualified denial in the Press Conference to acknowledgments of promiscuous conduct and that he would not always know the age of his sexual partner (T 5190). Quail's reaction was similar (T 5825). The respondent was indicating he was not sure whether his previous denials were correct (T 6009)."
978 At J 3348 his Honour quoted the respondent's submissions on this matter, to the effect that "it was an honest answer by the [respondent] to say that to the best of his knowledge such conduct had not occurred". His Honour [J 4396 to J 4398] clearly treated the responses by Hall and Quail, as paraphrased in para 4.45, as an "irrational and unreasonable construction put upon the statement made by [the respondent] in the course of the 7.30 Report". We quote below J 4397, J 4398 and J 4400, the conclusions by his Honour which we consider were clearly open to him.
"4397 As I understand it, the respective responses to the 7.30 Report remarked upon by Hall and Quail was that they did not believe the [respondent] and therefore it must follow that they believed their informants.
4398 The immense flaw in this line of reasoning is what I find to have been the irrational and unreasonable construction put upon the statement made by Mr Marsden in the course of the 7.30 Report. The construction quite clearly put on it by both Quail and Hall (and this is particularly so in relation to the Witness personnel) is because the [respondent] said `as far as I know I have not had sex with a person underage,' therefore he has had sex with 14 and 15 year olds. That by any standpoint, simplistically though it is stated but fairly in my view, represents an irrational leaping to conclusions.
.....
4400 The construction placed by both Hall and Quail on the critically important statement made by Mr Marsden in the 7.30 Report was I find to have been unreasonable and as such an unreasonable component of their conduct as Channel 7's servants in the publication of Today Tonight."
979 We find no appellable error in his Honour's description of the "irrational and unreasonable construction" put by Quail and Hall upon the statement made by the respondent in the course of the 7.30 Report.
980 Finally, para 4.45 concluded:
"Quail's adverse view as to the respondent's credibility was formed with regard to Exh 100 (Blue 321) and the information as to the circumstances of the drug search and the related documents and from the information given by Small, remembering the respondent was then on the Police Board [T 5799-80]. The information suggested to him that the respondent had been dishonest and had committed dubious sexual acts, matters to be considered when evaluating the denials against the evidence of Kinchela, Burns and Pearce [T 5935-36]. He thought the respondent's denials concerning under-age sex should be treated with scepticism."
981 The only matter not previously dealt with from the above paragraph relates to information suggesting to Quail that the respondent "had committed dubious sexual acts". If that is intended to relate to the incident in 1967 or to acknowledgments of promiscuous conduct, then it provides no basis for a reasonableness of belief in rejecting the respondent's denials of under-age sex.
982 His Honour rejected the conclusion [at para 4.46] in the appellant's original written submissions, and now repeated, to the effect that "the conclusions of each of Hall and Quail that the respondent's denial should not be accepted is well-founded, open and reasonable". Though there was material before his Honour to which earlier reference has been made, none of that material leads to the conclusion that his Honour committed any appellable error in finding those conclusions unreasonable.
Failure to make certain enquiries
983 The appellant then submitted that before an omission to make an enquiry could be found to be unreasonable in the circumstances, it is necessary to find that such an enquiry ought to have been made, and that that question is not determined by reference to the hypothetical outcome of what those enquiries would have yielded (see the discussion and ruling at T 5232 to T 5234. That much can be accepted. But it does not avail the appellant if the enquiry were a step absence of which meant that the appellant had not acted reasonably, taking into account the relevant circumstances.
984 The law is as stated in Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374 at 387. The fourth proposition there found deals with the necessity and scope of reasonable enquiry. We set out that fourth proposition (in the context of the three propositions preceding) as delineating the proper approach to determining whether the conduct of a appellant in publishing matter was reasonable in the circumstances for the purposes of s22(1)(c).
"(1) The conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the [appellant] to ensure that his conduct in relation to it was reasonable. Of course, if any other defence (such as truth or comment) has already been established in relation to any particular imputation found to have been so conveyed, it is unnecessary to consider the reasonableness of the [appellant's] conduct in relation to the publication of that particular imputation.
(2) If the [appellant] intended to convey any imputation in fact conveyed, he must (subject to the exceptional case discussed in Barbaro's case, and perhaps also that discussed in Collins v Ryan) have believed in the truth of that imputation.
(3) If the [appellant] did not intend to convey any particular imputation in fact conveyed, he must establish:
(a) that (subject to the same exceptions) he believed in the truth of each imputation which he did intend to convey; and
(b) that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed.
If, for example, it were reasonably foreseeable that the matter complained of might convey the imputation which the jury finds was in fact conveyed, it will be relevant to the decision concerning s22(1)(c) as to whether the [appellant] gave any consideration to the possibility that the matter complained of would be understood as conveying such an imputation, as will be his belief in the truth of that particular imputation and what steps he took to prevent the matter complained of being so understood: Evatt v John Fairfax & Sons Ltd at 13-14; Makim v John Fairfax & Sons Ltd (1990) 5 BR 196 at 209; see also Wright v Australian Broadcasting Commission at 712 (whether the [appellant] `knew whether he was likely to convey a misleading impression'); Austin v Mirror Newspapers Ltd (at 362) (Privy Council).
(4) The [appellant] must also establish:
(a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper inquiries and checking on the accuracy of his sources;
(b) that his conclusion (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained;
(c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and
(d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers.
The extent to which the inquiries referred to in par (4)(a) should have been made will depend upon the circumstances of the case, in particular the nature and the source of the information which the [appellant] has obtained, and whether the position, standing, character and opportunities of knowledge of the informant (as perceived by the [appellant] himself) are such as to make his belief in the truth of that information a reasonable one: cf South Suburban Co-operative Society Ltd v Orum [1937] 2 KB 690 at 700-701; White & Co v Credit Reform Association & Credit Index Ltd [1905] 1 KB 653 at 658, 660; see, also, Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44 at 55-56. It is necessary to keep in mind that each of the matters referred to in par (4) are relevant to the reasonableness of the [appellant's] conduct; they do not raise questions independently of that issue."
985 Here, as we have found the imputations were undoubtedly of the gravest kind. Their seriousness was not diminished by attempting to de-emphasise the under-age aspect of the sex in question on the basis that, under-age or not, same-sex intercourse would have been illegal as the law stood at the relevant times [AT 157]. Nor was it diminished appreciably by there being any campaign to lower the age of consent for males from 18 to 16 to bring it into line with the age of consent for females, as put in argument [AT 22-23]. In the eyes of members of the community, it could not be doubted that allegations of knowingly engaging in under-age sex of the kind the subject of the imputations against the respondent would be taken very seriously, with a consequential serious impact on the respondent's reputation, and that whether the age was 17, 16 or 15; though the younger the age, perhaps the graver the imputation, as indeed his Honour found.
986 The relevance of that here is that any enquiries made must be affected by the importance of getting conclusions right on a matter of such gravity; in that sense the nature of the imputations is of direct relevance, see Chappell v TCN Channel Nine Pty Limited (1988) 14 NSWLR 153 at 171 where reasonableness of the appellant's conduct was directly related to the seriousness of the imputations.
987 As was said more generally by the Privy Council in Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 360, cited in Morgan at 384:
"There will of course be cases in which despite all reasonable care the journalist gets the facts wrong, but a member of the public is at least entitled to expect that a journalist will take reasonable care to get his facts right before he launches an attack upon him in a daily newspaper. If on inquiry it is found that the facts are not true and that reasonable care has not been taken to establish them courts should be very slow to hold that the newspaper is protected by statutory qualified privilege. The public deserve to be protected against irresponsible journalism. The defence of comment provides such protection by insisting upon the newspaper establishing the substantial truth of the facts upon which it comments. It cannot surely have been the intention of the legislature that this protection should be substantially stripped away by the introduction of the statutory defence of qualified privilege. But this will be the result if a newspaper is able to hide behind the actions of a careless or an irresponsible journalist or if the court takes too indulgent a view of the conduct of a journalist who failed to check his facts."
988 Subject to what is said below, it should not be overlooked that where enquiries yield no result, as for example because records are not available from the Department of Juvenile Justice, that does not mean that because the enquiry that would be reasonable to make to substantiate a matter of grave allegation is unable to be made, it is excused. If the necessary reasonable enquiry cannot for some reason be made, that may delay publication until it can be made, or some other suitable steps substituted.
989 It is to be emphasised that the journalistic standard to make out that element of the defence does not exceed what is reasonable in the circumstances; it is not required to rise to some pinnacle of unreal perfection. When enquiries have been undertaken which, viewed objectively and taking into account the circumstances, encompass what is reasonably practical in the circumstances, they should suffice if they "are such as to make [the publisher's] belief in the truth of that information a reasonable one". The circumstances include "the nature and source of the information obtained, relative to the matter of publication and position, standing, character and opportunities for knowledge of the informant" as perceived by the appellant.
990 Against these statements of principle should be viewed the appellant's submissions at paras 6.2 and 6.3 made to his Honour, repeated in the written submissions on appeal:
"6.2 Quail's evidence as to possible avenues of inquiry arising out of the information given to him by Pearce, Kinchela and Dunbier is at T5836-43. Some inquiries (eg. as to details of periods spent in institutions by Pearce and Kinchela) were attempted but with no result (eg. no records available from Department of Juvenile Justice). There were some matters for which he could see no justification for further inquiry (eg. date of opening of Chan's Canton Village Restaurant T 5837.15-17). As to suggested omissions generally, his evidence was that he did not deliberately or purposely abstain from inquiring either at all or further because he did not want to know what the result might be (eg. T 5838.47-52).
Hall dealt with these matters to the same effect (T 5254-67).
Conclusion
6.3 With regard to the totality of the information obtained, omission to make any or all of these inquiries provides no basis for a finding that the appellant's conduct in publishing was not reasonable in the circumstances. It is apparent that each of Hall and Quail in his judgment was of the view that the inquiries in fact made were sufficient to establish the credibility of the informant and the information. In all the circumstances, that judgment was fairly open and reasonable. It is submitted that it should be found that the inquiries and checks which were actually made were sufficient in the circumstances."
991 We have dealt earlier with the failure to make the most basic of enquiries in relation to matters bearing upon the fundamental temporal aspect. Their absence in relation to imputations of the seriousness of these was quite properly the basis of the conclusions reached by his Honour [J 4379 to J 4380] which we quote below:
"4379 Easily I have been persuaded by the evidence and submissions that the [appellant] has failed to discharge the onus it bears to establish that the inquiries and checks were sufficient and that its omissions were not unreasonable. By reason of the acknowledged gravity of the imputations, the [appellant] was obliged, I hold, to ensure that it `got its conclusions right'" by making proper inquiries and checks with respect to the information provided by its sources.
4380 The temporal component was fundamental and I agree with that submission for the [respondent] and the description of that component. In relation to each complainant there was a clear obligation on the [appellant] to make inquiries otherwise than of the complainant himself, to locate corroboration of the essential fact that when the sex took place (and with the [respondent]) the complainant was aged 14 or 15."
992 His Honour then rejected the notion that reliance on the so-called "common thread" dispensed with the need for such enquiries, holding that reliance on the common thread was unreasonable [J 4380 to J 4383 and again J 4386 and J 4390]. At J 4381 his Honour said:
"What the [appellant] relied upon was the `common thread of sex, amyl nitrate and marijuana and the fact that each complainant (save one - Tasker) said `he was under-age'. It was, I hold, unreasonable to rely on this element of `cross-corroboration' by reference to these common ingredients without in the case of any one complainant making any independent enquiry. Save for the fact that the informant said, `he had under-age sex' the other common threads, sex, amyl nitrate and marijuana were unremarkable ...".
993 His Honour commented on the various accounts in fact demonstrating uncommon threads, such as in particular "the patent difference between the harshness of the respondent as a sexual partner as described by Messrs Kinchela and Burns on the one hand, and his kindness as described by Pearce on the other" [J 4382].
994 The obvious failure to enquire as to the date of opening of Chan's Canton Village Restaurant [T 5837], when Quail agreed that the Chinese restaurant was important in fixing the time the events were said by Pearce to have happened, merely taking Pearce to the restaurant, and what his Honour referred to as "Hall's distortion of Pearce's information as to the Sydney Tower" [J 4382], illustrate the gross inadequacy of the appellant's enquiries. This is more especially when put on notice in regard to the statement concerning the Centrepoint Tower, an obvious discrepancy in chronology that would have refuted Pearce's allegations of under-age sex.
995 We consider that the conclusions reached by his Honour in regard to the failure to make adequate enquiries were well open to him, and that appeal grounds 55 and 62 are not made out.
Appeal Ground 61 - Opportunity to Respond for purposes of s22(1)(c)
996 This put in contention whether the respondent's conditions for participation in the programme were not reasonable, though the argument put by the appellant went further. The appellant's contentions before his Honour were repeated in the appeal. They started with the proposition that there is no universal requirement of an opportunity to respond in order to satisfy s22(1)(c) of the Act. It was then submitted that whether failure to provide an opportunity to respond indicates lack of reasonableness will depend upon the particular circumstances, and that the conditions stated by the respondent were such that there was no lack of reasonableness.
997 His Honour's statements of principle [J 3349 to J 3351] cited the joint judgment in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 574 (see also at 572-3):
"3349 The [respondent] turns to the opportunity to respond. The [appellant] points out the truism that s22 contains no requirement that there be an opportunity to respond given to a person about to be defamed. The [respondent] sees the [appellant] framing the question in reverse, that is, does a failure to provide an opportunity to respond affect the reasonableness of the conduct in publishing the information which conveys the imputations?
3350 The High Court in Lange answered this question by confirming that a [appellant's] conduct could not be reasonable unless such an opportunity is provided:
`Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the [respondent] an opportunity to respond.'
3351 Although the concept of reasonableness in Lange was discussed as a condition of extended common law qualified privilege concerning political or governmental discussion, it is equally applicable to the concept of reasonableness in s22. It is clear from the judgment of the High Court that the concept of reasonableness was introduced directly from s22:
`No doubt it is arguable that, because qualified privilege applies only when the communication is for the common convenience and welfare of society, a person publishing to tens of thousands should be able to do so under the same conditions as those that apply to any person publishing on an occasional qualified privilege. But the harm that can done when there are thousands of recipients of a communication is obviously so much greater than when there are only few recipients. Because the damage from the former class of publication is likely to be so much greater than from the latter class, a requirement of reasonableness as contained in s22 of the Defamation Act, which goes beyond mere honesty, is probably to be seen as reasonably appropriate and adapted to the protection of reputation and, thus, not inconsistent with the freedom of communication which the Constitution requires.
The reasonableness of conduct is the basic criterion in s22 of the Defamation Act which gives a statutory defence of qualified privilege. It is a concept invoked in one of the defences of qualified protection under the defamation code of Queensland and Tasmania, and it was the test of reasonableness that was invoked in the joint judgment in Theophanous. Given these considerations and given, also, that the requirement of honesty of purpose was developed in relation to more limited publications, reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters' [my emphasis].
998 His Honour concluded in relation to the To-day Tonight programme [J 4401-2], after a lengthy examination of the chronology and material in J 3063 to J 3091:
"4401 The next element is the opportunity to respond: I have examined the chronology and material in paragraphs 3063 - 3091 above. This is to be tested, not on the basis of whether it was unreasonable for [the respondent] to decline, but whether that which he declined was a reasonable offer. It was not, I find. The assumptions made by both Hall and Quail as to what [the respondent] might have known were unrealistic if not irrational. What Mr Marsden was being offered, a few hours before the telecast of the compiled programme, was an opportunity to answer questions the nature of which were not to be disclosed in advance in an interview which was to be edited by the [appellant] before publication. Hall said he would not have identified the two disguised complainants to [the respondent] on the irrational assumption as I have said, that [the respondent] would have known, one, their identity; two, that they were going to be on the programme, and; three, what they were going to say. Quail would have done [the respondent] the courtesy of identifying them but then again he was subject to the control of Hall. The fact that [the respondent] did have the information is a matter upon which I have remarked above. But that information was not as to who was to appear on the programme and what the allegations to be made were going to be but that people had been interviewed by Channel 7, including Dunbier. This programme was weeks in the making, it was not a `in the heat of the moment' publication, it was reasonable and practicable (and necessary) in my view, for the [appellant] to have provided [the respondent] with an opportunity to respond to the `new' allegations which would have been brought to his attention specifically. The reasonableness of the offer can be judged in the light of the terms of the letter Quail chose to write himself to [the respondent] on 10 March 1995 (part of Exhibit CM), the text of which is set out in paragraph 3073 above on the one hand and the evidence of Hall that he asked Quail to write a letter outlining the information `we had at hand that we intended to broadcast'. If Hall gave those instructions to Quail, Quail did not comply with them, yet Hall could see no divergence between his instruction and what Quail wrote.
4402 The offer was a perfunctory gesture founded upon irrational assumptions and on no basis can be regarded as compliance with that component of reasonableness which was both necessary and practicable in the context of Today Tonight in inviting the [respondent] to respond."
999 The appellant's submission that the respondent's conditions for participation were not reasonable was set out at paras 5.3 to 5.11 of the appellant's written submissions. It relied upon the correspondence that passed during March 1995 between the appellant and the respondent or their respective solicitors [see Blue 417 to 428].
1000 The first item in the correspondence was a letter dated 10 March 1995 from Seven Network Limited to the respondent, sent by fax, in the following terms:
"Dear Mr Marsden
Our solicitors wrote to your solicitors on 2nd February 1995 confirming that we are preparing a story about you for broadcast on TODAY TONIGHT.
The story will include a profile of your career and the prominent public positions you have held, particularly in the legal profession. It will also refer to the allegations made in State Parliament by Mrs Diedre Grusovin on 1st December, 1994 and examine new material which has come to light since Mrs. Grusovin's speech.
To complete our story we would like to tape and interview with you during which you will have an opportunity to respond to the various matters covered in our story.
Could you please contact me on phone 877.7493 or fax 877.7897.
Signed Gregory O Quail
GREG QUAIL
TODAY TONIGHT"
1001 Dealing with the letter of 10 March 1995, at para 5.4 the appellant's submissions read, "He (Quail) knew that the [respondent] knew of Pearce and Kinchela as informants to be included in the programme to go to air and that, through his lawyers, the respondent had indicated that he knew these people had been interviewed (T 6024)." That submission has not improved by repetition.
1002 As was noted by his Honour [J 3359], the respondent said that the submission was factually wrong. The respondent then submitted, and reiterated in his submissions on appeal, that -
"... there is no evidence that the respondent knew that Pearce and Kinchela were to appear on the To-day Tonight programme. It is also incorrect as to the evidence regarding Quail's knowledge of what the respondent knew (see the transcript set out at J 3359."
1003 The appellant in its submissions in reply did not take issue with that contention. It is clear from a review of the relevant evidence that the appellant indeed had no basis for concluding that the respondent knew that Pearce and Kinchela as informants were to be included in the programme.
1004 The respondent replied through his lawyers, Corrs Chambers Westgarth, by a letter dated 13 March 1995 [Blue 418]. The letter showed he was aware that Kinchela had been interviewed by the appellant, and that there were documents in relation to the person described as "[the respondent's] former companion" who can be taken to be Pearce. But it did not support knowledge that either Pearce or Kinchela was to be included in the programme to go to air. His Honour [J 3359] referred to the respondent's submissions in that regard. He then quoted the cross-examination of Quail [T 6024] in which Quail finally conceded that though the appellant would have known that Pearce and Kinchela had earlier been interviewed, he "would have no idea what he [the respondent] was going to assume" (as to who would be included in the programme), in answer to the question, "Why would you assume that he would know what you were going to play from the interviews?"
1005 Indeed insofar as Pearce is concerned, it could not be inferred from the letter of 13 March 1995 that there was any knowledge that Pearce, assuming he was "[the respondent's] former companion" as referred to in that letter, had even been interviewed, as distinct from being the subject of "documents leaked from the Police Force".
1006 The letter of 13 March 1995 indicated, not unreasonably, that -
"Our client may be prepared to be interviewed by your client on the following conditions:
1. The interview is live on air;
2. Mr Marsden has an opportunity to review the tape story compiled to date; and
3. Mr Marsden is provided with a list of questions your client intends to ask or at the very least the general contents of the same."
The solicitors for the appellant were asked for their "urgent response".
1007 The appellant, as will be seen, placed emphasis on the word "may" in the expression "Our client may be prepared to be interviewed ... ."
1008 The evidence then showed a file note prepared by Mr Angus of Mallesons, the solicitor for the appellant, of a telephone conversation with Mr Paul McCann, the solicitor for the respondent. It was noted, "Our client is prepared to show your client the tape of the material to be broadcast at 4 pm at ATN 7 and then to conduct an interview at 4.30 pm. Preferences for a recorded interview - time problems and for defamation reasons - a need to retain control." The telephone conversation occurred at 12.15 pm on 13 March 1995.
1009 There followed a further telephone conversation recorded in two file notes of Angus, occurring in a context where material would be broadcast that day at 4 pm with an interview following at 4.30 pm. This produced a further letter from McCann to Angus which we quote below:
"I refer to our conversations earlier today.
On Friday 10 March 1995 our client received a facsimile transmission inviting him to attend a taped interview for a story about himself and then apparently in the stage of preparation only.
Over the weekend it became obvious from your client's promotional material that the story had progressed to the point that it was able to be shown this evening subject only to a possible interview with our client.
As you are aware the possible content of this programme has been the subject of numerous correspondence, certainly from this office to you, over recent weeks.
In the circumstances your invitation to review the tape and then to submit to taped interview without advance notice of the content of the line of questioning is unacceptable.
Our client was prepared to submit to interview but only upon strict adherence to the undermentioned conditions:
1. that the interview be live to air and;
2. that he be given advance notice of the questions or the line of the intended questions.
As these conditions have not been agreed to our client will not submit to the interview.
If your client shows the programme this evening (or at any other time) and makes comment on our client's refusal to attend an interview, please ensure that the refusal accurately reflects the conditions stated above.
Yours faithfully
CORRS CHAMBERS WESTGARTH
signed
Paul McCann
Partner"
1010 The appellant's submissions in regard to the unreasonableness of the conditions sought to be imposed by the respondent, defending the reasonableness of the position taken by the appellant, appeared at paras 5.5 to 5.6. These we quote below, though reference should also be made to the matters stated under "Conclusion" at para 5.7 and following:
"5.5 Hall's evidence was that the respondent should be given notice of the material and the opportunity to answer it before it was published (T 5342). It was decided to offer the respondent the opportunity to view the edited material when it was completed and to be interviewed to respond to it (T 5343, 5347). Hall intended to show the respondent the report to be broadcast and he would have an opportunity to tape an interview with Mr Mercer, the host, immediately after seeing it. He would have dropped another story if necessary to enable inclusion of the interview (T 5346). Hall believed the respondent would know very well the identity of the two people whose names and faces were concealed (T 5347, 5350, 5355). Additionally, the matter to be broadcast included the respondent's denials at the press conference and in the 7.30 Report.
5.6 Hall asked Quail to write the letter of 10 March 1995 (Exh CM, 122, 2 Blue 417) (T5193). He instructed Mr Angus in respect of the correspondence of 13 March 1995 (T 5194). In respect of the fax of 4.30pm, 13 March 1995 (Exh CM, 122, 2 Blue 427) Hall believed it to be the respondent's final position on whether he would accept the invitation to be interviewed. Hall did not accept the conditions and proceeded to publish (T 5195). He believed the appellant's offer was fair in the circumstances, having regard to the press conference and 7.30 Report in which the respondent put his position to a vast national audience (T 5351-52)."
1011 Under "Conclusion" reference was made to the assertion (again) that the respondent was well aware of the identity of informants to be included in the broadcast (para 5.7), in circumstances where he clearly could not have been. It was correctly stated that the respondent had reserved his position even if the conditions were accepted ("Our client may be prepared to be interviewed"), and the appellant reiterated the grounds for the preference for a recorded interview, "... time problems and for defamation reasons - and need to retain control".
1012 Had the respondent taken up the appellant's offer, not only would he not have known beforehand that Pearce and Kinchela were to appear on the To-day Tonight programme. Just as important, he would not have known whether they had appeared or not when shown the programme in advance, since they were disguised throughout and their names concealed. In those circumstances his Honour, as he had ample grounds to do, clearly doubted Hall's evidence that he believed the respondent would still know very well the identity of the two people whose names and faces were concealed [T 5347, T 5350, T 5355] on the basis that he would obviously recognise their voices.
1013 The appellant's written submissions summed the position up in these terms [AS 383]:
"Put simply the appellant's opportunity to respond was to have the respondent view a tape of disguised people making allegations in conjunction with Dunbier stating that he could name half a dozen people providing no names. The appellant then proposed to cross-examine the respondent whilst retaining complete editorial control of the interview. At T 5345.30 Hall stated that they would certainly edit the interview with the respondent."
1014 In those circumstances, we consider it was open to his Honour to conclude, as he did, that the offer "was a perfunctory gesture founded upon irrational assumptions and on no basis can be regarded as compliance with that component of reasonableness which was both necessary and practicable in the context of To-day Tonight in inviting the respondent to respond" [J 4402]. It was not a question of the respondent wishing to have conditions on his appearance to respond. It was that the appellant imposed unreasonable conditions on giving him the opportunity to respond. In our opinion his Honour was entitled to find, in part by implication, that it was necessary for the appellant to give the respondent an opportunity to respond and that it unreasonably did not do so.
1015 We consider it was well open to his Honour to take into account the failure to provide a proper opportunity to respond as strongly supportive of the conclusion that steps taken by the appellant were not reasonable in terms of s22(1)(c) of the Act.
1016 We should refer to the submission by the appellant (paras 5.11 and 38.40) that it was clear that the respondent denied the allegations, that is, clear to the audience, and that Mr Mercer's final words in the To-day Tonight programme reinforced the respondent's denial for the audience. The final words were as follows:
"Last Friday we invited [the respondent] to respond to the allegations against him. Today, we offered to show him our report and record an interview. So far he has not taken up our offer. What I can tell you is that some time ago [the respondent] became aware we had spoken to a number of people. One of those people, his identity disguised, we called Witness B on the programme you've just seen. Through his lawyers, [the respondent] strongly denies the allegations of that witness and says he has independent evidence to disprove other allegations. Our offer for [the respondent] to present that evidence still stands."
1017 The appellant said at para 5.11 of its submissions:
"5.11 In this case, a substantial part of the publication included words and images in which the respondent's denials of under-age sex and/or pederast activity were repeated and the Grusovin allegations were denounced. These segments make plain to the viewer that the respondent vigorously denied engaging (with any person on any occasion), in the type of conduct described in the programme by Kinchela and Pearce. The final words of Mercer in the programme reinforce for the viewers the respondent's denial."
1018 Taking first the statement by Mercer, the clear implication of that statement was that the respondent was given an opportunity to respond to the witness B knowing that witness' identity (in fact he was Pearce). For the reasons earlier stated, that presupposed that the respondent would have recognised Pearce by his voice, his Honour was not prepared to make that supposition. Further, to state that the respondent "has not taken up our offer" did not fairly represent the position that the respondent took. Nor was he given the opportunity to present the independent evidence, since the appellant imposed its conditions on giving him the opportunity to respond.
1019 These broadcast denials, used as they were, were according to his Honour -
"not included by way of balance but to be used by juxtaposition of the assertions of the complainants, as a mechanism for identifying and exposing the [respondent] as a liar notwithstanding that the information provided by the complainants and published by the [appellant] was `new' " [J 4399].
Accepting as we do that this finding was open to his Honour (see under "Malice" later), the broadcast denials were no substitute for an opportunity to respond, nor did they make the appellant's stance other than unreasonable.
Appeal Ground 56 - Belief that the imputations were true.
1020 There is an overlap between considerations applicable to malice and requirements for establishing reasonableness in the context of s22(1)(c). If malice is made out, then qualified privilege will not protect the appellant. There is a factual overlap between matters relied upon by the respondent to establish malice and matters relied upon by the respondent in resisting the appellant's contention of reasonableness under the statutory defence.
1021 We deal subsequently with malice. However, for present purposes we should note that Hall and Quail both asserted that they had a "genuine and honest belief that each of the imputations were true"; see as to Quail T 5835 and as to Hall T 5191.
1022 As was said by Hunt AJA in Morgan (at 385-6):
"... in determining whether the defendant's conduct was reasonable in the circumstances, the defendant must in most cases establish his honest belief in the truth of what he has written. ... where the publisher is a corporation it is the belief in the truth of what was written held by the servant or agent who wrote it which must be proved by the defendant."
That said, honest belief is not a sufficient condition for reasonableness for purposes of s22(1)(c).
1023 We have earlier set out J 4394 in which his Honour said, when dealing with s22(1)(c), that he did not believe that either Hall or Quail had an honest belief in the information or the truth of the imputations. What his Honour meant by this is made a little more clear by regard to what he said when dealing with malice. His Honour accepted there was not malice in the sense of "actuation in the appellant's servants and agents of any improper motive". Rather he found "reckless indifference as to truth or falsity in both Hall and Quail" [J 4458]. His Honour said [J 4459] -
"I can indicate that nothing in the programme evidences `intrinsic malice', as opposed to evidencing `unreasonableness'. It was, as I have said, the lack of honest belief evidenced by the reckless disregard, given the nature of the imputations intended to be conveyed, that to my mind evidences malice that would defeat qualified privilege had it otherwise been established."
1024 The trial judge explained this in J 4459-J 4460. It was said to be exemplified by the "smug offer to Mr Marsden founded on bases beyond comprehension in terms of reason or reasonableness on the part of the two critical personnel" to participate in the programme [J 4459].
1025 The other consideration leading to the conclusion of malice is summed up in J 4460:
"4459 ... Particularly I identify the conduct of Mr Hall and Mr Quail in relation to what I have described as the smug offer to [the respondent] founded on bases beyond comprehension in terms of reason or reasonableness on the part of the two critical personnel. Mr Hall as I have already said had a "conviction" but not a rationally reasonably attained state of belief in the truth and that was exemplified to the highest degree by the approach he took, which has been dealt with above, to the offer to [the respondent] to participate.
4460 The reckless indifference arises from what I perceive to be the failure on the part of Hall and Quail to appreciate, not merely the gravity, but the implications of what they intended to impute against the [respondent] especially in relation to the temporal component and their disregard for making any inquiry independent of the complainant and independent of the cross-corroboration on which they saw fit to rely, to support those allegations. It is to be borne in mind, as I have said, that this was not a heat of the moment publication. It was a programme prepared over some weeks requiring care which was simply not exercised."
1026 His Honour later referred to "publication of the defamatory imputations without an honest belief in the truth founded upon reckless indifference as to whether they were true or false". [J4464]
1027 We deal later with malice in relation to each programme, and the implication of Roberts v Bass in requiring, for malice, more than a lack of honest belief in the truth of what is published. For the present, we do not understand the trial judge to have found that Hall and Quail believed that the imputations were untrue. Rather, as an element in the reasonableness he was addressing his Honour found that their asserted genuine and honest beliefs, in fact ill-founded, were undermined by their reckless indifference to truth or falsity which he described, and in that sense were not genuine and honest beliefs.
1028 The appellant repeated on appeal its written submissions to his Honour, being -
7.2 Quail's evidence was that he had a genuine and honest belief that each of the imputations was true (T 5835.32-45).
His belief was based on the totality of the information and, in particular, the following:
* information which he had received from each of the informants - Burns, Kinchela, Pearce, Dunbier, Tasker, Small, Fisk and Grusovin and the consistency of the information as referred to above (T 5835);
* information in the Speedo Report (T,5835-6, 5753);
* information provided in Superintendent Small's statements and police documents in relation to the search of the respondent's house (T 5836, 5933-36);
* the "fingerprint document" (T 5836, 5799-5800);
* The 7.30 Report interview - where the respondent shifted his ground, indicating that he was not sure if his previous denials were correct (T 5836, 5825, 6009).
7.3 Hall
Hall's evidence was that he had a genuine and honest belief that each of the imputations was true (T 5191.42-55).
His belief was based on the totality of the information and, in particular, the following (T 5192):
* that he and Quail had conducted an investigation over two months, during which time considerable work had gone into corroborating the evidence given by each of the individual informants;
* the consistency of evidence of Tasker, Pearce, Burns, Dunbier and Kinchela as referred to above which, taken in its entirety, supported the version of events given by those informants, rather than the respondent's denials;
* documentary evidence supplied by Superintendent Small and his account of events to Quail.
Conclusion
7.4 The evidence of each of Quail and Hall as to his assessment of each informant and that his belief was genuine and honestly held should be accepted. Having regard to the nature and extent of the information obtained and the careful consideration that each gave to it, the assessment and the belief were reasonable."
1029 It will be apparent that these submissions miss the point. They seek to argue that the information described provided a proper basis for a belief in the truth of the imputation. They do not address the reckless indifference, particularly the failure to make the enquiries which should have been made, or the trial judge's reasons why Quail and Hall did not have what his Honour at one point called "a rationally attained state of belief in the truth" [J 4459].
1030 With two possible exceptions, each of the matters referred to as supporting a "genuine and honest belief" as to the truth of the imputations and subsequently as to reasonableness under para 7.4 (Conclusion) has been earlier dealt with.
1031 The "Speedo Report" was said to be a "document which I [Quail] had in my possession relating to the immunity given to Colin Fisk to testify against police officers for the Crown" [T 5836]. Insofar as the document related to Fisk, the withdrawal of his allegations against the respondent made it essentially irrelevant. Indeed the withdrawal had occurred prior to the broadcast of To-day Tonight so that it was irrelevant at the time the relevant belief was said to have been formed. At T 5752-3 there is further reference to the Speedo Report in the examination in chief of Quail. It adds nothing in these circumstances to that document as a source of a genuine and honest belief or in relation to reasonableness more generally, insofar as the respondent was concerned.
1032 Turning to the "fingerprint document", this related to the events of 1967 where the respondent's fingerprints had been identified, in the giving by him of a false name, leading Quail to conclude, "it suggested to me that [the respondent] had, in the past, committed dubious sexual acts in public but, furthermore, he was prepared to lie in order to cover that up; in other words, give a false name, so, what it meant was that his denial concerning the under-aged sex allegations should perhaps be considered with some scepticism" [T 5799-T 5800]. We have already noted the ambiguity and circumstances of this. While not to be put out of account, it could not provide a proper basis for an honest belief in the truth of the imputations.
1033 Even if it had been found that Quail and Hall had genuine and honest beliefs in the truth of the imputations, that would of itself not have established reasonableness. Where their beliefs were undermined by their reckless indifference to the truth or falsity of the imputations and were not genuine and honest beliefs in that sense, they do not contribute to reasonableness of the appellant's conduct. That is what matters. We do not think error has been shown in his Honour's conclusion that the beliefs were undermined by reckless indifference, leading to the conclusion that the appellant had not acted reasonably.
Appeal Ground 63
1034 Appeal ground 63 takes up the earlier grounds.
1035 We consider that his Honour was entitled to find that the conduct of the appellant in publishing the defamatory matter was not reasonable in the circumstances, in particular in that before publishing the appellant did not exercise reasonable care to ensure that the conclusions were right or make such enquiries as to the accuracy of sources as the circumstances required, and in that the conclusions did not follow logically, fairly and reasonably from the information obtained. We find nowhere in his Honour's approach (contrary to what is contended by the appellant) that he regarded the publisher as under an obligation to establish satisfaction as to truth beyond reasonable doubt, or at least to such a high standard as would exceed that appropriate for imputations of the gravity here in question; see para 15 of the appellant's written submissions.
Appeal Grounds 64, 70, 71 and 72
1036 The appellant repeated its trial submissions at paras 50 to 56, before elaborating specifically in relation to its grounds of appeal. The first of its submissions was specifically relevant to whether, as appeal ground 64 asserts, his Honour "erroneously took into account the conduct of Quail". That appeal ground is to the effect that his Honour "should have found that Quail played no part in, and was not responsible for, publication of the programme and was outside of the class of those who were so responsible", so that "he should have held that Quail's conduct in failing to communicate the information concerning Stals [Exh AO] to those involved in the production of the programme was irrelevant to the issue of the appellant's conduct in publishing it" [J 4412 to J 4415].
1037 The appellant sought to lay the groundwork for excluding from consideration Quail's role in relation to the Witness programme. Essentially, the appellant's argument was that, under the terms of the arrangement entered into between the appellant and a company called Apogee Pty Limited on 13 February 1996 supplying Quail's services exclusively to the appellant, Quail was from that date not an employee. Thus (it was said) his actions or omissions could not be attributed to the appellant, in determining whether the appellant had with respect to the Witness programme acted reasonably in terms of s22(1)(c) of the Act. This bore particularly upon a record of interview by Quail of Stals made, importantly it should be noted, earlier when still employed by the appellant, namely in the third week of March 1995, being Exh AO.
1038 Under the agreement Apogee agreed "to supply exclusively to Seven, within 24 hours of the signing of this agreement, all material relating to or comprising the research of its employee, Greg Quail ("Quail") into paedophilia activities" (cl 1(a)). It also agreed "to supply exclusively to Seven up until 31/12/96 the services of Quail to continue research into paedophilia activities and, at the direction of the Executive Producer, or his nominee, of the new weekly current affairs programme to be broadcast on the Seven Network ("the Programme") to assist in the production of any stories on such activities for broadcast on the programme" [cl 1(b)]. Finally, Apogee agreed "to supply exclusively to Seven all persons with whom Quail has dealt with, or will in the course of his work with Seven deal with, in the conduct of his research." [cl 1(c)].
1039 As we understand the appellant's contention, it was that his Honour incorrectly characterised Quail as "an agent" of the appellant, when by virtue of his terminating his employment and substituting a relationship pursuant to the agreement of 13 February 1996 Quail had ceased to be an employee. It was then said that as it is only the state of mind and knowledge of each of the employees which is relevant to questions such as honest belief, intention to publish the imputations, malicious motive, and reasonableness generally, this carried the consequence that, Quail having ceased to be an employee, his state of mind and knowledge in particular as to Exh AO was not to be attributed to the appellant.
1040 As will be explained later, Exh AO contains what the respondent in written submissions refers to with some justification as a "capricious fancy of a drug conspiracy involving the respondent, Fat Jack, male models, law enforcement authorities and certain judges" [RS para 407] the details being set out by his Honour at J 4180. The tape [Exh AO] refers to the paedophile ring as "just a small frame of the big picture". The respondent's submission was "that the allegations amounted to no more than incoherent and wild rantings, which were incapable of being treated seriously. Moreover ... it is not possible to treat any allegations made by Stals against Mr Marsden without great caution if indeed they can be believed at all." [J 4182]. His Honour noted [J 4183-4] that Quail finally came to the view that "the allegations were baseless", conceding that he was "sceptical about those allegations" [T 5357 and T 5954].
1041 His Honour said in his conclusions [J 4421] that Quail "equivocated during cross-examination and he equivocated about whether he told O'Donnell [Producer of Witness in February 1996] about the `wild' allegations."
1042 The role played by Quail in relation to Witness was described by the appellant in these terms [AS pp 44-5]
"It was clear that Quail was required to introduce people to Witness staff (T 5870). That was his only role (T 5924, 5952, 5985). He gave O'Donnell some documents. O'Donnell specifically requested the McNamara tapes. There was no request by any person at Witness for the production of any tape or material with which he did not comply (T 5871). He introduced Stals to O'Donnell and Davis and was present during the interview (Exh 126, 3 Blue 463) but played no part in it (T 5873). He played no part in later interviews with Stals (Exh 127, 130, 3 Blue 527, 4 Blue 698, T 5874). He did not see the films of those interviews (T5948-50). He introduced Stals to O'Donnell as a credible witness (T 5958). By the time he introduced Stals to Witness his knowledge of the drug allegations in Exh AO (7 Blue 1404) did not undermine his view as to Stals' credibility in relation to the under-age sex allegations concerning the respondent(T 6038).
On 18 February 1996 he brought Russell for an interview (Exh 128, 3 Blue 558) by O'Donnell and Davis. He was present for parts of it, but played no part in it or in any discussions as to the scheme or questions to be put (T 5878, 5962).
On 23 February 1996 he accompanied O'Donnell, Davis and Russell to Queensland to interview Lewis (Exh 129, 5 Blue 641). He was present for some of the interview, but did not participate in it (T 5882).
On 27 March 1996 he brought Pearce to interviews at Ashfield and Darlinghurst (Exh 59 and 60, 1 Blue 188) with O'Donnell and Davis. He did not participate (T 5883, 5984).
On 9 and 14 April 1996 he visited Patrick Homes at Grafton Prison and arranged for an audio cassette to be made available to him. He subsequently received the tape (Exh 136A (4 Blue 820), T5885).
He played no part in writing the script for, or the composition of the rough-cut. He played no part in the composition of, or the selection of matter for inclusion in, or the writing of script for, the programme which went to air. He had no part in the decision-making process in relation to publication (T 5888) or in the composition of the "Murphy" graphic (T 5889). He attended one conference when McClellan was present and none with Manning (T 5925). He did no research (T 5984).
He presented people as those he believed to have important information about the existence of a paedophile network associated with Costello's (T 5960.25-27). The only tape he gave to Witness was of McNamara (T 5951). He specifically asked O'Donnell and McClellan if they wanted the tapes of interviews he had made of Stals and they said "No" (T 5958-9). He was not asked by Witness staff to produce any other taped interviews. In particular, he did he not deliberately or recklessly withhold Exh AO (7 Blue 1404, para 53.1) from them (T 5890).
He finished working prior to May 1996 and was abroad when the programme went to air (T,5986)." [emphasis added]
1043 At the outset, we should say that whether Quail be described as the appellant's agent or as an independent contractor whose services were made available pursuant to the agreement, the gravamen of what his Honour relied on [J 4412] is contained in the first sentence quoted below in context:
"The [appellant] cannot be criticised as being unreasonable in its conduct by wishing to do its own interviews for a new programme; it can be criticised for not pursuing the result of its agent's research required both by contract [the Apogee contract] and pursuant to need as perceived by McClellan [head of production of Witness]. It was never suggested that the tapes of the interviews conducted by Quail whilst with To-day Tonight were anything other than the property of the [appellant]. It could not be suggested that the [appellant] was ignorant of the existence of those tapes. As at 12 February 1996 O'Donnell knew and suggested that there should be obtained from Quail, with whom the contract was entered into the following day, tapes of interview with Russell, McNamara, the Speedo Cop and Stals (No. 2). The recklessness in the [appellant] via O'Donnell and McClellan knowing that its agent had information (and the fact that he had information was the reason for making him their agent) was in not considering that information which the [appellant] in fact had. The explanation in terms of the division of the programmes or indeed rivalry might provide some internal satisfaction, but does not warrant upon external examination, the disregard by the [appellant] through its servants and agent of information in fact in its possession on the very subject matter of the proposed new programme." [emphasis added]
1044 Reference should also be made to J 4413 to J 4417 and to J 4420 in which his Honour noted that Davis, the journalist who was employed by the appellant and worked on the Witness programme, had indeed heard from Stals about part of Exh AO.
1045 Even if Quail's state of mind and knowledge should not be attributed to the appellant, his Honour correctly concluded that those producing the Witness programme had the contractual means at their disposal to require Quail to hand over Exh AO, it being in any event already its property having been obtained when Quail was an employee. Instead, the appellant chose not to view it save to the extent that Davis may have done. This was properly seen as lack of reasonableness in investigation of the material relied upon for the Witness programme. It follows that, even if the characterisation of Quail as agent of the appellant (by contract) was not correct, as his Honour recognised, if not by virtue of its ownership of the earlier collected material including Exh AO, it was wholly open to the appellant to obtain the material and take it into account. It did not view Exh AO, yet used Stals (under the pseudonym of "Bill") as a source who was shown on the Witness programme. He was shown in the programme stating in relation to the respondent that "he would pick me up from Fitzroy Gardens" and pay him for sexual services at a time when he was 15 [Blue 1329 to 1331]. "Bill" was also asked to comment on the respondent babysitting Mr John Fahey's children, and was quoted as saying "I thought Fahey must be an idiot. Like I know he's an idiot to let his kids be bouncing up and down on John Marsden's lap." It will be noted later that this gratuitous addition, suggesting risk of the grossest betrayal of trust by the respondent in relation to infant children of Fahey, contributed to his Honour's conclusion that the Witness programme was actuated by malice on the appellant's part.
1046 Aside from that reasoning, it by no means followed that Quail, if an independent contractor, could not also relevantly be an agent of his former employer. As is said in Gatley on Libel and Slander (London, Sweet & Maxwell, 1998) at 8.28, "An independent contractor may be described as an agent because he is engaged to bring about a result for a principal", precisely the case here under the Apogee agreement; see in particular cl 1(b) requiring Quail to "continue research into paedophilia activities" and act "at the direction of the Executive Producer".
1047 Appeal ground 64 misses the point. His Honour held not that Quail failed to communicate the information concerning Stals and Exh AO to those involved in the production of the programme and thus, by implication, failed in his responsibilities vis a vis the Witness programme. Rather, his Honour held that the appellant failed to seek that information from Quail, being information in the form of Exh AO which in any event was already the property of the appellant and also contractually available to it. That Quail played so limited a part in the publication of the programme, insofar as the appellant wished to do its own interviews for the new programme, was clearly acknowledged by his Honour as no basis for criticising the appellant's conduct in that regard as unreasonable. What his Honour rightly did was to criticise as unreasonable the failure to pursue the result of Quail's research. That complaint was made out by reason of the terms of the Apogee agreement, whether they made Quail an agent or an independent contractor, because he was obliged under that agreement (whatever his status) to make available the materials in question which the appellant failed to seek.
1048 Whether or not Davis was aware of "Fat Jack" in Exh AO, as his Honour speculated [J 4478] and in circumstances where O'Donnell knew of the existence of the tape but not its contents, the appellant knew enough to ask to have Exh AO made available to it and should have, acting reasonably, listened to that tape. Its fantasist character made the account as a whole of highly questionable credibility, as his Honour held.
1049 We find no appellable error in his Honour's conclusion in that regard, nor in his conclusion that Quail's evidence was to be distrusted and disbelieved and that Quail deliberately set about a course of conduct to conceal information, in order to promote Stals to the detriment of the respondent's reputation [J 4477].
1050 Under malice, dealt with later, Quail's "want of honesty", "want of journalistic integrity", and "want of integrity that one would reasonably expect in a specially contracted current affairs associate producer", led to his Honour's conclusion [J 4477] that it can be -
"... explained on no basis rationally other than Quail's motivation to harm the [respondent], because he realised the material in Exh AO, to any reasonable person, would seriously cast doubt upon the integrity of the information that Stals was providing. That ill-will infect the publication of Witness and the [appellant] is branded with it."
1051 That Davis was not called was also itself a matter which for his Honour reinforced the unfavourable inference that he would otherwise have drawn, in finding malice in the appellant "by reason of what I will describe as the state of mind and conduct of Quail in relation to Exh AO" [J 4478]. Though the findings were in relation to malice, which we have still to consider, they are also relevant to appeal ground 64, and themselves were open to his Honour on the evidence.
1052 Whilst appeal ground 64 was based on the contention that his Honour erroneously took into account the conduct of Quail, no mention was made in any of the appeal grounds of the findings of his Honour in relation to the position of its employee Davis and its failure to call him. His Honour, after dealing with Davis' role in conjunction with the roles of Manning, McClellan, O'Donnell and Quail [J 3573 to J 3586] that "The absence of Davis is remarkable as it is stark and the explanation therefor simply unable to accept." [J 3588] His Honour declined to draw a Jones v Dunkel inference against the respondent as distinct from the appellant. That necessarily proceeded on the premise, not expressly stated but justified in the circumstances of the present case, that Davis' position as an employee of the appellant in the appellant's "camp" at the time was such that it would be natural for the appellant to have called him, he being in those circumstances more likely available to the appellant than the respondent; see Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 201-2.
