Channel Seven Sydney Pty Ltd v Mohammed [2008] NSWCA 21 (6 March 2008)

Last Updated: 6 March 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Channel Seven Sydney Pty Ltd v Mohammed [2008] NSWCA 21


FILE NUMBER(S):
40094/07

HEARING DATE(S):
12 February 2008

JUDGMENT DATE:
6 March 2008

PARTIES:
Channel Seven Sydney Pty Ltd - Appellant
Peter Mohammed - Respondent

JUDGMENT OF:
Giles JA Campbell JA Mathews AJA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
CL 20064/05

LOWER COURT JUDICIAL OFFICER:
Adams J

LOWER COURT DATE OF DECISION:
9 February 2007 (summing-up)


COUNSEL:
K P Smark SC - Appellant
C A Evatt & K Rollinson - Respondent

SOLICITORS:
Mallesons Stephen Jaques - Appellant
Michael Corrigan, Engadine - Respondent

CATCHWORDS:
Defamation - s 7A trial - determination that imputations were conveyed - summing-up - judge expressed views that were conveyed - including that it was his duty to tell jury they would be unreasonable if they found otherwise - refused application to discharge jury - whether excess in expression of views - danger of overawing jury - consideration of division of functions between judge and jury - was error and should have discharged jury - no new trial unless substantial wrong or miscarriage of justice - whether there was - court to decide for itself whether imputations conveyed - they were conveyed - although error, no new trial - immediate order for costs of s 7A trial - on basis trial was a waste of time - previous appellate holding that reasonable jury could not determine imputations were not conveyed - but was one new imputation and jury did determine some imputations not conveyed - not a waste of time - discretion miscarried - costs order set aside.

LEGISLATION CITED:
Defamation Act 1974, s 7A

CATEGORY:
Principal judgment

CASES CITED:
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50;
B v The Queen [1992] HCA 68; (1992) 175 CLR 599;
Balenzuela v De Gail [1959] HCA 1; (1959) 101 CLR 226;
Bennette v Cohen [2005] NSWCA 341; (2005) 64 NSWLR 81;
Broadhurst v The Queen (1964) AC 441;
Charlwood Industries Pty Ltd v Brent [2000] NSWCA 201;
Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21;
Evans v The Queen [2007] HCA 59;
Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675;
Gorman v Barber [2004] NSWCA 402; (2004) 61 NSWLR 543;
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255;
Hoger v