1053 His Honour returned to this at J 4418 to J 4419. At J 4418 his Honour accepts that -
"... it really is quite extraordinary that without explanation the [appellant] failed to call Davis. As the [respondent] has submitted, and I accept, his belief in the truth of the imputations and the information that he gathered will be critical to test the reasonableness of [the appellant's] conduct ...".
1054 Then at J 4419 his Honour referred to the fact that the respondent had summarised various pieces of evidence identifying the criticality of Davis' role in the production in Witness -
"... yet the court heard nothing from him. Davis in my view, could not have assisted the [appellant] by reason of his unexplained absence in terms of the identification of the [respondent] by Lewis [interviewed for the Witness programme, Exh 129 and said he saw the respondent at Costello's where Lewis worked as a boy prostitute] or the identification of the [respondent] by Stals. He could not have assisted the [appellant], and further, in relation to the knowledge that existed in the [appellant] as to Russell's relationship with the boys at Costello's [Philip Russell was employed at Costello's as barman and was interviewed for the Witness programme, Exh 128] or the clarification, if I accept that it was merely an assumption by O'Donnell, of the fact of whether Russell had a sexual relationship with Tregurtha."
1055 Earlier, his Honour set out extracts from the evidence, collected at J 3575, which revealed that Davis was the "cornerstone" of the Witness story:
* "He was the on camera reporter, so his role was self-definitional. That is, he was to act as the reporter; do all the interviews; be the key writer of the script and the structure of the stories; and give the programme journalistic state I suppose." (McClellan - T5574.55)
* "Graham Davis had the lead in conducting interviews..." (O'Donnell - T5385.39)
* "Who is the author of the script? - Graham Davis." (Manning - T 5688.20)
* "Davis was the interrogator on all these occasions." (O'Donnell - T 5397.15)
* "The three key individuals were Graham Davis. Mick O'Donnell, and Peter McEvoy." (McClellan - T 5574.30)
* The group which assessed the credibility of witnesses was - "myself, Graham Davis and Peter McEvoy, and then further up the chain McClellan and Manning." (O'Donnell - T 5489.40)
* "One of the people on whom you relied heavily was Davis? - Yes." (McClellan - T 5644.50)
* "Both Davis and O'Donnell were journalists of high calibre of skill and enormous experience, and they were bringing in a sense those skills to making the same sort of judgments I was making in terms of the credibility of the witnesses. So I have placed a great reliance on the judgment that those two were making." (McClellan - T 5598.10)
* Who are the decision-makers who get stuck into the rough cut? "Fundamentally Manning, myself, Davis, O'Donnell and to a less extent, McEvoy. Basically four." (McClellan - T 5592.10)
* "The original script was done by Graham Davis, with input from Mick O'Donnell." (McClellan - T 5668.42)
* "... the reporter had to be in the critical situation where he is eye-balling the interviewee in the crucial interview, which is an interview about truth, and whether you believe that person I think often comes out in the circumstance and my experience in the industry is that such things as whether people shift their gaze from your questioning, at critical moments, particularly when the camera is on, can be little indications as to whether they are telling the truth or not." (Manning - T 5691.45).
* "Was he an important member of the team - "Yes." (O'Donnell - T 5490.45)
* He contributed to meetings, to the decision to broadcast and was present at meetings when the credibility of witnesses was talked about - "Yes." (O'Donnell - T 5490.50)
* "I thought he had a similar role to me in assessing the material we had and recommending to our superiors how we should proceed." (O'Donnell re-examination - T 5529.12)
* "We made the decisions about what should go to air ... myself, Graham Davis, Anthony McClellan, Peter Manning." (O'Donnell - T 5479.40)
* "He could formulate his own questions." (re Stals) (O'Donnell - T 5397.36
* Who was present at the rough cut? - "The three guys from the "Z" team would have been there. That is, Davis, O'Donnell and McEvoy. Manning, myself, obviously the editor." (McClellan - T 5591.47)
* Who wrote the script? "Fundamentally Davis, with O'Donnell's assistance." (McClellan - T,5591.15)
1056 In short, Davis was the on camera award winning reporter, who wrote the script and interrogated the witnesses. Apart from O'Donnell, the other witnesses, McClellan and Manning were not involved in the investigations at all, did not interview witnesses, could not formulate their own views on credibility and were left to rely upon Davis and O'Donnell for this information. Apart from Davis regarding himself as "stretched to the limit" [J 3586], it is not known whether Davis recommended or was unable to have time to ensure further checks were carried out, whether he had any reservations about the credibility of the informants or whether he honestly believed in the truth of the imputations. Moreover, Davis, as acknowledged in the appellant's written submissions at para 51.1(iv), "expressed no dissent to the decision to broadcast" [T 5529].
1057 His Honour therefore was amply justified in the conclusions he reached regarding the failure to call Davis, particularly as his evidence bore crucially upon the appellant being able to satisfy the onus upon it to show that it had acted reasonably in the circumstances, for the purposes of s22(1)(c) in relation to the Witness programme.
1058 Turning from Quail and Davis, it remains to deal with the roles of Manning, McClellan and O'Donnell, noting that appeal grounds 67, 69 and 71 bear on the respective roles played by Manning, McClellan and O'Donnell.
1059 The role of Manning was the Executive Producer of Witness with almost 30 years experience as a television journalist involved in reporting and producing television news and current affairs programmes. For many years he had held senior administrative positions [T 5678-79]. His duties in relation to Witness involved overall control and management of the programme and all editorial matters. He was the final decision-maker on what went to air [T 5678-9] and accepted responsibility for the programme [T 5717].
1060 Manning said he engaged the best qualified people for investigating a story on paedophile activities and what he referred to as the new evidence that the respondent had indeed had sex with underage boys. He explained his reasons for selecting O'Donnell, Davis and McEvoy [T 5682-3]. He said his instructions were to treat the information provided by Quail with great care and to trust only their own staff and their judgments [T 5681]. McClellan would keep him informed as to progress. He would not be personally involved in gathering information [T 5683].
1061 On 3 April 1996 Manning saw the rough-cut with McClellan, O'Donnell, Davis, McEvoy and Crisp. He said that Quail was not present and had no involvement in the composition of the programme [T 5687]. On this occasion Manning said that he was informed as to progress and that O'Donnell and Davis each believed the interviewees to be truthful about the allegations, especially those concerning the respondent. He wanted statutory declarations from the interviewees and would not proceed without them. He was assured that there had been no payment in money or kind for co-operation or interview [T 5690]. There was discussion as to the script and he instructed O'Donnell to structure the programme into two clearly separated parts: part 1 about the respondent; part 2 about Costello's and its social consequences [T 5693].
1062 With reference to Exh CR (letter to Rice) he said that it was necessary to ensure that the programme was not rushed to air, that legal action was almost certain and thus it was necessary to ensure that all was properly done [T 5694].
1063 On 16 April 1996, having considered the fine cut, the programme was in a form which in his view was worthy of publication and ready for showing on 23 April 1996 [T 5695].
1064 McClellan was appointed the Head of Production of Witness, having had about 20 years extensive experience with radio and television news and current affairs programmes [T 5570-72]. He was second in charge to Manning. His duties involved daily operational control, selection and approval of stories and editorial judgment of scripts and stories to be put to air [T 5572].
1065 In late January/early February 1996 Quail told McClellan he had information on paedophile activity and underage sex in Sydney and had spoken to people who had been involved in it and with the respondent [T 5574]. Manning and he decided to assign a production team to investigate the truth of these matters and the prospects of a programme. Messrs O'Donnell, Davis and McEvoy were selected because of their skills and because he considered they were the best available [T 5574-5].
1066 On 13 February 1996 McClellan arranged the contract with Quail's company Apogee. He said to Quail that his role was to produce "the boys" and Witness would do its own investigations to verify what they said. It was important to ensure no collusion between witnesses [T 5576]. Thereafter the practice was that he would be kept informed as to progress in conversations and by viewing tapes of interviews [T 5578-79].
1067 On 3 April 1996 the rough-cut was seen and discussed between Manning, O'Donnell, Davis and McEvoy [T 5591], following which arrangements were made to obtain statutory declarations [T 5593]. He said it was important to obtain one from Quail [Exh 138] to assist in demonstrating the integrity of the work and that there had been no financial inducements offered by him [T 5596].
1068 By 23 April 1996 the final form was settled. It was of two distinct stories: the first concerning the respondent and the second concerning other allegations. He said it was important to quarantine the respondent from any connection with the allegations in the second part [T 5598].
1069 O'Donnell was employed as the producer of Witness in February 1996 having had almost 20 years experience as a journalist and reporter in radio, television and newspapers [T 5383]. McClellan was his direct superior as the supervising producer. His duties included co-ordinating and directing film crews, editing and research staff. He worked with Davis. The style of the programme, its design and the manner and direction of interviews were his responsibility. Davis was the interviewer, but the material for the questions was the product of discussion between Davis and him [T 5386, T 5394]. O'Donnell, Davis and McEvoy were the first to assess the credibility of witnesses and to decide who should be re-interviewed [T 5489].
1070 O'Donnell said he discussed with Quail a programme dealing with the social context of young boys involved in paedophile activity and how they came to be street kids of the Cross, following which he prepared a memorandum [Exh 124] and submitted it to McClellan and others [T 5386-7]. It was decided to continue speaking to informants introduced by Quail and to find others to corroborate them. The Quail material would not be accepted until the Witness people had tested it for themselves [T 5391]. Quail was to work with them in providing access to people who had come to him with evidence of the paedophile scene, police protection etc [T 5478].
1071 The practice was to keep McClellan informed of progress. O'Donnell participated in the division of the structure of the programme into a segment concerning the respondent and a segment showing the consequences for a society which allows young boys to be used by men and to show that brutalising young people inevitably has dire consequences [T 5435].
1072 O'Donnell said Quail played no part in the editorial process, or in deciding the content of what went to air. The decisions about what went to air were made by O'Donnell, Manning, Davis and McClellan [T 5479]. O'Donnell and Davis put the words together that were broadcast, looked at the images and recommended to McClellan and Manning that it was proper and appropriate matter to be broadcast [T 5517].
1073 The relevance of the respective roles of each was said by the appellant to be that, "[I]t engaged people of extensive experience in the gathering and testing of the information for and the production of, the programme Witness", and therefore "relevant to the reasonable conduct of the appellant". We have already dealt with the conduct of Quail and the absence of evidence from Davis. The conduct of each of those engaged by the appellant needs to be considered to determine whether it supports or otherwise the case for the appellant having acted reasonably in relation to the Witness programme.
1074 That takes us to appeal grounds 70, 71 and 72. We are conscious that our task is not, and cannot be to replicate the detailed consideration by his Honour of all of the evidence. Rather it is to identify whether there has been any appellable error. We have focussed upon the factual matters with which the appellant takes issue in its written submissions. Here, as elsewhere, there was frequent undiscriminating repetition of the ground that a finding was "contrary to the evidence and to the weight of it", which on examination proved unfounded when tested against the parameters of permissible appellate review.
1075 The appellant's submissions again concerned Exh AO, and turned on whether anyone in the Witness programme was aware of the contents of Exh AO and whether his Honour's finding that the conduct of O'Donnell and McClellan "to obtain Exh AO from Quail was unreasonable" was a finding that was "contrary to the evidence and to the weight of it".
1076 There was evidence that satisfied his Honour that Davis had some knowledge about the content of Exh AO, which evidence the appellant did not consider because it did not make Davis available as a witness, being the reference to Davis asking Russell about "Fat Jack" [J 4420]. While O'Donnell, according to his Honour, had an explanation for knowing about "Fat Jack", having heard it from Stals, there was material on which his Honour could infer that the appellant was generally aware of the existence of Exh AO.
1077 His Honour was also strongly critical of the failure by Quail, as well as Davis and O'Donnell, to ask a single question of Stals on the basis that, freshly interviewed by the Witness team, Stals "not merely hinted at, but expressly stated, he was able to identify the respondent by reason of another relationship". His Honour referred to it being "reckless journalistic practice", that is "reckless in information gathering", in failing to ask about that other relationship to see how it was that Stals, based upon that claimed relationship, could identify the respondent, even though Stals on three occasions, volunteered reference to such other relationship [J 4422].
1078 His Honour [J 4476] also concluded that "the decision on the part of Quail to withhold from his co-workers in the Witness team the information in the drugs tape (Exh AO) was a conscious one" [J 4476 and earlier at J 4471]. As we have earlier said, it does not matter whether in fact Quail failed to provide it pursuant to an obligation in that behalf imposed upon him under the Apogee agreement or whether the appellant failed to ask for it, being aware of its existence.
1079 Either way as his Honour concluded, the failure was a failure to take reasonable steps. The relevant evidence is summarised below:
(a) On Quail's own evidence McClellan said to him that McClellan would need the results of Quail's own research [T 5869.16]. Included in the results of Quail's research was Exh AO.
(b) Prior to finalisation of the Apogee agreement (13 February) O'Donnell sent McClellan a note on 12 February [Exh 124]. At the bottom of page 2 of that note there was an upper case heading "WHAT WE SHOULD GET FROM GREG QUAIL". Underneath that title the note went on to state "Tapes of interviews with: The Barman, Number Two and McNamara, the Operation Speedo cop (full face)...". Whether or not McClellan knew that "Number Two" referred to Stals, O'Donnell certainly did [T 5454]. McClellan did know that Quail had information in written or tape form that McClellan thought he should see. At T 5607 McClellan said "Well I knew that because of my discussion with him and the negotiations that, yes, that information that he had, he would give to us, whatever form that information took." With this memo and his discussion with Quail, McClellan settled the agreement with an in-house lawyer.
(c) Quail entered into the agreement through Apogee, which supplied the services of its servant Quail. The obligations of Apogee under that agreement were to supply exclusively to the appellant, within 24 hours of the signing of this agreement, all material relating to or comprising the research of its employee, Quail, into paedophilia activities, and to supply exclusively to the appellant (up until 31/12/96) the services of Quail to continue research into paedophilia activities and, at the direction of the Executive Producer, or his nominee, of the new weekly current affairs programme to be broadcast on the Seven Network. That obligation remained with Quail, via Apogee, and did not depend on being requested by the appellant to do so; likewise, unnecessary as it was to ask, the agreement placed no impediment in the way of the appellant asking for materials, so that the appellant retained a responsibility if it was to act reasonably, to inform itself via these materials.
(d) Even though he failed to hand over the tape [Exh AO], Quail was asked at T 5952 whether he told O'Donnell or McClellan that he had "Bill 2". Quail responded that he did tell them that he had tapes of an interview with Stals. He was then asked whether he told them the nature of the material on the tapes and Quail responded, "I may have, I may not have". One would be entitled to infer the former.
(e) At T 5454 O'Donnell was taken to his memorandum [Exh 124] being O'Donnell's note of the possible content of the Witness programme and noting materials including tapes of interviews to be obtained from Quail. He agreed that he knew that Quail had a tape of an interview with Stals. He further agreed that he recommended this be obtained from Quail. O'Donnell then admitted that, having not received it, he never followed this up by pressing Quail on it because he certainly didn't see the tape [T 5454]. This runs contrary to Quail's evidence that O'Donnell did not want any tapes except for McNamara. Quail's evidence is also contrary to O'Donnell's notes [Exh 124 and Exh 125].
(f) At the middle of page 45 (part of para 51.1(v)) of its submissions the appellant states that "he [Quail] specifically asked O'Donnell and McClellan if they wanted the tapes of interviews he had made of Stals and they said `no' (T .5958-9)". We agree the evidence does not support this assertion. There is no reference on those transcript pages to any statement to this effect, as can be seen from the evidence set out below. In any event Quail was not accepted by his Honour on this subject [J 4477].
(g) Quail's evidence concerning the tape [Exh AO] we consider supports the inference that he did tell O'Donnell about that tape, so that with the other evidence, his Honour was entitled to find it more likely than not that he did tell him:
"Q: Quail, you were a consultant producer assisting in putting together a programme which was going to make terribly serious allegations against Mr Marsden were you not?
A: Yes.
Q: And the most prominent person on the programme was Stals, do you agree?
A: Yes.
Q: You knew he was a person given to fantasising did you not?
A: I knew that he had told me a story which I didn't believe.
Q: You did not tell O'Donnell, I suggest, anything about that tape?
A: I don't agree.
Q: You can't swear you did apparently?
A: I can't swear I did, and I can't swear I didn't.
Q: You did not tell Davis about it either I suggest?
A: I can't swear that I did and I can't swear that I didn't.
Q: If you had, they would surely have questioned Stals about it?
A: Perhaps they would have.
Q: They would surely have asked to see the tape that you told them about it?
A: Perhaps they would have.
Q: Isn't it a bit more definite than perhaps?
A: I suggest that they would have. They would have asked to see the tapes." [T 5959].
1080 Appeal grounds 64, 70, 71 and 72 significantly rest on the premise that it was an appellable error on his Honour's part to conclude that Quail, as a contracted consultant producer with the appellant and having substantial information in his possession, should have handed it over pursuant to his obligations under the agreement. That premise misses the point that the information should have been sought by the appellant as part of a reasonable process of verification. The appellant sought to support it by saying that O'Donnell took the position that the appellant should be critical about all the material, that it should not accept it until "we on the Witness programme had tested it for ourselves" [T 5391], and that "Well in my mind, it was important for us to do our story, our own investigation. Whatever anyone else had done was irrelevant so far as I was concerned." [T 5479]. We observe that you cannot "test" something if you choose not to avail yourself of its contents. Nonetheless, that approach, according to the appellant, made the appellant's conduct reasonable conduct in terms of s22(1)(c) and his Honour should have accepted this. We do not agree.
1081 His Honour concluded that the conduct of O'Donnell and McClellan in failing to obtain Exh AO from Quail was unreasonable, and that the belief forming process of everyone was affected by the failure to call for and examine the material Quail could provide (particularly Exh AO), with the further finding that proceeding to publish without the reference to Exh AO was unreasonable [J 4412 to 4415].
1082 In our opinion, no error has been shown under grounds 64, 70, 71 and 72.
Appeal Ground 65: Russell
1083 It is important to identify precisely the ground of appeal. The appeal is against his Honour's finding that "the inclusion of the segment of Russell was unreasonable", such finding being according to the ground of appeal "contrary to the evidence and to the weight of it". It is then said that his Honour "should have held that the inclusion of this segment and of passages from Exh 128 was reasonable in the circumstances, and constituted directly relevant information concerning Russell and the respondent." Russell is not relied upon for enquiries from him supporting a case of reasonableness in terms of s22(1)(c). Perhaps the appellant would rely upon him for appeal ground 73, asserting in general terms that "the conduct of the appellant in publishing the programme Witness was reasonable in the circumstances", but no specific mention was made of enquiries from Russell.
1084 His Honour's conclusions to which the appellant's written submissions are directed are set out at J 4432 to J 4435. There is some reference back in those paragraphs to the earlier analysis of Russell's information contained in what is predominantly a description of the arguments put by the appellant and the respondent in J 3621 to J 3656. We refer in particular to the respondent's submission recorded at J 3643 with which his Honour specifically agrees with -
"3643 O'Donnell agreed that as he listened to Russell talk he carried with him the assumption that he was a pederast who had sex with boys at Costello's and was the lover of Tregurtha. Yet, as the extract in the previous paragraph shows, O'Donnell appears to be saying that, notwithstanding his assumption that Russell was a pederast, he believed Russell had a right not to incriminate himself in relation to his criminal conduct. If this is correct, it seems "incredible" that the [appellant] was prepared to publish extremely damaging allegations by Russell against the [respondent]."
1085 It is clear from reading his Honour's conclusions [J 4432 to 4435] that he essentially adopted the respondent's submissions.
1086 To give context to his Honour's findings, it is first necessary to give a brief outline of the material which Davis obtained from Russell. It will be remembered that Davis gave no evidence in support of the appellant's case.
1087 The appellant's submissions before his Honour referred to the information relied upon by O'Donnell, McClellan and Quail which led them to conclude that Russell was truthful and therefore that the appellant's conduct was reasonable. These were as follows: the contents of the interview on 18 February 1996 [Exh 128]; the statutory declaration of 11 April 1996 [Exh 36]; and that -
"as barman, Russell knew all about Costello's and saw the [respondent] with a few young boy prostitutes around The Cross and on three or four occasions in Costello's; he described an incident where McKnight [alleged to have had sexual contact with the respondent in May to June 1975 when allegedly aged 14 or 15 and working as a male prostitute at Costello's, denied by the respondent] complained of rough sexual treatment by the [respondent] at Costello's; he was able to fix the occasional reference to an event when McKnight was hidden by Russell during a police raid; Russell was plausible, did not exaggerate or embellish responses to questions; Russell had nothing to gain in telling the story; his story was consistent with others in that the [respondent] was a generous payer and used amyl nitrate and was violent; he remembered the [respondent's] nickname as Madge, consistent with others." [J 3620].
1088 The particular segment shown on Witness that was taken from the tape [Exh 128] is quoted below, and is to be found in the Witness programme at lines 232 to 245; his Honour [J 3623] quoted the respondent's brief analysis.
1089 The relevant passage in the Witness programme, corresponding to the passage in Blue 566 -
"Journalist: Did you ever see John Marsden picking up boys in there?
Alex: I saw him with quite a few young prostitutes around the Cross, but there was a few times that he was actually at Costello's when, when he'd be introduced or some kid would be introduced to him and they'd leave and get in the car and drive away. Now I know one incident when he took one upstairs. He was introduced to a kid called Mark. After it the boy came down very distressed and said that, to um, the fellow that had introduced him that what sort of mongrel or arsehole he was because he had treated him badly.
Journalist: He being John Marsden?
Alex: Yeah, had treated him roughly."
1090 His Honour in a careful review of the evidence pointed to a number of matters which led him to conclude that the appellant's conduct in publishing Russell's material was unreasonable [J 4432 to 4434].
1091 Essentially his Honour accepted the respondent's submissions, set out by his Honour in some detail at J 3621 to J 3626. It must be remembered that his Honour had the advantage of viewing Russell as a witness. At J 4432 to J 4435 his Honour indicated why he eventually concluded that
"on no reasonable basis, or rational basis as the appellant insists, could any view held by O'Donnell or Quail or McClellan of Russell as a credible witness be sustained in the light of the factors to which I have referred. The use to which they put Russell as one of the respondent's accusers in the programme was false in the term of the image of him presented and hypocritical in terms of the approach exemplified by the witness O'Donnell to Russell's credulity [sic] and honesty of motives." [J 4435]
1092 The gravamen of what the appellant sought to derive from Russell was summarised by his Honour [J 3623] as follows:
"3623 At page 9, Russell said that the [respondent] was introduced to a kid called Mark [McKnight] and paid money and took him upstairs. After a while, the boy came down in a distressed state and told Russell that the [respondent] had treated him roughly. Davis failed to ask him: when this incident was; whether anyone else could verify its truth; how he knew that McKnight was then 14 years old; whether Russell knew the whereabouts of McKnight so he could be contacted; the date of the police raid said by Russell to have occurred 3-4 weeks earlier (p23 of the transcript) and whether this could be checked by any records available; whether the date of the police raid could be corroborated by anyone else."
1093 At J 4432 to J 4434 his Honour then explained the basis for concluding as he did at J 4435. It is convenient that we set out his Honour's reasoning, with the parts in square brackets added by us from the evidence accepted by his Honour concerning Tregurtha and Russell and the assumption made by O'Donnell and Quail concerning that relationship:
"4432 The [respondent] has analysed the material in relation to Russell (see paragraphs 3621 and following above). I find the [appellant]'s conduct in publishing Russell's material unreasonable on this basis: notwithstanding that Russell himself was an admitted user of under age boys for sexual purposes, notwithstanding Russell's equivocal response to the question about Tregurtha ("mainly platonic"), [Mr Tregurtha was "assumed" by O'Donnell (see his document Exh 124) and Quail - Davis' position is unclear - to have had an underage sexual relationship with Russell at Costello's (where the former was the barman) at around the relevant time with Russell, T 5497.5] notwithstanding that the [appellant] made assumptions (O'Donnell's memorandum), notwithstanding that at the end of the day the vague description of the "Mark" incident, notwithstanding Russell's assertion as to the [respondent's] generosity as to putting people in a flat and giving them money, Russell was presented in the programme as nothing more than the barman, the person "at the centre of things" without the slightest hint of his own involvement. The [appellant] knew through Quail and O'Donnell (one cannot comment on Davis - he was not called) that from the mouth of Russell he was no different to anyone else who attended Costello's, yet they presented him as the "good guy," the "father figure" for the abused young boys.
4433 Whilst the issue of whether Russell in fact had sexual relations with Tregurtha need not be decided in this case, the [appellant] formed the view that he had, it came to that conclusion by way of an "assumption." Otherwise, it knew of his actual sexual misconduct; it made no independent inquiry about that to determine whether there was a foundation for a reasonable belief in what Russell was saying about himself let alone about anyone else. At the end of the day, it was the presentation of Russell almost as the innocent bystander or observer in his capacity as being Russell or "Alex" the barman, a false picture, a picture contrary to the information by way of actual knowledge or assumption that the [appellant] had and thus, in my view, was unreasonable. I reject the [appellant's] submission that the subject of Russell's sexual conduct and sexual relations did not arise; they clearly did.
4434 I agree with the [respondent's] submission (see paragraph 3643 above) that O'Donnell's position vis-a-vis Russell was "incredible" if not hypocritical. He "carried the assumption" that he was a pederast, had sex with boys at Costello's, was Tregurtha's lover; he believed Russell had no right to incriminate himself in relation to his criminal conduct, yet he was used to publish the allegations (extremely vague though they were within the text of Russell's own interviews against the [respondent]). I agree that Russell was permitted to be presented on the programme as a person making accusations against the [respondent] when in fact he himself was a confessed pederast. The mockery of the [appellant's] position, as pointed to by the [respondent], was that Russell was presented as I have said as the good father-like figure who really could not explain what happened with Tregurtha. Yet the [appellant] knew that he had been in a relationship with Tregurtha ("mainly platonic"), that Russell was a pederast, but believed him to be truthful because he was "credible" and would not otherwise be expected to incriminate himself (whereas in fact he had)."
1094 In sum, his Honour found inclusion of the segment and of the relevant passages from Exh 128 as not reasonable in the circumstances by reason of the hypocrisy that he found in the suggestion that Russell was simply a fatherlike figure to whom young boys could confide whereas in fact he was accepted by the appellant to be a pederast.
1095 In our opinion it was well open to his Honour to find that the inclusion of the Russell segment in the programme in the manner it was gave a false picture, and to take that into account in concluding that the appellant had not acted reasonably.
Appeal Ground 66: respondent's denials and publication without his response.
1096 The essence of this ground of appeal was that his Honour failed "to give due weight to the evidence as to the significance of the respondent's denials published on other occasions, and to the inclusion of his denials in the programme Witness", such that his Honour should have found that not inviting the respondent to respond was reasonable in the circumstances.
1097 Again, the appellant invited this Court to substitute its own view of what weight should be given to the evidence for that of his Honour, on this occasion in relation to the significance of the respondent's denials and to their inclusion on the programme Witness. Here, it is clear that trial judge accepted the submissions of the respondent concerning that issue; see J 4443 referring back to denials in J 4442 and the connection between the issue of denials and the issue of the unreasonableness or otherwise of the failure to give an opportunity to respond to the respondent.
1098 The submissions of the parties are set out at paras J 3782 to J 3805, as also is the relevant factual background.
1099 His Honour referred to the appellant's submissions as providing three reasons why the respondent was not provided with an opportunity to respond:
"The [respondent] had previously published denials; the [appellant] maintains that it was enough that a number of archive clips of the [respondent] denying under-age sex were published on the programme; the [appellant] received legal advice to the effect that it was not necessary to give the [respondent] a right to respond personally." [J 3781]
1100 The appellant identified the respondent's published denials, as recorded by his Honour, as being:
"the Press Conference, the 7.30 Report; the Robson article; the defamation proceedings against To-day Tonight; and the seeking of an injunction against Witness (reported along with the [respondent's] denial in the Sydney Morning Herald of 7 May 1996"; [J 3782].
1101 His Honour then recorded the respondent's submission that "the Press Conference, the 7.30 Report, the Robson article were all published well over a year prior to the Witness programme", so that
"... it cannot be suggested therefore ... that a general denial of under-age sex more than twelve months previous to the Witness programme could be regarded as a reasonable opportunity for the [respondent] to respond to the allegations in the Witness programme"; [J 3783].
1102 His Honour then recorded that the appellant had no intention of letting the respondent know that it was about to publish the Witness programme and referred to para 9 of Exh 140, being advice of Freehills to the appellant, "not to approach the respondent too early (if they decide to approach him) otherwise he might seek to stop the broadcast".
1103 When the respondent, as his Honour said, found out by other means and then attempted to restrain publication it was [J 3783]:
"... not for the [appellant] to say that because the [respondent] tried to stop publication that this effectively informed the public that he denied all allegations of under-age sex and therefore there was no need to invite him to respond to the specific allegations".
1104 Moreover, his Honour recorded that the appellant also submitted that "between the time of the injunction application on 23 April 1996 and publication on 7 May, the respondent did not contact Witness to respond to any specific matter raised in the programme", such "that the [appellant] had completed production of its programme and had no intention of inviting the respondent to comment at that stage". The submission went on to say that, "if it had such intention, it would have published the [respondent's] denial on the Sydney Morning Herald of 7 May", so that "the [appellant] cannot therefore rely on the Sydney Morning Herald to ensure that its conduct was reasonable" [J 3784].
1105 As to the presentation of the denials by the respondent, his Honour recorded that "it will be seen that the denials were strategically placed so that they served either as a form of identification of the complainant or an opportunity for the complainant to call the [respondent] a liar. The denials, the [respondent] submits, were not published for the purpose of presenting the [respondent's] response" [J 3785].
1106 Thereafter his Honour [J 3786 to J 3795] recorded the mode of presentation of each denial. A good illustration of this is the first example where his Honour accurately described what occurred -
"[I]n the lines preceding the [respondent's] statement (Press Conference) at 111, a photograph of the [respondent] is shown on screen with darkened edges and the camera slowly moving closer to the photograph in a "sinister" manner. As this is occurring Davis informs viewers that the [respondent's] accusers say he is a paedophile [line110]. The [respondent's] denial is then shown and this is used as a device for Stals to identify the [respondent]"; [J 3786].
1107 His Honour quoted the respondent's submission (later accepted, as we have already noted),
"That the [appellant] cannot have it both ways by saying that visually this was a means of identification, structurally a denial. The ambiguity and meaning cited by the [appellant] illustrates that this segment would not be interpreted by the viewer as an opportunity for the [respondent] to respond but, rather, footage of the [respondent] available for Stals to look at and identify him."
1108 Fundamentally, the argument put to his Honour by the respondent and accepted by him was that the point of the programme was that these were fresh allegations, yet the footage shown relied on denials of a general character issued earlier such as the 7.30 Report. Davis responded, following the publication of the respondent denying that so far as he knew he had never ever slept with anyone under-age, by saying that the story (containing fresh allegations) should cause "many people to re-think their support for him" [J 3791]. Thus, as was again recorded by his Honour, "The [appellant] utilised old footage of the respondent's denial as a device to then accuse him of new allegations to which he had not been given an opportunity to respond" (lines 159 to 166).
1109 Perhaps the most deliberately wounding was the brief clip shown of Fahey stating that the allegations "were vile, unsubstantiated accusations" with him then being "cut off" followed by Davis asking Stals what he thinks about the fact that the respondent looked after Fahey's children. His Honour quoted Stals' response, "That Fahey must be an idiot to allow his children to bounce up and down on the [respondent's] lap" and adds, "By inferring that the [respondent] would be likely to sexually molest very small children, this went further than other allegations" [J 3792]. Thus his Honour referred to the respondent's argument that "putting in the Fahey segment provided Stals with an opportunity to attack the respondent" [J 3793].
1110 Quoting again from his Honour [J 3794], -
"Davis says that the [respondent] maintained that so far as he knew he had never had sex with anyone under-age. In the same sentence Davis informed viewers that no one the [appellant] spoke to, including Bill, could ever the recall the [respondent] asking how old they were. Stals then responds by saying that the [respondent] as a solicitor would know very well that he should never ask people's ages otherwise it would be clear that he knew that he was breaking the law. This, the [respondent] says, was not a balancing process allowing the [respondent] an opportunity to respond but a device to enable Stals to further accuse the [respondent]." [J 3794]
1111 The final aspect of denial was at line 211 involving the source or informant Lewis. His Honour recorded [J 3795] that "Davis asked Lewis what his opinion was of the [respondent's] statement that, so far as he knew he has never had sex with anyone age. `Unsurprisingly Lewis branded the [respondent] a liar.'" His Honour then quoted the respondent's submission that "all of these so called opportunities to respond were no more than opportunities for provoking further accusations, says the [respondent]." His Honour quoted from a telling passage of cross-examination of O'Donnell at this point [J 3796 (T 5442)] -
"Q. And it therefore gave you the opportunity to call Mr Marsden, on television, a liar. You have so far called him a pederast and a child molester, now you are calling him a liar, right?
A. Yes."
1112 Thus, though the respondent did in fact see a tape of the programme ahead of its publication at the injunction proceedings and prior to the broadcast, it still, as the respondent contended, "had been difficult for the respondent to give evidence as to what he would have said had he been given an opportunity to respond, when this would have depended entirely on the nature of the opportunity given to him" [J 3798]. Indeed, he would not as his Honour pointed out, have known who "Bill" was, as the respondent did not know his identity. Moreover, again as his Honour pointed out, Pearce and Lewis were disguised and the allegation by Russell was in respect of someone called "Mark" so that the respondent would not have been informed by the tape of the identity of his accusers, thus denying him the opportunity for any real response in any event [J 3797] citing the respondent's submissions later accepted by his Honour [J 4443].
1113 Reviewing the reasoning of his Honour in accepting the respondent's submissions, we find no appellable error in his Honour reaching the conclusions he did. It is self-evident that in publishing new allegations against the respondent, the publication of historic denials of a general character, the so-called "encyclopaedic denial", was as his Honour concluded "completely inappropriate" [J 3797]. For a denial to have proper veracity, it would have to be more than a statement in general terms. Rather it would need to deal with the specific allegations and their factual accuracy, in a way that presented the allegations so as to identify the accusers and give sufficient particularity for there to be a genuine opportunity to deny the allegations and in that connection respond. His Honour properly recognised the absence of that opportunity.
1114 The appellant's written submissions on the appeal repeat arguments presented at trial, and gain nothing by their repetition. This is a further instance of the appellant inviting this Court to replicate the trial process but reach the opposite conclusion to his Honour, whilst failing to demonstrate any appellable error. We consider that it was open to his Honour to conclude both that the denials as provided on the programme were inadequate, and that they did not obviate the unreasonableness of the appellant's conduct in failing to provide a proper opportunity to respond.
1115 Indeed, the effect of the legal advice provided from Freehills, as his Honour recorded, [J 3803], was to the effect that the appellant had to seek the response of the respondent, though only if it wished seriously to consider the defence of qualified privilege. This advice, as noted on a copy of the script consisting of Exh GH which contained all the so-called responses by the respondent, ["truth or nothing, QP only if you go to Marsden"] made it clear that prior to publication the appellant knew that the responses were not enough [J 3803 and see also elaboration of the earlier legal advice as recorded in J 3801 to J 3802].
1116 This evidence and the other material before his Honour, led his Honour to the justifiable conclusion at J 4447:
"4447 I find that the [appellant] deliberately decided not to approach the [respondent] and I am prepared to accept that at one point a reason for not approaching him was that he might take the action that ultimately he did take namely, to seek to restrain the publication. I find that the [appellant] never intended to approach the [respondent] but that its reasons for doing so were unreasonable. These reasons were founded in the responses to the 7.30 Report statement, unreasonable in themselves, and otherwise consistent with an intention to defame - not in a balanced programme but with an intention to use the denials as Aunt Sallys to be knocked down by the complainant's assertions. The failure to provide the [respondent] with an opportunity to respond was unreasonable, not because it was not made, but for the reasons it was not made to which I have referred.
We conclude that appeal ground 66 fails.
Appeal Ground 68: Enquiries
1117 Here the appellant relied upon what it described as "the totality of the information obtained by the appellant's servants and agents" as requiring that his Honour "should have held that it was reasonable to publish the programme Witness without taking further enquiry" and "further, he should have held that failure to make further enquiry was not unreasonable in the circumstances".
1118 His Honour's reasoning in relation to To-day Tonight about the criticality of the temporal element in relation to the imputation of sex applies equally here. This is with its corollary that allegations of such seriousness as these, and in the circumstances that were applicable, meant enquiry had to go beyond the mere say-so of each source or informant. J 4453 quoted earlier lists the reasons which caused his Honour to conclude that the appellant failed on the statutory defence under s22 in failing to satisfy his Honour that its conduct in publishing was reasonable. The first reason is earlier dealt with, namely the failure to examine the information that Quail had, prior to the broadcast. The second, germane to the present ground of appeal, is "the failure to make any independent enquiry given the gravity of the imputations intended to be conveyed as to the critical temporal component". The third and fourth reasons have already been dealt with, namely reliance on the denials and failure to provide the respondent with an opportunity to respond.
1119 In dealing with the failure to make independent enquiry, the starting point is to identify again the sources or informants relied upon for the Witness programme, noting those relied upon for both programmes and those solely relied upon for the Witness programme.
1120 Pearce, Kinchela and Tasker were relied upon in relation to both Witness and To-day Tonight. The deficiencies in relation to their accounts have already been identified and there is no need to rehearse then again in any detail.
1121 Briefly in relation to Pearce, his Honour added no further comment to the critical comment already made in relation to To-day Tonight, beyond remarking in the context both on Pearce and the other witnesses that "nowhere to my recollection or certainly not as a matter of routine, was a single enquiry made of a complainant as to the year in which the complainant says that at the age of 14 or 15 the relevant event occurred" [J 4423]. It will be recalled in relation to Pearce that the deficiencies in the investigation included failure to accord weight to Pearce's statements that the respondent "seemed kind" with its stark contrast with the allegations made by Kinchela on To-day Tonight [J 3593], failure to undertake independent checks to verify Pearce's credibility and in particular to enquire how he could be sure he was under 18 at the time of contact with the respondent [J 3597 to J 3604], failure to undertake any temporal checks regarding the death of Pearce's father (said to be when Pearce was 8) when verification of the date of which would have at least indicated whether Pearce was likely to tell the truth in general though not directly relevant to the imputations [J 3595], failure to utilise information available from the To-day Tonight programme to view background material on Pearce [J 3597], according weight to the notion that nothing about Pearce's demeanour would engender in a fair-minded person suspicion or distrust [J 3600], and finally, according too much weight to the superficial consistency of evidence between Russell, Pearce and Stals about Costello's [J 3601]. It is the cumulative effect of these failures which is significant in assessing reasonableness.
1122 The deficiencies of Kinchela's and Tasker's accounts have been dealt with earlier.
1123 Turning to Lewis, who also spoke of activities at Costello's, there was the failure by the appellant to ensure that Lewis could really identify the respondent and the inadequacy of any record keeping regarding the photographs concerning the respondent's identity and the vagueness of Lewis' evidence generally as to Lewis' knowledge of the respondent having "sex with other kids" [J 3608 to 3615], there was failure to take into account that Lewis specifically stated that he had never had sex with the respondent and never saw the respondent having sex with anyone [J 3609 to 3610], there was the appellant's reliance on Lewis' vague and unsatisfactory assertion that he "used to get told" about the respondent engaging in under-age sex [J 3610 to 3611], there was the appellant according weight to Lewis' allegation that he saw the respondent at Patches on the Beach at Coogee without making basic enquiries as to how Lewis could be sure that that person was the respondent [J 3614], there was its failure to take into account that Lewis did not remember the respondent's nickname and only claimed to remember after he was prompted [J 3615], there was its failure to take into account Lewis' unreliable memory about his days at Costello's [J 3616], there was the appellant according too much weight to a statutory declaration signed by Lewis as a substitute for proper objective checks [J 3617], there was the appellant according too much weight to Lewis' ability to give a detailed description of Costello's and the fact that he remembered Russell, Tregurtha and the Murphy brothers [J 3618], and finally, there was the appellant according weight to Lewis' ignorance of the Grusovin allegations as evidence of the truth of the information he provided [J 3619].
1124 His Honour recorded [J 4424] that he was "unable to judge in relation to Lewis, by reason of the absence of Davis especially, the nature of the identification process" of the appellant.
1125 In relation to Homes the evidence was that Quail visited Homes unaccompanied at Grafton gaol on 9 April 1996 [T 5883] and again on 14 April 1996 in the company of Homes' wife and children [T 5885]. What impressed Quail, according to his evidence in chief, about Homes was his ability to draw a plan of Costello's and the nomination of its owner's unit in Balmain. The audio tape that was made by Homes was sent by Homes directly to Quail being Exh 136A [T 5431]. The taped transcript at p6 had Homes naming the respondent, along with five others, as people who attended Costello's and "went with" boys. That evidence is inconsistent with the information given by Stals and others that the respondent did not frequent Costello's.
1126 At p9 of the tape Homes stated that he knew of a boy named Danny who hanged himself in prison, and he said that he knew two named persons and the respondent had "gone off" with Danny. As his Honour records [J 3748], "there is no evidence of any questions being asked or investigations being undertaken to verify the truth of this allegation." His Honour added that the allegation was accepted by O'Donnell who said "the picture he described tallied with that of the other witnesses we had", but that there was no evidence of any question being asked of Homes by Quail as to whether any of the matters concerning the respondent could possibly be verified or checked independently.
1127 In relation to Tasker, his Honour concluded that, having met the respondent in May 1992 when Tasker was just under 24 years old, "his relationship with the respondent had no relevance to the imputations" [J 3760]. As to the so-called "modus operandi" of picking up a person from a known pick up spot, marijuana, amyl nitrate and alcohol, these did not point to under-age sex or obviate the need for the further enquiry. They were in themselves, according to O'Donnell, significant in that as to marijuana the respondent was "a man prepared to break the law". His Honour noted the respondent's submission that a surprising number of people break the law when it comes to marijuana [J 3761], and that it is difficult to see how O'Donnell saw this as so damming of the respondent's character or significant to whether the imputations conveyed by the programme were true.
1128 As for Stals, apart from the lack of credibility for his allegations generally by reason of the "wild" allegations earlier referred to, when professionally interviewed by the Witness team, as his Honour points out, he did not merely hint at but expressly stated, "that he was able to identify the respondent by reason of another relationship". His Honour described it as "reckless journalistic practice" in information gathering to fail to make any enquiry about how Stals was thus able to identify the respondent [J 4422]. The other deficiencies in the account given by Stals relates to the lack of credibility attached to the fantasising regarding "Fat Jack" [J 3685]. There was also the failure to obtain the Stals' interviews from Quail, as well as the fact of interviewing Stals while he was under the influence of alcohol [J 3695], there was failure to undertake any temporal investigations as to Stals' age [J 3705], there was failure to verify with Stals whether he was ever a resident of 29 Roslyn Street [J 3706], there was failure to take into account the inconsistency of evidence between Stals and other witnesses regarding the respondent frequenting or not frequenting Costello's [J 3707 to 3708].
1129 We do not think it necessary to go further into these matters. When one considers the lack of substantiation or veracity in the areas indicated in the accounts of these sources or informants, there was ample basis for his Honour to reach the conclusion he did about the necessity for further enquiry. Accordingly, appeal ground 68 must fail.
Appeal Grounds 67 and 69: Honest belief of the journalists
1130 These grounds of appeal do not relate to Davis. It is necessary, however, to bear in mind Davis as well as Quail, O'Donnell, McClellan and Manning who are referred to in the appeal grounds. More precisely, O'Donnell, McClellan and Manning are referred to in appeal ground 67 as to it being reasonable for each of them to conclude that each informant was credible and that this information was reliable [J 4456] and as to appeal ground 69 reference is made to Quail, O'Donnell, McClellan and Manning where it is said (once again) that his Honour acted against the evidence and the weight of it in concluding that they lacked an honest belief in the truth of the information and/or the truth of the imputations. [J 4455-6]
1131 Turning first to Davis, his Honour [J 4454] said that as Davis was not called without any acceptable explanation being given, and was a vital component of the Witness team even if he did not have a part to play in the decision to publish, "the [appellant] has been unable to prove that Davis had an honest belief in the truth of the information with which he was dealing or the imputations ...".
1132 The appellant stated as to Davis that, "there is ample evidence for the inference that he held an honest belief in the truth of the information and the imputations, and His Honour should have so found." [AS 113]. That is simply a bare assertion which fails to identify any appellable error in relation to his Honour's conclusion concerning Davis. We do not think the conclusion should be overturned.
1133 The appeal grounds seek first to attack his Honour's finding at J 4456 which we quote below:
"4456 As to O'Donnell, McClellan and Manning their belief was affected by the failure to make proper objective independent inquiries and the belief they held as to what the [respondent] was saying in the 7.30 Report. O'Donnell was prepared to work on assumptions in relation to Russell notwithstanding information available to him that Russell was an active participant in the under age sex at Costello's. The belief he had as to the truth of the information and the imputations conveyed was unfounded on any rational and reasonable basis. By reason of the matters to which I have referred as constituting flaws in the process of reasoning on the part of O'Donnell, McClellan and Manning I have not been persuaded that in the strict sense they had an honest belief. Reasonableness does involve something more than honesty which must be tested against the information had and the attitude the respective persons evolved towards it and certainly in the case of McClellan and Hall that is infected by their response to Mr Marsden's "qualified" denial."
1134 We have earlier noted the trial judge's use of the notion of honest belief in relation to the To-day tonight programme. We think his Honour used the notion in the same way here, by referring to honest belief "in the strict sense" and to no rational or reasonable basis for the belief showing that he meant that the beliefs were undermined by reckless indifference. His Honour really meant, we think, that the beliefs were not reasonably held and so did not comport with reasonableness of the appellant's conduct in publishing the imputations.
1135 So understood we are not persuaded that there is any appellable error identified in his Honour's statement that he is not persuaded of the existence of an honest belief. We agree that the reference to Hall appears to be in error and that the reference should have been either to O'Donnell or Manning, though we do not consider that anything turns on that. What matters, again, is that the conduct informing the beliefs was not reasonable, so much so that the trial judge did not think they could be described as honest beliefs.
1136 Appeal ground 69 is also particularly directed at the finding concerning Quail at J 4455, which is in the following terms:
"4455 As to Quail, notwithstanding that the [appellant's] unsuccessful attempt to distance him, the [appellant] led evidence from Quail as to his honest belief which I am not prepared to accept as available as a matter of fact or as available on a reasonable basis by reason of the reckless failure to make inquiries especially in relation to the temporal component, and especially in relation to the information that Quail had with respect to Stals."
1137 On a similar basis, again we see no appellable error in his Honour's conclusion concerning Quail. It says that by the words "as a matter of fact" the trial judge meant that he also did not accept that Quail subjectively believed that the imputation were true. His Honour took a dim view of Quail, see especially J 4475-7 and his conclusion that Quail deliberately withheld Exh AO in order to promote Stals as a credible witness. There were grounds on which his Honour could decline to accept Quail as to subjective belief and he had the benefit of seeing Quail give evidence. In that respect also we do not think appellable error has been shown.
Appeal Ground 73: Generally as to reasonable conduct.
1138 The appeal ground is expressed generally and unhelpfully. It can be given effect only as the outcome of the preceding more particular grounds. However, the appellant's written submissions took issue with what is said by his Honour at J 4450-1.
1139 It will be apparent from our earlier conclusions that, as the outcome of the more particular grounds, this ground does not succeed. The narrower ambit of what was put in the written submissions is no more successful.
1140 At J 4450 his Honour dealt with those aspects which he found to be unreasonable "in terms of the manner and form of the programme". The issue was whether, as earlier elaborated by his Honour [J 3738 to J 3739], the depiction of Stals on the Witness programme as having been viciously raped with the later juxtaposition of the references to the respondent would leave viewers "with the impression that there is a connection with the distressing and degrading conduct described by Stals and the [respondent]" [J 3739]. His Honour noted that, as was the fact, that the only rapist Stals ever referred to in his interviews from which the programme was derived was Mr Brown. Yet there was no mention in the Witness programme as to the identity of the rapist, leaving viewers capable of concluding that the respondent was somehow involved. The trial judge thought there was, unreasonably, an "objectively clear implication by Mr Stals of the [respondent] in relation to the rape".
1141 The appellant acknowledged in the written submissions that, as his Honour said, this is a matter of impression. But it still took issue with whether the ordinarily reasonable viewer would derive the same impression as did his Honour. In identifying appellable error, as the appellant must, we can find no basis for doing so.
1142 At J 4451 his Honour said -
"The second matter was Mr Stals' reference to Fahey's children. This was a sensationalist matter irrelevant to the imputations that the [appellant] intended to convey, namely, the [respondent] having had sexual relationships with under-age boys, 13, 14 or 15 according to the programme."
1143 The appellant in its written submissions (paras 120 to 124) attempted to find appellable error, saying -
120 As to the reference to Fahey's children (¶4451) it is submitted that viewed and understood in context it is not reasonably open to describe it as "sensationalist matter irrelevant to the imputations" intended to be conveyed.
121 The segment is in Exh L lines 167-182 (6 Blue 1331U-1332P).
122 Questions of reasonableness and relevance as to manner and form do not become ones of personal taste for the trial judge.
123 The reference to Fahey is relevant to, and an example of, the true description of the Respondent given earlier in the programme as a person with friends in the highest places, and to the question raised that many in public life might rethink their support for him. Stals' reference to the children is made in direct response to a public statement made by Fahey to indicate his support for, and trust in, the Respondent. (Exh L lines 169-179, 6 Blue 1332D-N). Stals' reference is obviously by way of riposte in that he considers Fahey's trust to be misplaced.
124 Having regard to the programme as a whole, the inclusion of this statement does not evidence unreasonable conduct in publishing. His Honour's adverse finding should not be sustained."
1144 We do not consider that his Honour indulged personal taste in reaching the conclusion he did. The reference to Fahey imputed to the respondent, with no justification, that he might betray the trust of a friend by indulging in sex with his children, being children much younger than those in respect of which the imputations were made. It is difficult to imagine a more wounding statement or one more calculated to vilify the respondent. It could not be justified as a response to Fahey's statement in support of the respondent, though it does serve to indicate that the insertion of Fahey's statement was not, in fairness to the respondent, to state a denial but rather to enable the appellant to make a further attack on the respondent as one unworthy of Fahey's trust. It was an appalling thing to do, and his Honour was entitled to take of it the view he did.
1145 In similar manner to the Today-Tonight programme, we do not think the appellant is assisted in relation to reasonableness as to the Witness programme by our viewing of the tapes of interviews.
COMMON LAW QUALIFIED PRIVILEGE: THE LANGE BASIS
Appeal Grounds 74 to 79 - To-day Tonight programme and Witness programme.
1146 The appellant's appeal grounds proceeded on the basis that his Honour correctly found that the broadcast of the To-day Tonight programme was relevant to the discussion of government or political affairs so as to attract the application of the principles in Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520, and that the requirement of reciprocity of duty and interest was established for this purpose [J 3938]. Roberts v Bass is the most recent occasion in which the High Court considered the extended defence of qualified privilege based on Lange. The joint judgment of Gaudron, McHugh and Gummow JJ affirmed the principles enunciated in Lange, though with the possible caveat that "in some respects the court's development of the law of qualified privilege extended beyond what is required for conformity with the constitutional norm" (at [68]). The respondent did not cross-appeal in relation to this availability of the extended defence of qualified privilege based on Lange.
1147 The defence of qualified privilege based on Lange was described by his Honour in these terms [J 3833]:
"... where the occasion of qualified privilege arises solely by reason of the relevance of the matter published to the discussion of government or political matters and the conduct in publishing the material giving rise to the defamatory imputation is reasonable, there will be a defence of qualified privilege for that publication."
1148 The necessity that the conduct in broadcasting the programmes be reasonable means that, in the light of what we have already said, the defence will not avail the appellant as to the To-day Tonight programme, and would not avail the appellant as to the Witness programme even if we were to hold that his Honour was in error in not finding that the Witness programme attracted the defence. We think it nonetheless appropriate to address the grounds of appeal in that respect.
1149 As to the To-day Tonight programme, his Honour said:
"After much consideration I have come to the view that Today Tonight constitutes a publication within the rubric of the High Court's declared principles. I say that because the imputations, though discrete in their language, have been found as being carried about a person whose occupancy of public office was clearly stated to be being brought into question by the allegations giving rise to the imputations, and in a context where the initiating event took place in Parliament, the response took place in Parliament House in a public press conference by the [respondent] at the time the holder of the office of Member of the Police Board." [J 3938]
1150 In relation to the Witness programme, his Honour found as a crucial difference that, unlike the position at the time of the To-day Tonight programme, the respondent had ceased to be a member of the New South Wales Police Board to which he had been appointed by the Executive Council. It thus follows, at least by implication that his Honour considered that the respondent's Presidency of the Council for Civil Liberties and his position as past President of the Law Society of New South Wales were not of themselves sufficient to render the Lange qualified privilege defence capable of application to the Witness programme. The latter two offices and the respondent's status as a public figure were factors relied upon by the appellant in its submissions to this Court as characterising (contrary to the view of his Honour) the subject matter of both broadcasts as discussion pertaining to government or political matters, so involving the Lange qualified privilege.
1151 Thus as to Witness, in coming to the opposite conclusion his Honour said:
"3943 As to Witness, I cannot come to the same conclusion. What I would describe as the "political/ government/ element," the suitability for the then held public office had disappeared - [the respondent] had stood down, his Presidency of the Council of Civil Liberties was still irrelevant as was his former status prior to 1995 as President of the Law Society of NSW. Insofar as there is a reference to his having held the offices referred to (see lines 106 to 110 of Exhibit L) they are minimalist, historical material, as is the reference to the Grusovin allegation at line 160 and the DPP at 162 as is the reference to Fahey (by that time a Federal Minister) at line 169, - almost anecdotal and insufficient to provide within the publication itself pointers to the discussion of political and government affairs. They are but nothing compared to the bulk of the programme being the personal defaming of [the respondent] as found by the jury by reference to the allegations, "the fresh allegations" of sexual misconduct. The "political/governmental" component had been and gone. Witness was a new and personalised programme about the [respondent] and Costello's without, I find, the requisite connection to any of the matters to which Lange points."
1152 The bases for the appellant's submission to his Honour that the Lange common law qualified privilege was applicable were -
(a) each imputation alleges anti-social and illegal conduct by the respondent;
(b) Grusovin, a member of State Parliament, made statements prior to publication that related to the respondent's sexual conduct and suitability for public office. In a statement made at New South Wales Parliament House, the respondent attacked Grusovin in a public manner accusing her of abusing parliamentary privilege;
(c) the respondent was a member of the Police Board and President of the Council for Civil Liberties and past President of the Law Society;
(d) the respondent held influence amongst politicians including Mr. Hannaford and Mr. Pickering;
(e) the publication was a matter of public concern.
1153 From the stated conclusions of his Honour, his Honour did not see as significant the respondent being President of the Council for Civil Liberties and past President of the Law Society, or the generalised influence amongst politicians. His Honour saw as significant the respondent's membership of the Police Board, as an appointment by the executive government, and the parliamentary context. Both were absent at the time of the Witness programme.
1154 The appellant attacked his Honour's basis for applying the Lange doctrine as unduly narrow; that is in attaching significance to the fact that at the time of publication the respondent had stepped down from his office as a member of the Police Board to which he had been appointed by the executive government. The appellant contended that his Honour was wrong in doing so, and in particular that he erroneously found that:
(a) the publication of Witness lacked the "requisite connection" with government or political matters, because at the time of the publication the respondent no longer held a public office, and
(b) the programme itself lacked "pointers to the discussion of political and government affairs".
1155 The appellant relied on the content of the programme as raising for discussion the respondent's fitness for the public position he had previously held, being in the recent past. The introduction in the programme to the matter concerning the respondent is in Exh L, lines 102 to 110 [see Appendices to Judgment Pt 1V: Vol 7]. It refers to the respondent being named in Parliament, and to the view of the Director of Public Prosecutions that there was insufficient evidence at the time to prosecute the respondent [Exh L]. Then there is a reference to many in public life re-thinking their support for him [Exh L]. In short, the appellant's case was that, accepting that his Honour was correct in his conclusion concerning To-day Tonight, in particular in treating the respondent's occupancy as a member of the Police Board as a public office, with the prospect of other such public offices arising in the future, to discuss his fitness for such public office invokes the interest described in Lange as
"an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia ... The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters." [at 571]
1156 The appellant submitted that the discussion of such matters is to be limited to those which "... illuminate the choice for electors at federal elections or in amending the Constitution or [which] throw light on the administration of federal government"; Lange at 571. It said that for the protection to be effective, the scope of what is properly within the term "government and political" matters should not be narrowly confined. McHugh J in Stephens v West Australian Newspapers Limited [1994] HCA 45; (1993-94) 182 CLR 211 at 264, said that,
"It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in the public representatives and officials. Moreover, a narrow view should not be taken on the matters about which the general public has an interest in receiving information."
1157 In Theophanous v Herald & Weekly Times Limited [1994] HCA 46; (1994) 182 CLR 104 at 124 it was said:
"For present purposes, it is sufficient to say that `political discussions' includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public offices and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who have engaged in activities that have become the subject of political debate, for example, trade union leaders, aboriginal political leaders, political and economic commentators. Indeed in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices. Barendt states that: `political speech' refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about." [emphasis added]
1158 Thus, the appellant took issue with his Honour as failing to recognise and take into account that the respondent's personal conduct had a direct bearing on his fitness for public office, in that the conduct described in the imputations would offend basic community standards of decency and propriety. It was, therefore, artificial (said the appellant) so to distinguish between private and public behaviour in considering whether or not the defence was available. In particular the appellant contended that,
"... the question as to suitability for public office remains open for discussion regardless of whether or not the respondent was still in office at the time of the discussions. The fact that he had held public office was within the concept of public affairs and political matters, and is sufficient to attract the Lange principle."
(para 139 of the appellant's written submissions).
1159 Further support was sought to be derived from the fact that the respondent was described as a person "who could maintain influence over public figures/representatives whilst being involved in this reprehensible conduct", thus raising for discussion -
"... the susceptibility of people in public office to the interference of a person engaged in the conduct described in the imputations. In particular the programme raised matters relevant, at least, to the discussion of the executive process whereby appointments to public office were and are made, the fitness of the respondent for appointment, and the extent to which his fitness and suitability was considered prior to appointment."
(para 140 of the appellant's written submissions).
1160 It should be said at the outset that the Witness programme was not in any way directed towards enquiry about how it was that the respondent had been originally appointed to public office and in particular the Police Board. Nor was it directed to some prospective appointment then in view. It is correct to say that Lange is not concerned with matters of public interest or public concern per se. The High Court has allowed communication to the general public as satisfying the requirement for common law qualified privilege in relation to communication on "government and political matters". In communication on that subject matter, it can be taken that the general public "all have an interest in knowing the truth" so that "the duty to disseminate such information is simply the correlative of the interest in receiving it" (Lange 570-1). The High Court in Lange did not thereby extend the common law so as to adopt the much wider "public figure" exemption in New York Times Co v Sullivan (1964) US 254, with its constitutional basis in the United States fourteenth amendment finding no counterpart in the Australian Constitution. Nor, for reasons to be elaborated later, is there any basis for this Court to conclude that it should follow Reynolds v Times Newspapers Limited & Ors [2001] 2 AC 127, if and to the extent that this decision has expanded the notion of "government and political matters" to embrace wider subject matter for the protection by qualified privilege of political discussion than is laid down by Lange.
1161 We consider that the conclusion reached by his Honour in relation to Witness programme as -
"... a new and personalised programme about the [respondent] and Costello's without ... the requisite connection to any of the [political] matters to which Lange points"
was correct. There is a considerable degree of artificiality in pointing to someone occupying no public office, not currently an aspirant to it, certainly not a public office of a political nature, to say of a programme designed to question his fitness to occupy such a future public office that it thereby constitutes opinions and arguments concerning government and political matters in the sense used by the High Court in Lange. We do not think that is a correct description of the Witness programme, but if it were we consider it would be outside the Lange privilege. The programme as it was broadcast can not in our view be properly described as, or as part of, a discussion of government or political mattes.
1162 The correctness or otherwise of his Honour's decision concerning the applicability of the Lange principles to the To-day Tonight programme is not before us, having regard to the way in which this appeal has been framed. His Honour was not dealing with membership of a political party or membership of Parliament or some other clearly political office. The foundation for his decision was the respondent's role as member of the Police Board, a body with advisory functions exercising no political office whatsoever. That the appointment was by the executive could not of itself render the respondent's role a political one, any more than the appointment of a person as Governor General or a Justice of the Court or a Royal Commissioner or to a body such as a Law Reform Commission which is an advisory body like the Police Board. The respondent's position as a member of the Police Board was at the periphery, if included at all, in political matters. It follows that the Witness programme, occurring after he had ceased to occupy even that office, does not invoke the Lange principles by reason of its connection with such an office, which in any event the respondent had ceased to occupy.
1163 As we have indicated, in any event we have concluded that there is no appellable error in his Honour's conclusion that publishing the imputations was in neither case reasonable in the circumstances, and it follows that common law qualified privilege on the Lange basis could not avail the appellant in any event.
Conclusion - Appeal Grounds 75 to 79
1164 The grounds of appeal contained in paras 75 to 79 must fail.
COMMON LAW QUALIFIED PRIVILEGE - REYNOLDS BASIS: Appeal Grounds 89 to 91
1165 It is convenient to deal here with common law qualified privilege on the Reynolds basis, before reverting to the earlier appeal grounds 80 to 88 under the heading of "common law Qualified Privilege: the `response' basis". The so-called Reynolds basis is directly connected with the earlier appeal grounds concerning the so-called Lange basis, in contending for recognition of a wider category of common law qualified privilege.
1166 By way of formal submission only, the appellant submitted that (AS 165) -
"... this Court should hold that it is open to give effect to the formulation in Reynolds, and/or to adopt it as part of the common law of Australia if it is considered to move English law beyond the traditional law as modified in Lange's case".
1167 As the appellant's submissions recognised, this Court in John Fairfax & Sons Limited & Anor v Vilo (2001) 52 NSWLR 373 at 380 [107] concluded that -
"... if Reynolds did not extend the law beyond the traditional law as modified in Lange's case, it was not necessary to consider the detail of the formulation in it, and if, on the other hand, Reynolds did move English law beyond the traditional law as modified in Lange's case the Court should not adopt the change in preference to the perceived law stated in cases directly binding on it."
1168 The reasoning of this Court in reaching that conclusion and in affirming the decision of the trial judge (Simpson J) is to be found in the following passage from the judgment of Heydon JA:
107 Either Reynolds' case extended the law beyond the traditional law as modified in Lange's case or it did not. If it did not, it is not necessary to consider the detail of the formulation in Reynolds' case, because there are many Australian cases (e.g. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749) stating the received common law principles, and Lange's case is a unanimous decision of seven justices stating a modification of them. If, on the other hand, Reynolds' case did move English law beyond the traditional law as modified in Lange's case, this Court should not adopt the change in preference to the perceived law stated in cases directly binding this Court. This is so for five reasons.
108 First, as the trial judge noted, Reynolds' case turned in some degree on the provisions of the Human Rights Act 1998 (UK) and the requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms. There is no equivalent statute in force in New South Wales, and there is no equivalent treaty binding or otherwise affecting the approach of New South Wales courts.
109 Secondly, the law of defamation turns on a complex set of mechanisms which are intended to balance many competing interests. Though the present issue relates to common law privilege, the field as a whole is one which for over forty years has depended heavily on statutory regulation in New South Wales and which has attracted repeated attention in legislative amendments and in the reports of Federal and State Law Reform Commissions. It is not a field lightly to be altered by intermediate appellate courts in a fundamental respect.
110 Thirdly, where the High Court as recently as 1997 restated the traditional rules of common law privilege while adding a limited modification for information on governmental and political matters, it is at least highly questionable whether this Court should either modify the traditional rules or extend the modification. The proposition that the High Court in Lange's case did not state the law exhaustively is a proposition best left to the High Court to enunciate in the future.
111 Fourthly, it is scarcely consistent with the relative positions of this Court and the High Court in the judicial hierarchy of this country to adopt as part of New South Wales law principles enunciated by the House of Lords in a case in which neither side requested the House to adopt the Lange privilege and in which the House refused to do so (at 1022, 1025, 1033 and 1040-1046).
112 Fifthly, even if it were as a practical matter open to this Court to change the law on this topic, it would be potentially productive of confusion, and it ought not to be done without some strong reason of principle or policy justifying that step. The [appellants] did not point to any principle or policy of that kind."
1169 Accepting as we do the correctness of the decision and its reasoning in Vilo, were it the case that Reynolds expanded the availability of qualified privilege in respect of information of public concern, on application of the common law test of reciprocity of duty and interest, such a test could not stand alongside Lange. Thus his Honour made no error of law in holding that the principles in Reynolds, if and so far as they could extend Lange, are not part of Australian law.
1170 The joint judgment in Roberts v Bass at [68] in fn 42, notes that English common law is to be understood aside from the requirements of the constitutional norm, with the reference following being "cf Reynolds v Times Newspapers Ltd [2001] 2 AC 126 at 221 per Lord Cooke". Kirby J at [124] in fn114 notes that decisions in England are now affected by the Human Rights Convention incorporated into English law by the Human Rights Act 1998 (UK), also citing Reynolds. There is no encouragement for the conclusion that Australia adopts English common law with the later Reynolds addition. That the requirement of reasonableness of conduct "is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under English common law, would have failed to attract a defence of qualified privilege" [Lange at 573] highlights the difference between the Australian common law since Lange and the English common law since Reynolds.
1171 It follows that appeal grounds 89 to 91 must fail.
COMMON LAW QUALIFIED PRIVILEGE: THE "RESPONSE" BASIS
Appeal Grounds 80 to 88: To-day Tonight and Witness programmes
1172 His Honour's conclusions regarding qualified privilege at common law on the so-called "response" basis are set out at J 3895-6:
"3895 Even taking into account the factual circumstances relied upon by the [appellant] antecedent to Today Tonight and following Today Tonight but antecedent to Witness, the two programmes themselves I hold cannot fall within the exceptional circumstances exemplified by Loveday, Adam v Ward or Bowen-Rowlands v Argus Press. With respectful agreement to what her Honour said in Vilo (paragraphs 17 to 19), I agree with Simpson J that the common law defence of qualified privilege is available to protect publication to large audiences or to the general public only in exceptional circumstances and that neither programme falls within such exceptional circumstances.
3896 The second basis which more appropriately be described [sic] as a "challenge" or an "invitation" basis (not being a response to an attack basis), is one I hold as not recognised as a category of common law qualified privilege as applicable to instruments of mass communication. The attack was made in Parliament, the [respondent] responded in his press conference; at that point the subject matter of the attack and the response were clearly matters of public interest as was indeed the [respondent]. What the [appellant] has not been able to persuade me is that those circumstances gave rise to a "duty" in the [appellant] to do no more than publish material on the same subjects which can be said, conformably with current principle on the subject, to be of legitimate interest of all the recipients of its programme. The concept advanced for the [appellant] on the second basis, as I have identified it, is elusive but is not the less attractive for that. Qualified privilege does not attach merely because the subject matter of the publication can properly be described as one of public interest (which is clearly the case here). Save for the Lange principle, the reciprocal interest in the public, as I understand it, must be an interest in "all the public", that is, all the recipients of the publication. Thus, I can see no foundation for the existence of the duty nor the correlative existence of the interest in the recipients which (outside of the exceptional circumstance or the Lange principle), of necessity as a matter of principle is required."
1173 It is those conclusions which the appellant attacks as erroneous in law, submitting that his Honour should have held that the occasion for the publication of each programme, To-day Tonight and Witness, was one of qualified privilege at common law rather than not being "within a known category of qualified privilege at common law as applicable to instruments of mass communication or otherwise" [appeal ground 80].
1174 The appellant put its argument in various ways. The thrust was that though the respondent's publication was not as such a reference to the traditional "response to attack basis", the circumstances bore some analogy to the more traditional category of response to attack. That submission had been made to his Honour [J 3589] and was repeated before us.
1175 The several overlapping ways in which this argument emerged in the grounds of appeal can be stated as follows:
(a) simply by reference to the circumstances said to be based on uncontradicted evidence in relation to the To-day Tonight programme [appeal ground 81] and the Witness programme [appeal ground 82] and the assertion that the circumstances were so exceptional as to establish the defence at common law [appeal ground 86];
(b) the evidence was said to prove reciprocity of duty and interest, in that each programme was published "in response to charges and assertions publicly made by the respondent on numerous occasions prior to the publication of each programme" [appeal ground 83];
(c) the privilege was said to be derived from the respondent's appeal by way of challenge and invitation to the public for public contradiction of his protestations of innocence, with the publication of each programme being in response to that challenge and invitation [appeal ground 84];
(d) publication in each case took place in such exceptional circumstances as to establish the defence of qualified privilege (compare (a) above); and
(e) the appellant, "had a social and moral duty and interest in communicating the information in each programme concerning the respondent to its audience and that the audience had an interest in receiving it" such that his Honour "should have found that the publication by the appellant of information which conveyed the imputations which contradicted the respondent's prior public assertions was information provided in response to his public invitations to contradictors, and hence the occasion of publication was one for which the requirement of reciprocity of duty and interest were satisfied" [appeal ground 87, the ground pressed most vigorously on appeal].
1176 These grounds of appeal were encapsulated in the general appeal ground that his Honour "should have held that the occasion of the publication of each programme To-day Tonight and Witness was one of qualified privilege at common law" [appeal ground 88].
1177 There was a further appeal ground that his Honour "misdirected himself to the effect that he understood the basis for the defence as being tantamount to reliance upon the `public figure' test in New York Times Co v Sullivan (Vol 4, para 3889)"; [appeal ground 85].
1178 We should deal briefly with the last ground of appeal first.
1179 What his Honour actually said [J 3886-J3889] was this:
"3886 The defendant's submission as I and the plaintiff understand it, is that it is entitled to publish defamatory statements about the plaintiff because he is a public figure who invites criticism and discussion of the kind which the defendants published. The defendant argues that the plaintiff's very status as a public figure is a form of "invitation" to interested parties to publish material about him. In this respect, the defendant's submissions appear to be based on an amalgam of the "freedom of political communication" Lange defence and the "public figure test" set out in New York Times Co v Sullivan [1964] USSC 41; (1964) 376 US 254.
3887 The defendant cites Lange at 572 in support of the proposition that a media defendant has a duty to publish information when "the members of the audience all have an interest in knowing the truth". The defendant quotes this section of Lange out of context. The court actually said (at 572): "If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth".
3888 Lange is therefore not authority for the proposition that an interest in the community to know the truth is of itself a sufficient "interest" for the purposes of the qualified privilege defence. Rather, Lange expands common law qualified privilege so the recipient interest group includes all Australians where the subject matter is of a political or governmental nature. As is previously discussed, the defendant's submission relies largely on the interest generated by the plaintiff's public persona. Particularly, the defendant refers to the concept of a "public figure who invites criticism or discussion". The defendant argues that the effect of the plaintiff's public denials of under-age sex: "[W]as to challenge any of the public bold enough to publicly contradict him. He was thereby inciting and inviting public criticism or discussion of his conduct."
3889 This submission is tantamount to an argument based on the "public figure" test in New York Times Co v Sullivan. In that case, the US Supreme Court provided for a defence based not on the character of the information published, as in Lange, but on the character of the plaintiff. However, the reasoning in that case was based on the guarantee of freedom of speech found in the First and Fourteenth Amendments to the US Constitution. The test requires that when the plaintiff in defamation proceedings is a public figure, the plaintiff must prove with "convincing clarity", that the defendant was actuated by actual malice, in order to prove the matter actionable (at 256ff)."
1180 It is thus clear that his Honour understood the appellant's original submissions as deriving support both from Lange and the public figure test. His reasoning is to show that Lange by itself could not provide a basis for treating the respondent as inviting criticism. To the extent recourse is made to the "public figure who invites criticism or discussion" that could only be based on the New York Times v Sullivan test. But it forms no part of Australian law. That was his Honour's reasoning.
1181 Thus his Honour [J 3885 to 3894], correctly in our view, refuted the appellant's attempt to rely on Lange as authority for the proposition that a media body has a duty to publish information when "the members of the audience all have an interest in knowing the truth". What in Lange the court actually said (at 572) was this:
"If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth." [J 3887 emphasis added],
it being then for the appellant as at trial to establish that it comes within some recognised exception, despite large scale publication.
1182 Lange, in the same passage, after referring to such privileged occasions being ordinarily occasions of limited publication and after referring to the test as being:
"as long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory"
then added this important qualification:
"but a test devised for situations where usually only one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands, or more, of readers, listeners or viewers."
1183 His Honour [J 3888] correctly concluded,
"Lange is therefore not authority for the proposition that an interest in the community to know the truth is of itself a sufficient `interest' for the purpose of the qualified privilege defence". Rather "Lange expands common law qualified privilege so the recipient interest group includes all Australians if the subject matter is of a political or governmental nature".
1184 We return to the specific ground of appeal 85. Invoking qualified privilege based on the concept of a "public figure" who "invites criticism or discussion" by challenge and invitation to the public for public contradiction, could not insofar as based on any public figure criterion, find any support in Lange, and indeed is not so based in Lange. As his Honour said, such a "public figure" test has been conclusively rejected as part of Australian law; in particular Theophanous v Herald & Weekly Times (supra) at 122; Stephens v West Australian Newspapers Ltd (supra) and see also Hunt J's rejection of the test in Chappell v TCN Channel Nine (1988) 14 NSWLR 153 at 165. Lange qualified privilege by itself, covering what are referred to as "government and political matters", was at least doubtful in encompassing the criticism as discussion of the kind which the appellant published about the respondent in either programme. His Honour did not misdirect himself in attributing to the appellant at least partial reliance on the public figure test, since only if it were part of Australian law could the appellant's argument succeed.
1185 Insofar as qualified privilege is so invoked without reliance on any public figure basis (appeal ground 84), we deal with it later. It will be seen that his Honour did not only deal with the appellant's argument as if based on the public figure basis, but also as based on response to challenge more generally, independently of any public figure and Lange basis; see in particular from J 3873 and following where the various permutations of the appellant's response arguments are comprehensively dealt with.
1186 Appeal ground 85 is not made out. We have already determined that his Honour was not in error in concluding that the Lange extension to common law privilege was either not applicable (Witness programme) or the appellant failed to satisfy the onus of demonstrating that its conduct in publishing the material was reasonable (To-day Tonight programme), were the Lange common law privilege otherwise applicable.
1187 Turning now to the other bases upon which the appellant placed its grounds of appeal, we should start with the circumstances which are said of themselves to satisfy the requirement for making out, in the words of Lange one of the "few exceptional cases" for the common law qualified privilege.
1188 So far as the To-day Tonight programme is concerned, these circumstances are set out in relatively unelaborated fashion in relation to the To-day Tonight programme (appeal ground 81) and the Witness programme (appeal ground 82); further elaboration, though at a level of detail not relevant to the appeal grounds presently under consideration, is to be found in AS 147.1 to 147.7 to 147.14.
1189 Appeal grounds 81 and 82 are in the following terms:
"81 In circumstances where, in respect of the Today Tonight programme there was uncontradicted evidence that (Vol 4, paras 2938-2967):
(a) on 1 December 1994, Ms Grusovin MP read a statutory declaration by Fisk to State Parliament, in which the Respondent was named as a pederast;
(b) on 2 December 1994, the Respondent convened a press conference at Parliament House, where a denial was read by Mr McGeoch. The Respondent not only denied the allegations in Fisk's declaration but proceeded to launch an attack on Ms Grusovin as a person who had abused parliamentary privilege, in effect, calling for her dismissal. The Respondent issued denials and asserted that the conduct in issue had never occurred. The Respondent knew that his statements would be widely published by television and the press, and they were;
(c) on 3 February 1995, the Respondent convened a further press conference at Parliament House to publicise the contents of a statutory declaration by Fisk, in which he withdrew the allegations made in the earlier declaration. The Respondent went further and issued a denial that he was a pederast, sought an apology from Ms Grusovin, made further attacks on Ms Grusovin and praised Premier Carr for dismissing her;
(d) on 28 February 1995, the ABC 7.30 Report broadcast an interview with the Respondent in which he stated:
"There's a lot of things you could talk about John Marsden about ... but no one, no one out there will say he's a pederast,"
His Honour should have found that the Respondent's public denials of sexual involvement with underage males was such as to establish an occasion of qualified privilege for the publication of the imputations by the Appellant.
82 In circumstances where, in respect of the Witness programme there was uncontradicted evidence in addition to the matters set out in paragraph 81 above (Vol 4, paras 3408-3425) that:
(a) the Premier called for a police report on the Respondent;
(b) the Respondent had to stand down from the Police Board;
(c) a number of people came out in support of the Respondent;
(d) the Royal Commission into the NSW Police Service called for public help into its inquiry into sex allegations against the Respondent;
(e) in December 1995, the DPP decided not to lay any charges against the Respondent;
(f) in The Sydney Morning Herald, the Respondent again denied the allegations; and
(g) further witnesses came forward as a result of the broadcast of the Today Tonight programme - Russell, Lewis and Stals,
His Honour should have found that the Respondent's public denials of sexual involvement with underage males was such as to establish an occasion of qualified privilege for the publication of the imputations by the Appellant."
1190 Though the appellant attempted to find various bases inherent in these circumstances for qualified privilege at common law to arise on something analogous to a `response' basis, the appellant could not, and did not in the end, dispute that, as his Honour held, reciprocity of duty and interest as set out in Adam v Ward [1917] AC 309 at 334 forms the foundation of the `response' basis of common law privilege -
"A privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding duty to receive it. This reciprocity is essential'." [J 3586].
1191 Adam v Ward in this respect was referred to in the joint judgment in Roberts v Bass at [68] and by Kirby J at [138]. The former emphasised that "under the common law as previously understood, the law of qualified privilege did not generally recognise an interest or duty to publish defamatory matter to the general public", and in fn 40 noted that "It might do so in exceptional circumstances", citing Adam v Ward and Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503. That there may be exceptions thus receives some endorsement, though the word "might" suggests caution.
1192 Adam v Ward was a case in which the privilege was upheld. The initial "attack" was in Parliament of an army general, whose "response" was published in the press. What was published was a letter of the Secretary to the Privy Council vindicating the general but containing some statements defamatory of the plaintiff. The response in that case would be more closely analogous to the situation which would have arisen had the respondent defamed his accusers in his own original response. Here on the appellant's argument we are dealing with a subsequent response by the appellant to the respondent's defence of himself.
1193 In Loveday v Sun Newspapers Ltd Latham CJ stated at 511:
"An occasion is the subject of qualified privilege if both the plaintiff and the defendant have an interest in the subject matter to which the alleged libel relates and the publication of the libel is made in protection of the defendant's interest."
1194 Loveday v Sun Newspaper Ltd was a case where directly, and not merely by way of analogy, the "attack" basis for the privilege arising was before the Court. It was held by the majority to have been made out. Like Adam v Ward, it was again a direct response to the original attack by the plaintiff. There was no chain of attack, then response, then renewed attack from third party unrelated to the original attacker, here the appellant. The defendant newspaper had earlier published extracts from a letter written by the secretary of a Relief Council. It stated that the respondent had been victimised in being refused the right to register for further work. The same article then contained a statement in reply from the Town Clerk on behalf of the Council alleging that the respondent had been refused further relief work because of general unsatisfactory conduct, which included abuse of gangers and the spreading of restlessness among his fellow employees. The respondent sued the newspaper and the Town Clerk for defamation. The High Court held by majority that the statement by the Town Clerk and derivatively its publication by the defendant were protected by qualified privilege. This was on the basis summarised by Starke J at 515:
"A man who attacks another in or through a newspaper cannot complain if that other repels or refutes the attack for the purpose of vindicating himself. He has appealed to the public and provoked or invited a reply. A person attacked has both the right and an interest in repelling or refuting the attack, and the appeal to the public gives it a corresponding interest in the reply. Occasions of this kind are privileged and communications made in pursuance of a right or duty incident to them are privileged by the occasion."
1195 Starke J concluded that the Town Clerk was entitled to reply to the attack through the newspaper which was the mode of communication for the attack and that the newspaper was entitled to publish the reply (at 516).
1196 Dixon J, though dissenting in relation to the facts (because the respondent had not authorised the sending of the relevant letter by the secretary of the Relief Council), went on to consider the result in circumstances where it was assumed the respondent had sanctioned or authorised the article. His Honour reached a similar conclusion to the majority, but found for the defendant on the basis that it was not so much bound by a duty to publish the reply as
"performing what, so far as the plaintiff is concerned amounts to a social duty. Although it need not have acted on its own invitation or request at all, when it did so, it ought in fairness to receive and publish any reasonable reply offered" (at 525)
1197 Consistent with that reasoning, had the defendant chosen not to publish, it would not have been in breach of any duty, certainly not a legal one, though it had not fulfilled a duty of non-legal, social kind. Put another way, what the defendant did was not compelled by a binding duty, but was in conformity with the social duty to publish in such circumstances and thus it was justified in so doing; hence Dixon J's description of it (at 523) as a "duty of propriety".
1198 It is important to note that both Adam v Ward and Loveday v Sun Newspapers Ltd are cited by the High Court in Lange in the description of the common law outside of the position applicable to government or political matters. Thus the seven judges of the High Court who joined in that judgment in Lange declared (at 572):
"At common law, once an occasion of qualified privilege is found to exist, the privilege traditionally protects a communication made on that occasion unless the plaintiff is actuated by malice in making the communication. But, apart from a few exceptional cases, the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected. Because privileged occasions are ordinarily occasions of limited publication - more often than not occasions of publication to a single person - the common law has seen honesty of purpose in the publisher as the appropriate protection for individual reputation. As long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory. But a test devised for situations where usually only one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands, or more, of readers, listeners or viewers." [emphasis added]
1199 The appellant acknowledged that it bears the burden of demonstrating the requisite reciprocity of duty and interest in order to gain the protection of the "response" basis for qualified privilege. The appellant set out to do so in each of the ways earlier identified. It summarised the argument in its submissions in reply [RS 38]:
"(a) What the respondent chose to raise for public discussion was the question whether what had been said about his sexual conduct by Grusovin was true or false. For example, on 3 December 1994 and 3 February 1995 in public press statements the respondent's assertions, denials and demands were recorded and published, the effect of which was publicly to attack a Member of Parliament on what she said in Parliament, and denied the truth of what she said. The respondent admitted that the Robson article (Exhibit 121: 2 Blue 416) was (his) "....public denial of allegations publicly made. That is the allegations to Parliament, with some material relating to the respondent's lifestyle" (T5199.45). He asserted, for example, that Grusovin's Parliamentary allegations had made him a target (see AS ¶147.7).
(b) It was during his public attacks upon the Parliamentarian that the respondent denied the conduct, thus putting before the public the question of the truth or falsity of the denial and/or what had been said of his conduct in Parliament.
(c) The occasion of the privilege is the response to the respondent's challenge/assertion that what had been said about his sexual conduct was false. In the course of the public discussion in which the respondent participated he denied that his conduct was bad, thereby inviting a public response whether favourable or unfavourable. The appellant's publications accepted that invitation. In the circumstances, they were fairly warranted by the occasion, and were privileged.
(d) The publications were part of the ongoing public discussion. They have not been brought about merely because the respondent was a public figure or that he made his sexual conduct a matter of public interest.
(e) As part of that discussion there was an interest and a duty in the publication of matter to set the record straight which went to the truth of the Grusovin statements and to the falsity of the respondent's statements (eg Pearce's interview quoted in AS ¶147.10).
(f) Alternatively, it is sufficient to establish that the occasions were privileged by recognising them as the publication of the responses of contradictors to the respondent's challenge. The programmes provided the vehicle or means of communication by which Pearce and others responded to the denials."
1200 The quotation of Pearce's interview in AS ¶147.10 was -
"147.10 On 23 January 1995 Pearce was interviewed by Quail (Exh 55, 1 Blue 139). In the interview the following was said:
Page 1 (1 Blue 139I)
Quail: "... And here we are sitting down doing a television interview, what's brought you to this, to this point?
Pearce: I've just been doing a lot of thinking ... and I saw John Marsden on TV ... denying things that, that I know he's done it. Um I felt angry inside myself.
Quail: You first realised what was going on when you saw er John Marsden on television. What was he doing, what was he saying and what was he denying?
Pearce: Um, he was saying that ... Mrs Grusovin ... mentioned that he was a paedophile um and he denied it and that got this lady into a lot of trouble, um, with um ... um her position and that and ... I felt it was wrong because ... I know that he is and ... I just felt that, um, you know, this person is getting into trouble you know, sort of like people ... are criticising her for nothing, when she is trying to do the right thing and everything she said was correct.
Quail: Let's go to that side of things. What is it that Deirdre Grusovin has said that's correct and, tell me how you know.
Pearce: What she said was that John Marsden is a paedophile and that it is correct and I know that because I have been to his house before on many, numerous occasions".
His evidence as recorded in the interview (Exh 56) at pp9-10 (1 Blue 168L-169) is to the same effect, for example:
Quail: "What made you talk to us?
Pearce: ... and another reason is that um recently on TV I saw um Deirdre Grusovin mention John Marsden's name on TV about being a paedophile and John Marsden denied it and ... apparently this lady got into a lot of trouble over it and it made me angry inside to think that this person was getting into trouble for telling the truth and, um, but nobody knew, you know. I knew that there was a lot of other young boys out there that do know too and it just infuriated me to think that um that he was ... you know I saw him on TV saying "Look, you know, it's all lies - I don't know what she's talking about" and ... but I knew different and I got in contact with her and told her that, you know, that I had had a relationship with John Marsden when I was very young along with a number of other boys and, um and it just made me angry to think that um, that this lady was getting into trouble for something that she was telling the truth about, but nobody really knew.
Quail: When you saw John Marsden on television, remember that moment?
Pearce: Yes.
Quail: What were you thinking?
Pearce: I was thinking what a liar he was. How he was getting on TV ... I didn't expect him to go on TV and say "Yes I'm a paedophile" but, um, I just laughed and just said what a joke, you know, that he just said sort of said "No I didn't do this No I didn't do that ...".
Pearce gave information elsewhere to the same effect, including during his interview with Davis on 29 March 1996 (Exh 59 particularly pp15-16, 1 Blue 202O-203)."
1201 The appellant relied strongly upon Loveday v Sun Newspapers Ltd. The appellant also relied upon a concession made by the respondent in relation to the statutory defence under s22(1) concerning subparagraphs (a) and (b). Because the respondent did not put in issue that these paragraphs were satisfied, it was said to follow that there could be no issue that, in this common law context, the recipient of the communication had the requisite interest in the subject matter of the publication, nor (it was said) could there be any dispute that the matter was published to the recipient "in the course of giving to him information on that subject", to use the different language of s22. The interest or duty of the publisher was to that extent said to be conceded.
1202 His Honour rejected the common law defence, saying at J 3896 -
"I can see no foundation for the existence of the duty nor the co-relative existence of the interest in the recipients (outside of the exceptional circumstance or the Lange principle), of necessity as a matter of principle as required."
1203 We do not consider that any concession in relation to s22(1) of the kind mentioned precluded his Honour from reaching the conclusion he did, including as to the co-relative existence of the interest in the recipients in the sense used in Adam v Ward and subsequent cases. While the appellant in argument on appeal [AT 88] did purport to rely on that concession insofar as interest of the recipient was concerned, it did not do so as to the reciprocal duty on the part of the publisher. We consider that the nature of the interest of the recipient in the context of a reciprocal duty on the part of the publisher is distinct from the reference to "an interest or apparent interest" in s22(1)(a) of the Act. The interest in s22(1)(a) is not required to be reciprocal to a duty. Nor does interest in the common law context include an apparent interest.
1204 We should say that the appellant effectively conceded that it was not defending Grusovin from attack [AT 204 see also AT 202]. Nor could it be said on any view that the appellant was defending itself. That was readily conceded [AT 190, J 3853].
1205 His Honour held that a privilege derived from the invitation or challenge to the public, not being a "response to an attack" basis, is "not recognised as a category of common law qualified privilege as applicable to instruments of mass communication". Even if the attack made in Parliament and the respondent's response in his press conference made the matter one "of public interest", it was not an interest in "`all the public', that is all the recipients of the publication" [J 3896].
1206 The reference by his Honour to the requirement of an interest in "all the public", that is, all the recipients of the publication, explains why, as Lange points out, it is only in "a few exceptional cases" that "the common law defence of qualified privilege is available to protect publication to large audiences or to the general public" [J 3895] (a view repeated in Roberts v Bass in the joint judgment).
1207 Even if one accepts (as we do not) the appellant's argument that the respondent was "effectively" inviting or challenging any member of the public to contradict his denial of under-age sex, it could not be said that all recipients of the broadcasts had an interest, beyond a general public interest, in the broadcaster's responses to the invitation or challenge. It must not be forgotten we are dealing with a broadcast not to a limited class with a special interest in its subject matter (compare, for example, the employer's special interest in the dishonesty of his servant in Stuart v Bell [1891] 2 QB 341), but to the public at large with but a general interest. Whether such a general interest suffices as an "interest" in the subject matter of defamatory statements to which there is a reciprocal duty, outside the exceptional category of political matters in the Lange sense, has been decisively answered in the negative.
1208 When in Lange the High Court states that "exceptionally, the members of the audience all have an interest in knowing the truth" the emphasis is properly on the word "all". That interest outside discussion of political matters does not bring universal interest of the requisite kind. This is made very clear in Morosi v Mirror Newspapers (1977) 2 NSWLR 749 at 787:
"[There] is no principle of law and certainly no case we know of, which may be invoked in support of the contention that a newspaper can claim privilege if it publishes a defamatory statement of fact about an individual merely because the general topic developed in the article is a matter of public interest." [emphasis added]
1209 The position is put equally clearly by Latham CJ in Loveday v Sun Newspapers at 514, in terms applicable to the present case:
"It has been argued for the defendant company that the plaintiff invited a public controversy and that he therefore cannot be heard to complain of the institution of a public controversy in which both sides are heard. In my opinion, however, no authority establishes any such proposition as that a defendant is protected by qualified privilege from liability merely because that defamatory statement (not being defended as fair comment) relates to a subject matter in relation to which the [respondent] has invited public discussion. It was suggested that the principle of volenti non fit injuria applied. But a [respondent] who invites a discussion of his own conduct cannot be held to invite the publication of defamatory statements concerning that conduct." [emphasis added]
1210 Gatley on Libel and Slander 9th ed (Sweet & Maxwell, 1998) at 14.9 retreats from the notion that "interest" is viewed "in its broadest popular sense", "as perhaps oversimplifying the matter". Gatley cites earlier High Court authority, Howe v Lees [1910] HCA 67; (1910) 11 CLR 361 at 398 (Higgins J) to reject mere tabloid interest, whilst citing O'Connor J [at 377] that "interested" is not to be understood as a matter of gossip or curiosity, but as a matter of "interested" in knowing a fact, as a matter of substance apart from its mere quality as news. Any wider discrimen of interest in the recipient does not sit happily with the later decision of the High Court in Loveday, nor with Morosi. Gatley says (at 14.81) that "there is no general media privilege" for the publication of statements of interest to the public ... ".
1211 We do not think the appellant is assisted in its submission that the privilege arises from appeal to the public having been made by the respondent himself, by reference to the cases discussed in Gatley para 14.64 "counter attack on credibility" and para 14.79 "reply to attack on the media": see AS 146.5. None of the cases cited in these paragraphs give any credence to the appellant's version of a "challenge" or "invitation" basis. Each of the cases, like Adam v Ward and Loveday, concern privilege attaching to replies to attack in the media though Bowen-Rolands v Argus Press ("The Times", February 10 and March 26, 1926) extends the privilege to actions taken by a respondent to defend his family.
1212 Moreover, Gatley at 14.65 refers to a number of cases which deny the privilege when the publication includes some recipients who are not "interested" in the relevant sense.
"Publication to uninterested persons. It follows from the fundamental requirement of reciprocity of duty and interest that publication to a person who does not share in this reciprocity is not generally privileged.56 As a general rule therefore the defendant should be careful to make his communication only to those persons who have a legitimate interest or duty in relation to the subject-matter. The fact that a communication between A and B is privileged does not justify A in making the communication in a manner, or at a time, which would necessarily involve its publication to other persons who have no such interest or duty, and no privilege would prima facie attach57 to any such publication.58 "A man ought not to be protected if he published what is in fact untrue of someone else when there is no occasion for his doing so, or when there is no occasion for his publishing it to the persons to whom he in fact publishes it."59 However, if strict reciprocity were essential, society and its business could not be conducted, since others without a direct interest in the communication are regularly employed in helping to make the communication and it would be impossible to communicate if every defamatory communication had to be confined to those with a direct duty or interest in relation to its subject matter. For these reasons, communications to persons without such an interest or duty are nevertheless privileged if they are published reasonably, in the ordinary course of business, and no more widely than is required for the effective making of the communication, and if they would be privileged but for such incidental publication.60 Such a privilege has been referred to as an "ancillary" or "incidental" privilege."
56 See §14.9
57 Brown v Croome [1817] EngR 217; (1817) 2 Stark. 297; Duncombe v Daniell (1838) 2 Jur. 32; Parsons v Surgery (1864) 4 F & F 247; Simpson v Downs (1867) 16 LT 391; Murphy v Halpin (1874) Ir R 8 CL 127; Hopewell v Kennedy (1904) 9 Ontario LR 43; Standen v South Essex Recorders (1934) 50 TLR 365; Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102; Pearce v Hailstone (1992) 58 SASR 240.
58 But the publication between A and B would still be privileged: Mutch v Robertson, 1981 SLT 217. This might be relevant to the question of damages where the publication to uninterested third parties had been very limited.
59 Per Earl Loreburn in Adam v Ward [1917] AC 309 at 321.
60 See §§14.68 et seq
1213 That is the case here, when interest is understood in the proper sense of having an interest in the subject matter of the communication over and above the general interest of the public at large.
1214 In our opinion, there is in the present case no qualified privilege by recourse to a "challenge" or an "invitation" basis which is not a response to an attack.
1215 The appellant disavowed that the ongoing public discussion was brought about merely because the respondent was a public figure and thus disavowed any notion of a "public figure" defence. The authorities preclude such a defence as has evolved in the jurisprudence of libel law in the United States, as his Honour correctly concluded [J 3894]. What the appellant contended was that there was, as part of the ongoing public discussion, an interest and a duty in the publication of matter to "set the record straight" which went to the truth of the Grusovin statements and to the falsity of the respondent's statements, for example by reference to Pearce's interview. An alternative way of putting that contention was that the media in the form of the appellant was privileged in its publication because it was publishing "the responses of contradictors to the respondent's challenge, such programme providing the vehicle or means of communication by which Mr Pearce and others responded to the respondent's denials".
1216 Insofar as this is based upon the notion of meeting the respondent's challenge or invitation, it cannot stand. However, what the appellant was attempting was to find some form of moral or social duty, not a duty which compelled publication but one which justified it as conforming to a "duty of propriety" (compare Loveday v Sun Newspapers Limited per Dixon J at 523). This was said to find a reciprocal interest in the recipients, a large audience admittedly, who "all have an interest in knowing the truth".
1217 The truth was identified as being "the truth of the Grusovin statements and the falsity of the respondent's statement". An immediate difficulty is that the Grusovin statements were based upon Fisk's declaration and Fisk had withdrawn it. That left the Grusovin statements with no basis. Inherent in the appellant's argument was that the basis then to be substituted was that of the statement of Pearce as well as the statements which others made following the To-day Tonight programme, in particular Russell, Lewis and Stals. This was said to be so, though none of these statements were as relied upon by Grusovin.
1218 Loveday involved the same media outlet publishing an attack and then the response. It had published the respondent's accusation of being victimised, thereby incurring a "duty of propriety" to publish the Relief Council's response. Dixon J treated that duty of propriety as "amounting to" a social duty sufficient to give rise to the privilege, though it may fall short of an actual duty to publish.
1219 The present case was different. The first step was an attack by Grusovin upon the respondent, widely published in the media including, no doubt, on Channel 7, the appellant's television station. Then there was the respondent's denial, no doubt also widely publicised by the media including on Channel 7, though the principle refutation was not on Channel 7 at all but on the ABC's 7.30 Report on 28 February 1995. This was in addition to the respondent's earlier Press Conference at Parliament House on 2 December 1994 and his further Press Conference on 3 February 1995. It is fair to describe the respondent in each of these actions as responding to an attack, such that any response would have itself been protected by the conventional response of common law privilege applicable to responding to a direct attack.
1220 For the appellant thereafter to publish its own "response" was not a response to an attack on Grusovin made on behalf of Grusovin nor at her request, there being no evidence of that and it being in any event disavowed by the appellant as so based. Such moral or social duty as the appellant asserted it had was undertaken entirely of its own initiative, and not in response to any attack on the appellant itself. It is then difficult to see how the appellant could credibly contend that it was responding to an attack on Pearce or upon the other sources or informants, none of whom had been attacked by the respondent since the respondent was not unaware of whom else, apart from Fisk, had come forward.
1221 The appellant's submissions included that there was a moral or social duty to publish in order to satisfy what the appellant in argument described as the public's concern "in knowing whether what is said in the Parliament is true or false or whether the privileges of the Parliament have been abused", by people who are "their elected representatives"; see appellant's oral submissions [AT 202]. That was simply not what the appellant was doing. Otherwise, the appellant's submissions came down to a moral or social duty to publish a matter "of legitimate concern to the public". This was on the basis that matters of legitimate concern to the public give rise to a reciprocal duty of propriety in media outlets of a social and moral kind to satisfy that matter of legitimate concern, thus conforming to the requirement of the reciprocal duty and interest between publisher and audience.
1222 Authority is squarely against such a proposition. Thus the Court of Appeal in Morosi at 790, after pointing out that the publications were not answers to any charge made publicly by or on behalf of the respondent, stated in clear terms:
"Assuming that their subject matter was a matter of public interest, there was no duty or interest in the appellant to publish to the world material including defamatory statements concerning the respondent. The views of journalists or of unidentified persons or reports of rumours or speculation, about controversial matters cannot come within the protection of this privilege, however interested or curious the public might be about them."
The Court went on to add: "The fact that there had been debate or questions in Parliament on the subject does not affect the matter". Adding the qualification "legitimate" before the "public interest" does not take matters any further, and the fact that the accusations began with a statement in Parliament is as irrelevant to the present case as it was in Morosi.
1223 There is a further difficulty in the appellant's invocation of a moral or social duty, to which his Honour was clearly alive as J 3866 reveals. It is the difficulty of erecting a moral or social duty to publish yet a further attack on the person earlier attacked, simply because that person has in self-defence set out to defend himself. This is more especially when the last publisher takes up the cudgels on its own initiative, and not at the behest of anyone. His Honour said, and appears to have agreed -
"3866 The practical effect of the [appellant's] submission, the [respondent] argues, is that an individual who is attacked by the media in a public forum should not respond to those allegations as, to do so may be to invite further or new attacks from unconnected third parties. Such a situation would defeat the entire "self defence" purpose of the "response basis" of qualified privilege. Nathan J in Kennett v Farmer [1988] VR 991 at 1103-4 says that, once the aggrieved party has exercised his/her right of response, the original defamer does not have a right to reply under the protection of qualified privilege:
"To allow an initial defamer to have a right of reply to the retort of the victim would defeat the policy upon which the privilege of a communication made in pursuance or protection of an interest is founded. The reverse side of the proposition reveals the error. If the victim by responding gives the defamer a qualified privilege to riposte, he would severely inhibit his own rights of self defence."
1224 The initial attacker was not the appellant but Grusovin. The respondent responded publicly. The appellant was a bystander. The respondent suffered an attack widely disseminated in media publications. If by exercising his right to respond to that attack he invited unconnected third parties to re-accuse him with impunity, without any requirement to meet a test of reasonableness but only to avoid malice, the purpose of allowing a response under protection of qualified privilege would be defeated by the respondent's renewed vulnerability to fresh attack. That absence of a test of reasonableness was recently confirmed by Spigelman CJ in Makeig v Derwent [2000] NSWCA 136, at [39]-[41]; his Honour said -
"... as the reasoning in Lange itself indicates, this test [of reasonableness] is not applicable to a claim for qualified privilege at common law ... the respondent also submitted that the Lange test of `reasonableness' should now be accepted as `mandatory' in the case of what was described as `widespread or multiple publications to the public', at least in the case of publication on political issues. Nothing in Lange suggests that the High Court was laying down anything in the nature of a mini code in such matters. The court was extending the defence of qualified privilege, it was not intending to restrict the common law defence insofar as it was applicable to publication of political matter."
1225 The appellant invoked as the occasion for the moral duty the need "to set the record straight" as to the truth of the Grusovin statements and the falsity of the respondent's statements, this being in relation to an interest in members of the audience "in knowing the truth" (to use the language of Lange applied however to political matters). For the reasons we have given, we do not think that his Honour was in error in holding that the programmes were not broadcast in circumstances of qualified privilege.
1226 In our view all of the appeal grounds 80 to 88 fail, there being no common law qualified privilege here made out based upon, or by analogy to, the "response" basis.
MALICE - APPEAL GROUNDS 104 TO 114
1227 Since the programmes were not broadcast in circumstances of qualified privilege, it is strictly not necessary to consider malice. Even if the trial judge was in error in finding malice, that would not avail the appellant. However, the consideration of matters potentially bearing on malice is material to exemplary damages, to which we will come. It is therefore appropriate that we consider these grounds of appeal.
To-day Tonight: appeal grounds 104 to 108
1228 The thrust of these appeal grounds was that his Honour erred in finding that Hall and Quail acted with reckless indifference to truth or falsity in the broadcast of To-day Tonight and erred in finding that evidence of such conduct was sufficient in the circumstances to prove that the publication was actuated by malice on the part of either [J 4460]. It was said that his Honour's findings were contrary to the evidence as to the belief of each of Hall and Quail and that, in the circumstances, further enquiries were not reasonably required [AS 167]. The appellant, following the decision in Roberts v Bass, relied upon it inter alia as precluding mere lack of belief in the truth of the communication as sufficient to establish malice; see written submissions of 18 December 2002.
1229 The centrality of reckless indifference, as to truth or falsity, to the conclusion of malice, emerges from the elaboration of conclusions at J 4458-J 4461 and J 4464. These are quoted below:
"4458 One most not be quick to find malice in the strict sense, as the defendant rightly submits. With respect to Today Tonight the only basis upon which malice would be available would be, not actuation in the defendant's servants and agents of any improper motive, but rather the finding of reckless indifference as to truth or falsity in both Mr Hall and Mr Quail.
4459 I can indicate that nothing in the program evidences intrinsic "malice," as opposed to evidencing "unreasonableness". It was, as I have said, the lack of honest belief evidenced by the reckless disregard, given the nature of the imputations intended to be conveyed, that to my mind evidences malice that would defeat qualified privilege had it otherwise been established. Particularly I identify the conduct of Mr Hall and Mr Quail in relation to what I have described as the smug offer to Mr Marsden founded on bases beyond comprehension in terms of reason or reasonableness on the part of the two critical personnel. Mr Hall as I have already said had a "conviction" but not a rationally reasonably attained state of belief in the truth and that was exemplified to the highest degree by the approach he took, which has been dealt with above, to the offer to Mr Marsden to participate.
4460 The reckless indifference arises from what I perceive to be the failure on the part of Mr Hall and Mr Quail to appreciate, not merely the gravity, but the implications of what they intended to impute against the plaintiff especially in relation to the temporal component and their disregard for making any inquiry independent of the complainant and independent of the cross-corroboration on which they saw fit to rely, to support those allegations. It is to be borne in mind, as I have said, that this was not a heat of the moment publication. It was a program prepared over some weeks requiring care which was simply not exercised.
4461 To avoid the finding of malice there was required a state of mind founded upon, in a reasonable and rational way, information pertinent to the charges being made by the complainants, and, importantly, founded upon material or at least founded upon the attempt to acquire material, independent of the complainants.
....
4464 Finally, in relation to Today Tonight, the plaintiff has discharged the substantial burden he bears in proving malice by reference to the publication of the defamatory imputations without an honest belief in the truth founded upon reckless indifference as to whether they were true or false."
1230 The appellant submitted that the findings adverse to the appellant were inconsistent with other findings made in respect of the issue of malice, namely that there was no actuation in the appellant's servants and agents of any improper motive [J 4458], and nothing in the programme evidenced intrinsic malice as opposed to unreasonableness [J 4459] and it was not available to the respondent to make a case that the appellant through its servants and agents was actuated by positive ill-will founded on gross and unreasoning prejudice [J 3391, J 4463].
1231 His Honour's reasoning does differentiate between these findings favourable to the appellant and those matters upon which his Honour relied to find reckless indifference. The question is whether the finding of reckless indifference can be successfully challenged and can suffice, consistent with the principles expounded in Roberts v Bass.
1232 Although his Honour referred to "the conduct of Hall and Quail in relation to what I have described as the smug offer to [the respondent] founded on bases beyond comprehension in terms of reason or reasonableness on the part of the two critical personnel, in relation to "the offer to [the respondent] to participate" in the programme." [J 4459], he treated it as part of his finding of reckless indifference. The essential basis for the reckless indifference, as we read the reasons, was the failure to appreciate the gravity of the imputation, especially the significance of their temporal element, and to make appropriate enquiry; this led to lack of honest belief in the sense we have earlier discussed.
1233 We have already concluded, contrary to the appellant's submissions, that the offer did not involve unreasonable conditions set by the respondent, and we consider that it was open to his Honour to conclude as he did that the offer "was a perfunctory gesture founded upon irrational assumptions and on no basis can be regarded as compliance with that component of reasonableness which was both necessary and practicable in the context of To-day Tonight in inviting the respondent to respond." [J 4402]. Failure to give a proper opportunity to respond can fairly be regarded as an element of reckless indifference to the truth or falsity of the imputations, all the more so when the other enquiries were inadequate. Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385 includes a holding by the Full Court (at [47]) that the depth of the enquiry should be commensurate with the seriousness of the allegations -
"What constitutes recklessness is something which must take its colour from the nature of the occasion, and the nature of the publication. If it is reckless not `to consider or care' whether a statement be true or false, as Lord Diplock indicated, it must be open to the view that a perfunctory level of consideration (against the substance, gravity and width of the publication) can also be reckless - In essence, the privilege may well be lost if the defendant takes what in all the circumstances can be fairly described as a cavalier approach to the truth of the statement."
1234 We accept that the imputations were very serious, and reckless indifference to whether they were true or false must be judged by reference to the inquiry called for by the gravity of the imputations.
1235 Mere carelessness, impulsiveness or irrationality are not to be equated with a reckless indifference as to whether the statements were true or false. His Honour in his careful articulation of the authorities showed that he was conscious of that distinction; see, in particular, his reference to Lord Diplock's speech in Horrocks v Lowe at 150 in J 4005 to J 4008, and the discussion which followed on subsequent authority dealing with recklessness or indifference as to truth.
1236 The joint judgment in Roberts v Bass emphasises that the erroneous line of authority which developed from Hunt J's judgment in Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30, that a lack of an honest belief will defeat a defence of qualified privilege, cannot be traced back to Lord Diplock's speech in Horrocks v Lowe:
"[77] Hunt J said that "[i]n some of the older authorities, an absence of honest belief on the part of the defendant is treated merely as some evidence of an indirect motive which alone is said to constitute express malice, but the better view, in my opinion, is to treat the two as different kinds of malice". His Honour cited no authority for this novel proposition. Some years later, in Hanrahan v Ainsworth [(1990) 22 NSWLR 73 at 102-103], Clarke JA said that, since Horrocks, "it has been accepted that if it is proved that a person has made a defamatory statement without an honest belief in its truth or for a dominant improper purpose ... malice will be made out"."
"[78] The knowledge and experience of Justice Hunt in defamation matters is well recognised. But with great respect to his Honour and Clarke JA, they erred in asserting that lack of honest belief defeated a defence of qualified privilege. There is no basis in principle or authority for treating knowledge of falsity or lack of honest belief as a separate head of, or equivalent to, malice. In the law of qualified privilege, the common law has always regarded malice as the publishing of defamatory material with an improper motive. Knowledge of falsity is "almost conclusive evidence" that the defendant had some improper motive in publishing the material and that it actuated the publication. That judges have treated knowledge of falsity as almost conclusive evidence of malice is no ground, however, for treating it as a separate head of, or equivalent to, malice. In some circumstances, lack of honest belief in what has been published may also give rise to the inference that the matter was published for a motive or purpose that is foreign to the occasion of qualified privilege. Nothing in Lord Diplock's speech in Horrocks supports treating the defendant's knowledge or lack of belief as a separate head of, or equivalent to, malice. Indeed, Lord Diplock expressly said [at 149-150] that, if it is proved that the defendant did not believe that what he or she published was true, it was "generally conclusive evidence" of improper motive. "
1237 More specifically as to honest belief and reckless indifference, in the joint judgment in Roberts v Bass it was said:
"84 In exceptional cases, the sheer recklessness of the defendant in making the defamatory statement, may justify a finding of malice. In other cases, recklessness in combination with other factors may persuade the court that the publication was actuated by malice. In the law of qualified privilege, as in other areas of the law, the defendant's recklessness may be so gross as to constitute wilful blindness, which the law will treat as equivalent to knowledge. "When a person deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth", said this Court in R v Crabbe, "he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring." In less extreme cases, recklessness, when present with other factors, may be cogent evidence that the defendant used the occasion for some improper motive. This is particularly so when the recklessness is associated with unreasoning prejudice on the part of the defendant. In Royal Aquarium and Summer and Winter Garden Society v Parkinson, Lord Esher MR said:
`If a person charged with the duty of dealing with other people's rights and interests has allowed his mind to fall into such a state of unreasoning prejudice in regard to the subject-matter that he was reckless whether what he stated was true or false, there would be evidence upon which a jury might say that he abused the occasion.'
...
86 In Lord Diplock's speech in Horrocks, there are passages that standing alone suggest mere recklessness or indifference to truth and falsity is sufficient to constitute malice. But we do not think that Lord Diplock was intending to change the law, as it was laid down by Lord Esher MR in the above quotations. In fact, in Horrocks Lord Diplock referred to Lord Esher MR's judgments in these cases as correctly stating the law. Furthermore, Lord Diplock introduced his discussion of "recklessness" by saying that, if the defendant "publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false" (emphasis added). This statement makes it clear that Lord Diplock was using the term "reckless" in the sense of "wilful blindness", as explained by this Court in Crabbe.
87 Further, mere lack of belief in the truth of the communication is not to be treated as if it was equivalent to knowledge of the falsity of the communication and therefore as almost conclusive proof of malice. The cases contain many statements to the effect that the privilege will be lost if the defendant did not honestly believe in the truth of a defamatory statement made on a privileged occasion. If those statements mean no more than that qualified privilege is lost when the defendant knows or believes the defamatory statement is false, they are in accord with settled principle and authority. But if they mean that the defendant loses the privilege unless he or she has a positive belief in the truth of the publication, it is not easy to reconcile them with basic principle. They are not reconcilable, for example, with the principle that recklessness as to the truth or falsity of a publication, short of wilful blindness, will not destroy an occasion of qualified privilege unless it appears that the recklessness is accompanied by some other state of mind. A person who is reckless as to whether the statement is true or false has no positive belief in the truth of the statement. Yet as the above statements of Lord Esher MR in Royal Aquarium and Clark show, recklessness, short of wilful blindness, is not enough to destroy the privilege. It must be accompanied by some other state of mind. Where that is so, the recklessness is evidence that the publication was actuated by the accompanying state of mind, be it anger, hatred, bias or unreasoning prejudice. As Jordan CJ pointed out in Mowlds v Fergusson:
"All that the Royal Aquarium Case decides is that if a defendant is proved to be affected by a particular prejudice and is proved to have made a defamatory statement on a privileged occasion, not to serve the legitimate purposes of the occasion but to indulge this prejudice, express malice is made out. In such a case, proof of the prejudice may serve both to explain how the defamatory statement came to be made, and also to justify the inference that it was made for the purpose of indulging the prejudice."
...
96 Statements in the cases to the effect that the defendant will lose the protection of the privilege unless he or she had an honest belief in the truth of what that person published must be understood in the light of two matters. First, honesty of purpose is presumed in favour of the defendant. It is for the plaintiff to prove that the defendant did not use the occasion honestly or, more accurately, for a proper purpose. Second, in many - perhaps most - cases, a defendant who has no belief in the truth of what he or she publishes will know or believe that it is untrue. It is understandable therefore that judges will often say that qualified privilege is destroyed when the defendant has no honest belief in the truth of the matter but really mean that it is destroyed when the defendant knew that the matter was false. Indeed, as the quotation that we have just set out shows, Lord Diplock does that very thing in Horrocks. Lack of honest belief in the law of qualified privilege does not mean lack of belief; it means a belief that the matter is untrue.
97 Because honesty is presumed, the plaintiff has the onus of negativing it. That is to say, the plaintiff must prove that the defendant acted dishonestly by not using the occasion for its proper purpose. Unless that is kept in mind, there is a danger that reference to the honesty of a defendant will reverse the onus of proof. If the tribunal of fact rejects the defendant's evidence that he or she positively believed in the truth of what he or she published, it does not logically follow that the plaintiff has proved that the defendant did not believe in the truth of the publication or had an improper motive. Rejection of the defendant's evidence, combined with other evidence, may lead to the conclusion that the defendant had no belief in the truth of the publication or knew that it was false. But mere rejection of the defendant's evidence does not logically and automatically lead to any conclusion as to what his or her state of mind was. "[B]y destroying that evidence you do not prove its opposite."
98 When the plaintiff proves that the defendant knew the defamatory matter was false or was reckless to the point of wilful blindness, it will constitute almost conclusive proof that the publication was actuated by malice. A deliberate defamatory falsehood "could not have been for a purpose warranted by any privilege; and hence it is unnecessary to determine what the exact purpose was in order to ascertain whether the privilege has been lost for the particular defamatory statement which has been proved to be wilfully false". When the plaintiff can only prove that the defendant lacked a belief in the truth of the defamatory material, however, it will be no more than evidence that may give rise with other evidence to an inference that the publication was actuated by malice." [footnotes omitted]
1238 When applying the principles they had discussed, their Honours said -
"[109] Cases where recklessness alone will defeat an occasion of qualified privilege are likely to be rare. Usually, they will be cases where the defendant had or was given information which gave a reason for supposing that what the defendant intended to publish was false but the defendant nevertheless published the matter without further inquiry or investigation. Failure to inquire is not evidence of recklessness unless the defendant had some indication that what he or she was about to publish might not be true."
1239 We have noted what was said by the other members of the court. We think that we should be guided by the principles expounded in the joint judgment. In that context, we should note one matter raised by the appellant in its written submissions on Roberts v Bass. The appellant submitted that it is "permissible to target a person without an improper motive". However this submission obfuscates the relevant section of the High Court judgment. Gleeson CJ at [39] and the joint judgment at [44] make clear that it is in an electoral campaign context, that it is permissible to target an election candidate. These statements however cannot be legitimately extended beyond the very specific context referred to by the High Court. They provide no basis for contending that one can "target" an individual outside that sphere, public figure or not, free of the strictures applicable to malice in other contexts.
1240 Having introduced the topic by stating that an absence of honest belief may be demonstrated either by proof that the maker of the statement knew that the statement was false or alternatively demonstrated a "reckless indifference" to the truth or falsity of the matter, his Honour turned to Lord Diplock's articulation of the consequences of the finding of reckless indifference and cited his Lordship's statement, "If he publishes untrue defamatory matter recklessly without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false." [J 4005]
1241 His Honour [J 4005] added the caveat that -
"... courts are slow to infer that the conduct of defendants will constitute reckless indifference where such conduct has merely consisted of `carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true' (per Lord Diplock at 150)."
1242 At J 4006 his Honour quotes again from Lord Diplock who "provides a guide as to the degree of conduct and behaviour which will not negative an honest belief in the truth":
"In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest," that is, a positive belief that the conclusions they have reached are true. The law demands no more."
1243 His Honour [J 4008] stated the question in Horrocks v Lowe as "whether reckless conduct or gross and unreasoning prejudice ... was enough to defeat the potentially conflicting finding of an honest belief in the truth of the matter published", and said that "In this case there has been no such finding". We take his Honour to have meant that he did not find gross and unreasoning prejudice.
1244 One of the appeal grounds was that his Honour erred in applying in essence a negligence test to determine whether the appellant was actuated by malice. We do not think that is supported by his Honour's recitation of the respondent's submissions -
"4012 It is settled that careless journalism, exuberant reporting or mere failure to inquire is not prima facie proof of reckless disregard, Pinniger v John Fairfax (1979) 53 ALJR 691; Barbaro v Amalgamated Television Services (1989) 20 NSWLR 439. The only kind of recklessness which destroys privilege is indifference to truth or falsity. Recklessness as to truth has traditionally been treated as equivalent to knowledge of falsity, Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385 at [46].
4013 Lange v Atkinson discusses the interplay between the reasonableness component of a defence of qualified privilege, and the reckless indifference component of a [respondent's] case for malice. The Court held at, at [46]: `Indifference to truth is, of course, not the same thing conceptually as failing to take reasonable care with the truth but in practical terms they tend to shade each other. It is useful, when considering whether an occasion of qualified privilege has been misused, to ask whether the defendant has exercised the degree of responsibility which the occasion required'".
4014 It follows, then, the [respondent] submits, that a failure to make reasonable inquiries is capable of demonstrating reckless disregard to truth or falsity, the existence of which may have resulted in an abuse of the privileged occasion. That failure must also be looked at in the context of the gravity of the allegations. In this situation the failure could hardly be more serious, it is said."
1245 His Honour then quoted from Lange v Atkinson at [47] the passage we have earlier set out above, as to the depth of enquiry being commensurate with the seriousness of the allegations.
1246 Some support for his Honour having applied in essence a negligence test might be found in J 4461 in his Honour's conclusions, where it is said that -
"To avoid the finding of malice there was required a state of mind founded upon, in a reasonable and rational way, information pertinent to the charges being made by the complainants, and, importantly, founded upon material or at least founded upon the attempt to acquire material, independent of the complainant."
1247 However, reading the conclusions as a whole and with regard to the reasons given in the detailed discussion of the evidence, we do not think that his Honour founded his finding of reckless indifference on mere careless journalism or failure to enquire. The reckless indifference in his Honour's finding meant lack of honest belief; it went far beyond negligence.
1248 It remains to ask, however, whether the reckless indifference and lack of honest belief sufficed to establish that the To-day Tonight programme was broadcast for improper motive, within the guidance now found in Roberts v Bass. We do not think so. The trial judge did not find knowledge of falsity of imputation. He did not find recklessness amounting to wilful blindness, and when his use of the notion of lack of honest belief is understood in the way we have discussed it was the product of the recklessness and did not add to the case for improper motive. The vice in the appellant's conduct was not so much having information showing that what it intended to broadcast was false, as failing in the light of the gravity of the imputations to make the enquiries which should have been made in investigating whether they were true or false. The law has been clarified since Levine J had to address malice in relation to the To-day Tonight programme. In our view, malice in the sense of that term of art was not made out.
1249 As we have said, however, that does not avail the appellant. The programme was not broadcast in circumstances of qualified privilege at all.
Witness - Appeal Grounds 109 to 114
1250 His Honour's conclusions were relevantly as follows. First, he excluded as a dominant motive in the broadcast of the Witness programme that it was to obtain evidence in defence of To-day Tonight. He continued -
"4466 With respect to improper motive this, in relation to Witness, in my view, has been independently established as one to injure the plaintiff not merely by reference to reckless indifference which here equally applies, but by the position taken by the publishers with respect to the plaintiff's denials and the acknowledgment through Mr McClellan (especially in relation only to Lewis) that the denials upon which the defendant relied were there to expose the plaintiff as a liar rather than to provide balance to the allegations being made in the program. The failure to approach the plaintiff in relation to these "new allegations" is consistent with that improper motive. To intend to convey defamatory imputations is not evidence of malice. To intend to convey them by a program in respect of which there is a pretence as to balance, but where it can be shown that it was not balanced, but rather a reinforcement by accusing the plaintiff of lying, that the allegations were the truth, can and in my view did constitute malice. The dominant motive was to injure the plaintiff; to defame him in circumstances where, under the guise of balance, the real intention was to accuse him of lying, conformably with and further evidenced by, the deliberate decision not to seek his response.
4467 For the purposes of malice, I indicate that I make no finding, (save in one respect), against the defendant in terms of the language, format, structure of the program being utterly beyond and disproportionate to any occasion of privilege; this is quite distinct from it being a component of that material which prevents my finding the defendant's conduct to have been reasonable within the context of s 22 and the Lange privilege, to the extent that I have found such matters to be relevant under that heading. The exception above mentioned is the inclusion of the Fahey children component of Stals' commentary. It was, I find, utterly beyond and disproportionate, gratuitous and offensive, to any occasion of the publication of the imputations relating to under age sex.
...
4469 However, even if that more precisely identified motive is eliminated from the equation, malice is otherwise evidenced to a very high degree, in my view, by what I have found to be the reckless disregard for the truth leading to what I have concluded can only be the absence of an honest belief in the truth notwithstanding the formulaic responses from the witnesses that they did have such a belief.
4470 There remains the continuing mystery of Exhibit AO and Mr Quail. I have dealt with this in connection with reasonableness and the parties' position has been set out at length in the preceding submissions. One conclusion to which I can safely come is that any conduct by Mr Quail in retention of the material cannot rationally affect his state of mind or that of the defendant as publishers of Today Tonight. That is a backward drawn inference that is not rationally available even if, after Today Tonight when the material was obtained by Mr Quail, he was of the view that it might be of use in the defence of Today Tonight.
4471 There remains the issue of Mr Quail and Exhibit AO in relation to Witness. Shortly stated, the plaintiff contends that Mr Quail deliberately withheld the exhibit from the police in or about May 1995 and that evidences in his mind ill-will or an improper motive toward the plaintiff and secondly, that he deliberately, himself or through his company withheld up until the time of publication of Witness Exhibit AO and its contents.
4472 The defendant's submissions as to the police are set out above and I say no more than I accept them.
4473 As to the defendants submission (above in paragraph 4308) as to some want of clarity as to events after the dealings with police in relation to some unspecified occasion or program, the litigation of the issue and its particularisation in the Consolidated Particulars of Malice make it clear that what the plaintiff is asserting is directed to the publication of Witness. As at February 1996 Mr Quail was an agent of the defendant. Mr Quail was engaged as a Consultant Producer pursuant to a contract because of his knowledge; because he was the person to get the people. Mr Quail knew what was in Exhibit AO; Mr Quail was present when Mr Stals was re-interviewed. Mr Quail was present when Mr Stals referred more than once to the continuing relationship with Mr Marsden as a matter going at least to identification. Mr Quail said he was sceptical about the drugs tape at the time it was made but nonetheless asserted on oath that he honestly believed Mr Stals to be a truthful informant in relation to under age sex.
4474 Pausing there, the defendant argues it is open to a person in the position of Mr Quail to accept part of what someone says and not another part. That is quite so. What I reject is Mr Quail's acceptance of the sexual allegations and rejection of the drug allegations: the drug allegations were so "fantastic" to any reasonable person, that they would have at the very least raised an eyebrow, put on inquiry, or been available to colour that person's ready acceptance of the sexual allegations. Further, it is interesting to note that in the re-interviews Mr Stals sought to raise the issue again. Mr Quail remained silent.
4475 Mr Quail did not impress me as a witness who could give frank and non-evasive answers. This is evidenced in the extracts from testimony, for example, in paragraph 3684 and 4216 above.
4476 I have no difficulty in coming to the conclusion that the decision on the part of Mr Quail to withhold from his co-workers in the Witness team the information in the drugs tape was a conscious one. It was unreasonable and reckless. Also, as the plaintiff agued above, within the scope of the terms of his agency.
4477 But I also come to the view that it was deliberate. By deliberate I mean consciously withheld to prevent information being available to other members of his own team that may have affected the credibility of the star witness, the person prepared to show his face in the Witness program, one of the persons Quail was contracted to "get across the line". It did not require O'Donnell to ask him for the tapes. Mr Quail was obliged to produce them and the only conclusion to which I can come is that he deliberately refrained from doing so, in order to promote Mr Stals as a credible witness to the detriment of the plaintiff's reputation. To that extent (Mr Quail being part of the Witness team) there is more than a scintilla of evidence; there is an abundance of it going to his conscious decision being influential in the publication of Witness. I reject the defendant's submission that the evidence is to the contrary. Mr Quail is a person parts of whose testimony I was prepared to accept and parts of whose testimony I regarded with the utmost circumspection if not distrust and disbelief. His demeanour when being cross-examined by Mr Barker in relation to Exhibit AO was such as to induce the last two mentioned reactions. Mr Quail was not frank with the Court, he was not frank with his colleagues. As to the latter, that want of honesty, that want of journalistic integrity, that want of integrity that one would reasonably expect in a specially contracted current affairs associate producer, can be explained on no basis rationally other than Mr Quail's motivation to harm the plaintiff, because he realised the material in Exhibit AO, to any reasonable person, would seriously cast doubt upon the integrity of the information that Mr Stals was providing. That ill-will infected the publication of Witness and the defendant is branded with it."
1251 The grounds for the finding of malice may be summarised as follows:
(a) the finding of improper motive, in a programme with a pretence of balance, based on the way in which the appellant's denials were published in a way calculated to injure the respondent by using his published denials to identify him and to have him accused by others on the programme of lying, conformably with, and further evidenced by, the deliberate decision not to seek his response [J 4466];
(b) the reckless indifference of the relevant journalists (O'Donnell, McClellan and Manning, and also Quail) as to the truth of these grave allegations of knowing, underage sex [J 4466];
(c) subject to the comment which follows, the inclusion of the segment of Fahey, with the reference to Fahey's children, was utterly beyond and disproportionate to an occasion of qualified privilege for the publication of imputations relating to under-age sex and in the circumstances gratuitous and offensive [J 4467];
(d) the state of mind and conduct of Quail in relation to Exh AO in that:
(i) the drug allegations made by Stals, the only witness actually identifiable on the programme, known to Quail "were so `fantastic' to any reasonable person, that they would have at the fairly least raised an eyebrow, put on enquiry, or been available to colour that person's ready acceptance of the sexual allegations" and when in the re-interviews Stals sought to raise the issue again Quail "remained silent" [J 4474]; and
(ii) Quail consciously, unreasonably and recklessly [J 4476] (deliberately) held back Exh AO from other members of the appellant's team, deliberately refraining from making that information available in order to promote Stals as a credible witness to the detriment of the respondent's reputation, being motivated to harm the respondent "because he realised the material in Exh AO to any reasonable person, would seriously cast doubt upon the integrity of the information that Stals was providing" and so "that ill-will infected the publication of Witness and the [appellant] is branded with it." [J 4471]
1252 Within these grounds was the reference to the inclusion of the Fahey children segment, as utterly beyond and disproportionate to an occasion of qualified privilege for the publication of imputations relating to underage sex and in the circumstances gratuitous and offensive [J 4467]. It is not entirely clear whether his Honour intended to find this as a further ground of malice, or whether he was only by something of an aside referring to it as a matter outside any occasion of privilege. We think his Honour meant that its inclusion as a matter outside any occasion of privilege (he had held that it was not an occasion of privilege) supported the malice otherwise found in improper motive, because the gratuitously offensive matter could only have been intended to injure the respondent. The parties so treated it in their submissions.
1253 The grounds were each sufficient in itself. Their cumulative effect, of course, is material. But any of them could suffice to defeat qualified privilege.
1254 The appellant's grounds of appeal were divided between those in paras 109 to 111 which relate to (a) to (c) above and the grounds of appeal, in paras 112 to 113 which relate to (d) above. While it is important not to overlook the combined effect, we will first consider the grounds under that grouping.
1255 His Honour's exposition and analysis of the submissions of both parties and the evidence, is to be found in J 4411 to J 4457. Importantly, and emphasising the need to look in combination at the four grounds, there is a connection between ground (d) and ground (a) in respect of Quail and information he had, particularly Exh AO. At J 4411 his Honour noted the internal perception at the appellant of there being two teams, one for To-day Tonight and one for Witness (see evidence in chief of O'Donnell, T 5384), and at J 4412 his Honour made the following points -
(a) Quail left the appellant as an employee on 28 May 1995 (the Judgment says 25 May 1995 in error) and returned pursuant to contract on 13 February 1996 (the Apogee contract), his services being required because of his connection with the subject matter of the proposed Witness programme;
(b) even if Quail (an assistant producer under contract to the appellant) played no part in the decision to telecast Witness, "at the very least, he knew the people; he was wanted by the [appellant] and because he had information, he was needed";
(c) while the appellant cannot be criticised as being unreasonable in its conduct by wishing to do its own interviews for the new programme Witness, "it can be criticised for not pursuing the results of its agent's [Quail's] research required both by contract and pursuant to need as perceived by McClellan";
(d) the tapes of interviews conducted by Quail whilst with To-day Tonight were the property of the appellant, it never having been suggested otherwise, the appellant could not be said to be ignorant of the existence of those tapes;
(e) as at 12 February 1996 O'Donnell
"knew and suggested these should be obtained from Quail, with whom the contract was entered into the following day, tapes of interview with Messrs Russell, McNamara the Speedo Cop and Stals (No. 2), that is to say tapes in addition to as well as including Exh AO from Stals";
and
(f) the recklessness in the appellant via O'Donnell and McClellan knowing that Quail had information was in not considering the information of which the appellant in fact had ownership.
1256 Quail was contractually bound to provide assistance with regard to information known to the appellant as being in the possession of Quail and, whether Quail should have proffered it or not (his Honour concluding that he should have), the gravamen of his Honour's holding was that it was reckless for the appellant not to pursue the information which Quail had in his possession. That information included but was not limited to Exh AO. The appellant, other than via Quail whom the appellant disavowed as its agent, failed to consider that information which was, as confirmed by the Apogee agreement, the property of the appellant or otherwise contractually available to it.
1257 As we have earlier concluded in relation to s22(1)(c), such failure was strongly supportive of lack of reasonableness in investigation of the material relied upon for the Witness programme. In the context of malice it is strongly supportive of a finding of reckless indifference in the appellant to the truth of the imputations of under-age sex. As his Honour concluded [J 4413]
"The [appellant] simply did not bother, rather, it made a positive decision, if McClellan is to be accepted and Quail also, not to give any attention to information which was in its possession on the very subject matter of what it proposed to publish."
1258 As we have already described, the significance of Exh AD as going to Stals' credibility in relation to under-age sex given the "fantastic" allegations regarding the respondent in the florid account of drug running by ship and "Fat Jack". At the least, even if Quail was not obliged to prompt the appellant to view the tape, it was well open to his Honour to conclude that, prompted or not, the failure by the appellant to seek out it and the other information earlier identified in the possession of Quail, strongly pointed to reckless indifference as to the truth of the imputations.
1259 However, his Honour went further than this under ground (d) above, in attributing the state of mind and conduct of Quail (in holding back from proffering Exh AO) to the appellant. The appellant took issue with whether such conduct and state of mind could properly be attributed to the appellant notwithstanding that, having ceased to be an employee, Quail's services were made available along with his material "to assist in the production of any stories on such [paedophile] activities for broadcast on the programme" (clause 1(b) of the Apogee agreement). For reasons earlier given, we consider Quail, though an independent contractor, was relevantly the agent of the appellant. In our opinion his state of mind and conduct, in the particular circumstances, could properly be attributed to the appellant.
1260 Even if this were not so, however, the other grounds for malice remain.
1261 We have set out the trial judge's finding as to improper motive, a motive to injure the respondent [J 4466], and have earlier adverted to the evidence relating to it. It is not necessary to elaborate out opinion that the finding was open to his Honour. Within the guidance in Roberts v Bass, that alone would suffice to establish malice, that the appellant had a purpose or motive foreign to the occasion and was actuated by it in broadcasting the programme. The trial judge did not in terms find that the improper motive actuated the publication of the imputations, but the entire context was dominant purpose and reading the reasons as a whole and J 4466 in that context satisfies us that his Honour did consider that this motive actuated the publication. It was a conclusion open to him on the evidence. His Honour's finding of malice on this basis should stand.
1262 Going then to the finding as to the Fahey children segment, we have earlier said that his Honour's finding should stand. In our opinion it supported the malice found in the improper motive.
1263 At J 4466 his Honour said that his comments in respect of reckless indifference apply to this programme and at J 4469 he directly found malice evidenced "to a very high degree" by reckless disregard for the truth leading to absence of an honest belief in the truth. Taking up our earlier discussion, his Honour did not find reckless disregard for the truth constituting wilful blindness. In the light of the guidance now found in Roberts v Bass, we consider that, as an independent basis for his Honour's finding of malice, it cannot stand. It does support the other grounds for malice, and when taken with the improper motive, the reckless disregard for the truth and absence of honest belief (in the sense we have discussed) this makes a finding of malice impregnable on appeal.
1264 The findings in relation to Quail and Exh AO are a combination of reckless indifference and improper motive to harm the respondent. Even if attributed to the appellant, did Quail's state of mind and conduct sufficiently evidence malice, and if so malice actuating the publication of the Witness programme? We think we have gone far enough in what is in any event an obiter consideration of malice. Without this ground of malice, his Honour's finding of malice can and should stand.
Qualified Privilege in respect of publication in States and Territories of Australia other than New South Wales: appeal grounds 92 to 103.
1265 Appeal grounds 92 and 93 must fail, being dependant on appeal grounds 74 to 91 above (common law qualified privilege), which have failed. They relate to inter-state publication in Victoria, South Australia, Western Australia, Northern Territory and the Australian Capital Territory.
1266 These remaining appeal grounds do not separately distinguish between To-day Tonight and Witness, and pertain to statutory defences in Queensland and Tasmania.
1267 In its written submissions the appellant submitted that his Honour was in error in holding that the appellant was not entitled to rely on any of the four defences in s16(1) of respectively, the Defamation Act 1889 (Qld) and the Defamation Act 1957 (Tas). Those sections are in similar though not identical terms. The application of these defences must relate solely to the broadcast of the Witness and To-day Tonight programmes in Queensland and Tasmania. We agree with the respondent's submission that as the defence relates to publication in Queensland and Tasmania, questions of reasonableness, public good, manner and extent of publication and interest in receiving the information must be assessed in the context of persons in Queensland and Tasmania receiving information about the respondent committing the acts alleged in New South Wales.
1268 The appellant relied on four grounds for what the legislation describes as "qualified protection" within s16(1), namely:
(a) publication for the public good: s16(1)(c) (appeal grounds 94 to 95);
(b) publication for the purpose of giving information: s16(1)(e) (appeal grounds 96, 97 and 98);
(c) publication on the invitation or challenge of the respondent: s16(1)(f) (appeal grounds 99, 100 and 101); and
(d) publication in the course of, or for the purpose of discussion: s16(1)(h) (appeal grounds 102 and 103).
1269 In order to consider these defences in statutory context so as to identify their essential elements, we set out s16(1) and (2) with s17 in full from the Queensland Act:
"Qualified protection - excuse
16(1) It is a lawful excuse for the publication of defamatory matter -
(a) if the publication is made in good faith by a person having over another any lawful authority in the course of a censure passed by the person on the conduct of that other in matters to which such lawful authority relates;
(b) if the publication is made in good faith for the purpose of seeking remedy or redress for some private or public wrong or grievance from a person who had, or whom the person making the publication believes, on reasonable grounds, to have, authority over the person defamed with respect to the subject matter of such wrong or grievance;
(c) if the publication is made in good faith for the protection of the interest of the person making the publication, or of some other person, or for the public good;
(d) if the publication is made in good faith in answer to an inquiry made of the person making the publication relating to some subject as to which the person by whom or on whose behalf the inquiry is made has, or is believed, on reasonable grounds, by the person making the publication to have, an interest in knowing the truth;
(e) if the publication is made in good faith for the purpose of giving information to the person to whom it is made with respect to some subject as to which the person has, or is believed, on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make the person's conduct in making the publication reasonable under the circumstances;
(f) if the publication is made in good faith on the invitation or challenge of the person defamed;
(g) if the publication is made in good faith in order to answer or refute some other defamatory matter published by the person defamed concerning the person making the publication or some other person;
(h) if the publication is made in good faith in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair.
(2) For the purposes of this section, a publication is said to be made in good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill-will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue.
Good faith
17 When any question arises whether a publication or defamatory matter was or was not made in good faith, and it appears that the publication was made under circumstances which would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith lies upon the party alleging such absence."
1270 The publication must both be made in good faith and meet one of the other requirements of the applicable subparagraph of s16. Each of subparagraphs (c), (e), (f) and (h) have as an essential requirement that the relevant publication be made "in good faith". However, the onus lies on the party alleging lack of good faith, if otherwise "it appears that the publication was made under circumstances which would afford lawful excuse for the publication if it was made in good faith" (s17).
1271 The immediate question is whether any of the four defences can be available in relation to the Witness programme when we have upheld his Honour's determination that the publication of the imputations in that programme was actuated by malice. In both programmes there was reckless indifference to the truth of what was published, as distinct from what in Horrocks v Lowe was described by Lord Diplock as "express malice". However, in Witness, to reckless indifference must be added his Honour's finding of improper motive actuating publication.
1272 Section 16(2) defines the circumstances in which "a publication is said to be made in good faith". Absence of any of the cumulative requirements there set out is fatal to establishing publication in good faith. The reference to "publication in good faith" within each of four bases of defence, while providing a context for that expression, does not in any relevant sense alter its content. Thus for example, publication which is made with the lawful excuse afforded by s16(1)(h) of matters relevant to the discussion of some subject of public interest, the public discussion of which was for the public benefit, does not leave the protection afforded by the statutory defence if good faith is not present.
1273 So the party seeking to refute good faith must establish any one of the following -
(a) the manner and extent of the publication exceeds what is reasonably sufficient for the occasion;
(b) the person by whom it is made is actuated by either
(i) ill-will to the person defamed, or
(ii) by any other improper motive; or
(c) the person by whom it is made believes the defamatory matter to be untrue.
1274 In relation to the Witness programme, the finding that the appellant was actuated by improper motive leads inevitably to the failure to satisfy the requirement of publication in good faith. The statutory protection is not available for the Witness programme.
1275 His Honour found "reckless indifference as to truth" in relation to the To-day Tonight programme, and lack of an honest belief in the truth of the imputations. Once lack of honest belief in the truth of the defamatory matter is established, does it follows that the respondent has established that the appellant "does not believe the defamatory matter to be untrue"?
1276 We do not think so. We have discussed his Honour's notion of lack of honest belief. Lack of an honest belief on any view is different from and falls short of, belief that the defamatory matter is untrue, and his Honour's notion of lack of honest belief, founded on recklessness, is even less able to refute good faith for the purpose of the legislation.
1277 We go then to the four grounds for qualified protection, but only as to the To-day Tonight programme. The first ground is under s16(1)(c). Although the appellant submitted that the first and narrower basis within s16(1)(c) is made out "the protection of the interests of the person making the publication, or of some other person", we do not think that the publication of the defamatory matter could be said to be for the protection of either the appellant or (as "some other person") Grusovin, or indeed the informants or sources. Publication might in a very broad sense have been relevant to Grusovin's credibility. But that is not the protection envisaged.
1278 Publication "for the public good" for the second and wider basis in s16(1)(c) was held by his Honour to require the satisfaction of both an objective and a subjective test of "public good" (as explained in Justin v Associated Newspapers Ltd [1967] 1 NSWLR 61 at 65, 90). His Honour said at J 4483 -
"Thus, the defendant has to establish that the publication in question was made for the public good but also that the publication had that as its object or purpose, that is, the purpose of the publisher, was to serve that public good."
1279 His Honour concluded that whilst there was evidence in relation to each programme that it related to public interest, or that imputations intended to be conveyed related to public interest, that was not sufficient to establish that the publication was "for the public good", absent evidence from the appellant that that was its purpose via its servants and agents [J 4484].
1280 The appellant relied upon the characterisation of the test as "very largely an objective test" by Jacobs JA in Bridges v Australian Consolidated Press Limited [1967] 2 NSWR 511 at 520. Jacobs JA recognised a subsidiary element also. His Honour said -
"The defence "for the public good", although it must be very largely an objective test, nevertheless has in it some subjective element to the extent that the person publishing the defamatory matter must intend that the publication relate to the subject for which it is for the public good to ventilate. Such an intention will usually appear from the circumstances of the case rather than from any direct evidence of such an intention. ... in practically every case the intended relationship between the defamatory matter and the general subject matter which it is for the public good to ventilate will be obvious upon the face of the defamatory matter itself. But, it is very important not to confuse purpose in this sense with motive which in each case will be very largely if not wholly a question arising under the subject matter of "good faith".
1281 Walsh JA in the same case said at 516:
"What was said in Justin's Case does not mean that a subjective test must always be applied by the judge when ruling upon a plea under [s16(c)]. I agree with the statement of Jacobs JA, in his reasons for judgment in this appeal, that purpose should not be confused with motive and that in many cases the intended relationship between the defamatory matter and the subject matter which it is for the public good to ventilate will appear from the publication itself. Frequently, it will not require any separate investigation and the judge will be required only to consider any "objective" question."
1282 In no objective sense could it therefore be said that publication could be "for the public good", where it is made with reckless indifference to the truth of what is published, even if the subject matter of the publication could be taken to be a subject which it is for the public good to ventilate. That suffices to deny the defence. This is so, even if it could be said that something published with a reckless disregard for its truth or falsity satisfied the subjective element, as being with the intention of ventilating the subject for which it is for the public good to ventilate. We refer here to what the appellant contends in its written submissions (AS 229) was for the public good to ventilate, namely:
"(a) the character, sexual conduct and proclivities of the respondent;
(b) the public activities of the respondent, including his role as President of the Law Society, a member of the New South Wales Police Board and President of the Council for Civil Liberties;
(c) the fitness of the respondent for public office."
1283 The foregoing proceeds on a relatively wide view of "public good". In Ware v Associated Newspapers Ltd (1969) WN(NSW) (Pt 1) 180 in construing the then equivalent provision in s17(c) of the then New South Wales Act the court took a narrow view of public good". It concluded (at 186):
"[t]here is no public good in publishing allegations about the private behaviour of public [sporting] figures irrespective of the truth or falsity of the imputations."
1284 It must follow that the publication of both To-day Tonight (and Witness in any event) fall outside s16(1)(c).
1285 The second ground is under s16(1)(e), publication for the purpose of giving information. Leaving to one side the requirement of good faith, the question is whether publication was made
"for the purpose of giving information to the person to whom it is made with respect to some subject matter as to which that person has, or is believed on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make the person's conduct in making the publication reasonable under the circumstances."
1286 His Honour [J 4488] rejected the appellant's argument that "reasonableness" in s16(1)(e) "relates to the interest of the recipient in the truth of the imputations and not the appellant's conduct in publishing the imputations", in contrast to s22(1)(c) of the New South Wales legislation. His Honour states that he had great difficulty in accepting that proposition given the terms of the section: "the person's conduct in making the publication is reasonable under the circumstances." We agree.
1287 It is not easy to see how a privilege involving an interest in knowing "the truth" could be satisfied by publication with reckless indifference to truth or falsity. Putting that aside, the interest which is required on the part of the recipient of the information and to which the subsection refers "is a real and direct personal, trade, business or social concern, more than mere curiosity as to the private business or affairs of some other person"; see Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632 at 662-3 per Evatt J. It is clear that not all viewers in Queensland and Tasmania, would have had such an interest in these widely broadcast events in the mass media. Macrossan CJ considered in Bellino v Australian Broadcasting Corporation (13 May 1994, unreported) that for this defence to succeed the appellant had to show that all viewers of the television programme had a real and direct, personal, trade, business or social concern in the affairs of the person the subject of the programme. In our opinion, the statutory protection is not available in the present case.
1288 The third ground is publication on the invitation or challenge of the respondent, s16(1)(f). We have earlier concluded that we find no appellable error in respect of his Honour's rejection of "response" basis for qualified privilege at common law being made out. In the course of doing so we have considered invitation or challenge, and we do not repeat what we have said.
1289 His Honour said that he did not consider the statutory protection available "for the reasons for which rejected, [sic] the `response basis' for qualified privilege or common law". The appellant submitted that there was error in his Honour's failure to treat separately the availability of the statutory protection, which specifically refers to publication "on the invitation or challenge of the person defamed". We do not think there was error as his Honour's earlier reasons clearly translated to the statutory protection. As do ours. The proposition that the respondent in defending himself invited not just members of the public but the appellant as their self-appointed representative to refute what the respondent said in his defence, is untenable.
1290 There was no invitation or challenge either to the appellant or to the public to come forward with any evidence to the contrary of the respondent's own defence of the accusations made in Parliament. The statutory protection is not available under s16(1)(f).
1291 The final ground is publication in the course of, or for the purpose of discussion of some subject of public interest, the public discussion of which is for the public benefit, s16(1)(h). Here there is a difference between the precise form of the defence in Tasmania and Queensland.
1292 In Tasmania the defence is available if the appellant proves that the publication was made:
(a) in good faith; and
(b) in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which was for the public benefit.
1293 In Queensland, an additional element has to be proved: that, so far as the defamatory matter consisted of comment, the comment was fair.
1294 His Honour concluded that the appellant was not entitled to rely on the defence provided by s16(1)(h) of either Act, because the publications were not in the course of, or for the purpose of, the discussion of any subject of public interest in those jurisdictions and were not made for the public benefit [J 4494 to J 4496].
1295 The appellant's attack on this reasoning was two pronged. For the first, the appellant relied upon Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 in particular the passage accepted by his Honour at J 4493 from the majority judgment of Dawson, McHugh and Gummow JJ at 221-2. For the second, it submitted that for his Honour so to hold was inconsistent with his earlier finding that the publication of the programmes in Queensland and Tasmania was for the public benefit [J 2912].
1296 Taking first Bellino, the passage cited by his Honour from the majority judgment gave the statutory protection narrower scope than was given to it by Brennan CJ and Gaudron J at respectively 193 and 242. In the majority judgment the protection was limited to -
"... the conduct of any person whose conduct, inherently, expressly or inferentially, invites public criticism or discussion. Thus, the discussion of the conduct of any person holding public office, participating in the administration of justice or public affairs, offering goods or services to the public or otherwise engaging in public conduct that invites public criticism or discussion comes within the protection ..".
1297 In Bellino the appellant particularised the subject of public interest as, inter alia, "organised crime and corruption in Queensland". The majority judgment criticised the particulars as "abstractions which did not purport to identify the conduct of any actor or institution having invited public criticism or discussion" (at 214). Some subjects of public interest were discussed in the programme, and were found not to be such wide abstractions. These were matters such as the administration of the Queensland Police Force by the then Police Commissioner and the performance of their duties by various police officers identified in the programme.
1298 In the present case his Honour's reasoning appears to have been that "the [respondent] by his participation in public affairs, especially in holding the office of membership of the Police Board by act of the Executive Government" was necessarily "inviting public criticism or discussion" of his private conduct "when that conduct went to the question of his fitness for that office" such that it could hardly be argued "that there was no public discussion for the purposes of this subsection" [J 4494]. But his Honour questioned whether it was for the public benefit in Queensland and Tasmania that the publication was made in the course of or for the purpose of discussion of the subjects of public interest so identified [J 4495]. Relying for a territorial ambit of what was in the public interest on the reasoning of the High Court in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503, his Honour concluded that "the publications were not in the course of or for the purpose of the discussion of any subject of public interest in those jurisdictions and it cannot be held that any such discussion in those jurisdictions was for the public benefit." [J4496] [emphasis added]
1299 This was a finding of fact. There was no relevant subject of public interest for Queensland or Tasmanian viewers, and so there was no public benefit in public discussion in Queensland or Tasmania of the respondent's fitness for office. Subject to the second prong, we do not think that error in that finding has been shown. It was hardly a matter of interest in Queensland and Tasmania, within the Bellino scope, to discuss the conduct of a member of the New South Wales Police Board twenty years earlier.
1300 Going then to inconsistency, when considering the justification defences the trial judge made the passing observation at J 2912, that "with respect to the `public benefit' ingredient in the defence of justification in Queensland, Tasmania and the Australian Capital Territory, I would find myself persuaded by the defendant's submissions that that component would have been made out". The appellant submitted that it followed that the broadcast of the programme did satisfy the public interest and benefit elements of s16(1)(b) for Queensland and Tasmanian viewers.
1301 We do not agree. Bellino limited the scope of the public interest and benefit, essentially through the person in question having expressly or otherwise invited public criticism or discussion. The public benefit for justification can be wider. The finding and the earlier observation can stand together.
OVERALL CONCLUSION - INTERSTATE DEFENCES
1302 It follows from the foregoing that none of the four bases of defence in s16(1) as operative in Queensland and Tasmania has been made out.
1303 It also follows from the earlier failure of the grounds of appeal 74 to 91 that the grounds of appeal in respect of qualified privilege for publication in States and Territories of Australia other than New South Wales, namely those in paras 92 to 103, must fail.
OVERALL CONCLUSION - QUALIFIED PRIVILEGE
1304 For the reasons we have given, the appeal fails in relation to qualified privilege.
DAMAGES
1305 To repeat, the damages for the Today Tonight imputations were $275,000 and the damages for the Witness imputations were $250,000. By s 9 of the Defamation Act, each of the two imputations found to have been carried by each programme gave a separate cause of action. For each of the programmes the one amount of damages was awarded for the two causes of action. Neither the appellant nor the respondent took objection to this.
1306 A reminder of the imputations is appropriate.
1307 The imputations found to have been carried by the Today Tonight programme were -
"(a) The plaintiff has had sexual intercourse with boys who were under the age of 18 knowing them to be under the age of 18.
(b) The plaintiff has had sexual intercourse with a 15 year old boy who was then under the influence of drugs which had been given to him by the plaintiff."
1308 The imputations found to have been conveyed by the Witness programme were -
"(a) The plaintiff has had sexual intercourse with 15 year old boys, having deliberately refrained from asking those boys how old they were.
(b) The plaintiff has had sexual intercourse with 15 year old male prostitutes having deliberately refrained from asking them how old they were."
1309 The respondent claimed damages for injury to feelings, harm to reputation and psychiatric injury, including aggravated damages, and exemplary damages.
1310 The damages awarded were ordinary compensatory damages, that is, without the enhancement of aggravated compensatory damages. They excluded damages for psychiatric illness. Exemplary damages were not awarded.
1311 Levine J summarised the basis for the damages he awarded -
"5266 An allowance will be made for the causes of action arising from each publication for (a) a sum for injury to feelings: this, in the scheme of things, is to be modest in the absence of subjective evidence from the plaintiff; otherwise it has been established on the evidence of other witnesses. (b) Actual damage to reputation to a substantial level, has, I am satisfied been established. (c) The extent of the publication in each case was very great in terms of the viewing audiences and the perpetuation of the libels by reason of the issues litigated; this component, I stress, is on an ordinary compensatory basis. (d) The gravity of the false imputations, which I consider to be the worst kind, is taken into account and (e), accordingly, the requirement for vindication is high indeed. It is important that no element of punishment intrude and that account be taken of the value of money. In the end, in this case, the plaintiff having been injured in his good name, vindication as a purpose of the award, predominates."
1312 The appellant submitted that the damages were manifestly excessive, and that only nominal damages or at most much smaller ordinary compensatory damages should have been awarded. The respondent submitted that the damages were manifestly inadequate, and that much greater ordinary compensatory damages, including damages for psychiatric injury, should have been awarded, plus aggravated compensatory damages and exemplary damages. Within the submissions more particular errors were asserted. The respondent also contended that the interest on the damages included in the judgments was arrived at on a wrong basis and should have been greater.
Damages for Defamation in General
1313 Putting aside a claim to be compensated for specific economic loss, and the respondent made no such claim, damages for defamation are said to be "at large". They are not arrived at by calculation or the application of a formula. In Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 McHugh J said (at 115) -
"No doubt the rough-and-ready process by which juries assess damages in a defamation action is not one which appeals to the many sophisticated minds of the spreadsheet generation. It does not, as the speech of Lord Shaw makes plain, purport to be a scientific, or even a pseudo-scientific, process. There are no columns and rows into which the components of the verdict can be conveniently placed, no relationships which can be made the subject of mathematical formulas. The assessment depends upon nothing more than the good sense and sound instincts of jurors as to what is a fair and reasonable award, having regard to all the circumstances of the case. That is why the damages are said to be `at large'."
1314 Speaking of the common law position, in their joint judgment in Carson v John Fairfax & Sons Ltd Mason CJ and Deane, Dawson and Gaudron JJ said (at 60-61) -
"Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that `the amount of a verdict is the product of a mixture of inextricable considerations'. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. `The gravity of the libel, the social standing of the parties and the availability of alternative remedies' are all relevant to assessing the quantum of damages necessary to vindicate the appellant." (citations omitted)
1315 The purpose of ordinary compensatory damages is to compensate for the harm done to the plaintiff by the effect of the publication of the defamatory matter on the plaintiff and on the plaintiff's reputation. They do so "by way of a solatium rather than a monetary recompense for harm measurable in money" (Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 150 per Windeyer J), and in the compensation reparation of the harm done to reputation and vindication of the reputation informs the sum awarded so far as the compensation is for harm done to reputation. But the damages are not confined to compensation for harm done to reputation, and may include compensation for injury to feelings and for injury to health caused by the publication of the defamatory matter.
1316 Regard may be had to the circumstances of publication and conduct in publishing the defamatory matter and subsequently, so that if the harm done to the plaintiff is thereby exacerbated the damages may be assessed by "going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation" (Broome v Cassell & Co [1972] UKHL 3; (1972) AC 1027 at 1085 per Lord Reid). These so-called aggravated damages are still compensatory damages, and are not separately assessed, but the circumstances or conduct goes to increase the damages otherwise payable as a solatium. This may occur, for example, when the publication is made out of spite, or the defendant persistently repeated the defamation or persisted in hopeless defences at the trial. Although they are still compensatory damages, there is an element of punishment in an award of aggravated damages. The defendant's state of mind or conduct is not a measure of the harm done to the plaintiff. It is material to the assessment of the compensatory damages because, for appropriate solace or consolation, some punishment must be inflicted on the defendant.
1317 Exemplary damages depart from the notion of compensation. They are separately assessed, and their purpose is to punish the defendant and teach the defendant that defaming the plaintiff does not pay. In Broome v Cassell & Co Lord Reid said (at 1089) that in assessing compensatory damages the jury must consider how much the plaintiff ought to receive, whereas in assessing punitive damages the jury must consider how much the defendant ought to pay. Exemplary damages may be awarded, for example, when a newspaper defendant chooses to publish without belief in the truth of what it publishes because circulation will rise and enough money will be made to offset any damages, in the traditional words in contumelious disregard of the plaintiff's rights.
1318 Section 46(2) of the Defamation Act provides that damages for defamation shall be the damages recoverable in accordance with the common law but limited to "relevant harm", for present purposes meaning harm suffered by the respondent. It was not suggested in the appeal that s 46(2) excluded ordinary compensatory damages so far as awarded in vindication of reputation, or aggravated damages so far as punitive. In Carson v John Fairfax & Sons Ltd McHugh J said (at 109) -
"The use of the term `harm' in s 46 is curious. It is not a term of art in the law of defamation or the law of torts. But in the context of a section which provides that damages are recoverable in accordance with the common law, it must include such matters as effect on reputation, hurt to feelings, distress, worry, humiliation, fear, anger and resentment as the result of defamation. The purpose of the section is to prevent the plaintiff from receiving damages which do not have a restorative effect. Thus, damages to vindicate the plaintiff's reputation are damages for relevant harm, and so are damages for the failure to apologise. And, in some cases, aggravated compensatory damages which include an amount for punishment or deterrence are `damages recoverable in accordance with the common law ... for relevant harm' (s 46(2))."
1319 Section 46(3)(a) of the Defamation Act provides that damages for defamation "shall not include exemplary damages". None of the other States or Territories has similar legislation. The trial was held in New South Wales, but the programmes were broadcast in States and Territories other than New South Wales as well as in New South Wales. If it be held that at common law the respondent is entitled to exemplary damages, it will be necessary to consider the effect of this prohibition under the law of New South Wales as the State in which the trial was held.
1320 Section 46A(1) of the Defamation Act provides that in determining damages for defamation the court "is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded". Section 46A(2) provides that for non-economic loss the court "is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages)". None of the other States or Territories has similar legislation.
1321 No submissions were addressed to the effect of ss 46(2) and 46A in relation to the broadcast of the programmes in States and Territories other than New South Wales as well as in New South Wales.
Ordinary Compensatory Damages: Injury to Feelings
1322 In Broome v Cassel & Co Lord Diplock said (at 1125) -
"The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages ... even in cases where there are grounds for `aggravated damages'."
1323 The appellant abandoned grounds of appeal directed to proof of injury to feelings, and did not dispute the damages so far as they included compensation for injury to feelings. The respondent, however, submitted that Levine J erred in concluding that the sum allowed should be "modest in the absence of subjective evidence from the [respondent]" [see J 5266 set out above], and asserted error first, in rulings which he said resulted in the absence of his subjective evidence of injury to feelings and secondly, in failing to give sufficient weight to the other evidence of injury to feelings.
a) The rulings
1324 The imputations on which the respondent relied and the appellant's particulars of truth and contextual truth were both amended from time to time. At all times, however, the thrust of the imputations was that the respondent had engaged in homosexual intercourse with boys under the age of 18 or 15, and at all times the appellant pleaded and particularised justification defences the thrust of which was that he had indeed done so.
1325 If in his case in chief the respondent were called to give evidence of injury to feelings, in the ordinary course he would be exposed to cross-examination on, amongst other matters relevant to the trial, the matters particularised by the appellant for its justification defences.
1326 In February 1999, a few weeks before the jury found that the programmes carried the imputations and about nine months before the hearing before Levine J began, the respondent applied to his Honour for an order to the effect that the defences be tried before any trial as to damages. One of the respondent's arguments, the presently relevant although not the only one, was that it would be unjust if he had defend himself against the allegations of engaging in homosexual intercourse with underage boys before the appellant had led its evidence in support of the justification defences. On 9 February 1999 his Honour refused the application ([1999] NSWSC 28).
1327 In October 1999, about a month before the hearing before Levine J began, the respondent applied to his Honour for an order to the effect that he not be cross-examined at all until the appellant's case on justification had been heard, alternatively an order to the effect that he be cross-examined only in relation to damages until that time. The substantial argument for the respondent was that it would be unjust if he were exposed to cross-examination twice in relation to justification, once during his case in chief when cross-examined on his evidence as to injury to feelings and again when giving evidence in a case in reply after the appellant's evidence in support of the justification defences had been led and tested. On 26 October 1999 his Honour refused the application ([1999] NSWSC 1061).
1328 In the result, the respondent did not give evidence in his case in chief. It was said in the appeal that, faced with the forensic choice between giving evidence of injury to feelings in his case in chief but exposing himself to early cross-examination on a particularised but not yet substantiated or tested case of justification, on the one hand, and not then giving evidence of injury to feelings but not exposing himself to that cross-examination, on the other hand, he chose the latter.
1329 In June 2000, when the respondent was giving evidence in his case in reply, he applied to Levine J for leave to reopen his case in chief on the issue of damages. The further evidence foreshadowed included, but went substantially beyond, evidence from the respondent of injury to feelings. On 6 June 2000 his Honour refused the application ([2000] NSWSC 517).
1330 Thus at the close of the trial the respondent had not given evidence of injury to feelings. A perhaps unwary question in cross-examination enabled the respondent to confirm that he was "extremely upset" about the Today Tonight programme, but otherwise the respondent had not given evidence of the effect on him of the broadcast of the programmes.
1331 The respondent submitted that he was left without this subjective evidence because of the rulings of 9 February 1999 and 26 October 1999, whereby he could not give evidence of injury to feelings in his case in chief without exposure to cross-examination on the matters particularised by the appellant for its justification defences, and because of the ruling of 6 June 2000, whereby he could not given evidence of injury to feelings in a re-opened case in chief. He submitted that Levine J erred in the rulings.
1332 The rulings were exercises of discretion in matters of practice and procedure, the proper conduct of the trial. They attract the particular appellate caution spoken of in In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323, and error of principle must be shown.
1333 The error asserted by the respondent for the pre-trial rulings was that Levine J had required the respondent to show that there were reasons obliging or compelling his Honour to depart from the normal course of a defamation trial. It was submitted that there was error of principle in that there should not have been a pre-disposition to following some normal course, and that the discretion should have been exercised having regard to the respondent's particular circumstances.
1334 In the reasons for the ruling of 9 February 1999 Levine J accepted that he had a discretion to make the order sought, referring to s 85(2) of the Supreme Court Act and Pt 31 r 2 of the Rules. He considered that the respondent was well apprised of the justification defences by the particulars, and that the respondent would be protected from any departure from the particulars when the appellant's evidence was called by a discretion to permit evidence in reply. He said that the course proposed by the respondent would "invert, if not pervert the structure of what is a civil claim for damages for defamation", and would prejudice the appellant in the conduct of its defences and its case on damages and give rise to a serious risk that the Court would have to decide substantive issues when the appellant "has not been provided with the usual opportunities for the adducing of evidence in support of its case". He acknowledged that the justification defences were "substantial", as we understand it meaning important in the proceedings, but said that "[n]othing in the structure of the case, given the existence of the discretions, warrants the departure from the normal conduct of a defamation action of this kind".
1335 In the reasons for the ruling of 26 October 1999 Levine J noted that he was "asked to exercise the powers and discretions provided by s 85(2) of the Supreme Court Act and SCR Pt 31 r 2". In considering the unfairness urged by the respondent he briefly described what he said he would "for the sake of convenience call the `normal course'", under which a plaintiff giving evidence as to injury to feelings could be expected to have put to him the defence case on justification, but if giving evidence again in reply, could not be cross-examined again on the same subjects. (No doubt this depended on what evidence was given in the case in reply.) His Honour said that there existed accepted forensic mechanisms for dealing with the respondent's concern of being twice cross-examined as to justification, and that the concern -
" ... is not persuasive to the point where I can make rulings the effect of which is merely to obviate some concern in the plaintiff which exists in the face of the `normal course' being followed in this piece of civil litigation."
1336 In those reasons Levine J said that he saw the ultimate objective of the application as essentially the same as that of the February 1999 application. He said that the justification defences had expanded, but that he had also required the appellant to provide proofs of evidence so that the respondent's knowledge of the defence case was "now far better than it was in February". He said that the respondent also relied on change in his representation, and that there was uncertainty which "gives rise to satisfaction in nobody", but continued -
"But again it is not a factor of such persuasion as to oblige me or compel me to order the departure from the `normal course' by itself or together with the other factors to which I have referred."
1337 Levine J concluded the reasons by saying that he was not persuaded "that there is any reason to depart from the approach I took in my judgment of 9 February 1999 or discretely that any basis has been made out to grant the relief sought in the present application".
1338 There were references in the rulings to a normal course of trial. But we do not think that there was error of principle as suggested by the respondent.
1339 Levine J had power to make the orders sought. Section 85(2) of the Supreme Court Act and Pt 31 r 2 of the Rules may not have been appropriate sources of the power. Rather, his Honour had inherent power to control the conduct of the trial, and pursuant to Pt 34 r 6 of the Rules could give directions as to the order of evidence and generally as to the conduct of the trial.
1340 But his Honour did not insist on compliance with a normal course of trial unless a case obliging or compelling him to depart from it had been made out. On a reading of the reasons as a whole, he noted the position of the respondent if the normal course of a defamation trial were followed, he evaluated the arguments for injustice or unfairness if that course were not modified by the orders sought, and he found the case for modification insufficient to warrant making the orders. So far as the respondent asserted concern at cross-examination on the particularised but as yet unsubstantiated and untested justification defences, he appreciated the concern but was not thereby persuaded to make the order. So far as the respondent asserted double jeopardy, he considered that the respondent would be protected by restrictions on cross-examination and again was unpersuaded. Nor did the state of the respondent's legal representation call for the making of the order secondly sought or sufficiently add to the other arguments. The normal course of trial was a starting-point, but not to the exclusion of or dominant over regard to the respondent's particular circumstances.
1341 If must be remembered that a trial is not conducted as an unstructured free-for-all. According to the customs and usages of our system of justice, it generally follows a course founded in rules of law to do with burdens of proof and admissibility of evidence. That can be called a normal course, but there can be departure from the normal course. Where one party seeks departure to obviate a perceived disadvantage, the departure will usually deprive the other party of a corresponding perceived advantage. Let it be accepted that the respondent had to decide between giving evidence in his case in chief but being exposed to cross-examination by the justification defences, on the one hand, and deferring that cross-examination but not giving evidence in his case in chief, on the other hand. Levine J considered that any injustice or unfairness to the respondent if the normal course were followed was adequately met by full particularisation of the justification case (to the extent of provision of proofs of evidence) and the capacity to prevent duplication of cross-examination, and that the decision was otherwise for the respondent to make. It was not for the Court to remove the need for the decision and thereby assist the respondent to the possible disadvantage of the appellant. We consider that his Honour was entitled to exercise his discretionary control over the conduct of the proceedings in the manner he did, and that error has not been shown.
1342 The respondent's submissions included a suggestion that Levine J was exercising the power conferred by s 26 of the Evidence Act 1995, and that the exercise of the power miscarried because so far as the reasons disclosed he did not take into account the specific matters which s 192(2) of that Act required him to take into account. Section 26 escaped the attention of all concerned at the times of the applications to Levine J, and it may be that it does not extend to the orders sought by the respondent. It is sufficient, however, that by s 11 of the Evidence Act the power of the Court to control the conduct of the trial was preserved, and that the orders if made would not have been leave, permission or direction because of the Evidence Act within the words of s 26.
1343 We go then to the application to reopen the respondent's case in chief. It was described thus in submissions to Levine J [T 6805] -
"The plaintiff wishes to reopen his case on damages and give further evidence for the period to, and fresh evidence of the period since 17 December 1999 as to those four areas: hurt to feelings, aggravation of damages for hurt to feelings, damaged reputation, and aggravation of damages for damage to reputation."
1344 The date 17 December 1999 was when the respondent closed his case in chief. The application went beyond giving evidence of injury to feelings, and beyond giving the evidence of injury to feelings which the respondent would have given prior to the close of his case in chief. Evidence as to the period after 17 December 1999 would be in a different position from evidence as to the period from the broadcast of the programmes to 17 December 1999. For present purposes only the period from the broadcast of the programmes to 17 December 1999 is in question.
1345 It was made plain in the submissions to Levine J that the application was for the respondent himself to give evidence, including as to that period from the broadcast of the programmes. In the submissions to his Honour it was said that the evidence from the respondent as to the period before the close of his case in chief "would be very brief because it has been subject to so much evidence by other witnesses" [T 6807].
1346 In his reasons of 6 June 2000 Levine J first said that the circumstances of the application included his rulings of 9 February 1999 and 26 October 1999 "refusing to permit the plaintiff to restructure the presentation of his case" and a ruling of 14 December 1999 "in relation to the precluding of the calling of evidence on aggravated damages".
1347 The ruling of 14 December 1999 will be more specifically considered later in these reasons. It was a ruling on a tender of documents said to go to aggravated damages, and in para [4] of the reasons Levine J said -
"A very important concept in aggravated damages constituted by an increase to the hurt of the plaintiff is that the personal hurt is subjective. I find it difficult to appreciate a situation where, in the absence of a plaintiff giving evidence of his being hurt in the first instance by a publication, evidence could be admitted to show an increase in that hurt from sources other than the plaintiff, to put it starkly, when the plaintiff has said nothing about being hurt in the first place. I do not see the judgment in Andrews providing authority for someone else saying that that on which the plaintiff is silent was exacerbated."
1348 In the reasons of 6 June 2000 his Honour then said that the respondent had closed his case "without the [respondent] having given evidence himself (which is to be taken as the result of a considered and deliberate choice made by him)", and that the defence case had closed. His Honour continued -
"5 First, I am not persuaded by submissions for the plaintiff to change my views expressed in my judgment of 14 December 1999, especially paragraph 4.
6 Secondly, the plaintiff having given no evidence as to his subjective reaction to the fact of being involved in the litigation, there is no case to reopen in respect of either the maintenance of the plea of justification (which of course was in place at the time of the close of the plaintiff's case), or its prosecution, even assuming as to the former, it to be available as a matter going to ordinary compensatory damages.
...
8 Further, as to matters not part of the facts of or conduct of the defence case, what I will call non forensic events - abusive phone calls and the like, again, I have come to the view, no evidence having been given by the plaintiff himself as to any incidents of the publication of the matters complained of causing subjective hurt or reputational damage, that there is no case to reopen, and no case in respect of which there can be said to be called what has been described as `fresh' evidence.
9 The historical context to which I have referred demonstrates that at the closure of the plaintiff's case the structure of the trial then became settled. The defence case is closed. The plaintiff is in his case in reply to that defence case, conformably with that structure, the structure that has formed the conduct of this trial, now in its 164th day.
10 The present exercise is not one to determine the admissibility of particular pieces of evidence, or classes of testimony, but whether the plaintiff should have leave to reopen. I have held that there is no relevant case to reopen. I agree with the submissions of the defendant that the applications constitute in reality an attempt to turn the trial on its head, or to start again. Even if the view was arguable that there was some case to reopen, the interests of justice - bearing in mind the history and structure of the trial - do not compel the exercise of the discretion to permit that reopening sought. See Urban Transport Authority of NSW v Weisser [sic: Nweiser] (1991) 28 NSWLR 471."
1349 So far as the application was to lead evidence as to injury to feelings for the period from the broadcast of the programmes until 17 December 1999, the reasons are less than specific. They sufficiently show, however, that reopening in that respect was refused because the respondent had made "a considered and deliberate choice" not to give the evidence before he closed his case in chief. That is reflected in the somewhat imprecise, if not ambiguous, references to there being "no case to reopen" - inappropriate references because a prior case may not be necessary for leave to reopen, but nonetheless conveying that the respondent had made his choice. It is also reflected in the agreement with the appellant's submission that the application was in reality an attempt to start again, and in the closing reference to the history and structure of the trial. The error asserted by the respondent for the ruling accepted this view of the reasons.
1350 The respondent submitted that Levine J's discretion miscarried because, so far as it was founded on the fact that the respondent had not given evidence in his case in chief, that was because of the earlier erroneous rulings of 9 February 1999 and 26 October 1999. For the reasons we have given, we do not think that there was error in the earlier rulings. Hence we do not accept that the discretion miscarried in the ruling of 6 June 2000.
1351 We note that the respondent did not separately assert error in the ruling so far as the application was to lead evidence of injury to feelings as to the period after the closure of the respondent's case in chief.
b) The weight given to the other evidence
1352 To repeat, Levine J made the sum for injury to feelings "modest in the absence of subjective evidence from the [respondent]" [J 5266]. For the present we put aside whether the damages should have included aggravated damages.
1353 There was evidence from a number of witnesses of contemporaneous statements by the respondent going to his reaction to the broadcasts of the programmes and to what they observed about his reaction. Evidence of that nature could establish injury to feelings, even without evidence from the respondent, see for example Packer v The Australian Broadcasting Corporation (1993) 116 FLR 306.
1354 Levine J noted the respondent's submission that the evidence of his personal hurt was "extensive and compelling" [J 4756]. He recounted the evidence, in the context of his reasons doing so as the respondent submitted it should be found [J 4757-84]. His Honour then referred to a submission to the effect that he could also take into account his own observation of the respondent, including -
"4784 The Court would not, and is not invited to, substitute its observations of Mr Marsden's mood and demeanour in the conduct of the proceedings, for the evidence. But a Judge does not come onto the bench with eyes closed. Not as a substitute for evidence, but as an aid to determining the weight that should be given to the evidence which has been led, the Court would take account of its observations of Mr Marsden's frequently obvious embarrassment, anxiety and stress. That is the approach adopted, for example, by Bergin J in Vignoli v Sydney Harbour Casino [1999] NSWSC 1113; [2000] Aust Torts Reports 81-541 at paragraph 121. That observation would increase the weight which the extensive evidence of Mr Marsden's hurt feelings would anyway bear, and reinforce the Court in concluding that the impact of Mr Marsden of both the 1995 and 1996 broadcasts was immediate, severe, debilitating and sustained."
1355 Levine J concluded this part of his reasons -
"4785 It will thus be seen that the plaintiff is submitting that evidence is available, in relation to each program, as to what the plaintiff said as to his feelings and what people observed about him. In other words, notwithstanding that the plaintiff gave no evidence in chief, damages, [sic] there is available testimony for an award of damages not only with respect, of course, to the plaintiff having been injured in his reputation, but also for that component known as `hurt to feelings'. It is not however to be taken that the defendant concedes any of these propositions; it is not to be taken that the evidence above summarised, and at some length, was admitted without objection. A particular factor of concern to the defendant relates to the `timing' of the observations and statements particularly those occurring in terms of years after the publication of the programs complained of. These matters will be considered in due course."
1356 When he came to the appellant's submissions as to injury to feelings Levine J did not detail the concerns relating to timing. Issue was joined at a more fundamental level. We think it necessary to set out an extensive passage from his Honour's reasons -
"5047 The defendant submits that there should not be included a component for hurt to feelings in any award of damages in respect of either publication. Without evidence from the plaintiff the Court is without a proper basis for assessing the true nature and extent of such harm to enable the calculation of an amount of compensation which the defendant should pay.
5048 There is no presumption at law that mere publication of defamatory matter results in compensable subjective hurt. In any event, there should be no such presumption in circumstances where, by reason of the plaintiff's choice as to the manner of conduct of his case, the plaintiff led no evidence on this issue.
5049 The observation in Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594 at 602 is applicable:
`The common law of evidence has long focused upon the quality of the evidence that is given at trial and has required that the evidence that is given at trial is given orally, not least so that it might be subject to cross-examination. That is why the exclusionary rules of the common law have been concerned with the quality of the evidence tendered - by prohibiting hearsay, by permitting the giving of opinions about matters requiring expertise by experts only, by the `best evidence rule' and so on. And the concern of the common law is not limited to the quality of evidence, it is a concern about the manner of trial. One very important reason why the common law set its face against hearsay evidence was because otherwise the party against whom the evidence was led could not cross-examine the maker of the statement. Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial'.
5050 The consequence of the plaintiff choosing not to give evidence as to his feelings in reaction to the publications is that the Court was deprived of the best evidence. Further, the defendant was deprived of the opportunity to test the plaintiff as to the true cause of what he said to the witnesses, and as to the veracity of what he in fact said, or as the plaintiff suggests, the defendant simply chose not to. Furthermore, the plaintiff having elected not to give evidence in his damages case and withholding announcement of that decision until the witnesses had come and gone, the defendant was constrained in testing those witnesses on similar matters.
5051 Particularly in a libel case, matters of internal hurt such as grief, annoyance, anxiety, loss of self esteem, sense of indignity or outrage, and the cause thereof, are not susceptible of proof other than by the plaintiff himself. Alternatively, in circumstances where the plaintiff was well able to give such evidence but chose not to, no weight should be accorded to such admissible evidence on the issue as was given by others.
5052 The following rulings and observations made by this Court apply. The Court recognised the necessity for the plaintiff to give evidence of subjective reaction to the publication of the imputations in order to sustain a claim for damages for hurt to feelings:
5053 [1999] NSWSC 1302: DLJT 72, 14 December 1999, par 4: `Fundamental to the ingredients of a case for aggravated damages to which I have referred is the plaintiff's awareness of it. ... There is no evidence of which I am aware that links anything in terms of the subjective reaction in the plaintiff to what it is this promotional material shows'. The Court emphasised the necessity of establishing a link in terms of the subjective reaction in the plaintiff to the defendant's conduct, which for these purposes is the publication of the specified imputation.
5054 [1999] 1303: DLJT 73, 14 December 1999, par 4: `A very important concept in aggravated damages constituted by an increase to the hurt of the plaintiff is that the personal hurt is subjective. I find it difficult to appreciate a situation where, in the absence of a plaintiff giving evidence of his being hurt in the first instance by a publication, evidence could be admitted to show an increase in that hurt from sources other than the plaintiff, to put it starkly, when the plaintiff has said nothing about being hurt in the first place. I do not see the judgment in Andrews providing authority for someone else saying that that on which the plaintiff is silent was exacerbated'. The ruling precluded the calling of evidence on aggravated damages where the plaintiff closed his case without giving evidence himself. By the same reasoning, absent evidence from the plaintiff, a claim for damages for hurt to feelings should be rejected.
5055 [1999] NSWSC 1305: DLJT 75, 14 December 1999, par 6. A hurt feelings aggravated damages case requires evidence from the plaintiff as to his feelings.
5056 [2000] NSWSC 517: DLJT 169, 6 June 2000, par 6, 8. The plaintiff having given no evidence as to his subjective reaction to involvement in the litigation, or as to any incidence of the publication of the matters complained of causing subjective hurt or reputational damage, there was no case to reopen and no case in respect of which there could be called `fresh' evidence.
5057 Evidence from witnesses was allowed over objection, leaving the question of weight until submissions. For example, `Lyall Ruling' ([1999] NSWSC 1120: DLJT: 54, 16 November 1999, par 37) in ruling admissible evidence pursuant to s 60 of the Evidence Act it was said: `It must not be overlooked that in this trial there is no jury and evidence admitted will be subject to close scrutiny, weight, submission and judgment'. See also par 41. Thus, in allowing the evidence as relevant, the Court plainly left open all questions of weight and probative value.
5058 It is for the Court to decide what, if any, weight is to be given to facts observed by the witness. In the circumstances no weight should be given, if only because no nexus was established between the imputations and the plaintiff's manifestation by words or conduct of his mental state. Of course, the opinion or conclusion of a non-expert witness on this topic has no probative value at all: Lee v The Queen (above).
5059 To the extent that the decision in Packer v Australian Broadcasting Corporation (1993) 116 FLR 306 holds otherwise it is respectfully submitted that it is wrong. The case should be taken as saying no more than that where there is evidence as to fact (not opinions) there may be the basis for an inference as to the plaintiff's reaction and the cause of it.
5060 The defendant repeats the earlier submission that the plaintiff's claim for damages in respect of hurt to feelings allegedly caused by the publication of the imputations conveyed in either Today Tonight and/or Witness should be rejected. No award should be made under this head.
5061 I am in substantial agreement with the submissions for the defendant on this heading and for the reasons given. However, as I have not accepted the defendant's argument in relation to `causation'. Some weight will be given to evidence, which I do accept as admissible and relevant to observations by others of contemporaneous reactions explicable on no rational basis otherwise than by reference to the defendant's programs."
1357 His Honour then dealt with taking into account his own observation of the respondent, saying -
"5062 As to the plaintiff's submissions founded on Mr Marsden in Court, the defendant says they should be rejected. Had the plaintiff wished to prove his anxiety and uncertainty undergone in the litigation he had every opportunity to give evidence about it. He chose not to do so. It is not open to the Court to speculate that the cause of the plaintiff's demeanour on any particular day of, or otherwise during, the trial was the publication of the imputations. Furthermore, the Court's observations and ruling in [2000] NSWSC 517: DLJT 169, 6 June 2000 (particularly pars 6 and 8) are applicable to negate the plaintiff's submission. As appears from that judgment the Court held that the plaintiff having given no evidence as to his subjective reaction to involvement in the litigation, or as to any incidence of the publication of the matters complained of causing subjective hurt or reputational damage, there was no case to reopen and no case in respect of which there could be called fresh evidence.
5063 The defendant's submissions are unarguably correct and I reject those of the plaintiff. Mr Marsden's "presence in Court" is not a matter I shall take into account."
1358 His Honour said also -
"[5064] As to the assessment of damages for injured feelings, the defendant submits, there is a significant difference between the totality of the evidence available to the Court in this case to assess Mr Marsden's hurt feelings, and that in any case in which the plaintiff chooses to give his evidence in chief. Where the plaintiff gives evidence the Court has material relevant to the claim before it. Where the plaintiff does not give evidence the Court is without that evidence. In this case such evidence as is relied upon by the plaintiff, for the reasons put above, lacks any or any sufficient weight to prove the claim. I indicated there is sufficient weight in the evidence as to hurt feelings (but no evidence as to aggravation)."
1359 Levine J's position as to the respondent's "presence in Court" is clear. It is otherwise not easy to determine just what of the appellant's preceding submissions as to injury to feelings was included within his Honour's "substantial agreement".
1360 His Honour did award damages for injury to feelings, and said that "some weight" would be given to evidence of "observations by others of contemporaneous reactions explicable on no rational basis otherwise than by reference to the defendant's programs", so plainly he did not accept the appellant's submissions to the full. He thought that a nexus was established between the imputations and the respondent's manifestations by words or conduct of his mental state [see J 5058], although he restricted the relevant evidence to that of reactions explicable on no rational basis otherwise than by reference to the programmes. He did not accept that in the absence of evidence from the respondent injury to feelings simply could not be found or alternatively no weight should be given to the relevant evidence of others [see in particular J 5051], and gave "some weight" to the relevant evidence of the other witnesses. The reasons do not reveal what of the evidence recounted was accepted as relevant evidence, that is, as evidence of reactions explicable on no rational basis otherwise than by reference to the programmes.
1361 That, however, was not the respondent's complaint. The substance of the respondent's submission was that, whatever evidence was accepted as what we will for short call relevant evidence, the weight given to it had been reduced, because the respondent had not himself given evidence of injury to feelings. That, it was submitted, must have been a significant part of the substantial agreement with the appellant's submissions. The respondent said that there was the direct evidence to which we earlier referred that he was extremely upset about the Today Tonight programme. More important, he said that Levine J erroneously treated the absence of the respondent's subjective evidence as a reason for reducing the weight given to the evidence of the other witnesses, even though the evidence was firmly founded in no other rational basis for the reaction than reference to the programmes, instead of evaluating and giving effect to the evidence of the other witnesses on its own merits. He submitted that his Honour erred in assessing damages for injury to feelings not on the evidence before him, but discounted it "by reason of an impermissible comparison to a hypothetical construct of how the case could have been run by the [respondent]" [RS 28].
1362 We accept the principle on which these submissions were founded. That a plaintiff has a particular reaction to the publication of defamatory matter may be proved by any relevant and admissible evidence, including the evidence of persons to whom the plaintiff spoke of the reaction or who otherwise observed the reaction. There may be a question whether the reaction as communicated or observed was truly a reaction to the publication of the defamatory matter, but that is part of what must be found on the evidence. Packer v The Australian Broadcasting Corporation illustrates the assessment of compensation for injury to feelings on such evidence, in the absence of evidence from the plaintiff. The evidence of the witnesses other than the plaintiff may not make out a case of such grave injury to feelings as might have been made out if the plaintiff had given evidence, but the weight of that evidence must be found without it being discounted from its true weight because the plaintiff could have, but did not, give evidence of injury to feelings.
1363 We are not persuaded, however, that Levine J offended the principle.
1364 The appellant's submissions had invited his Honour to hold that injury to feelings could not be found in the absence of evidence from the respondent, alternatively that in the absence of evidence from the respondent no weight should be given to the evidence of the other witnesses. The "substantial agreement" with the appellant's submissions, and describing the submissions as to the respondent's "presence in Court" as unarguably correct when they included that there was no case to reopen, might have been thought to mean acceptance of one or other of these invitations. That would have offended the principle. But reading the reasons as a whole it is plain that the invitation was not accepted, and weight was given to the relevant evidence. No submission was made, and so no submission was accepted, that the weight of the relevant evidence should be discounted from its true weight because the respondent could have, but did not, give evidence of injury to feelings.
1365 We think that when Levine J said that the sum for injury to feelings would be "modest in the absence of subjective evidence from the [respondent]", he had in mind that its source was the evidence of the other witnesses of their observations of "contemporaneous reactions explicable on no rational basis otherwise than by reference to the defendant's programs". Had the respondent given evidence of injury to feelings, his Honour may have found the observations of the other witnesses supportive of injury to feelings absent contemporaneity or incontrovertible attribution to the broadcast of the programmes, or might otherwise have found that the respondent was more significantly injured in his feelings. Without the evidence from the respondent, his Honour did not feel able to do so.
1366 Perhaps the evidence in cross-examination of being extremely upset with the Today Tonight programme was overlooked, or more likely his Honour did not think it of significance; such a brief observation would not be a sound basis for greater damages. The finding as to injury to feelings was limited by its evidentiary base, and because it was limited the sum for injury to feelings was modest when the finding and the sum might have been more favourable to the respondent, had there been evidence from the respondent. We do not think his Honour meant more than this. Something of this kind is found in J 5064, in the appellant's then submission that the totality of the evidence was different from a case where the plaintiff gave evidence of injury to feelings. That is correct, although it did not mean (as was the then submission) that without evidence from the respondent injury to feelings could not be found. We do not think there was the error suggested in the assessment of damages so far as it included damages for injury to feelings.
Ordinary Compensatory Damages: Harm to Reputation
1367 Levine J correctly said that his assessment must be "based upon a qualitative judgment as to what the [respondent's] reputation was before the publication has injured that reputation: Bickel v John Fairfax & Sons Ltd at 482C". His Honour said -
"5265 My findings are that the plaintiff enjoyed a good settled reputation established over the whole of his life: it was founded in many areas both public and personal. It was a good settled reputation in respect of which the false charges captured in the several imputations of such gravity were damaging in the highest degree."
1368 From these findings, together with the imputations being "of the worst kind" and the extent of publication, came his Honour's satisfaction as to "actual damage to reputation to a substantial level" and the finding of a high requirement for vindication [J 5266].
1369 The appellant submitted that Levine J erred in finding that actual damage to reputation to a substantial level had been established; in regarding the imputations as of the worst kind; and in the regard he had to the extent of publication. So, in the appellant's submission, there was error in regarding the requirement for vindication as high. The respondent, on the other hand, submitted that the damages were not adequate to meet the high requirement for vindication.
a) Damage to Reputation
1370 In fulfilling the purpose of reparation for harm done to, and vindication of, reputation, it is necessary to know the reputation said to have been injured. In principle, a plaintiff with a bad reputation will be entitled to lower damages than a plaintiff with a high reputation, because the injury to the reputation will be less if the reputation is already diminished.
1371 A person's reputation is the character which he bears in public estimation, that is, what other people think of the person. Evidence may be called to prove good reputation, but must be evidence of general reputation, "the esteem in which he is held by others who know him and are in a position to judge his worth", not evidence of specific events going to make up the general reputation (Hobbs v C T Tinling & Co Ltd (1929) 2 KB 1 at 39; Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735 at 737-8; the citation is from Plato Films Ltd v Speidel (1961) AC1090 at 1138 per Lord Denning). As a qualification to this, evidence of specific events of sufficient notoriety that they contribute to the general reputation may be admissible (Plato Films Ltd v Speidel at 1131; O'Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 at 94, 97). Reputation can be contrasted with character, that is, what a person is as distinct from what other people think of the person, although "character" has been and can properly be used in the same sense as "reputation" (see Plato Films Ltd v Speidel at 1138). If it is sought to prove bad reputation, again the evidence must be of general reputation and not of particular instances of bad conduct. In each case, however, in cross-examination the witness may be asked the grounds for the good or bad reputation and on what it is based, and so particular facts or instances may come up.
1372 The appellant submitted that Levine J erred in failing to take into account evidence of the respondent's lifestyle and in failing to take into account his own findings adverse to the respondent. Had he done so, it was said, his Honour would have found that the respondent did not enjoy a good settled reputation, but a poor reputation to which the broadcast of the programme did no or little harm.
(i) Lifestyle
1373 In the paragraphs of his reasons preceding the findings set out above [J 4512- J 4635] Levine J recounted the evidence of a great many witnesses of the respondent's high reputation as a lawyer; as a participant in politics, political lobbying and law reform, including in fund raising and campaigning; as a person involved in civil liberties issues; as a participant in many other community activities; and as a leader and role model within the gay community; and generally in the society in which he mixed and within his own legal practice. Although he did not expressly so state, it is plain that his acceptance of this evidence underlay the findings.
1374 His Honour recorded that the respondent had submitted that, the appellant having failed to particularise a case in mitigation of damages by reference to the respondent's reputation (see Pt 67 r 18(2)(b) of the Rules), the appellant was precluded from contending that the respondent's reputation was not as described by these witnesses [J 4636]. He said that the appellant had nonetheless attempted in cross-examination of some of the witnesses "to suggest that various statements and descriptions attributed to [the respondent] in the press affected his reputation" [J 4637].
1375 After some discussion, his Honour described the cross-examination of the witnesses as futile, and said -
"4648 ... The intent obviously was to lead to the submission that the defendant ultimately makes (see below) that the description of the plaintiff's conduct as encapsulated in the imputations is not a significant misdescription of the conduct for which he himself has established a reputation. In other words, the conduct encapsulated in the imputations (knowingly engaging in underage sex), is really just a slight libel, an inconsequentially different defamation.
4649 The overall import of the evidence of the plaintiff's reputation witnesses I find to be this: they knew that the plaintiff had the reputation of being and in fact was gay. Those who knew him personally more often than not would have disapproved either of his homosexuality or of his promiscuity or of his use of prostitutes. But that disapproval (arrived at by reference to their own standards) first, did not affect the high reputation the plaintiff enjoyed or the high regard in which the witnesses held him and secondly, and perhaps more importantly, did not affect the impact of what the defendant published about the plaintiff. I say that bearing in mind the argument advanced by the defendant below as to the so-called want of evidence - by reference to the imputations themselves - of any adverse impact.
4650 Further, it seems to me that the overall import of the defendant's cross-examination of these witnesses (and I will not rehearse the attention, for example, given to what was understood by "promiscuous" or more especially "rough trade") was to introduce under the rubric of reputation what was in fact matters directed to character.
4651 As the plaintiff has submitted, at the end of the day as-it-were in relation to reputation witnesses the defendant improperly was seeking, without having particularised any case in mitigation of damages, to establish that the plaintiff had a bad reputation. And a bad reputation in relation to his sexual conduct. The defendant failed to prove that and the witnesses, as the plaintiff has submitted, were essentially alive to the defendant's objective. In other words, this man namely, the plaintiff, with flaws in terms of character or a reputation for flamboyant homosexuality, with which the witnesses by their own standards might not agree, nonetheless enjoyed a general settled reputation founded in the various fields to which the plaintiff's submissions point and (again subject to the defendant's submissions below), that reputation notwithstanding judgmental views about character, was adversely affected by the imputations telecast."
1376 The relevant "submission that the defendant ultimately makes" was later described by his Honour and again not accepted -
"5010 Also, the defendant submits, importantly relevant to general reputation is the plaintiff's reputation as to sexual behaviour and propensity. The general reputation of the plaintiff includes his reputation as to his sexual propensity and behaviour. The understanding of witnesses of matters which the plaintiff put before the public as to his sexual propensity and behaviour is relevant to the quality of his general reputation, the defendant says.
5011 The evidence of the reactions of the witnesses to his publicised sexual conduct is relevant to: the quality of his reputation at the time of each publication; the extent to which, if at all, that reputation was injured by the publication of the imputations in the circumstances in which the publication took place; and assessment of the amount appropriate, in all the circumstances, for vindication.
5012 The evidence proves, the defendant asserts, that the plaintiff, prior to the publications sued upon, had a reputation for conduct which was regarded as unacceptable by ordinary standards of society. With regard to this evidence the Court should conclude that the publication of the imputations would cause very little harm to his general reputation (my emphasis).
5013 During the course of the plaintiff's submissions and in anticipation of the submission just set out, I indicated that the defendant's position on this point would not be accepted.
5014 I am unable to accept this submission, fundamental as it is to the defendant's case on damages. The emphasised words above are nothing less, I hold, than the assertion of a case of bad reputation, something the defendant in no way formally raised.
5015 Further, as I have remarked above, the material upon which the defendant purports to base this submission, as I have said, in reality is evidence as to the plaintiff's "character" as well as reputation. Propensity is concerned with character.
5016 As I sought to state above, the position of a given witness, in the end, was this: the plaintiff enjoyed a general good reputation. The plaintiff, as known to the witness, was a person who conducted himself in his flamboyant, promiscuous homosexuality: in a way that did not accord with the particular witness' own standards. That conduct however, did not affect the witness' evidence as to the plaintiff's reputation. It was the reputation of the plaintiff, known to possess character qualities (or a reputation for conduct) that did not accord with the standards of the witness, that that witness said was damaged by the publication sued upon.
5017 I am unable to accept the extremely well articulated submissions by the defendant in support of this proposition: as I have said it is an undisguised mounting of a case in mitigation of damages on the basis of bad reputation and the defendant is precluded from doing so. There being no defence under s 13 of the Defamation Act 1974 (unlikelihood of harm), this approach is also unavailable."
1377 His Honour then added -
"5019 Further, I am not persuaded, taking into account the analysis the defendant proceeded to give in its submissions of the various witnesses, that the personal assessment of aspects of the plaintiff's conduct known to the various witnesses (or indeed of his reputation therefor) permits the finding that prior to and at the time of publication of each program, the plaintiff in fact had an established reputation as a promiscuous homosexual user of young males including prostitutes for the purpose of sexual intercourse or, - to get the nub of it, as submitted by the defendant - that conduct for which he had, (the defendant says, but I disagree), the reputation was unacceptable by the standards of the general community or a significant part of it. I do not accept that the evidence proves that the publicity given by himself to his sexual conduct was damaging to his general reputation. The evidence as to publicity given by himself, the weight of the material persuades me, conforms with the general view of the people called that that was consistent with an aspect of his character of which they were aware by knowledge or by repute and with which at worst, an individual by his or her own standards might not have agreed, though not in derogation of that witness' assertion of the plaintiff's good settled reputation.
5020 Indeed, the defendant goes so far in its submissions to suggest that such good reputation as he had in particular sectors of his activities was `blighted by his reputation as to his sexual conduct'. That, to my mind, is an assertion that he had a bad reputation, an assertion that the defendant could have raised in mitigation of damages to meet the plaintiff's case that he had a good reputation, but did not."
1378 The appellant submitted that the evidence established that the respondent had a reputation "as a promiscuous homosexual whose lifestyle involved trawling beats, use of drugs, casual sex, with an indifference to age and identity of partners as sometimes involving prostitutes" [AS 270], and that this reputation was regarded as unacceptable by ordinary standards of society. It submitted that Levine J erred in failing to take into account this reputation in determining the reputation susceptible to injury by the broadcast of the programmes. It said that the respondent's own description of his lifestyle showed that his reputation was of the unacceptable kind, and that this had been endorsed in parts of the evidence of the reputation witnesses, and that the reputation and the effect of the broadcast of the programmes on it were such that no more than a nominal sum was appropriate for compensation for injury to reputation.
1379 We should first refer to whether it was open to the appellant to contend that the respondent's reputation was not as described by the witnesses.
1380 Part 67 r 18(2)(b) of the Rules provides that where a defendant intends to make a case in mitigation of damages by reference to the reputation of the plaintiff, the defendant shall give particulars of the facts, matters and circumstances on which the defendant relies to make that case. At several places his Honour indicated that the appellant had not particularised such a case, and that such a case was not open to it, see J 5014, J 5017 and J 5021. His Honour nonetheless rejected such a case on its merits.
1381 We do not think that the Pt 67 r 18(2)(b) plays a significant part in the appeal. Where a plaintiff calls witnesses to give evidence that he has a good reputation, there can be no objection to the defendant in cross-examination seeking to establish that the reputation is not as good as the witnesses gave in chief. The defendant is not obliged to accept without challenge whatever might be said by the witnesses, and Pt 67 r 18(2)(b) says nothing as to this. When the appellant put to the reputation witnesses their knowledge of occasions on which the respondent was said to have given publicity to his promiscuous homosexual conduct, including in circumstances of risk that his sexual partner was a boy under the age of 18 or 15, it was arguably doing no more than seek to diminish the evidence of those witnesses. It is not necessary to decide the impact of the Rules, however, because at the trial whether the respondent's reputation was such that it would suffer little harm from the broadcast of the programmes was dealt with on the merits, the argument in the appeal was on the same basis, and we consider it preferable again to deal with the matter on the merits.
1382 The appellant's submissions focussed upon the 7.30 Report on 28 February 1995 and an article in the Sydney Morning Herald on 15 March 1995.
1383 The 7.30 Report included an interview with the respondent. We have earlier referred to it in connection with qualified privilege. The respondent's homosexuality was already a matter of public knowledge. He was asked whether he considered himself to be promiscuous, and he answered, "I wouldn't consider myself not to be promiscuous". He said that he accepted that gay people are promiscuous. The interview continued -
"Ellen Fanning: If you have been promiscuous, how do you know that you haven't slept with somebody under age?
John Marsden: Well, firstly it's not my desire or my emotional or my preferred option, right, so to that extent I am pretty certain that no accident would have occurred. But yeah, gay people have saunas, gay people have places where they meet and you know you don't go round, don't think heterosexuals go round, and say please produce your birth certificate etc etc you know I was young one day too and I don't think you do that, but as far as I know I have never slept with someone under age."
1384 The newspaper article included an account of what the respondent had said to the author and what the author had seen occur, all against the background of the respondent's homosexuality. In what he had said the respondent had acknowledged that there were times when he "did a beat", meaning visited a pickup area to find a sexual partner, and had said that he "was into rough trade, tattoos, no teeth, yeah - Marsden picks all them up. Just so long as they're rough and ready and look like truckdrivers!" An occasion was related by the author -
"After dinner with another group of his gay friends in a Kings Cross restaurant, he summons the Mercedes about 10 pm. Before leaving the city, the chauffeur cruises past The Wall in Darlinghurst Road, a well-known homosexual pick-up spot. Marsden opens his window and looks at the young male prostitutes who wait there for customers.
`Don't like him,' he says, ` ... he's even worse ... erk, he's worse still.' He closes the window, and the limo heads west for Campbelltown."
1385 In his own evidence the respondent readily accepted that he picked up partners at beats, and described the beats in use from time to time over the years. He distinguished beats from "a commercial pick-up place". He accepted that he would commonly not know the age of the partner picked up, but in effect denied that he had picked up anyone under age because under age boys were not within his interest. When referred to the 7.30 Report, he said that he did not think that there was any possibility that he had slept with anyone under age "because it is not my sexual desire". He acknowledged in substance the words and conduct ascribed to him in the newspaper article.
1386 One or both of the 7.30 Report and the newspaper article were put in cross-examination to the reputation witnesses called by the respondent. In various ways and to various extents the witnesses accepted that they showed a man who was a promiscuous homosexual who picked up sexual partners at beats, some of whom might be prostitutes, and who followed those practices without certainty of the partners' ages, and that such conduct was not acceptable by their individual standards or in their opinion by community standards. It was this cross-examination which Levine J described as futile in the passage we have earlier set out.
1387 His Honour did not detail this evidence at the time of coming to his findings as to the respondent's reputation earlier set out, but he had earlier canvassed it. The conduct acknowledged by the respondent had been recognised by many of the reputation witnesses as unacceptable, but for the reasons he gave his Honour nonetheless found that the respondent enjoyed a high reputation.
1388 There is no doubt that Levine J took account of the lifestyle evidence in coming to his findings, both as to reputation and as to injury to reputation. The appellant's submission was in truth that, although taking it into account, his Honour erred in failing to determine that the reputation susceptible to injury by the broadcast of the programmes was an already diminished reputation, such that it would suffer no or little harm from the broadcast of the programmes. The appellant referred us to a deal of the evidence of the reputation witnesses, which it submitted established that prior to the broadcast of the programmes the respondent had gained for himself the reputation of a person who took the risk of picking up a sexual partner under the age of 18 years and who had probably from time to time engaged in sex with under-age partners.
1389 Levine J did not accept the cognate submissions made to him. His reasons are most directly found in J 5019 which we have set out above, although that paragraph must be read in the light of the surrounding paragraphs including paras J 5021 to J 5024 which we have not set out. J 5024 has the direct finding that the appellant-
" ... failed to prove the imputations to be true and it has failed to prove that the plaintiff had a general bad reputation in the area of the imputations. The defendant has failed, I find, to dispel the impact of so grave a series of imputations merely by reference to witnesses' perceptions as to the plaintiff's character and conduct as known, as reputed, or as publicised by the plaintiff."
1390 There is a degree of obscurity in his Honour's expression of his reasons, which tend to move between character and reputation. We think, however, that the reasoning was as follows. At times his Honour treated the cross-examination of the reputation witnesses and the conduct found in the 7.30 Report, the newspaper article and the respondent's evidence as going only to the respondent's character, as distinct from reputation. But his Honour also recognised that they went to the respondent's reputation. He did not think it was established that the respondent had "the reputation of a promiscuous homosexual user of young males" or "a general bad reputation in the area of the imputations". In the end, his Honour did not think that the lifestyle brought to an end the reputation asserted by the respondent, or a materially diminished reputation. As a finding of fact, notwithstanding the lifestyle he concluded that the respondent had a high reputation.
1391 In our opinion, this view of the facts was open to his Honour and has not been shown to be erroneous. Reputation is multi-faceted (that is why reputation evidence must be germane to the libel, see for example Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749). A person may have a good reputation although those who know the person recognise flaws of character, may have a good reputation although those who know the person do not approve of aspects of the person's way of life, and may have a good reputation although there is some notoriety in the disapproved aspects of the person's way of life. The question is whether the person has a materially diminished reputation. We do not think that the lifestyle evidence was not taken into account. Nor do we think that, taking it into account, the finding made has been shown to be incorrect.
(ii) Adverse Findings
1392 The appellant submitted that Levine J had made a number of findings adverse to the respondent, and that he had erred in failing to have regard to them when assessing the damages appropriate to compensate for harm to and vindicate the respondent's reputation. It submitted that the findings, having been included in His Honour's judgment, were public findings and hence matters of notoriety, and so were relevant to reputation in the same manner as conviction for a criminal offence, and that the findings established that the respondent had a reputation for reprehensible conduct and dishonesty affecting his general reputation. Such was the effect of the findings on the respondent's reputation, it was said, that no more than a nominal sum was appropriate for its reparation and vindication.
1393 Levine J undoubtedly made some findings adverse to the respondent. We have set out, and considered, the ten `items' of false evidence to which the appellant referred earlier in these reasons. We do not think it necessary now to detail these findings. As to some, the appellant's characterisation is debateable and the degree to which they could bear upon the respondent's reputation is not clear.
1394 On any view, however, there was a body of findings adverse to the respondent, although there can be some debate around the edges of the body. There is no specific reference in his Honour's reasons to regard to them when assessing the damages appropriate to compensate for harm to and vindicate the respondent's reputation. The question, then, is whether these findings, in the very proceedings in which the respondent claimed damages for harm to and in vindication of his reputation, should have been taken into account in mitigation of damages.
1395 The short answer to the question is that, as the appellant properly acknowledged, it was not submitted to Levine J that he should pay regard in the manner now suggested to any findings he might make adverse to the respondent. His Honour was, of course, asked to make findings adverse to the respondent. The appellant mounted a case that the respondent's reputation was such that no more than a nominal sum should be awarded, see the lifestyle evidence. It did not go further. In our opinion, the appellant can not complain of error on his Honour's part when it did not at the trial rely on any findings he might make adverse to the respondent as going to his reputation.
1396 While it is not necessary to come to a concluded view, it is by no means clear that the appellant could have relied on any findings Levine J might make adverse to the respondent as going to his reputation. On the cases on mitigation of damages because the plaintiff has a bad reputation, findings in a judgment may go to the plaintiff's reputation, including where the judgment post-dates the publication of the defamatory matter. But it is necessary to see why that is so, and to ask whether findings in the very proceedings in which the plaintiff claims damages are in the same position.
1397 First, findings in a judgment. Conviction for a criminal offence provides evidence of bad reputation. In Goody v Odhams Press Ltd (1967) 1 QB 333 the court rejected the argument that convictions are only particular instances of misconduct.
1398 Lord Denning MR said (at 340-341) -
"I think that previous convictions are admissible. They stand in a class by themselves. They are the raw material upon which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are accepted by people generally as giving the best guide to his reputation and standing. They must of course be relevant, in this sense, but they must be convictions in the relevant sector of his life and have taken place within a relevant period such as to affect his current reputation. But being relevant, they are admissible. They are very different from previous instances of misconduct, for those have not been tried out or resulted in convictions or come before a court of law. To introduce those might lead to endless disputes. Whereas previous convictions are virtually indisputable."
His Lordship later said (at 341) that previous convictions are admissible in mitigation of damages "[f]or the simple reason that damages for libel are given for injury to character and reputation: and what better guide can there be to his character and reputation than his previous convictions". (at 341)
1399 Danckwerts LJ agreed with Lord Denning MR.
1400 Salmon LJ said that previous convictions were not evidence tending to prove that the plaintiff ought not to have a good reputation, but "evidence and the most cogent evidence" that the plaintiff in fact has a bad reputation. His Lordship continued (at 343-4) -
"It is conceded that the defendants could call a police officer to say that the plaintiff has a bad reputation as a thief and a robber given to violence. It is said that although the law allows the defendants to do that, the defendants could not call a police officer to say that during the six years previous to the publication of the alleged libel the plaintiff had six times been convicted of crimes involving theft and violence and had spent the greater part of that period in prison. It seems to me that for us to hold that the law allows the former but disallows the latter evidence would bring the law into contempt; and I do not think that there is any decision which compels us to do so. After all, as my Lord has said, criminal trials are held in public and given some notoriety. A man would be very fortunate indeed if he were convicted of a crime of violence or dishonesty without his conviction coming to the attention of those who knew him. For a man to be convicted six times in six years of such crimes without acquiring a bad reputation is to my mind impossible. Had those convictions not taken place the fact that the man was reputed to be a thief given to violence could only have been hearsay and surmise. The fact that he was so convicted is to my mind the best evidence of his bad reputation and, I am happy to say, is not excluded by the law.
There is one point I wish to add. It must not be thought that because of our decision in this case it follows that evidence of a conviction can always be given in mitigation of damages in an action for libel. Everything turns upon the nature and the date of the conviction. In the present case the convictions are all recent and highly relevant to the imputation in the article complained of. There may be cases, however, e.g., where the convictions occurred long ago and are irrelevant, in which it would be manifestly unjust and impermissible in law to make any reference to them in mitigation of damages."
1401 Goody had sued following publication in a newspaper that he "was now in prison for 30 years for his part in the mail raid". On the law as it then stood Odhams Press Ltd could not rely on his conviction for a justification defence - it had to prove his guilt all over again. That Goody's many convictions over many years destroyed his reputation was attractive, and the notoriety of the Great Train Robbery may have justified regarding his convictions as the raw material of a bad reputation. But a conviction is not necessarily generally known, and so part of a general reputation.
1402 It may be that convictions for a criminal offence can be regarded as evidence of bad reputation, that is, as evidence of what persons think of the plaintiff as distinct from what the plaintiff is, because they take place in open court and in that sense are matters of public knowledge and taken to be known: Lord Denning's reasons so suggest. Salmon LJ's reasons include that conviction of a crime of violence or dishonesty would normally come to the attention of those who knew the plaintiff. Findings in civil litigation made in open court could be regarded as evidence of bad reputation because matters of public knowledge and taken to be known, or because likely to come to the attention of those who knew the plaintiff, in the same manner, but they are not necessarily in the same position as convictions for criminal offences.
1403 Secondly, where the judgment post-dates the publication of the defamatory matter. Evidence of events going to diminish reputation occurring after the publication of the defamatory matter can be given in mitigation of damages. In Television New Zealand Ltd v Quinn (1996) 3 NZLR 24 it was accepted that post-publication publicity of laying charges of corrupt practice, of hearing the charges, of finding the charges proved, and of review proceedings to set aside that result, had properly been left to the jury, and McGechan J said (at 66) that it was a matter of commonsense that a defendant "may plead the windfall of post defamation damage by extraneous causes to a plaintiff's reputation as a factor in mitigation of compensatory damage".
1404 In Middendorp Electric Co Pty Ltd v Sonneveld (2001) VSC 312 it was held that the plaintiff's post-publication convictions on criminal charges could be taken into account in mitigation of damages. After discussion of the cases, Gillard J said -
"In my opinion, to exclude evidence of relevant convictions, which affect the reputation of the plaintiff, prior to the assessment of damages, is to deprive the tribunal of fact of a material matter relevant to the vindication of the plaintiff's reputation. In my view, it is logical to extend what was said in Goody's case to pre-trial convictions, and to do otherwise would fail to take into account one of the objects of damages, which is to restore the plaintiff's reputation in the eyes of those who know him and the public generally.
This happens at the time judgment is delivered, and it seems incongruous to award substantial damages to a plaintiff whose reputation, by reason of the commission of a relatively serious offence, has been destroyed prior to the judgment being pronounced. The Court is telling the world the plaintiff has a good reputation at the date of judgment, yet the truth is that he has no reputation. Such a result defies logic and commonsense, and brings the law into contempt."
1405 In Australian Broadcasting Corporation v McBride (2001) NSWCA 322 the defendant particularised a case of mitigation of damages based largely on post-publication findings by a committee of inquiry and tribunals of scientific fraud and professional misconduct. It was held that as evidence of bad reputation it was not relevant to that part of the plaintiff's reputation capable of being harmed by the defamatory matter. But Ipp AJA, with whom Beazley JA agreed, said he would be inclined to follow the reasoning of Gillard J in Middendorp Electric Co Pty Ltd v Sonneveld, and Fitzgerald AJA said that more recent authority favoured the view that, if otherwise relevant, post-publication convictions may be proved in mitigation of damages; his Honour referred to Television New Zealand Ltd v Quinn and Middendorp Electric Co Pty Ltd v Sonneveld.
1406 The reasoning in Middendorp Electric Co Pty Ltd v Sonneveld might support regard to findings in the proceedings in which the plaintiff claims damages for harm to and vindication of his reputation. To adapt what Gillard J said, it might be thought incongruous to award substantial damages to a plaintiff whose reputation, by reason of the findings of the trial judge, has been destroyed at the time the judgment in pronounced. The Court is telling the world the plaintiff has a good reputation at the date of judgment, yet the truth is that he has no reputation.
1407 But the situations are different. Courts act on evidence, and the court's findings are not themselves evidence in the proceedings - they are, of course, not known until judgment is delivered. The Goody v Odhams Press Ltd public knowledge can not apply, and the notoriety of the unknown findings and their effect in fact on the plaintiff's reputation can not be an issue in the proceedings. Thus there is not true incongruity in a court awarding damages on the basis of a good reputation but making findings actual or notional publication of which may (or may not) be detrimental to the plaintiff's reputation, since the court can not properly pay regard to the effect of its findings on the plaintiff's reputation.
1408 That courts act on evidence, and not otherwise, is fundamental to our legal system. It would be undesirable that a plaintiff claiming damages for defamation should have taken into account against him findings which are not known until judgment is given, without the opportunity to address whether or to what extent the findings do affect his reputation. Repeating that it is not necessary to come to a concluded view, as at present advised we would not accept the entitlement underlying the appellant's submission.
1409 In the circumstances, we need do no more than note the respondent's submission that the fact that the respondent "engaged in the conduct and gave evidence which did not satisfy his Honour in isolated instances but was accepted on all substantive issues on the plea of truth" can not lead to the result that his reputation is so severely diminished that he can not obtain anything other than a nominal award of damages for the imputations found to have been conveyed. Nor need we enter upon whether, if Levine J had been asked to have regard to his findings adverse to the respondent as going to his reputation, he would properly have declined to do so because the appellant had not, for a case in mitigation of damages by reference to the respondent's reputation, particularised pursuant to Pt 67 r 18(2)(b) of the Rules something such as "any findings adverse to the plaintiff's reputation which the trial judge may make in the reasons for judgment". A reminder of the obligation to give particulars, and of their purpose in enabling the plaintiff to know the case he must meet, underlines the difficulty in using as evidence in the proceedings findings not known until judgment.
b) The Worst Kind
1410 At a number of places in his reasons Levine J described the imputations as grave, or in similar words. The particular reference to the worst kind was in the summary in J 5266 earlier set out, in the sentence "[t]he gravity of the imputations, which I consider to be the worst kind, is taken into account ... ".
1411 The appellant acknowledged that the imputations were grave allegations, but submitted that it was not reasonable to treat them as allegations of the worst kind of conduct and that Levine J overstated the position and thereby arrived at excessive damages.
1412 In our view this attributes too much to his Honour's words. The words "the worst kind" do not necessarily mean the pinnacle of depravity. Such is the flexibility of the English language that they can mean very serious, within the class encompassed by the third of the gradations of bad, worse and worst. In our opinion the trial judge used the words "the worst kind" in this sense, as is shown by his references to the imputations as of the utmost gravity [J 4394] and grave [J 5271] to the injury to reputation being "to a substantial level" [J 5266] (not the highest possible level), and to the requirement for vindication being "high indeed" (again, not as high as it could possibly be) [J 5266].
1413 We do not think that the trial judge erred in regarding the imputations as "the worst kind", understood in the manner we have explained.
c) The Extent of Publication
1414 In the summary in [J 5266] earlier set out Levine J said that the extent of the publication in each case was very great "in terms of the viewing audiences and the perpetuation of the libels by reasons of the issues litigated; this component, I stress, is on an ordinary compensatory basis". The appellant submitted that his Honour erred in taking into account "the perpetuation of the libels by reason of the issues litigated" notwithstanding that he declined to award aggravated damages. It said that the ventilation of the imputations in the course of the trial was simply an incident of the litigation undertaken by the respondent, and was not a matter relevant to damages. Absent any question of aggravated damages, it said, an unsuccessful defendant could not be worse off through maintaining legitimate defences; it referred to Steele v Mirror Newspapers Ltd (1974) 2 NSWLR 348 at 379 per Samuels JA.
1415 Earlier in his reasons Levine J recorded that the respondent had submitted that the damages for harm to and vindication of his reputation and for injury to feelings should include aggravated damages by reason of the appellant's conduct after the broadcast of the programmes. His Honour said that some factors which in recent years had been taken as relevant only to aggravated damages were in fact capable of affecting ordinary compensatory damages [J 4732], and after reference to a number of cases said that he agreed with and proposed to act in accordance with principles which the respondent had submitted came from those cases, namely [J 4739] -
"... that conduct of the defendant after publication, which tends to increase "the vitality of the defamation and its capacity for causing injury to the plaintiff" is relevant to the assessment of ordinary compensatory damages. As such, there is no requirement to show that conduct to be mala fides or otherwise improper or unjustifiable. That approach is explained, obiter, in Ettingshausen and forms the ratio in cases including Spautz v Butterworth and Clark v Ainsworth (1996) 40 NSWLR 463. Specifically, failure to apologise, persistence in the defence of justification up to trial are now re-established as factors relevant to ordinary compensatory damages. Their capacity to increase the actual harm to the plaintiff, for example by increasing the damage to his reputation through publicity at trial, is relevant to ordinary compensatory damages irrespective of whether the defence is held to be mala fides."
1416 It is plain enough, in our opinion, that his Honour was referring to this discussion of ordinary compensatory damages when he spoke of "the perpetuation of the libels by reason of the issues litigated" as a component on an ordinary compensatory basis.
1417 Levine J did not record any submission from the appellant to the contrary of the principles he stated, although at another point in his reasons the recorded its submission, with reference to Steele v Mirror Newspapers Ltd, that bona fide persistence with legitimate defences can not be taken into account in assessing compensatory damages. After recording other of the appellant's submissions, his Honour said that he accepted "these submissions". It is not entirely clear that his acceptance extended to the Steele v Mirror Newspapers Ltd submission, but there was a further reference to Steele v Mirror Newspapers Ltd in the other of the appellant's submissions and we think it did.
1418 What Samuels JA said in Steele v Mirror Newspapers Ltd was that vigorous persistence in a legitimate defence cannot be used to aggravate the damages. In what he said about "the perpetuation of the libels by reason of the issues litigated" as a component on an ordinary compensatory basis, Levine J was addressing a quite different matter. His Honour was addressing the harm done by the publication of the defamatory matter. As we understand it, his Honour meant only that in fact the trial enhanced the extent of the publication, as indeed it did - it could not be disputed that the trial received considerable publicity. Regard may be had to the continuance in the minds of the persons to whom the defamatory matter is published of the defamatory imputations and to the extension of their vitality and capacity to harm the plaintiff. We see no reason why this should not include continuance and extension if the person defamed brings proceedings for redress, as that person is entitled to do and the publisher of the defamatory matter must be taken to have anticipated. We do not think his Honour meant more than this.
1419 The appellant put no submissions in the appeal to the contrary of the principles accepted by Levine J as coming from the cases. We consider that its reliance on Steele v Mirror Newspapers Ltd in this connection was misconceived, and see no error in Levine J's reference to "perpetuation of the libels by reason of the issues litigated" as a component on an ordinary compensatory basis.
1420 The appellant's ultimate submission that the damages awarded were excessive in the light of the proven harm to and need for vindication of reputation depended, as we understand it, on acceptance of the more particular submissions with which we have dealt. The appellant submitted that the requirement for vindication depended on the quality of the reputation and the harm caused to it, and by repetition of the submissions as to the respondent's reputation said that the requirement was met by a nominal or modest sum.
1421 There remains the respondent's submission that the damages were not adequate to meet the high requirement for vindication. We will defer it for the present, and come to it when we come to the question of the overall excess or insufficiency of the damages.
Ordinary compensatory damages - Psychiatric injury
1422 The respondent particularised a claim for psychiatric injury. The particulars went beyond psychiatric illness. Particularised was that the respondent suffered and continued to suffer from a major depressive episode (chronic) as defined in DSM 4 and was also suffering from post-traumatic stress disorder type II. But also particularised were a host of matters such as stress, agitation, lethargy, fatigue, impairment of cognitive function, mood swings and irritability, despair, anxiety, loss of sense of control over life, chronic nervousness, loss of self esteem and feelings of personal humiliation. Physical effects were particularised such as constant agitation, shortness of breath and tightness in the chest, muscle tension, abdominal discomfort, insomnia, night sweats, loss of libido, numbness and tingling. It was said that there had been a period of increased alcohol consumption to mitigate other symptoms, and that there had been an increase in food intake because of comfort-eating. We have not exhausted the particulars: what we have summarised will be sufficient for present purposes.
1423 The respondent called evidence from Mr Stephen Woods, a clinical psychologist; Dr Patrick Toohey, a psychiatrist; and Dr Malcolm Dent. In the circumstances of Dr Dent's evidence, Levine J said that he could not afford it any weight. The respondent did not rely on it in the appeal.
1424 Levine J said that Mr Woods diagnosed first a major depressive episode, then a major depressive disorder and finally post-traumatic stress disorder Type II said to be co-morbid with the major depressive disorder. He said that Dr Toohey diagnosed a major depressive episode of limited duration. After lengthy discussion, his Honour referred to both Mr Woods and Dr Toohey as impressive witnesses [J 5207]. He said of Dr Toohey that his qualifications were not called into question, but that "[i]nsofar as Mr Woods is a Consultant Psychologist authorities supports the proposition advanced by the defendant that he is not thereby qualified to express an opinion as to a diagnosis of the psychiatric illness ... " [J 5207]. He also said that he agreed with the respondent's submission "that there really was no challenge to the diagnoses of Mr Woods or the diagnosis of Dr Toohey", and that he devoted his attention to "[t]he attack ... made upon the factual foundation for the respective opinions" [J 5210]. His Honour ultimately said -
"5211 The conclusion to which I have come is that there is what the defendant refers to as `factual uncertainty' that makes it impossible to conclude on the balance of probabilities that the asserted claim for psychiatric injury has been proved."
1425 Levine J appears to have found, notwithstanding what he said about Mr Woods' qualification to express an opinion as to a diagnosis of the psychiatric illness, that the respondent did have psychiatric illnesses as diagnosed by Mr Woods and Dr Toohey, and to have then addressed whether the psychiatric illnesses had been shown to have been caused by the broadcast of the programmes with their defamatory imputations. Such an understanding of his Honour's reasons is supported by a number of other references to the diagnoses and the question of causation in the lengthy discussion. When recounting the respondent's submissions, his Honour said that the respondent submitted that no challenge had been made to the diagnoses of a major depressive disorder and a post-traumatic stress disorder type II and that issue was joined only on the question of causation [J 4791]. After specific reference to the diagnoses of Mr Woods his Honour said, as we read the judgment still recording the respondent's submissions, that the appellant did not challenge any of the diagnoses and did not put any question to Mr Woods in cross-examination to suggest that the respondent lacked any of the symptomology described and relied upon by Mr Woods or that any other diagnosis was available or should be preferred [J 4799]. The same was later said of Dr Toohey's diagnosis [J 4840]. When he came to recounting the appellant's submissions as to psychiatric injury his Honour did not record a direct challenge to the diagnoses, only the submission that it was necessary for psychiatric injury that there be a physiological effect and not a mere emotional impulse. He said that he was not concerned with that, that no suggestion had been made of absence of physiological effect, and -
"5094 I propose to approach the issue as to a claim for psychiatric illness as identified said to have been caused by the defendant's tort and to determine whether more probably than not the evidence establishes causation and other factors not the least of which will be duration and prognosis.
5095 The defendant after dealing with the subject matter above referred to proceeds to what in the end is the critical matter namely causation."
1426 On the other hand, when recounting the respondent's submissions Levine J noted that the appellant "challenges the acceptability of Mr Woods [sic] evidence by reason of his being a clinical psychologist" [J 4890], and when recounting the appellant's submissions his Honour did record the submission that whether a person has suffered from a psychiatric injury is a medical question, that it is to be answered by a trained medical practitioner qualified in psychiatry, and that "a clinical psychologist, such as Mr Woods does not possess the relevant qualifications. He can not express a medical opinion" [J 5186]. This, no doubt, was the "proposition advanced by the [appellant]" to which his Honour later referred.
1427 The reasons are here expressed with less than clarity. Given the apparent acceptance of the diagnoses, including those of Mr Woods, and concentration on causation, the statement that insofar as he was a consultant psychologist Mr Woods was on the authorities not qualified to express an opinion as to a diagnosis of the psychiatric illness is puzzling. If Mr Woods was not qualified to make the diagnoses he made, how could Levine J have accepted his diagnoses?
1428 The solution to the puzzle may lie in the words "insofar as" with which Levine J began this statement. By s 79 of the Evidence Act, opinion evidence may be given wholly or substantially based on a person's specialised knowledge itself based on the person's training, study or experience. It may be that his Honour considered that the specialised knowledge connoted by the title of a consultant psychologist was an insufficient basis for an opinion that the respondent suffered the psychiatric illnesses in question, but that his Honour also considered that Mr Woods had specialised knowledge sufficient for that purpose based on his training, study or experience beyond the specialised knowledge connoted by the title. It was open to him to take this view, because relevant training, study and experience is ultimately determined not by title but by evidence. Mr Woods' evidence included that he had assessed and treated a great many persons suffering from major psychological problems and disorders, in context his diagnoses in relation to the respondent being of like problems and disorders.
1429 That Levine J proceeded in this way appears to us to be supported by regard to the authorities his Honour cited for the "proposition advanced by the [appellant]". The citation was of "Clarke v Ryan [1960] HCA 42; (1960) 103 CLR 486 per Dixon CJ at 491; R v McKenney (1983) 76 Crim App R 271 at 275 per Ackner LJ; Regina v Paisley (1990) 54 A Crim R 42 at 52 per Wood J; Farrel v The Queen [1998] HCA 50; (1998) 194 CLR 286 at 300 and H G v The Queen [1999] HCA 2; (1999) 73 ALJR 281".
1430 Clarke v Ryan was not concerned with psychiatric illness or the qualifications of a psychologist, and relevantly spoke only of the need for appropriate qualification. In R v McKenney the issue was whether a witness was suffering from a disease or defect or abnormality of mind such as to affect the reliability of his evidence, and it was said that a psychologist was "not a psychiatrist and therefore not qualified to give psychiatric evidence", but it was expressly said that the psychologist's evidence was based essentially on examination of the literature and "he had of course no experience of direct personal diagnosis. He was thus not qualified to act as a psychiatrist". In R v Peisley (not Paisley) a clinical psychologist had given evidence that there were suggestions in test results that the accused could have suffered a dissociative disorder and particularly a neurosis at the time of the offence. The opinion was roundly criticised as unsoundly based. It was said that it is appropriate for persons trained in the field of clinical psychology to give evidence of the results of the psychometric and other psychological testing, and to explain the relevance of the results and their significance so far as they reveal or support the existence of brain damage or other recognised mental states or disorders, but that it is "not ... appropriate for them to enter into the field of psychiatry". It is evident that the psychologist's expertise was confined to psychological testing. In Farrel v The Queen a psychiatrist gave evidence of various personality disorders suffered by the complainant, and the issue was whether the jury had been misdirected as to its content and use; there was no question of the qualifications of a psychologist. HG v The Queen, now reported in [1999] HCA 2; (1999) 197 CLR 414, was concerned with a psychologist's opinion that the complainant had been assaulted not by the accused but by another person some years earlier, and the difficulties in reception of the opinion were not because the psychologist ventured into psychiatry; Gleeson CJ said (at 428) the opinion was "based on a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist". It was accepted, however, that the psychologist could have given evidence, from his study or experience, of behavioural changes if there had been an earlier assault.
1431 What these authorities leave open is that the particular psychologist may be shown by evidence to have training, study and experience by which the psychologist has specialised knowledge on which an opinion of a depressive or stress disorder is based. We accept to the full the need to ensure that evidence is not received beyond an expert's field of expertise. But a line between psychology and psychiatry is not drawn by titles, or by describing one or other of the fields of expertise ordinarily connoted by the titles. Drawing a line is not to the point. What is to the point is whether the opinion of the witness described as a psychologist is admissible because the requirements of s 79 of the Evidence Act are satisfied.
1432 The appellant did not object to Mr Woods' evidence as inadmissible when it was tendered. It does seem to have submitted that it could not be relied on because he was not a trained medical practitioner qualified in psychiatry. That did not address the real question, whether he was qualified to express his opinions within s 79 of the Evidence Act. The submission went rather to the weight of his opinions. We think that Levine J was satisfied that Mr Woods was qualified to give evidence of his opinions as embodied in his diagnoses, and that his Honour referred to the "proposition advanced by the defendant" as something of an aside which led nowhere. While the appellant's submission attacked the weight of the opinions, it really did not deny Mr Woods' ability to express them. For the reasons which follow, however, we do not think it necessary further to explore this question.
1433 The respondent's claim to damages for psychiatric injury failed on what Levine J referred to as "the critical matter namely causation". We repeat his Honour's conclusion, together with the following paragraph of the reasons -
"5211 The conclusion to which I have come is that there is what the defendant refers to as `factual uncertainty' that makes it impossible to conclude on the balance of probabilities that the asserted claim for psychiatric injury has been proved.
5212 I observe however that had the factual foundation been established to the requisite level, the defendant would still be confronted with the difficulty that I perceive otherwise still to exist namely, that certainly as far as Dr Toohey was concerned the Today Tonight program could not be excluded as a causative stressor. One area of his testimony which otherwise impressed me especially was the distinction he drew, to which reference has been made in the plaintiff's submissions, between publications in which he was in effect a participant as opposed to the defendant's publication in which he was the object of attack. I have given the submissions for both sides great consideration in this very troubling area as I have given the evidence further attention. In the end however, the plaintiff fails on this issue by reason of my not being persuaded on the balance of probabilities that the claim has been established - the scales have not, as a matter of weight, tipped in his favour on the limited area (Dr Toohey, post Today Tonight) otherwise available."
1434 The following paragraph is also rather puzzling. Levine J was not satisfied that the "factual foundation" for the claim for psychiatric injury had been made out, and we come next to what lay behind that. We are unsure of the further difficulty perceived by his Honour. If the factual foundation had been made out, would that not have included taking account of the effect of the Today Tonight programme as a causative stressor apart from the Witness programme? Would it not have included taking account of the distinction drawn by Dr Toohey? We are also unsure what his Honour meant by the limited area otherwise available. Had he considered that only Dr Toohey's opinion of a major depressive episode of limited duration was available, much was unnecessarily said in the reasons, and that he was of that view is not consistent with the apparent acceptance of Mr Woods' diagnoses. Fortunately, we do not need to solve these puzzles either.
1435 What, then, was the "factual uncertainty" precluding satisfaction that the "factual foundation" for the claim for psychiatric injury had been made out?
1436 The phrase "factual uncertainty" is not found in his Honour's earlier recounting of the appellant's submissions as to psychiatric injury. The appellant's submissions as recorded came down, in our understanding, to the submissions that -
(a) it had to be established that the broadcast of the programmes, with their defamatory imputations, was so connected with the psychiatric injury that as a matter of commonsense and experience it should be regarded as a cause of the psychiatric injury;
(b) the respondent himself gave no evidence of his emotional condition, or of the factors which may have contributed to or brought about any psychiatric injury;
(c) the histories recorded by Mr Woods and Dr Toohey were not probative of what was recorded;
(d) the evidence of lay witnesses of their observations of the respondent was insufficient to establish the foundation for the diagnoses, because it was not accompanied by evidence from the respondent himself and was neither the material on which Mr Woods and Dr Toohey had acted in reaching their diagnoses nor sufficiently consistent with the histories on which they had acted; and
(e) therefore, the factual foundation for the diagnoses of psychiatric injury caused by the broadcast of the programmes had not been established.
1437 When recounting the respondent's submissions in relation to psychiatric injury, his Honour said of the submission "that evidence by a doctor in a medical report of history recounted to the doctor is evidence of the truth of the facts reported" that it "certainly appears to be the law at present" [J 4789]. He later said that he accepted the respondent's submission "as to the operation of s 60 of the Evidence Act 1995" (J 5208). He therefore did not accept to the full a submission to the effect of (c) above, although he said that "this does not resolve the question of weight or eliminate the need to consider weight in relation to matters that thereby become available as proof". The "factual uncertainty" does not seem to lie in lack of proof of the respondent's symptoms.
1438 His Honour also does not appear to have fully accepted a submission to the effect of (d) above, because at one point he said that he found the respondent's case as a whole "to be founded on inclusive inferential evidence led from others" and that that finding "relates to anything a witness reported the plaintiff said that is asserted to be sufficiently consistent with the report of history contained in a specialist report" [J 5207]; at another point he said [J 5210] that he accepted that descriptions of what they observed such as "depressed" used by lay witnesses were not available "to found the factual basis for expert opinion" [J 5210], connoting that other descriptions of what they observed were available.
1439 The reference to "factual uncertainty" follows shortly after Levine J's observation, apparently accepting what had been put to him by the appellant -
"5209 As the defendant has submitted, a claim for psychiatric injury, by its very nature is one which is entirely subjective. The elements which go to make up the symptoms such as feelings of anxiety, depression, loss of libido, loss of enjoyment of life, disrupted sleep patterns, suicidal thoughts are essentially of a subjective nature and a claim for psychiatric injury based on such symptoms should only succeed if the Court is satisfied that the asserted facts in truth more probably than not have been established and thus the opinion said to be founded upon them sustained."
1440 This was concerned with proof of the facts constituting the symptoms on which the diagnoses were founded. We doubt, however, that it was "factual uncertainty" in this respect which brought his Honour to his conclusion. If it were, different treatment of the submissions to the effect of (c) and (d) above might have been expected, and his Honour did accept that the histories taken were evidence of the facts recorded, although weight was another matter. Further, one would not expect acceptance of the diagnoses - rather, there would be a finding that the respondent had no psychiatric injury.
1441 We consider that his Honour meant "factual uncertainty" of a different kind. Even if it were proved that the respondent displayed symptoms compelling diagnosis of psychiatric injury, it would also be necessary that the court be satisfied that the psychiatric injury was caused by the broadcast of the programmes, with their defamatory imputations. The appellant's submissions made this point, see (a) and (b) above. It was plain, and Levine J recorded an appellant's submission detailing them [J 5187], that there were a number of stressors apart from the broadcast of the programmes operating on the respondent at material times, for example, fears of continuing police investigations and the break-up of a relationship with a partner. The more likely position, in our view, is that Levine J was not satisfied that the factual foundation for the diagnoses had been made out because of "factual uncertainty" over the source of the respondent's symptoms, as distinct from the existence of the symptoms. This is consistent with what his Honour said about determining whether the evidence established causation and "the critical matter namely causation".
1442 Why was Levine J not satisfied? His Honour purported to adopt the appellant's reference to "factual uncertainty", and although that phrase is not to be found in them the answer seems to lie in his recounting of the appellant's submissions. But that is to be seen against the background of the recounting of the respondent's submissions, to which we first go. The passages are lengthy, but we think it necessary to set them out.
1443 As to Mr Woods, after the submissions going to whether the respondent suffered from the conditions diagnosed his Honour said -
"4818 As to the issue of causation, the plaintiff asserts that the defendant does not appear to dispute the publication of the matter complained of in the Today Tonight and Witness programs were a `major significant stressor', causing distress and anxiety in Mr Marsden. Rather, the only challenge to any part of his opinion put to Mr Woods by the cross-examiner, was the proposition that there were other `stressors' operating alongside the stress created by the defendant's programs, and which might have contributed to Mr Marsden's psychiatric conditions.
4819 That attack is irrelevant in law and unsupported by the evidence, the plaintiff says. First, Mr Woods and each of the doctors expressed and stood firmly by their opinion that the Channel 7 broadcasts were both one of the causes, and the primary cause, of Mr Marden's conditions. In the absence of any basis for suggesting that Channel 7's tortious conduct was not a cause of Mr Marsden's condition (which proposition was never put to any of the witnesses), it is irrelevant to ask whether it was the only cause.
4820 In any event, Mr Woods was firm in his opinion that while other factors were recognised as causing stress to Mr Marsden, there was one identifiable primary stressor which precipitated his condition, and that was Channel 7's two broadcasts accusing Mr Marsden of paedophilia. Certain of the other causes of stress - such as the collapse of Mr Marsden's relationship with Mr Boda - were themselves precipitated, says the plaintiff, by the stress reaction to Channel 7's broadcasts, and were therefore symptoms of Mr Marsden's illness, not causes of it."
1444 His Honour referred to some cases, and continued (we think always recounting the submissions) -
"4823 The relevant test - material contribution to the injury - has been long settled and often repeated. At its highest, the defendant's case is that its conduct was not the sole material cause of the injury. That, it is submitted, is no answer to the plaintiff's claim. On the evidence, the Court would also conclude that the proposed alternative `stressors' were themselves consequences of, or exacerbated by, the defendant's tort. While that conclusion is supported by the evidence, it is unnecessary to determine the result.
4824 In cross-examination of Mr Woods, Mr Stitt QC identified, and put to Mr Woods for comment, three alternative `stressors' which he suggested were contributory to Mr Marsden's illness. They were: the re-opening and continuance of police investigations; stress brought about by the breakdown of Mr Marsden's relationship with Mr Michael Boda; concern at investigation by the Wood Royal Commission. Mr Woods readily conceded that concern and upset caused by the re-opening and continuance of the police investigations was a `significant relevant stressor'. That was unsurprising, as Mr Marsden had himself nominated that in his consultations with Mr Woods as a cause of `considerable anxiety and stress'. But that is no answer to the plaintiff's claim that he is entitled to compensation for his psychiatric injury. First, Mr Woods was forceful in his reassertion of the relative significance of different contributing causes. He said (of the police investigation) `it was a significant stressor but it certainly wasn't the major stressor' and, he said `it was certainly a significant stressor and I would not step away from that. But it was certainly not the primary stressor'.
4825 Mr Woods said: `... It is absolutely essential to identify the primary stressor. ... The primary stressor is that he was publicly accused of [sex with underage males].'
4826 In his oral evidence, and at sheets 2 and 4 of Exhibit C, Mr Woods identified the source of the relevant allegations, as being the Today Tonight and Witness programs. Mr Woods, based on his experience as a therapist and clinical psychologist, and on his observations of Mr Marsden in a number of consultations over a long period, was in no doubt that the police investigation, while a source of anxiety to Mr Marsden, was not a major, and certainly not the primary cause of his condition.
4827 The defendant's position in this regard fails for another reason. The police investigation was itself a consequence of broadcast by Channel 7 of its defamatory allegations: see Exhibit K lines 110-115; Exhibit FQ.
4828 Again, as to the loss of a personal relationship, Mr Woods readily acceded to the proposition that the breakdown and ultimately the collapse of Mr Marsden's long-standing personal relationship with his partner, Mr Boda, was a cause of anxiety and stress. First, however, that anxiety and stress post-dates Mr Woods' diagnosis of Mr Marsden as suffering a major depressive episode, and therefore cannot be said to be an alternative candidate as cause of that condition. Secondly, Mr Woods firmly identified, on the basis of his observations and tests, the primary or major cause of the illness as being the imputations conveyed in the two Channel 7 broadcasts sued upon. Thirdly, Mr Woods identified, and the Court would find as fact, that the tension and collapse of Mr Marsden's relationship with Mr Boda was a consequence of the stress caused by Channel 7's conduct, and therefore a symptom of Mr Marsden's compensable psychiatric injury, rather than a cause of it.
4829 The cross-examiner took Mr Woods sequentially through his notes of his many meetings with Mr Marsden. The first reference to tension in Mr Marsden's relationship with Mr Boda arises in the questions asked concerning a consultation on 20 November 1998. That relationship is then the subject of discussion at a series of consultations about which questions are asked, ending in termination of the relationship in mid 1999. But Mr Woods had diagnosed Mr Marsden as suffering from a Major Depressive Episode (chronic) in a report dated 17 September 1997, and had attributed that condition to the period between his first consultation with Mr Marsden in February 1996 and the date of his September 1997 report. That is, Mr Marsden's primary psychiatric illness - his major depressive condition - was already extant prior to the earliest recorded occurrence of tension in his personal relationship.
4830 Next, Mr Woods, while readily conceding that the Boda relationship had become a source of stress, was forthright and unshakeable in his identification of the public accusations of paedophilia on Channel 7's broadcasts, as the major and primary cause of Mr Marsden's conditions: Exhibit C, sheets 2 and 4.
4831 Thirdly, on any fair reading of Mr Woods' answers to the cross-examiner, it is clear that he considered the loss of Mr Marsden's relationship with Mr Boda was itself a consequence of, and not a cause of the psychiatric illness. That point is made explicitly in Mr Woods' evidence: `I felt the breakdown of the relationship with Mr Boda was a consequence of Mr Marsden's distressed emotional state, his depression.' That conclusion was consistent with the earlier clinical observations recorded in the notes and answers given in cross-examination at, for example, (Mr Boda `running away' from the stress caused by the `total picture'); (stress caused by the allegations leading to excessive drinking by Mr Boda) and (Mr Boda fleeing the pressure of these allegations).
4832 The parallel with the situation analysed by the Court of Appeal in Bondin v Lamaro (above, para 28) is close. The collapse of Mr Marsden's close and intimate personal friendship with Mr Boda is an additional loss caused to him by Channel 7's conduct, not a competing `stressor' to be identified as the cause of his illness.
4833 The proposition that stress caused by the Royal Commission was in some way the cause of Mr Marsden's `admitted' psychiatric illness can be dismissed, says the plaintiff: Mr Marsden did not mention it at any time to Mr Woods in their many consultations."
Moving to Dr Toohey, his Honour said -
"4845 As to causation, Dr Toohey was at pains to emphasise that he was a treating physician, not retained for the purpose of preparing a medico-legal report. He explained that for this reason in his clinical notes, and in his report of 6 May 1997 he was concerned primarily with symptomatology, diagnosis and treatment and not with causation. Accordingly, there is limited attention to causation in his 6 May 1997 report. It is addressed at page 1 (`Mr Marsden went on to explain the nature of the stresses precipitating his mental state...') and at page 6 (`the obvious precipitants were the public statements made about his character, the media accusations and publicity, and the inability to clear his name quickly and efficiently'). Dr Toohey was explicit in his oral evidence as to the causation of the illness. He said:
`From a psychological point of view the main element is exposure, the main psychological insult I suppose was a bad reputation and what people would think and so you would have to weigh up the relative exposure of the parliamentary statement versus television report versus police investigation. In my opinion the television reports were certainly at a very high level of exposure on the psychological so this was the main stressor as to what people would think. Its difficult to tease them all up, my suggestion would be as a precipitant the television exposure is a widespread exposure.'
4846 He identified the media exposure' to which he had made reference in his evidence, his report, and his clinical notes, as being `the television programs on Channel 7'.
4847 Dr Toohey did not quibble with the proposition that the causes of depression can be multifactoral, or that there were other sources of stress operating upon Mr Marsden during the period that he was consulting and being treated by Dr Toohey. But in his oral evidence, it is submitted, he dealt forcefully with the three alternative candidates offered by the cross-examiner as causes of the psychiatric condition, namely Ms Grusovin's allegations in parliament, other identified media reports at about the time of the first Channel 7 broadcast, and the police investigation.
4848 Dr Toohey accepted that the Grusovin allegations have been a source of stress to Mr Marsden, and that publicity surrounding them was a factor in the causation of his disease. But he rated it as a less significant factor than the Channel 7 allegations. His evidence, which the court would accept as internally logical, consistent with the other experts' reports, and consistent with the evidence of lay witnesses, was: that the amount of public exposure was the `psycho-dynamic', the thing most meaningful in this particular case; that the televised allegations of paedophilia in the Channel 7 Today Tonight program achieved the highest level of public exposure; that the speed of resolution of an allegation was a factor in its significance, so that `confessions of false allegations' (Exhibit H Sheet 7) - (a reference, it is submitted, to withdrawal by Mr Fisk of the Grusovin allegations) and a `negative police investigation' (Exhibit H Sheet 7) diminished those as factors; that the television programs dominated Mr Marsden's own concern, and were the thing that he talked about most in consultations; and that it was therefore the Channel 7 allegations in the broadcast of March 1995 which played the main causative role in precipitating the depression. This, it is said, is consistent with the observations of other witnesses who gave evidence as to Mr Marsden's response to the Grusovin allegations and contrasted it to his response to the Channel 7 allegation of March 1995.
4949 Mr Adam's evidence shows clearly the effect which Dr Toohey describes as `speed of resolution'. His evidence is:
`HALL: Q. I am now going to identify for you a series of specific time periods and ask you some questions regarding your observation of Mr Marsden in those periods. Firstly, are you aware that in December of 1994, Ms Deirdre Grusovin referred to Mr Marsden in some allegations she aired in Parliament?
A. Yes I am.
Q. I would like to ask you to address yourself to the period from December 1994 until the beginning of March of 1995. Did you observe any change in Mr Marsden's prevailing mood and demeanour during that period?
A. The Parliamentary statements were made in the beginning of December, and initially John was outraged. We were at a luncheon together when news of the statements first came out, and he was in a state of shock that afternoon. And he then for the next few weeks worked tirelessly to research the statements, and he was totally focused on trying to clear his name. He was angry, and he was intent on doing anything he could to deal with it quickly. That was till about Christmas. During that period of time he was able to establish or obtain some information which indicated that -
Q. Confine yourself please to what you observed about his mood or behaviour?
A. By about Christmas he had completely changed. He would become relieved. He was virtually back to the same disposition that he was in the November of 94, and in the next first few months of 1995 it was, he was back to completely normal'.
4950 There was `laborious but fruitless cross-examination' of Mr Adam, premised on the cross-examiner's suggestion that the phrase `by about Christmas' could not include Christmas day. Nothing was achieved by that. Mr Adam's evidence was unshaken: between 3 December 1994 and about Christmas, he saw anger and a determination to refute the charges. After Christmas, great relief and a near complete recovery of his former self.
4951 Mr Lyall distinguished Mr Marsden's mood between the Grusovin affair (December 1994) and the Today Tonight broadcast, from that which prevailed after March 1995.
4952 Mr Pickering observed no change of demeanour between December 1994 and March 1995, but after Today Tonight went to air, `most definitely' it changed. His evidence reflects Dr Toohey's point about `speed of resolution'. By February 1995, Mr Marsden had `felt all this was behind him ... the Grusovin allegations had been put to be'.
4953 Mr Knight put it pithily: `Post-December `94 and pre-March `95, Mr Marsden was angry. Post-March `95 he was depressed'.
4954 As to the defendant pointing to other media reports, the cross-examiner's second suggested alternative stressor was certain identified media reports. They were an interview on the ABC 7.30 Report on 28 February 1995 (Exhibit 120), a report in the Daily Telegraph on 1 March 1995, and three articles of 15 March 1995, which became parts of Exhibit 264 and Exhibit 121. Each was put to Dr Toohey in cross-examination. The burden of the cross-examination was that these items were examples of a type of public exposure and scrutiny which Dr Toohey had identified as one of the "precipitants" of depression in Mr Marsden. The doctor rejected that proposition, and the Court, it is submitted, would do the same.
4955 First, Dr Toohey distinguished between programs which did no more than discuss Mr Marsden's homosexuality, even suggestions of promiscuity, from those which contain allegations of paedophilia. The `narcissistic hurt' was about paedophilia. The contents of the 7.30 Report (Exhibit 120), for example, `would not touch him'.
4956 Further, the articles of 15 March 1995, particularly Exhibit 121, post-date the Today Tonight broadcast of 13 March 1995, and internally refer to that broadcast. Dr Toohey described them as "all related". The defendant, the plaintiff says, cannot be heard to argue that if media publicity and public exposure generated by its own defamatory broadcasts in some degree contributes to the psychiatric harm, that the defendant can somehow be spared legal responsibility for that injury. The defendant failed to question Mr Marsden about the impact on him of those reports, the plaintiff adds.
4957 Finally, the cross-examiner suggested to Dr Toohey that police investigations were themselves a relevant contributing stressor. Again, that attack can never rise so high as to displace what Dr Toohey had identified as the primary precipitant - the Channel 7 broadcast Today Tonight - and is therefore irrelevant. In any event, the doctor answered it directly - it was not the police investigation, but the media scrutiny which `had become the theme on which he was seeing me, this was the continuing basis of his distress'.
4958 Dr Toohey's evidence ends where it began, with an acceptance that the causes of Mr Marsden's psychiatric illness are multifactoral, and that it is important to distinguish within the operating factors the critical precipitants from the other, lesser, contributors. Dr Toohey did that, singling out the Channel 7 broadcast Today Tonight. He explained his reasons for that - public exposure was the key, and it had achieved the highest public exposure. Related press publicity arising from that broadcast was part of the same stressor. Neither the Grusovin allegations, because of their relatively lower level of exposure and the speed with which they were resolved, nor the police investigation had the same weight as a factor in precipitating Mr Marsden's disease. Put at its very lowest, Channel 7's Today Tonight broadcast materially contributed to the onset of Mr Marsden's disease."
1445 When he came to the appellant's submissions on causation, his Honour referred to the submission as to qualification and said in relation to Mr Wood's opinion -
"5187 Notwithstanding this lack of qualification the evidence from this witness established that there were a number of significant relevant stressors operating on the plaintiff's psyche. They were as follows: the plaintiff's concern as to the re-opening of the police investigations against him. He had fears that the police investigation against him would never end. He had fears that `the system is out to get him'. He had a concern that he was being victimised. The break up of his relationship with Michael, the plaintiff's then partner. The plaintiff had a drinking problem in that he drank to excess. The plaintiff's partner Michael had been placed on weekend detention in respect of a criminal charge and this was a matter of considerable distress for the plaintiff. The fact that the plaintiff's partner Michael had gone out with a girlfriend after his discharge from detention also caused distress to the plaintiff. The plaintiff felt completely isolated, lonely and alone as a result of the break up of his relationship with Michael. The plaintiff was angry and frustrated by the fact that the Australian Government would not assist him in his attempt to free the aid workers seized in Yugoslavia. The deteriorating relationship with Michael was a continuing source of distress to the plaintiff and he complained to Mr Woods about isolation, loneliness and lack of support from Michael. The plaintiff was greatly distressed by a conversation between Michael, his girlfriend and the girlfriend's mother. The plaintiff also had a fear of going to jail. The plaintiff received telephone calls threatening that he would be killed which were significant stressors.
5188 It is significant that in Mr Wood's notes there is no reference to the television programs as being a matter of stress or concern for the plaintiff.
5189 There is no evidence of any probative value, the defendant says, from this witness to establish the plaintiff's claim for damages for psychiatric injury."
1446 His Honour said in relation to Dr Toohey's opinion, referring first to Dr Toohey's report of 6 May 1997 -
5111 The most significant thing, however, from Dr Toohey's report is that he identifies what he called `the obvious precipitant' as follows: the public statements made about the plaintiff's character; the media accusations and publicity and the inability to clear his name quickly and efficiently.
5112 It is significant that there is no evidence from Dr Toohey to establish a causative nexus between the defendant's publication (particularly the libel sued upon and the imputations pleaded) as opposed to the other media accusations and publicity, and any condition from which the plaintiff may have been suffering. In other words, the doctor makes no attempt to link the defendant's publication of the libel sued upon with the plaintiff's symptoms as observed by him. This, the defendant submits, is sufficient to negate causation.
5113 Dr Toohey's evidence does not establish any relevant causative nexus between the defendant's publication and any episode or syndrome of symptoms from which the plaintiff may have, at one time, suffered. Confirmation of this is to be found in the evidence of Dr Toohey when he identified the relevant `media allegations' as: the report in Parliament (this obviously refers to Mrs Grusovin); the Channel 7 television reports; the Police investigations.
5114 The relevant causes of the major depressive episode referred to by Dr Toohey in his report of 6 May 1997 are multi factorial. They depended upon biological factors including genetics, personality and external stressors. In the biological/sociological understanding of how someone gets depressed, sometimes neither one of these is sufficient to precipitate an illness.
5115 This evidence (above) should be contrasted with what is contained in his contemporaneous report, where no mention of the Channel 7 program was made at all. Dr Toohey said that he did not mention the Channel 7 programs in his report because at the time he was seeing the plaintiff the stressors were not `that relevant to me'. In clinical terms, it was not `that relevant to me ... looking at his symptoms'.
5116 Although in his oral evidence he included the Channel 7 publication as one of the stressors amongst the `media allegations' no attempt was made to establish any particular causative nexus between the defendant's publication and the plaintiff's symptoms. Thus his oral evidence could not be taken to advance the plaintiff's case beyond the terms of his report.
5117 It was a `deliberate' decision on the part of Dr Toohey not to make specific reference to the Channel 7 television programs, (which to my mind is to be understood in the `clinical' terms referred to above).
5118 It is plain that at an earlier time, namely, 19 October 1995, Dr Toohey had diagnosed the plaintiff as suffering from a depressive condition. In that report, he identified the relevant stressors precipitating that mental state. They were listed as: accusations in Parliament. These were the accusations made by Mrs Grusovin; accusations from a former partner; the second stressor was having his personal life exposed and scrutinised; the third relevant stressor was having to stay in charge of a large busy legal firm; the fourth stressor was the deaths of several friends in the past two years.
5119 Dr Toohey listed all of the relevant stressors precipitating the plaintiff's mental state. Following the allegations made by Mrs Grusovin in Parliament there was widespread media exposure of those allegations. That exposure was of the kind to which he referred when Dr Toohey stated that the main element was public exposure. The stress of having his personal life exposed and scrutinised in the public domain was a relevant stressor including articles in the Daily Telegraph, the Sydney Morning Herald and the Australian newspapers; all are relevant to the onset of the plaintiff's mental condition. The plaintiff was very tense and stressed on 19 October 1995 because he was waiting to hear from the Director of Public Prosecutions as to whether or not he would be charged with criminal offences. Notwithstanding the fact that they were relevant to the plaintiff's condition Dr Toohey `deliberately' omitted any reference to the police investigation or to the DPP considering charges against the plaintiff and the plaintiff feeling anxious, tense, worried and depressed as a result of that. Dr Toohey gave no explanation as to why he did not make reference to these matters other than to say that they were `not relevant' to his report. Again, I accept that the explanation was in `clinical' terms at the time of consultation they were not relevant.
5120 The plaintiff did not say anything about the media or the role of the media in the aetiology of his mental state as at 9 May 1995, 2 May 1995, 19 April 1995, 6 April 1995, 1 April 1995. The only mention of the media attention was on 29 March 1995 and it was never referred to again. The plaintiff had no cognitive impairment.
5121 The dominant theme in the consultations with Dr Toohey and in the clinical notes was the plaintiff's concern about the police investigations of him. Dr Toohey agreed that his notes contained as a dominant and recurring theme the plaintiff's concern with the police investigation, the fear of going to jail, police interviews and awaiting the outcome from the DPP as to whether or not there would be further charges laid against him.
5122 Dr Toohey's opinion is based on consultations with the plaintiff which ended on 12 October 1995. There was no further contact thereafter (see Exhibit H p 5). It is self evident that any opinion by him could not relate to the second program which was broadcast by the defendant on 7 May 1996. Dr Toohey's evidence, therefore, has nothing to say about it.
5123 It is also significant that in the first consultation with Dr Toohey (which took place only 16 days after the first program went to air on 13 March 1995) the plaintiff makes no specific mention of this program. The Court could not be satisfied that this was the cause or precipitating event of any relevant harm, when the only mention is: `The effects of the media attention to these accusations meant that his personal life was being publicly exposed and dissected.' (p 2 Exhibit H).
5124 The evidence of Dr Toohey, the defendant submits, does not establish to the requisite standard, that any episode of depressive illness (whenever it occurred) was caused by the broadcast of either of the two television programs by the defendant."
1447 We have though it necessary to set out these lengthy passages from Levine J's reasons because they show the major dispute between the parties over causation of any psychiatric injury suffered by the respondent and the argument for the conclusion that the respondent had not established on the balance of probabilities the necessary causation. We consider that Levine J preferred the appellant's submissions, and that in his reference to "factual uncertainty" his Honour meant that he was not satisfied that, amongst the stressors identified as operating on the respondent, the broadcast of the programmes was on a commonsense approach causative of any psychiatric injury suffered by him.
1448 The respondent submitted that this was erroneous. In summary, he said that it was sufficient that the broadcast of the programmes materially contributed to psychiatric injury and that it did not matter that the other stressors also contributed, and that the alternative stressors were themselves consequences of the broadcast of the programmes. We do not go to the details of the submissions, which were to the effect of the submissions recorded by Levine J.
1449 As we have indicated, we consider that the conclusion was open that the respondent had not established on the balance of probabilities the necessary causation. The facts were complex and, it was very much a matter for the trial judge. It depended on the view he took of the evidence of the lay witnesses of their observations of the respondent, particularly the extent to which he considered he could find in their evidence, and by placing it in context, that what they observed was attributable to the broadcast of the programmes. He did not have the respondent's own evidence to assist in establishing that nexus. It depended on his view of the reliability and weight of the evidence of Mr Woods and Dr Toohey in the debate over relative stressors, and as can be seen from what we have set out there were grounds for excluding the broadcast of the programmes from their opinions of causative factors. The impressions made upon his Honour by all these witnesses must have played a part in the conclusion to which he came. We have carefully considered the detailed submissions of the respondent, which invited us to find that there was contribution material to psychiatric injury. We do not think that, consistently with the principles of appellate review of findings of fact to which we have earlier referred, his Honour's conclusion should be overturned.
Aggravated Compensatory Damages
1450 Aggravated damages are usually awarded in relation to injury to feelings, although they are not necessarily so limited and there may be circumstances or conduct which has the effect of increasing the harm to reputation as well (see Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 74 and cases there cited.)
1451 In the particulars in the statements of claim the respondent claimed aggravated damages "by reason of his knowledge of" a number of matters. The respondent later provided particulars of aggravated damages "in respect of matters after 17 December 1999 and up to 18 May 2000", by which the appellant's conduct in publishing the matter complained of was said to be "improper, unjustifiable or lacking on [sic] bona fides as evidenced by" a number of further matters.
1452 Under the heading "Aggravated Damages Properly So Called", after the discussion earlier mentioned in relation to the extent of publication, Levine J recorded the respondent's submission that there remained [J 4742]-
" ... a significant area of compensable damage in these proceedings which is aggravated damages in the true sense, of improper conduct by the defendant which would justify the Court, as formerly it did the jury, in `going to the top of the bracket' of possible awards".
1453 The improper conduct, or at least some of the improper conduct, suggested by the respondent was then summarised. His Honour said -
"4743 First, there are factors which have increased the damage to the plaintiff's reputation. These include: the calling of Mr Robin Small as a witness, when the defendant knew that Mr Small would make, and he did make, serious defamatory allegations against Mr Marsden which were false, but the falsity of which was not relevant to the defence of qualified privilege and therefore not the subject of evidence at trial. The defendant knew that the plaintiff would not be permitted to demonstrate the falsity of those allegations in cross-examination because of the irrelevance of that issue, but knew also that those allegations would be, and they were, reported nationally by newspapers and television stations and would cause substantial further damages to the plaintiff's reputation.
4744 Further, following and relying on the document called "Particulars of Truth (Admissions)" which consisted of or included allegations which to the knowledge of the defendant and its counsel at the time that they filed that document, were both false in fact and incapable of constituting admissions even if proved. That document was a blind, under cover of which the defendant could and did lead evidence which it knew could not advance its substantive case, but would cause substantial further damage to the plaintiff's reputation.
4745 The conduct of the defendant in publishing the press releases which became Exhibit P is also relied upon. Evidence of that publication is found in the interrogatories 31A and B which also form part of Exhibit P. By those press releases, the plaintiff says, the defendant sought to, and did, prolong the life and increase the vitality of the libel, by denying to the plaintiff any benefit in terms of vindication of his reputation, which he would otherwise have obtained by the conclusions a result of Mr Justice Wood, speaking as Royal Commissioner, in concluding that there was no credible evidence that could suggest the involvement of Mr Marsden in any activity which would attract the jurisdiction of the Royal Commission.
4746 It is to be noted, as I understand it, that the subject matters just referred to are characterised as `aggravated' (compensatory) damages founded on `improper'" conduct, going, not to hurt feelings, but injury to reputation."
1454 After dealing with a number of other matters, Levine J returned to aggravated damages under a sub-heading in those words. His Honour said, in context again recording submissions by the respondent -
"4911 Factors supporting the award of aggravated damages in this case include an: improper refusal by the defendant, delivered by counsel in a manner deliberately insulting to the plaintiff, to consent to the adjournment sought by the plaintiff on 6 December 1999.
4912 Reliance is also placed on what the plaintiff says was the making by Mr Stitt QC on 10 February 2000, of an allegation that Mr Marsden had paid money to secure the release on bail of Stephen Elomari. Mr Stitt made that allegation knowing that he had no basis in evidence to substantiate it. No such evidence was ever led, and yet the allegation was never withdrawn. The allegation was widely publicised and would, if true, have constituted grave professional misconduct on the part of the plaintiff. The false allegation by Mr Stitt QC, which he either knew to be unfounded or made without the most basic checks that Mr Marsden had sworn a false affidavit of discovery. No apology has been made for that false attack.
4913 These were, it is claimed, constant and deliberate attempts by senior counsel for the defendant to humiliate the plaintiff, (`pleasurable experience').
4914 The plaintiff relies upon, and has demonstrated, each of the items of aggravation of hurt feelings particularised in the statement of claim and in the consolidated particulars of aggravated damages filed on 22 May 2000. Particularly these include the plaintiff's knowledge of the falsity of the imputations a matter which, in the evidence, he repeatedly identifies as a matter aggravating his subjective hurt."
1455 Pausing at this point, the respondent's submissions as to aggravated damages were separately directed to conduct increasing the harm to reputation [J 4743 to J 4746] and to conduct increasing injury to feelings [J 4911 to J 4914]; in the case of conduct increasing injury to feelings, they took up all the particularisation of aggravated damages [J 4914].
1456 His Honour then moved to other matters. He came to the appellant's submissions as to aggravated damages in the course of a consideration of damages for injury to feelings, although it seems in fact dealing with harm to reputation.
1457 He first recorded the submissions -
"5068 In light of the rulings [1999] NSWSC 1302: DLJT 72, [1999] NSWSC 1303: DLJT 73, [1999] NSWSC 1305: DLJT 75, [2000] NSWSC 517: DLJT 169 and [2000] NSWSC 645: DLJT 185, a claim for aggravated damages is not open in respect of hurt to feelings. Such a claim may only be entertained in relation to improperly increasing harm to reputation. No evidence, however, was given on this issue.
5069 The general submissions made by the plaintiff, the defendant says, are unsupported by evidence and for this reason the Court should reject them."
1458 His Honour then recorded the appellant's responses to particular matters said to give rise to aggravated damages, being absence of an apology, repetition of allegations (meaning broadcasting the Witness programme when the respondent had already sued in relation to the Today Tonight programme), and persistence with pleas of justification and qualified privilege. He recorded responses to matters he had summarised in paras [J 4743 to J 4746] set out above said to go not to injury to feelings but to harm to reputation.
1459 His Honour concluded this part of his reasons with the words, "I accept these [the appellant's] submissions, they are correct and I add no more" [J 5081].
1460 It is not clear how far this acceptance of the appellant's submissions went, or just what was being accepted. His Honour immediately went on to deal with aggravated damages in relation to injury to feelings, so it appears he did not intend then and there to accept that because of earlier rulings a claim for aggravated damages was not open in respect of injury to feelings. We think that his Honour was focussing on aggravated damages in relation to harm to reputation, and by his acceptance of the appellant's submissions mean that he accepted that the respondent had not made out a case for aggravated damages in that respect. That understanding is supported by his Honour's immediately following use of the subheading "Aggravated damages in relation to injury to feelings" and attention to that subject.
1461 His Honour said under that heading -
"5084 As part of the reasons given on 6 June 2000 for rejecting an application by the plaintiff to re-open his case in chief on damages, the Court said:
`6. Secondly, the plaintiff having given no evidence as to his subjective reaction to the fact of being involved in the litigation, there is no case to reopen in respect of either the maintenance of the plea of justification (which of course was in place at the time of the close of the plaintiff's case), or its prosecution, even assuming as to the former, it to be available as a matter going to ordinary compensatory damages.
7. [para 7 of the reasons of 6 June 2000 was here set out].
8. Further, as to matters not part of the fact of or conduct of the defence case, what I will call non forensic events - abusive phone calls and the like, again, I have come to the view, no evidence having been given by the plaintiff himself as to any incidents of the publication of the matters complained of causing subjective hurt or reputational damage, that there is no case to reopen, and no case in respect of which there can be said to be called what has been described as "fresh" evidence'.
5085 The ruling made on 6 June 2000 followed the Court's ruling on 14 December 1999 ([1999] NSWSC 1303: DLJT 73) in relation to admissibility of documents relevant only to aggravated damages.
5086 In the ruling made on 14 December 1999 ([1999] NSWSC 1303: DLJT 73), the Court said:
`4. A very important concept in aggravated damages constituted by an increase to the hurt of the plaintiff is that the personal hurt is subjective. I find it difficult to appreciate a situation where, in the absence of a plaintiff giving evidence of his being hurt in the first instance by a publication, evidence could be admitted to show an increase in that hurt from sources other than the plaintiff, to put it starkly, when the plaintiff has said nothing about being hurt in the first place. I do not see the judgment in Andrews providing authority for someone else saying that that on which the plaintiff is silent was exacerbated.
5. The documents tendered, one would have thought, as indeed was submitted by Mr Nicholas, quintessentially would have been the subject of oral testimony by a plaintiff.
6. On the subject of his already established hurt being increased by the conduct the plaintiff asserts is evidenced by this correspondence, as a matter of principle on which I am now being constrained to give my view, this evidence is inadmissible.'
5087 The impact on the plaintiff of the publication of the imputations carried in each of the publications is unknown because the plaintiff did not give evidence about these matters. In the absence of direct evidence of increased hurt to the plaintiff occasioned by the publication of the imputations found by the jury to have been carried by each publication, in circumstances where the plaintiff could have given this evidence, the Court should not speculate or make assumptions about the impact of the publications on the plaintiff. As the plaintiff gave no evidence of injury to feelings, and no evidence of his response to the conduct asserted to provide a basis for an award of aggravated damages, the claim for aggravated damages should be rejected.
5088 Again, the submissions for the defendant are unarguably correct. The rulings preclude any consideration of this component of the asserted case for the plaintiff. Save for remarking, as I have frequently done throughout the course of this case, that it was an action vigorously and relentlessly contested with the inevitable ingredient of what I will describe as brutal but not improper forensic conduct, I propose to say no more on the specific matters to which the plaintiff refers and the defendant has replied with respect to the application for the adjournment, the suggestions as to the nature of the plaintiff's Affidavit of Discovery, the suggestion in relation to improper payment of money to release Stephen Elomari on bail and what are described as counsel's attempts to humiliate the plaintiff.
5089 Thus far, therefore, I can state that I am satisfied that the plaintiff suffered actual damage to his reputation and hurt to his feelings on the bases advanced by the plaintiff. I have rejected what I have described as the attempt by the defendant effectively to raise the issue of "bad reputation". Further, I accept the plaintiff's submissions as to the extent of publication up until the time of verdict as part of ordinary compensatory damages.
5090 I reject however the claim for aggravated compensatory damages in its entirety."
1462 We have earlier referred to the ruling of 6 June 2000 in relation to injury to feelings, and to his Honour's then affirmation of the views expressed in his judgment of 14 December 1999, para [4] of which we have set out. We repeat that paragraph and the following paragraphs -
"4 A very important concept in aggravated damages constituted by an increase to the hurt of the plaintiff is that the personal hurt is subjective. I find it difficult to appreciate a situation where, in the absence of a plaintiff giving evidence of his being hurt in the first instance by a publication, evidence could be admitted to show an increase in that hurt from sources other than the plaintiff, to put it starkly, when the plaintiff has said nothing about being hurt in the first place. I do not see the judgment in Andrews providing authority for someone else saying that that on which the plaintiff is silent was exacerbated.
5. The documents tendered, one would have thought, as indeed was submitted by Mr Nicholas, quintessentially would have been the subject of oral testimony by a plaintiff.
6. On the subject of his already established hurt being increased by the conduct the plaintiff asserts is evidenced by this correspondence, as a matter of principle on which I am now being constrained to give my view, this evidence is inadmissible."
1463 The decision was that the documents tendered were inadmissible as a matter of principle, not because of their content. Although introduced in the terms "difficult to appreciate", the principle was that where the respondent had not given evidence of injury to feelings, evidence could not be admitted to support aggravated damages because of increase in injury to feelings. These reasons were taken up by his Honour.
1464 Thus on the separate issues of conduct increasing harm to reputation and conduct increasing injury to feelings, his Honour rejected the former on the ground that increased harm to reputation was unsupported by the evidence [J 5081 accepting J 5069] and rejected the latter on the ground that the respondent gave no evidence of injury or increased injury to feelings [J 5088 accepting, in particular, J 5087]. In the result, the claim for aggravated damages was rejected in its entirety [J 5090].
1465 The relevant grounds of appeal were -
"(2) His Honour erred in finding that there was no evidence upon which aggravated damages could be awarded.
(3) His Honour erred in finding that an award for aggravated damages was precluded by the absence of any testimony from the cross-appellant as to his subjective response to the publications.
(4) By reason of his finding that an award of aggravated damages was precluded [5087], his Honour failed to deal with the totality of the evidence before the Court in accordance with sections 55 and 56 of the Evidence Act, relevant to an award of aggravated damages.
(5) His Honour should have found sufficient evidence existed as to the subjective reaction of the cross-appellant to the publications to provide an evidentiary basis to allow an award of aggravated damages.
...
(20) His Honour erred in refusing to admit MFI 48 and MFI 49 on the issue of aggravated damages on the basis such material could not show an increase of hurt to the cross-appellant when the cross-appellant had not given evidence in chief."
1466 The respondent's submissions were directed to aggravated damages in relation to injury to feelings. It is therefore not necessary further to consider his Honour's rejection of the claim for aggravated damages in relation to injury to reputation.
1467 The refusal to admit MFI 48 and MFI 49 the subject of ground of appeal (20) was directed to the ruling of 14 December 1999 and another ruling on the same day taking up the same reasons. The "findings" referred to in grounds of appeal (3) and (4) were his Honour's conclusions seen in his acceptance of the appellant's submissions as to aggravated damages in relation to injury to feelings. Ground of appeal (2) added little, since Levine J found that there was no evidence upon which aggravated damages could be awarded only in the sense that he considered the absence of evidence from the respondent a bar to the claim. Ground of appeal (5) was effectively the obverse of grounds of appeal (3) and (4). At the heart of the respondent's complaint was that his Honour was in error in holding that, because the respondent had not given evidence of injury to feelings and no evidence of his response to the conduct asserted to provide a basis for an award of aggravated damages, such an award could not be made.
1468 The ruling of 6 June 2000 of itself did not preclude the award of aggravated damages. The reasoning for the ruling did not have that consequence, since that there was "no case to reopen" on subjective reaction to the broadcast of the programmes or the conduct of the litigation did not entail that other evidence could not establish a case of aggravated damages in relation to injury to feelings. The reasoning for the ruling of 14 December 1999, however, had been wider. It had been that, absent evidence from the respondent of increased injury to his feelings, the documents were not admissible to establish a case of aggravated damages in relation to injury to feelings. This reasoning was then taken up, and extended, for the conclusion that, absent evidence from the respondent of injury or increased injury to his feelings, aggravated damages in relation to injury to feelings could not be awarded.
1469 We need not dwell on the evidence in cross-examination of being extremely upset with the Today Tonight programme. In our opinion, Levine J was in error. Although injury to feelings was not established by evidence from the respondent, it could be established by other evidence. As has been seen, his Honour held that it had been established, albeit warranting only a modest allowance in the absence of evidence from the respondent. If injury to the respondent's feelings could be established although he gave no evidence of injury to feelings, why should increased injury to the respondent's feelings because of unjustifiable, improper or other than bona fide conduct of the appellant not be established in the same way? Increased injury to feelings is no different, when it comes to proof of the fact, than injury to feelings.
1470 We have given consideration to whether his Honour really meant in the ruling of 14 December 1999, that the documents were of no weight in making out a case of aggravated damages, and in the principal judgment that without evidence from the respondent the evidence of what was said to and observed by others was insufficient to establish increased injury to feelings. On our reading of the reasons, that is not reasonably open. In particular, the contrast with the evidence-based rejection of aggravated damages for conduct increasing harm to reputation is stark.
1471 It follows that we consider that Levine J was in error in rejecting MFI 48 and MFI 49 for the reasons he gave, and was in error in his conclusion that aggravated damages in relation to injury to feelings simply could not be awarded.
Exemplary Damages Outside New South Wales
1472 As earlier noted, by s 46(3)(a) of the Defamation Act of New South Wales damages for defamation shall not include exemplary damages. The appellant submitted to Levine J that this entirely precluded exemplary damages in the two proceedings. His Honour held that exemplary damages could be awarded for publication of defamatory matter occurring outside New South Wales. The appellant did not in the appeal maintain its submission that the New South Wales provision entirely precluded exemplary damages in the two proceedings.
1473 We have referred to the punitive nature of exemplary damages. In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448 Brennan J said (at 471) that an award of exemplary damages "is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again". Consistently with this purpose, exemplary damages can be awarded "where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights" (Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 112, citing from Mayne & McGregor on Damages 12th Ed (1961) at 196).
1474 The respondent acknowledged it was necessary that he show error in Levine J's refusal to award exemplary damages, and that it was not enough that we might not have taken the same view of whether the respondent should have such damages.
1475 The appellant submitted that an appellate court should be particularly reluctant to intervene in an award of exemplary damages, as distinct from an award of ordinary compensatory damages. It referred to the well known constraints on appellate courts in appeals from discretionary decisions, see House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5, and to Smiths Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279. In the latter case Dixon J said (at 300) that the amount to be awarded to a person defamed "to serve at once as a solatium, vindication and compensation to him and a requital to the wrong-doer can only be solved by an exercise of discretionary judgment", and that an appellate court should not intervene unless able to infer that in some way the discretion must have miscarried.
1476 Dixon J was not speaking of exemplary damages as distinct from other damages. In the passage from which the appellant took the words we have set out his Honour referred to the trial judge's advantages of "judging the true character of the plaintiff" and "estimating the degree of impropriety involved in the publication", and concluded that the fact that the appellate court thought that it would itself have fixed some other amount was not enough to warrant its interference. We do not think his Honour meant that assessment of exemplary damages is any more (or any less) discretionary than assessment of compensatory damages. Both compensatory damages and exemplary damages are at large in the sense earlier mentioned, and although serving different purposes each is intended to represent an estimation of a money amount which will fulfil its purpose. Each involves a normative evaluation, although the norms differ.
1477 In any event, for the present we are not concerned with the amount of an award of exemplary damages. We are concerned with whether or not exemplary damages should have been awarded. If exemplary damages should have been awarded, there is not a discretion to refuse them. The notion of discretion in the present context indicates that the circumstances in which exemplary damages should be awarded cannot be prescriptively de-limited, and that minds can reasonably differ in the view taken of the appellant's conduct. We are duly aware that minds can reasonably differ in the view taken of the appellant's conduct.
1478 Central to whether exemplary damages should have been awarded is whether the respondent established conduct of the appellant in contumelious disregard of the respondent's rights, although that is not essential; in Gray v Motor Accidents Commission (1988) 196 CLR 1 Kirby J pointed out (at 29) that exemplary damages may be recovered whatever the subjective intention of the tortfeasor "if, objectively, the conduct involved was high-handed, calling for curial disapprobation addressed not only to the tortfeasor but to the world".
1479 Levine J concluded his consideration of whether or not exemplary damages should be awarded -
"5260 Although, in the context of the defence of qualified privilege, I have found the defendant through its servants and agents to have acted both unreasonably and maliciously, and indeed have been highly critical and indeed, made adverse findings as to honest belief, I am not persuaded that that conduct of the defendant through its servants and agents warrants punishment or demands to be held up as an example to other instruments of mass communication in particular or publishers in general. I have not been persuaded by the submissions for the plaintiff framed in almost Churchillian terms that the defendant should be taught a lesson that Channel 7 and history will never forget.
5261 The conduct of Mr Quail in relation to Exhibit AO is at the very least disturbing. In accordance with principle, in effect, as expounded by both parties, fault has been found in the defendant. But that "something more" I cannot find, no matter how disapproving I have been in reaching conclusions about the defendant's conduct in the preparation and publication of the matters complained of. In short, the conduct of the defendant was wanting, as I have found, in reasonableness and was infected by malice. Those qualities I am unable to elevate to positive misconduct or conscious wrongdoing in contumelious disregard of the plaintiff. That observation applies to each of the several matters to which the plaintiff draws attention and in respect of which, in its submissions, the defendant has provided persuasive responses."
1480 The expression "something more" comes from Gray v Motor Accidents Commission, where it was said (at 6) that exemplary damages are awarded rarely, that they recognise and publish fault but not every finding of fault warrants their award, and that "[s]omething more must be found". His Honour found fault as to a number of the matters on which the respondent relied for exemplary damages, but did not think that the unreasonableness and malice provided the something more.
1481 The respondent submitted on appeal, in summary, that the fault found did provide the something more, such as to warrant an award of exemplary damages. The respondent said that it was not necessary that there be conscious wrong-doing by appellant, referring to Gray v Motor Accidents Commission at 29.
1482 From the reasons of Levine J, the respondent had relied on the following matters before his Honour. The submissions as recorded were in some respects overlapping and repetitious, and we have endeavoured to capture their substance in the kind of language used rather than set them out at length. The matters were -
(a) The appellant's conduct in relation to Exhibit AO demonstrated actual knowledge of falsity in the truth of the allegations published [J 4936].
(b) The appellant intended to convey the imputations found by the jury to have been conveyed but had made grossly inadequate investigations into their truth, thus demonstrating a cynical indifference to the respondent's right to his reputation [J 4948].
(c) It must have been obvious to the appellant that at least some of its sources were unreliable, but it failed to investigate their allegations more thoroughly or dispense with their material altogether, demonstrating contumelious disregard for the respondent's right to his reputation [J 4950].
(d) The appellant gave the respondent an inadequate opportunity to respond prior to broadcasting the programme, which together with these earlier matters provided further evidence of the appellant's contumelious disregard for the respondent's right to his reputation [J 4953].
(e) Hall was at best recklessly indifferent to the truth or falsity of the accusations in the Today Tonight programme, and despite being put on notice by the grave nature of the allegations or the demeanour of the persons interviewed he failed to initiate or contribute to a thorough chain of inquiry into the truth of the matters alleged [J 4960].
(f) Quail was in a like position to that of Hall.
(g) The programmes were broadcast in an unnecessary lurid and sensational manner, as more fully detailed in relation to malice, and hat the use of "sensationalist media techniques" exceeded what was reasonably required when discussing a subject of the utmost gravity [J 4964-5].
(h) The conduct of Quail and others in relation to Exhibit AO showed reckless indifference to the truth in relation to the Witness programme, which also was broadcast in an inappropriately sensationalised way; [J 4968-74].
(i) There was a need to deter the journalistic practices and disregard for others' rights employed and exhibited by the appellant, such that exemplary damages were not only appropriate but necessary, as a signal to the appellant and to other "media players" that such conduct would not be countenanced and must not be repeated [J 4975-4981].
1483 On appeal the respondent drew particular attention to four matters, not all of which were or were fully reflected in the submissions as recorded by Levine J.
1484 The first matter concerned the creation of and dealings with Exhibit AO. It was that Quail deliberately withheld the information that may have affected the credibility of his "star witness", Stals, and that Quail's evidence was distrusted and disbelieved and it was found that he deliberately set about a course of conduct to conceal information in order to promote Stals as a credible witness to the detriment of the respondent's reputation. In this connection it is appropriate to repeat Levine J's findings -
"4476 I have no difficulty in coming to the conclusion that the decision on the part of Mr Quail to withhold from his co-workers in the Witness team the information in the drugs tape was a conscious one. It was unreasonable and reckless. Also, as the plaintiff agued above, within the scope of the terms of his agency.
4477 But I also come to the view that it was deliberate. By deliberate I mean consciously withheld to prevent information being available to other members of his own team that may have affected the credibility of the star witness, the person prepared to show his face in the Witness program, one of the persons Quail was contracted to "get across the line". It did not require O'Donnell to ask him for the tapes. Mr Quail was obliged to produce them and the only conclusion to which I can come is that he deliberately refrained from doing so, in order to promote Mr Stals as a credible witness to the detriment of the plaintiff's reputation. To that extent (Mr Quail being part of the Witness team) there is more than a scintilla of evidence; there is an abundance of it going to his conscious decision being influential in the publication of Witness. I reject the defendant's submission that the evidence is to the contrary. Mr Quail is a person parts of whose testimony I was prepared to accept and parts of whose testimony I regarded with the utmost circumspection if not distrust and disbelief. His demeanour when being cross-examined by Mr Barker in relation to Exhibit AO was such as to induce the last two mentioned reactions. Mr Quail was not frank with the Court, he was not frank with his colleagues. As to the latter, that want of honesty, that want of journalistic integrity, that want of integrity that one would reasonably expect in a specially contracted current affairs associate producer, can be explained on no basis rationally other than Mr Quail's motivation to harm the plaintiff, because he realised the material in Exhibit AO, to any reasonable person, would seriously cast doubt upon the integrity of the information that Mr Stals was providing. That ill-will infected the publication of Witness and the defendant is branded with it.
4478 It is probably not necessary for me to embark upon speculation; it is probably highly undesirable. I have found malice in the defendant by reason of what I will describe as the state of mind and conduct of Mr Quail in relation to Exhibit AO. ... "
1485 The second matter was that there was the reckless indifference as to the truth or falsity of the Today Tonight programme found by Levine J to constitute malice defeating qualified privilege. Again it is appropriate to repeat his Honour's findings -
"4458 One must not be quick to find malice in the strict sense, as the defendant rightly submits. With respect to Today Tonight the only basis upon which malice would be available would be, not actuation in the defendant's servants and agents of any improper motive, but rather the finding of reckless indifference as to truth or falsity in both Mr Hall and Mr Quail.
4459 I can indicate that nothing in the program evidences intrinsic `malice,' as opposed to evidencing `unreasonableness'. It was, as I have said, the lack of honest belief evidenced by the reckless disregard, given the nature of the imputations intended to be conveyed, that to my mind evidences malice that would defeat qualified privilege had it otherwise been established. Particularly I identify the conduct of Mr Hall and Mr Quail in relation to what I have described as the smug offer to Mr Marsden founded on bases beyond comprehension in terms of reason or reasonableness on the part of the two critical personnel. Mr Hall as I have already said had a "conviction" but not a rationally reasonably attained state of belief in the truth and that was exemplified to the highest degree by the approach he took, which has been dealt with above, to the offer to Mr Marsden to participate.
4460 The reckless indifference arises from what I perceive to be the failure on the part of Mr Hall and Mr Quail to appreciate, not merely the gravity, but the implications of what they intended to impute against the plaintiff especially in relation to the temporal component and their disregard for making any inquiry independent of the complainant and independent of the cross-corroboration on which they saw fit to rely, to support those allegations. It is to be borne in mind, as I have said, that this was not a heat of the moment publication. It was a program prepared over some weeks requiring care which was simply not exercised.
...
4464 Finally, in relation to Today Tonight, the plaintiff has discharged the substantial burden he bears in proving malice by reference to the publication of the defamatory imputations without an honest belief in the truth founded upon reckless indifference as to whether they were true or false."
1486 The third matter was that Levine J had found in relation to the Witness programme not only reckless indifference but that the motive was to injure the respondent. His Honour said -
"4466 With respect to improper motive this, in relation to Witness, in my view, has been independently established as one to injure the plaintiff not merely by reference to reckless indifference which here equally applies, but by the position taken by the publishers with respect to the plaintiff's denials and the acknowledgment through Mr McClellan (especially in relation only to Lewis) that the denials upon which the defendant relied were there to expose the plaintiff as a liar rather than to provide balance to the allegations being made in the program. The failure to approach the plaintiff in relation to these "new allegations" is consistent with that improper motive. To intend to convey defamatory imputations is not evidence of malice. To intend to convey them by a program in respect of which there is a pretence as to balance, but where it can be shown that it was not balanced, but rather a reinforcement by accusing the plaintiff of lying, that the allegations were the truth, can and in my view did constitute malice. The dominant motive was to injure the plaintiff; to defame him in circumstances where, under the guise of balance, the real intention was to accuse him of lying, conformably with and further evidenced by, the deliberate decision not to seek his response.
...
4469 However, even if that more precisely identified motive is eliminated from the equation, malice is otherwise evidenced to a very high degree, in my view, by what I have found to be the reckless disregard for the truth leading to what I have concluded can only be the absence of an honest belief in the truth notwithstanding the formulaic responses from the witnesses that they did have such a belief."
1487 The fourth matter was that Levine J specifically found that the inclusion of the Fahey children component of Stals' commentary was "utterly beyond and disproportionate, gratuitous and offensive to any occasion of the publication of the imputations relating to under age sex" [J 4467].
1488 Despite the acknowledgment to which we have referred, the respondent did not urge any particular error on the part of Levine J. He said that there was the something more, and that it was such that exemplary damages should have been awarded; he said that the error was that Levine J had failed to award exemplary damages.
1489 The appellant's response was first to invoke "the discretionary element involved in any award of damages by a trial judge" and "the additional reluctance of appellate courts to interfere with awards of exemplary damages". We have referred to these, which are concerned more with quantification than entitlement.
1490 The appellant said that the respondent's reliance on the four matters overlooked that the malice found in relation to the Today Tonight programme was not improper motive or intrinsic malice but reckless indifference or unreasonableness [see J 4458-9 earlier set out)] and that when dealing with qualified privilege his Honour had said -
"3991 At the outset one component of the case of malice can be eliminated: it is the allegation that the belief in the truth held by the respective persons in connection with each program was a product of a gross and unreasoning prejudice. I did not call upon the defendant to make any submissions on this as no such case had been presented in the cross-examination of the witnesses in this regard."
1491 The appellant submitted that a finding of malice in relation to qualified privilege did not provide the "something more", as otherwise exemplary damages would not be the exceptional case; that Levine J had applied the correct principles and had obviously given the issue anxious consideration; and that his view could not be regarded as so unreasonable as to demonstrate error of itself.
1492 Levine J had the advantages of the evidence unfolding in a more or less sensible way, of seeing and hearing the witnesses, and of the opportunity for reflecting on what seeing and hearing the witnesses contributed to his conclusions over the course of a lengthy trial. If not truly a discretionary judgment, whether the conduct of the appellant as found warranted an award of exemplary damages certainly involved a normative evaluation, one usually sufficiently summarised in the language of contumelious disregard of the respondent's rights but also involving whether curial disapprobation is called for. That is why it is appropriate that we give respect to the conclusion of the trial judge, and do not simply substitute for that conclusion any preference we may have for a different conclusion. Where different views are legitimately available and the trial judge's view was one of those available, that a different view is also available does not show error.
1493 Notwithstanding these cautions to ourselves, in our opinion exemplary damages should have been awarded in relation to the broadcast of the Witness programme. As we have noted, in Gray v Motor Accident Commission it was said that exemplary damages are awarded rarely; in that case it was also said (at 9) that "the remedy is exceptional in that it arises (chiefly, if not exclusively) in cases of conscious wrongdoing in contumelious disregard of the plaintiff's rights". The rarity reflects that the something more is not readily to be found. As to the Today Tonight programme, the fault on the part of the appellant lay in the recklessness rather than conscious wrongdoing, and we do not think that Levine J's view that the something more was not made out was not reasonably open to him. We would for ourselves have declined to hold that exemplary damages should be awarded.
1494 It is otherwise, however, with respect to the Witness programme. There was a finding of motive to injure the respondent. The circumstances underlying that finding, briefly summarised in J 4466 just set out, have been considered in more detail in our attention to qualified privilege. The appellant's conduct was truly contemptuous of the respondent's known denial of under age sex, and deserving of disapprobation. We do not think that Levine J's view that the fault he found could not be elevated to positive misconduct or conscious wrongdoing in contumelious disregard of the respondent was reasonably open, and consider that, in the particular circumstances, failure to award exemplary damages itself shows error.
1495 The appellant broadcast the programme intending that the defamatory imputations be conveyed. The broadcast was nation-wide on a key television programme. The imputations were grave. The appellant's personnel were recklessly indifferent to the truth or falsity of the imputations, and did not make the inquiries into their truth or falsity which should have been made. There was time and opportunity for inquiries. The appellant was not acting through tyros, but through personnel who should have exercised ability and experience. Injury to the respondent from the Today Tonight programme was inevitable, and as to the Witness programme the motive was to injure him. The motive was given effect with contempt for the respondent's known denial of under age sex, with what his Honour called a pretence at balance but in fact a guise used to accuse the respondent of lying.
1496 In our view this amounted to conscious and contumelious disregard for the respondent's rights, calling for curial disapprobation, and brought into play the punitive purpose in damages for defamation. In coming to his conclusion Levine J acknowledged that the appellant's conduct "was wanting ... in reasonableness and was infected by malice", but in relation to the Witness programme did not sufficiently recognise the motive to injure the respondent. We take a more adverse view of the appellant's conduct, so much so as to go beyond legitimate difference of view and require that we substitute our conclusion.
1497 It is then necessary to address how exemplary damages should be approached when s 46(3)(a) of the Defamation Act of New South Wales precludes the award of exemplary damages but such damages may be awarded in respect of publication in the other States and Territories.
1498 The question has not, so far as we are aware, previously been considered. Levine J said -
"5262 Whilst I have held, contrary to the defendant's submissions, that this Court does have jurisdiction to award exemplary damages but have declined to do so for the reasons stated, the observations as to production in New South Wales are significant. I must say that I have conceptual problems with allocating to the several other States and Territories an award of exemplary damages for publication in those places. Such publication would be but an incident of the contumely evidenced by the conduct in New South Wales. Whilst unable to punish for conduct in this State leading to publication here (the major component), the Court can punish for lesser publication elsewhere: serious problems of proportionality certainly arise, in my view."
1499 The "observations as to production" to which his Honour referred were the appellant's submission, in the context of whether exemplary damages could be awarded in respect of publication outside New South Wales, that the relevant conduct of the appellant in the production of the programmes took place in New South Wales
1500 The programmes were broadcast in the States and Territories other than New South Wales, albeit produced in New South Wales. The difficulty lies in how to allow for the separate areas of publication in arriving at a proper amount of damages. We do not think it is a mathematical task, discounting a global sum of exemplary damages according to population, viewer numbers, ground areas or some similar measure. We think that the most rational approach is the simple one of assuming publication only in the States and Territories other than New South Wales and asking what amount will punish and deter in respect of that publication. There should be put out of mind the fact of publication in New South Wales, and any relationship with an amount which would have been awarded for the total publication but for s 46(3)(a) is not relevant.
The Position Thus Far
1501 Subject to the respondent's submission that the damages were not adequate to meet the high requirement for vindication, no appellable error has been found in the assessment of ordinary compensatory damages, but error has been found in relation to aggravated compensatory damages. Error has also been found in the failure to award exemplary damages in relation to the Witness programme.
1502 Before coming to the overall adequacy or inadequacy of the damages, it is necessary to consider what is to happen in relation to the errors we have found. That may be material to our attention to the overall adequacy or inadequacy of the damages.
1503 The first question is whether we are in a position to remedy the error in relation to the assessment of aggravated compensatory damages. Levine J did not enter upon the assessment of aggravated damages because he considered the damages simply could not be awarded. We must be satisfied that we are fully able to assess the damages without seeing or hearing the witnesses, see Supreme Court Act s 107(b) and the discussion of that requirement in Shehata v Montague L Meyer Pty Ltd (1976) 51 ALJR 77, Agbaba v Witter (1977) 51 ALJR 503, Government Insurance Office of New South Wales v Evans (1990) 21 NSWLR 564 and The Trustees of the Roman Catholic Church v Hogan [2001] NSWCA 381; (2001) 53 NSWLR 343.
1504 The respondent submitted that, consistently with the principles explained in these cases, we could assess damages if error on the part of the trial judge were found. The submission was not specifically directed to this or any particular error, but rather to overall inadequacy in damages. We do not think that in the present context we can remedy the error.
1505 The initial difficulty is that, where aggravated compensatory damages are not separately assessed, it is scarcely open to us simply to consider what increment by way of aggravated damages, if any, might be appropriate. But there are other difficulties.
1506 First, if MFI 48 and MFI 49 should not have been rejected for the reasons given, unless there were other reasons for rejecting them they should be part of the evidence on which the question of aggravated damages is considered. It was not suggested in the appeal that the MFIs were otherwise inadmissible, but we were not addressed as to the part they might play. If they had been admitted, they may or may not have led to evidence in the appellant's case. We received no submissions as to this. Thus even if we paid regard to the MFIs that would not necessarily replicate the position which would have come about if they had not been rejected.
1507 Secondly, after the ruling in relation to the MFIs the respondent was not obliged to continue to tender evidence going to aggravated damages. He was entitled, if not obliged, to act in conformity with the ruling. MFI 48 and MFI 49 do not seem to have been particularly significant, but we do not know what other evidence might have been but for the ruling.
1508 Thirdly, we return the particulars of the claim to aggravated damages. If aggravated damages in relation to harm to reputation be put aside, the respondent had submitted to Levine J that it had made out "each of the items of aggravation of hurt feelings" particularised, see J 4914 earlier set out. But his Honour did not detail or address the items of aggravation of hurt feelings, no doubt because he considered that aggravated damages in relation to injury to feelings simply could not be awarded.
1509 Evidence of increased injury to feelings may or may not be found in the evidence from other witnesses of contemporaneous statements by the respondent going to his reaction to the broadcast of the programmes, to his reaction to subsequent conduct of the appellant, and to what they observed about his reactions. Reactions to the appellant's aggravating conduct in broadcasting the programmes or thereafter, as distinct from reactions to the broadcasting of the programmes, may or may not have been separately or sufficiently clearly addressed in that evidence. It may be that the evidence would not establish increased injury to feelings. But we do not know; it may be that the evidence did separately or sufficiently clearly address that matter. Whether or not increased injury to feelings was established would depend not only on textual analysis of the evidence but also on the impression made by the witnesses. Because of the view Levine J took, he made no findings. We do not think we can properly make findings from the cold print of the transcript.
1510 Regrettably, we see no alterative to a new trial at least on the issue of aggravated compensatory damages.
1511 The second question is whether we are in a position to remedy the error in failing to award exemplary damages in relation to the Witness programme. This is in a different position. The respondent asked that we assess (inter alia) exemplary damages "on the basis of the findings made by the trial judge" [RS 125], and the appellant put no submission to the contrary. We consider that we can arrive at an amount for exemplary damages, even if the amount for compensatory damages has not been ascertained. Exemplary damages serve a different purpose from compensatory damages, and nothing in what we have said as to compensatory damages removes the basis on which we can address exemplary damages: as Brennan J said in X L Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448 at 471, "There is no necessary proportionality between the assessment of the two categories". We take a serious view of the appellant's conduct. In our opinion there should be exemplary damages of $200,000 in relation to the Witness programme.
1512 The third question, then, is the nature and extent of the new trial.
1513 The respondent expressly disavowed a general new trial in the event that there was error having the effect of reducing damages, and we did not feel able ourselves to reassess damages. He sought, in that event -
" ... an order that a limited retrial occur provided it is restricted to the question of damages and is conducted on the basis of the existing pleadings. Such a new trial would allow the plaintiff to give evidence of his subjective reaction and be cross-examined on that reaction. No further evidence would be led. The trial judge could then quantify an award having regard to that evidence combined with the other findings of the trial judge and the judgment of this Court in the issues canvassed in the cross appeal." (RS 128)
1514 The appellant did not respond to this proposal, but in its own submissions proposed that this Court reassess damages. It should be noted, however, that the respondent's proposal was against the submission that there had been error in relation to many or all of ordinary compensatory damage, aggravated damages and exemplary damages in the respects we have considered, plus the submission that the damages were not adequate to meet the high requirement for vindication, and the appellant's proposal was against the submission that the damages were wholly excessive. We are presently considering error only in one respect, and have not yet come to the overall adequacy or inadequacy of the damages. It is necessary to take that into account in what follows.
1515 We can order a new trial "on any question without interfering with the decision on any other question" (Pt 51 r 23(2) of the Rules) or as to "part only of the matter in controversy" (Pt 51 r 23(3)), giving such judgment or making such order the nature of the case requires for the disposal of the remainder of the appeal (Pt 51 r 23(4)). Where we order a new trial we may -
"(a) impose conditions on any part for the purposes of the new trial;
(b) direct admissions to be made by any party for the purpose of the new trial;
(c) order that the testimony of any witness examined at the former trial may be read from the notes of the testimony, instead of the witness being again examined; and
(d) for the purposes of subparagraphs (a) to (c) from time to time make such orders as the Court of Appeal thinks fit." (Pt 51 r 23(5))
1516 It is common for an appellate court to order a new trial limited to damages. Pateman v Higgins [1957] HCA 62; (1957) 97 CLR 521 considers that course, starting from a new trial of the case as a whole but endorsing a limited new trial if the court thinks "they shall do greater injustice by setting the matter at large again" (at 527-9, citing from Hutchinson v Piper (1812) 4 Taunt 535 at 556-7[1812] EngR 349; ; 128 ER 447 at 448). Nonetheless in Quinn v Rocla Pipes Pty Ltd (1986) 6 NSWLR 586 McHugh JA said at (602) that, while a new trial limited to damages was common, the fundamental rule was that a new trial should generally be on all issues.
1517 Sometimes a new trial has been ordered limited to a single head of damages. The most recent consideration is found in The Trustees of the Roman Catholic Church v Hogan.
1518 In that case one question was whether the new trial, after a jury's assessment of general damages was held to be excessive, should be as to general damages only or as to all issues of damages. Mason P rejected the submission that the new trial had to be as to all issues of damages because there could only be a single verdict, referring to Pt 57 r 23(3) of the Rules. His Honour continued (at 349-50) -
"There have been occasions when a single head of damages has been ordered to be retried (see John Fairfax & Sons Ltd v Armaghanian (Court of Appeal, 27 August 1996, unreported) (new trial limited to quantum of damages for past and future economic loss), Gibson v Smith (Supreme Court of Western Australia, 19 June 1997, unreported) (new trial limited to damages for future care), Rosstown Holding Pty Ltd v Mallinson [2000] 2 VR 299 (new trial limited to assessment of economic loss))."
1519 His Honour asked what principles governed the exercise of the discretion to order a new trial on a limited question. He referred to and cited from Pateman v Higgins, and said (at 350) -
"These passages indicate that a new trial should not be limited if there is a real chance of the jury having erred in the wider case (see also Rowe v Edwards [1934] HCA 32; (1934) 51 CLR 351 at 356, per Dixon J, Uren v Australian Consolidated Press Ltd (1965) 66 SR (NSW) 271 at 304-305; 83 WN (Pt 2) (NSW) 229 at 260-261, per Walsh J, whose decision was upheld by the High Court: see Australian Consolidated Press Ltd v Uren [1966] HCA 37; (1966) 117 CLR 185 at 193, 200-201, 215, 220). This is the way that this Court has approached the exercise of the discretion to order a limited new trial (see, eg, Wardle v Wills Hartman Pty Ltd (Court of Appeal, 24 August 1984, unreported), Quinn v Rocla Concrete Pipes Ltd (1986) 6 NSWLR 586 at 602, Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 381). The principles are capable of application to a situation like the present where the choice is between a new trial as to damages generally and as to a single head of damages."
1520 His Honour held that there should be a new trial as to all issues of damages, first because the jury's assessment of economic loss could have been affected by the reasoning leading to the excessive general damages and secondly because there was a risk that reassessed general damages "could appear anomalous when placed side by side with the awards for economic loss and (possibly) exemplary damages at the first trial, if those awards were allowed to stand" (at 351). His Honour's final statement was that the ends of justice would best be served by a new trial as to damages generally.
1521 As we have indicated, we consider that a new trial by reason of the error in relation to aggravated damages can properly exclude any question of exemplary damages, and should do so. Can it or should be limited so as to exclude ordinary compensatory damages, or so as to exclude the aspects of ordinary compensatory damages other than injury to feelings?
1522 We do not understand the respondent to ask for any additional limitation - he proposed a new trial as to damages generally, albeit on conditions, if we did not reassess. The appellant contemplated a new trial as to damages generally. Both stances, however, were against the wider submissions to which we have referred.
1523 As at present advised we do not think that any additional limitation would be appropriate, in the light of the starting-point of a new trial generally on all issues and, within a new trial as to damages, considerations similar to those discussed in The Trustees of the Roman Catholic Church v Hogan. Whether or not at a new trial the respondent himself gives evidence of injury to feelings, it seems to us that the evidence of the other witnesses to which reference has been made would go to all of harm to reputation, injury to feelings, psychiatric injury and aggravated damages. If they or some of them were to give evidence in a new trial, it would be anomalous that the acceptance of their evidence and its weight in a case for aggravated injury to feelings (being the case which we have held was erroneously foreclosed to the respondent) were treated in isolation from the other areas in which the same witnesses gave evidence at the trial. The anomaly seems to us fairly stark if one considers ordinary damages for injury to feelings and aggravated damages for injury to feelings, but goes well beyond that. Further, our present view is that there would be a risk of imbalance between the existing assessments of damages and any damages found appropriate to compensate for the additional harm to the respondent's reputation and injury to his feelings, if the latter were regarded as an increment to the existing damages rather than part of compensatory damages assessed as a whole.
1524 In his proposal the respondent said that any new trial should be conducted on the basis of the existing pleadings, that the respondent would give evidence and be cross-examined, and that there would be no further evidence. The proposal appeared to contemplate that Levine J would conduct the new trial, and would act on other of his findings. Again as at present advised, we see a number of problems in this. First, a new trial would be on the basis of the existing pleadings unless application were successfully made to amend. Any such application should be made at the trial level, preferably to the trial judge. We do not think we should impose a condition precluding the making of an application which is not in any way to encourage or condone a refashioning of the case of either party. Secondly, it is a matter for the respondent whether he gives evidence, but we do not think we can impose a condition that no other evidence be led. The appellant must be free to meet whatever case is put on the new trial. Thirdly, while we could order that the testimony of witnesses examined at the trial be read from the notes of the transcript (Pt 51 r 23(5)(c)), that does not mean that the new trial is to be conducted by Levine J or that other findings relevant to damages made by his Honour automatically hold good for the new trial. Our present view is that we should not do more than order a new trial limited to compensatory damages. What happens thereafter may well be complicated, and it is to be hoped that a sensible course can be agreed to ease the complications (although history belies the hope). But we should not intervene in what happens.
1525 However, we think that the parties should have the opportunity to put further submissions to us as to the nature and extent of the new trial in the respects we have mentioned. Understandably, there were a number of possible outcomes in the appeal and the cross-appeal, and the submissions were not directed to that which has come about. The order we should make is open to debate, and it is only fair that the parties should be able to put submissions in the light of our conclusions.
1526 In that connection, we should advert to a further matter. No submission was made to the effect that we should order that the proceedings be returned to Levine J for reassessment of damages on the evidence in the trial. It can readily be seen that the respondent may regard giving evidence of injury to feelings as advantageous. That part of his proposal for a new trial involving evidence of injury to feelings may have been predicated on our finding error whereby he did not do so. We have not found error in that respect. The error presently in question is one of failure to proceed to assessment of aggravated damages for injury to feelings, rather than proceeding incorrectly to an assessment or to an incorrect assessment. Understandably, the submissions were not specifically directed to that permutation of the possible results in the appeal. We think that we should leave it open to the parties or one of them to make a submission of the nature we have mentioned, although that does not indicate any view on whether such an order can or should be made: regard to the judgment of Kirby P in Holden v Wyong Shire Council (CA, 9 June 1988, unreported) suggests potential difficulties.
Overall Excess or Insufficiency of the Damages
1527 A new trial as to damages other than exemplary damages (or some kind of remission) is indeed material to our attention to the overall adequacy or inadequacy of damages. What matters is the overall compensatory damages. Their amount must be reassessed. There is no point in our deciding whether the damages awarded by Levine J were adequate for the purposes of vindication when they are to be reassessed at least in part and maybe in whole.
1528 The same applies to a further matter raised by the appellant. Although it also should not be decided, we should explain it.
1529 Section 48 of the Defamation Act provides that evidence is admissible on behalf of the defendant, in mitigation of damages, that the plaintiff has already recovered damages for defamation or has brought proceedings for damages for defamation "in respect of any other publication of matter to the same purport or effect as the matter complained of in the proceedings".
1530 This changes the common law in favour of defendants. At common law a defendant can not mitigate damages by tendering evidence of other defamatory publications concerning the plaintiff, and has to answer for the effect of its own publication without regard to what others had published (Dingle v Associated Newspapers Ltd (1964) AC 371 at 411; Carson v John Fairfax & Sons Ltd at 99). A consequence of this is that it can not be shown that the plaintiff has recovered damages in respect of other defamatory publications (Carson v John Fairfax & Sons Ltd at 99).
1531 Once the evidence is admissible, that the damages are for "relevant harm" (see s 46(2) of the Defamation Act) means that the damages must take account of other damages already recovered. Speaking of a hearing together of closely related defamatory publications, Mason CJ and Deane, Dawson and Toohey JJ in Carson v John Fairfax & Sons Ltd described (at 55-56) how the need to avoid over-compensation would require attention to whether the total of the two verdicts would exceed the amount appropriate to compensate for the total harm suffered by reason of the combined effect of the two publications. Their Honours' description included (at 56) -
"The fact that the total of the verdicts is obviously excessive in that sense does not mean, of course, that all the verdicts should be set aside. It would be necessary to consider each verdict to ascertain whether, in the context of the case as a whole, it is excessive."
1532 In the same case McHugh J summarised the effect of s 48 (at 99-100) -
"So, if a plaintiff is defamed on fifty-two successive weeks and brings a defamation action against any person, evidence is admissible in mitigation of damages that the plaintiff has already recovered or seeks to recover damages or compensation in respect of any of the other fifty-two articles "to the same purport or effect as the matter complained of". Consequently, the reasonableness of a verdict in respect of a defamatory publication must be assessed in the light of the evidence concerning that publication including any evidence which was admitted in mitigation of damages in respect of that publication. It is erroneous to consider the reasonableness of a verdict by determining whether the total sum awarded for a number of verdicts is reasonable. Each verdict must be considered separately. Except as provided for in s 48, absent evidence of a generally bad reputation at the time of the defamatory publication, damages are to be assessed in accordance with the common law rule that the plaintiff was a person of good reputation whose damages are not to be reduced by reason of any other publication." (citations omitted)
1533 The appellant submitted that s 48 applied because the Today Tonight programme and the Witness programme were each "to the same purport or effect". It said that the damages awarded in respect of the one programme had to take account of the damages awarded in respect of the other programme, and that there had to be regard to the aggregate harm suffered by the respondent by reason of both publications. It said that the total of the damages so exceeded the amount appropriate to compensate for the aggregate harm in one of the assessments of damages of the damages that there must have been disregard of the damages awarded in the other; specifically, that the award of damages in respect of the Today Tonight programme meant that the requirement of vindication in respect of the Witness programme was much less than the damages actually awarded. It said that there was error in that Levine J failed to take into account "the powerful future effect which he himself intended that the Today Tonight award should have".
1534 Levine J does seem to have regarded the imputations found to have been conveyed by each of the two programmes to be to the same purport and effect [J 5273, J 5275]. He did not fail to pay regard to s 48. He referred in his reasons to "the component of the operation of s 48 of the Defamation Act", setting out the section, and continued -
"5269 In Vacik (above) para 95 Sperling J held that the section operates to prevent double damages for substantially the same imputation. Sperling J also pointed out that if it is the defendant's case that reliance is placed on s 48, notice thereof should be given pursuant to SCR Pt 67 r 18(2). Whilst notice was given pursuant to that Rule of reliance upon the truth or substantial truth of the imputations (and cognate defences interstate) on my examination of the pleadings no such notice has here been given. Nonetheless as a matter of principle (see Carson (above) at 55-56), the award of damages in respect of the two programs (four imputations) must not be viewed, in the end, individually or combined, otherwise than reflecting the appropriate and rational relationship referred to in s 46A(1). This I have sought to reflect in respect of the award for each action and the total thereof. Vindication, that elusive component in the relativity with awards for personal injuries, as I have said, predominates in my computation. Nonetheless, `compliance' with s 46(2) must be achieved and be seen to be achieved."
1535 It may not be appropriate to speak of notice of reliance on s 48. It is an evidentiary provision; the reliance is on any recovery of damages, of which Pt 67 r 18(2)(d) of the Rules requires particulars. Notwithstanding that notice had not been given, his Honour was plainly concerned that there not be double damages for substantially the same imputation. He took into account that there were awards of damages with respect to two programmes conveying imputations to the same purport and effect when considering the harm suffered for which the damages were recoverable.
1536 It is impermissible to move from unreasonable total damages to unreasonable separate awards. The real question is whether the damages in respect of the Witness programme were unreasonable given that the respondent had recovered damages in respect of the Today Tonight programme.
1537 However, that is not a question we should answer. There must be a reassessment of compensatory damages (and the question does not arise in relation to exemplary damages). There is no point in our answering the question on the present amounts of compensatory damages.
INTEREST ON DAMAGES
1538 Levine J was asked to include in the sum for which he gave judgment interest on the $275,000 and $250,000. He did so pursuant to s 94 of the Supreme Court Act, by which the court may order that there shall be included in the sum for which judgment is given "interest at such rate as it thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect".
1539 His Honour gave interest on the $275,000 and the $250,000 at 2 per cent from the dates on which the respective programmes were broadcast to the date of judgment. The respondent submitted that he erred in not adopting the rate of 4 per cent. As will appear, that is an incomplete description of the issue, and his Honour did not simply choose one rate of interest rather than the other. When the issue is better understood, it will be seen that it is not one we should finally resolve. It may be of utility, however, to go some way in dealing with the submission.
1540 The purpose of an award of interest, and the guiding principle, is that interest should be awarded where it is necessary in order that the plaintiff be properly compensated. The interest is awarded to compensate the plaintiff for having been kept out of money which was due to the plaintiff at the date the plaintiff was wronged, in order to put the plaintiff in the position in which the plaintiff would have been had the damages for the wrong immediately been paid: see Ruby v Marsh [1975] HCA 32; (1975) 132 CLR 642 at 652; Pheeney v Doolan (1977) 1 NSWLR 601 at 604-5; Thompson v Faraonio [1917] HCA 36; (1979) 54 ALJR 231 at 233; MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 at 663; Grincelis v House [2000] HCA 42; (2000) 201 CLR 321 at 328. The statutory power to award interest may also serve to encourage defendants to favour early resolution of litigation, see Ruby v Marsh at 652-3 and Grincelis v House at 329.
1541 Damages awarded for pre-judgment non-economic loss are assessed according to the standards of compensation prevailing at the date of judgment, and in money with the value of money at that date. In MBP (SA) Pty Ltd v Gogic it was held that the interest on damages for such loss should be calculated not on commercial interest rates, but on a rate which represents the difference between commercial rates and the rate of inflation. The Court considered that, although "somewhat arbitrary", the 4 per cent figure which had been selected in Wheeler v Page (1983) 31 SASR 1 was "more likely to achieve fair and reasonable compensation for plaintiffs than the use of the real rate of interest figure - which may result at times in a plaintiff obtaining no or little interest and at other times an amount of interest greater than the return which could be achieved by real-life investors on a comfortable sum after the incidence of income tax" (at 666).
1542 The respondent's damages were damages for pre-trial non economic loss. In John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131-2 at 142 McHugh JA said -
"Damages in a defamation action, apart from special damages, operate as a vindication of the plaintiff to the public and as a consolation for the wrong done to him: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 150. The wrong done to him includes the injury to his feelings and the damage to his reputation. In most cases the plaintiff in a defamation action will not suffer any loss after the verdict or, at all events, he cannot be treated as suffering any loss after that time. Since, ex hypothesi, and leaving aside contemptuous awards, the verdict must be taken to be sufficiently large to vindicate him in the future (Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 at 1071), he ought not be treated as suffering any future loss so far as injury to his reputation is concerned. Further, the case will be exceptional where the plaintiff can be treated as suffering injury to his feelings after the date of the verdict. Ordinarily, therefore, the jury's assessment of the plaintiff's damages is to be regarded as preventing any further injury to him. Accordingly, except in special circumstances, an award of damages in a defamation action has, or is to be treated as containing, no award for loss after verdict. Indeed, if the plaintiff had obtained his verdict at the date of the writ, he should not have
suffered any further damage.
The settled doctrine of the Australian courts relating to awards of interest requires that interest should be awarded for real and practical, and not merely theoretical, losses: Fire and All Risks Insurance Co Ltd v Callinan [1978] HCA 31; (1978) 140 CLR 427 at 432; Thompson v Faraonio [1917] HCA 36; (1979) 54 ALJR 231 at 233[1917] HCA 36; ; 24 ALR 1 at 7. Speaking generally, I think that the plaintiff in a defamation action is entitled to interest on each of the ordinary elements of the award of damages in a defamation action. If, of course, it appears that part of the award may reflect damages for damage which will be incurred after the date of the verdict, no interest can be awarded on that component of the award: Fire and All Risks Insurance Co Ltd v Callinan (at 432). But except in that class of case the plaintiff in my opinion has a prima facie entitlement to interest on the whole award."
1543 Kirby P relevantly agreed with McHugh JA. Samuels JA disagreed, but not because his Honour regarded the damages as damages for loss suffered after the date of judgment. Rather, his Honour regarded damages in vindication of reputation as not awarded in respect of any event which could be regarded as a detriment incurred before trial, and hence as not satisfying the conditions laid down for the allowance of interest (see at 139). Because the jury's award of damages could not be dissected into damages as solace and damages as vindication, interest could not be awarded at all.
1544 As we understand it, the parties accepted the view of damages for defamation expounded by McHugh JA. We were not asked to depart from the majority judgments in that case.
1545 McHugh JA went on to consider how the interest should be calculated. His Honour said (at 143) -
"In a practical as well as a theoretical sense, the plaintiff in a defamation action is entitled on publication to damages. In particular, he is entitled to damages to vindicate him. A plaintiff in such an action sustains loss for each day that the defendant fails to pay the appropriate damages to him. However, it does not follow that the plaintiff is entitled to interest on the whole award. In many cases the award will reflect an amount for continuing injury to feelings and reputation to the date of verdict. Hence the amount awarded may, and usually will, be higher than the amount which would have been awarded as at the date of publication or even as at the date of the writ. Paradoxically, the amount awarded as vindication per se will inevitably reduce as the damages increase for continuing injury. This is because the award of damages for actual injury will also partly serve the purpose of vindicating the plaintiff's reputation. However, there is no strict correlation between the damages for vindication and the damages for injury to feelings and reputation. If damages were awarded at the date of the writ in a particular case, the proper damages might be $3x. By the time of trial the actual injury might be equivalent to $2x. Yet a proper award for all elements might be only $4x. In some cases damages for vindication will constitute the greater part of the verdict; in other cases those damages per se will play a lesser role. However, to the extent that the damages reflect a component for actual injury to the date of trial, the plaintiff's loss is spread over a period. Any award of interest must reflect that fact.
The correct approach in theory would seem to be that, since the plaintiff was entitled to damages immediately upon publication, the proper inquiry is first to determine to what extent the award was increased by reason of continuing injury. In strict theory the interest, in respect of this additional sum, would need to take account of the fact that the injury was spread over a period after publication. That is, leaving aside any question of future loss, the matter should be approached on the basis that the plaintiff is prima facie entitled to interest on the whole amount of the award from the date of publication. However, that amount has to be reduced for any sum additional to "vindication damages" awarded in consequence of injury suffered between publication and verdict. This approach gives rise to obvious difficulties of assessment. But if, as I think is the case, the plaintiff is entitled to at least part of his damages from the date of publication, the choice is between awarding no interest at all or attempting to calculate interest on a basis which, although not mathematically perfect, achieves a measure of justice. Since it is unfair to plaintiffs to deprive them of interest for the period in which they have been deprived of their money, interest ought to be awarded to the extent that it is fair and proper.
Unless a claim is made for special damages or for the future, I think that it is best not to leave any questions to the jury in relation to the interest issue. Speaking generally, the best approach is to treat the award as though the damages represent a loss spread over the period from the date of publication to trial. It is a process which does not achieve perfect justice for the plaintiff since he may have ceased to suffer actual injury well before the trial. But it seems to me to be the most practical approach to a difficult problem."
1546 The agreement of Kirby P extended to this also. Because Samuels JA took a different view of the nature of damages as vindication, his Honour did not address this matter.
1547 McHugh JA recognised that damages in vindication of reputation will carry full interest from the date of publication. Damages in compensation for injury to feelings and reputation will not all carry interest from the date of publication, because the injury includes injury over the period to the trial. Because the two kinds of damages overlap and interrelate, his Honour said, as a practical approach all damages should be treated as representing a loss spread over the period from the date of publication to trial.
1548 So treating the damages means either interest at the 4 per cent MBP(SA) Pty Ltd v Gogic rate for half the period from the date of publication to trial or interest at half the 4 per cent rate for the whole of the period from the date of publication to trial.
1549 We can now go to the reasons of Levine J. They were brief. After referring to John Fairfax & Sons Ltd v Kelly, his Honour said -
"2 In paragraph 5266 of my reasons for judgment, I set out the factors, in summary form, that led to the computation of the awards actually made. I did not, as there was no requirement upon me, (as there would have been no requirement upon a jury), differentiate in quantification terms between the various components of the award to which I refer in that paragraph.
3 Entitlement to vindication as of the date of publication, of course, is quite clear and it is clear from what I have said in the written reasons and what I said orally this morning that that was a substantial component of the award.
4 I am of the view that the proper approach in a case such as this, the amount and quantum being entirely a matter for me, that it accords with principle as to the continuum over which the initial loss has been sustained, (as well as with avoiding the artificiality of trying, for the purposes of interest, to allocate sums of money to particular components), in that followed by Simpson J in Vilo v John Fairfax & Sons Limited [2000] NSWSC 1206; that two percent represents a fair and just outcome as the appropriate rate to be applied."
1550 In Vilo v John Fairfax & Sons Ltd (2000) NSWSC 1206 Simpson J had said (at [25]) -
"In this case, as in others, I think it should be taken that the damage to the plaintiff's reputation, and the injury he suffered, was spread (perhaps not evenly) over the period of seventeen years. But it must be taken to cease on the award of damages. Although it may be reasonable to conclude that the greater damage was occasioned in the earlier part of the period, thus tilting the balance slightly in favour of the plaintiff for a larger interest rate, I think to do justice to both parties it is more appropriate to treat the injury as spread evenly over the period. This would justify a halving of the interest rate declared by the High Court. I propose to award interest on the whole of the damages over the whole of the period, at a rate of 2 per cent."
1551 In other cases the spread of loss over the relevant period has been reflected by halving the interest rate (see for example Hartley v Nationwide News Pty Ltd (Allen J, 4 May 1995, unreported); Thompson v Australian Capital Television Pty Ltd (1998) 133 ACTR 1, effectively following the practical approach of McHugh JA). That has not always been done, (see for example Norris v Illawarra Newspaper Holdings Pty Ltd (Badgery-Parker J, 15 December 1995, unreported) and Erskine v John Fairfax Group Pty Ltd (Levine J, 6 May 1998, unreported).
1552 The respondent's submission, and the issue, can now be better understood. In substance, it was that the practical approach of McHugh JA was not appropriate in the present case, and that the purpose of an award of interest in these cases called for interest at the rate of 4 per cent for the whole of the period from the date of publication to trial. The respondent submitted that, apart from a modest allowance for injury to feelings, the damages were for injury to and vindication of reputation. This, he said, was an amount to which he was entitled as at the dates he was wronged, because it was then that his reputation was injured and it was then that vindication was required. He accepted that the 4 per cent rate should be used rather than commercial rates, because the damages were assessed according to money values at the date of judgment. But he submitted that Levine J erred in treating the damages as representing a loss spread over the period from the broadcast of the programmes to judgment, and so using half the 4 per cent rate for that period.
1553 Interest awarded in the exercise of the power in s 94 of the Supreme Court Act is discretionary. Levine J was not obliged to follow a formula. He considered that 2 per cent over the whole period "represents a fair and just outcome". He did not, as the respondent's submissions in effect asserted, blindly follow the approach of Simpson J without regard to the facts of the present case. It must be shown that his Honour erred within the principles described in House v The King.
1554 His Honour recognised that vindication was a substantial component of the award, and that the entitlement was as at the date of publication. His Honour appears to have been moved by two considerations. One was that it accorded with principle "as to the continuum over which the initial loss has been sustained". The other was the artificiality of trying to allocate sums of money to particular components; this must have meant allocating the damages between injury to feelings and reputation and vindication of reputation.
1555 It is nonetheless arguable that on the assessment of damages made by Levine J there was error in his exercise of discretion as to interest. Whether there is a continuum over which loss has been sustained depends on the loss, and where the damages must have been significantly in vindication of reputation that was apt to distort any continuum. Injury to reputation could continue over the period from date of publication to trial, but on the facts in these cases the substantial injury to reputation was immediate. Appreciating that what is involved is the exercise of a discretion, we do not see that it was artificial for his Honour to pay regard to the fact, evident from his judgment, that the allowance for injury to feelings was modest and the requirement for vindication was high, so that vindication predominated as a purpose of the award of damages. Arguably, there was failure to address the particular circumstances of the cases.
1556 However, we do not think it necessary to come to a concluded view. In the light of what we have earlier said, the compensatory damages must be reconsidered, and exemplary damages will also have to be considered. The mix of damages and amounts of damages material to Levine J's exercise of discretion will no longer hold good when fresh consideration is given to interest. The discretion as to interest must be re-exercised in any event. It is sufficient that we draw attention to what may have been past error, but the new exercise of discretion will be for whoever exercises it.
COSTS
1557 Levine J ordered the appellant to pay the respondent's costs on a party and party basis up to 25 February 1997 and on an indemnity basis thereafter. After a very long trial, it needs no imagination to appreciate that the costs consequences between the parties will be significant. The appellant submitted that his Honour erred in making the orders for indemnity costs.
1558 On 25 February 1997 the respondent made offers of compromise pursuant to Pt 22 of the Rules. The offers of compromise were in the same terms in each of the proceedings, and were -
"The plaintiff offers to compromise this action in terms that:
1. The Defendant pay to the Plaintiff the sum of $250,000 plus costs to be agreed or assessed.
2. The Defendant undertakes to pay the said sum within 28 days of acceptance of this offer and costs within 4 days of assessment of or agreement as to costs, as the case may be.
3. This offer shall remain open to be accepted until 26 March 1997."
1559 The appellant did not accept the offers of compromise.
1560 Part 52A r 22(4) of the Rules provides -
"(4) Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall ... be entitled to an order against the defendant for the plaintiff's costs in respect of the claim from the day on which the offer was made, assessed on an indemnity basis in addition to his costs incurred before and on that day, assessed on a party and party basis."
1561 The respondent obtained judgments no less favourable than the terms of the offers. As to the Today Tonight programme, together with interest on the damages the judgment was for $309,165.25. As to the Witness programme, together with interest on the damages the judgment was for $275,698.63.
1562 The appellant submitted to Levine J first, that neither of the judgments was "on the claim to which the offer relates" so that Pt 52A r 22(4) had no application; and secondly, that if the rule did have application, the Court should otherwise order.
1563 Levine J did not accept either submission, and applied Pt 52A r 22(4). After going through the pleadings, his Honour said -
"13 Since the time that the offer of compromise was made in each case, there have been two constants in this litigation. First, the defence of privilege and, second, the defence of truth, either pleaded contextually, substantively or both, depending upon the state of the pleadings.
14 As at trial, where the defence of truth was under both s 15 and s 16, the material relied upon by the defendant for both defences was the same. At trial, the dimensions of the second constant, namely truth in one form or another, exceeded that which would have been anticipated in 1997, principally by reason of the application to amend which was dealt with in [1999] NSWSC 619: DLJT 44, 23 June 1999.
15 The substance of the claim and its anticipated litigation never changed in terms of the real issues. The progress of the pleadings exemplified above indicates, in effect, each side "adopting' the other's meanings.
16 In the course of the judgment I delivered this morning, I have remarked, I believe in several places, on the formal legal construct that is the s 9 imputation. The making of the application and the submissions advanced in opposition to it, I acknowledge, raise important matters of principle in relation to pleading in defamation actions, to litigation of the real issues in defamation actions, to the policy behind and the risks associated with offers of compromise.
17 I have had regard in the time available to me to statements made in the Court of Appeal in Whitehouse Properties Pty Ltd v Bond Brewing (1992) 28 NSWLR 17 at 21 per Handley JA, particularly the observations of the Kirby P in Hillier v Sheather (1995) 36 NSWLR 414 at 422 and Nobrega v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [1999] NSWCA 133.
18 By reason of the conclusion to which I have come that the "claim" in substance, as opposed to questions of technical form, has remained in place since the time of the offer of compromise, I propose to allow the application, not being persuaded as to the second leg of the defendant's argument that there are grounds that I should order otherwise."
1564 The appellant submitted that his Honour was in error in giving Pt 52A r 22(4) application and in declining to otherwise order. The circumstances in which his Honour was asked to apply the rule and declined to order otherwise have been altered by our determinations in the appeal. Damages are to be reassessed, at least in part. Exemplary damages are in play. Depending on the nature and extent of a new trial, it is conceivable that the offers of compromise will not be exceeded by the judgments, and the discretion if arising will need to be re-exercised. Again, however, it may be of utility to any reconsideration of costs to go some way in dealing with the submissions.
a) The claims to which the offers related
1565 The question of law can usefully be considered, in our view, without unduly intruding into any future disposition of costs.
1566 The essence of the appellant's submission was that -
(i) each imputation is a separate cause of action;
(ii) the respondent amended the pleaded imputations so that the imputations found by the jury to have been conveyed were not imputations pleaded as at 25 February 1997;
(iii) therefore the judgments were not on claims to which the offers related.
1567 None of the imputations which went to the jury was in the precise terms of a pleaded imputation as at 25 February 1997.
1568 Section 9(2) of the Defamation Act provides that where a person publishes any matter to a recipient and by means of the publication makes an imputation defamatory of the person "the person defamed has, in respect of that imputation, a cause of action against the publisher ...". Each imputation gives a separate cause of action (see Petritsis v Hellenic Herald Pty Ltd (1978) 2 NSWLR 174 at 190 and Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663 at 676). It can be said with some force that the respondent's causes of action in respect of the imputations found by the jury to have been conveyed were not causes of action maintained by him as at 25 February 1997.
1569 However, it does not follow that the respondent's judgments were not on the claims to which the offers of compromise related. The application of Pt 52A r 22(4) relevantly turns on the words "the claim to which the offer relates". Those words reflect Pt 22 r 2 of the Rules, which speaks of an offer "to compromise any claim in the proceedings on the terms specified in the notice of offer". If one goes to the offers of compromise, the respondent offered to compromise "this action". Taking the broadcast of the Today Tonight programme, what was the claim or were the claims in "this action"?
1570 In his statement of claim the respondent alleged the publication of matter, that is, the broadcast of the programme; that the matter gave rise to a number of imputations defamatory of him (which were set out); and that by reason of the publication of the matter the respondent had suffered injury and loss. It was then said that the respondent claimed damages, aggravated damages, interest and costs. Notwithstanding that in legal analysis this included a number of causes of action, as many as the pleaded imputations, in our view it is entirely sensible to say that the claim in the action was a claim to damages and other relief for the injury and loss suffered by reason of the broadcast of the programme, and that that was the claim to which the offer related.
1571 The wrong to a plaintiff comes from facts, although the facts are pressed into a legal mould or legal moulds in order that a court require the wrong-doer to pay money or grants some other relief. So, for example, a client suing a solicitor for failing properly to carry out a conveyancing transaction claims compensation for the loss suffered, and it does not matter that the client may frame the claim as a cause of action for breach of contract or a cause of action for tortious breach of a duty of care. That is not to say that the client may not, in making an offer of compromise, distinguish between the two causes of action, and by the client's own dictionary make the offer relate to a claim in the sense of one of the causes of action. Nor does it mean that in some situations, about which we do not speculate, the facts may not properly be regarded as giving rise to more than one claim. Our point is that the rather artificial construct of separate causes of action, because the Defamation Act makes the cause of action for the publication of matter a cause of action in respect of an imputation, does not have the consequence urged by the appellant. It is necessary to look at the offer of compromise and identify what is the claim to which it relates, and "claim" is not, or at least not necessarily, the same as "cause of action".
1572 In Whitehouse Properties Pty Ltd v Bond Brewing (NSW) Ltd (1992) 28 NSWLR 17 the offer of compromise was expressed to be in satisfaction of a claim for compensation for loss of possession of an hotel. It was contended that the offer was invalid because it did not deal with the claims in the proceedings for damages and mesne profits. Handley JA said (at 21) that there was nothing in the point -
" ... because an offer of compromise may be made in respect of `any claim in the proceedings'. The offer was expressed to be made in respect of the defendant's claim for compensation. It was not made in respect of other claims, and these were left to be resolved by later agreement or judicial decision."
1573 The appellant submitted that this illustrates the importance of identifying the claim in respect of which the offer was made. That may be accepted, but it does not equate "claim" with "cause of action". The offer distinguished between claims.
1574 In Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404 the plaintiff in an action for damages for defamation made an offer of compromise. The offer was not accepted. The plaintiff succeeded in the proceedings and was awarded damages in excess of the amount of the offer, but on appeal it was ordered that there be a new trial limited to damages. The damages awarded in the new trial were also in excess of the amount of the offer. The trial judge refused to order indemnity costs, amongst other reasons because he considered that on the true construction of the Rules the offer of compromise ceased to have effect after the conclusion of the first trial.
1575 It was held on appeal (Gleeson CJ and Priestley JA, Kirby P dissenting) that the trial judge's construction of the Rules was incorrect, because an offer is made not in respect of a trial but in respect of a claim, and a claim may not be finally heard and determined until after there have been a number of appeals and perhaps a number of trials. The reasons of the majority included (at 408) -
"First, the subject of an offer of compromise is a claim in proceedings (Pt 22, r 2). In the present case, the claim was for damages for defamation. In accordance with the rules, the appellant's offer to compromise was expressed as an offer to compromise that claim for a certain sum of money plus costs. The concept of the relevant compromise being the compromise of a claim is basic to the rules in question: see Pt 22, rr 2, 3. It is not a compromise of a hearing, or of one round in a bout of litigation. The appellant had only one claim, and it was that which he offered to compromise. The same claim was litigated at the second trial. That claim was only finally heard and determined at the conclusion of the second trial (and, still then, subject to the appeal process)."
1576 The respondent submitted that this was authority against the appellant's submission. It does not appear from the report whether the plaintiff pleaded more than one imputation. Although the claim was described as a claim "for damages for defamation", without reference to an imputation or the imputations pleaded, it is plain that the present question was not raised. We do not think that Ettingshausen v Australian Consolidated Press Ltd can be regarded as authority on the point. It can, however, be seen as an illustration of ordinary use of language in describing the consequences of publication of defamatory matter as a claim for damages for defamation.
1577 In his earlier decision of Antoniadis v TCN Channel 9 Pty Ltd (24 April 1997, unreported) Levine J had held that, where a plaintiff who sued in respect of three separate broadcasts offered to compromise "her claim", the offer related to "her claim constituted by action against the defendant for the three programs". Although not referring to it, in his decision in the present case his Honour took the same approach, considering that the claim "in substance as opposed to questions of technical form, has remained in place since the time of the offer of compromise". In our opinion his Honour was not in error in giving Pt 52A r 22(4) application.
1578 It does not follow that amendments to the pleaded imputations are to be ignored. Amendments to the pleaded imputations may be relevant to whether an order otherwise should be made.
b) Order otherwise
1579 Unlike the question of law, this is not something we can usefully consider. As we have said, the discretion if arising will need to be re-exercised.
1580 Levine J's reasons for declining to order otherwise were economical. His Honour noted the appellant's position that "the conduct of the litigation in the end was not unremarkable in the light of the issues and I would `otherwise order' as the sub-rule provides". His Honour did not attribute more to the appellant in this respect. In the concluding words in the passage earlier set out he said only that he was "not ... persuaded as to the second leg of the defendant's arguments that there are grounds that I should order otherwise".
1581 If the words "the conduct of the litigation in the end was not remarkable in the light of the issues" be taken at face value, that fact would not provide reason to otherwise order. It would only underline that the normal consequence of failing to accept the offer had not been displaced. If, therefore, the appellant's position was no more than as noted by his Honour, he was right not to be persuaded that there were grounds that he should order otherwise. It was hardly necessary for his Honour to say more.
1582 The appellant's submissions in the appeal came down to these. First, it was submitted that Levine J had failed to give reasons for declining to order otherwise. Secondly, it was submitted that it should be inferred that Levine J thought that Pt 52A r 22(4) required him to make an indemnity costs order unless the appellant "demonstrated some exceptional circumstances which justified a different order", and that he was in error because the discretion to otherwise order was not in terms confined to special circumstances or rare cases. Thirdly, it was submitted that Levine J erred in the exercise of his discretion in that "he failed to take into account Rule 11", meaning Pt 52A r 11 stating the normal position that costs follow the event. Finally, it was submitted that Levine J did not pay sufficient regard to the particular circumstances, as to which the appellant said -
(a) the issues litigated at the trial were wider than those raised by the pleadings at the time of the offers, both parties having made significant amendments including the respondent's claims as to malice, aggravated and exemplary damages, and damages for psychiatric illness;
(b) the proceedings were described by his Honour as "the longest and biggest defamation action in this country's history", with impressive back-up statistics;
(c) there was no finding that the appellant was guilty of unreasonable conduct in the conduct of its case;
(d) the appellant succeeded as to psychiatric illness, aggravated damages and exemplary damages; and
(e) orders on an indemnity basis had "a punitive effect ... in all the circumstances of the case".
1583 Amidst these matters, it was asserted that the appellant had not acted imprudently or unreasonably in failing to accept the offers.
1584 It is not clear to us that these or like submissions were made to Levine J. Perhaps they were within the expression, "the conduct of the litigation in the end was not unremarkable in the light of the issues", although they are not what we would normally take from the expression. However, it can be seen that any utility in our dealing with the appellant's submissions dissolves. In any reconsideration of an order otherwise the particular circumstances will have changed, a fresh approach will be taken, and fresh reasons will be given for whatever conclusion is reached.
ORDERS
1585 The trial judge's rejection of the defences of justification and qualified privilege (statutory and common law) stands. Subject to further submissions, there should be a reassessment in relation to compensatory damages, and we have assessed exemplary damages.
1586 We make no substantive orders at the present time. The appeal and the cross-appeal will be listed for mention at 9.30am on 14 February 2003 in order to ascertain the parties positions as to a new trial as to compensatory damages and if necessary make arrangements for submissions. We direct that no later than 5pm on 7 February 2003 the parties exchange, with copies to us, statements of the orders and directions to be made including as to costs of the appeal and cross-appeal and in relation to any new trial.
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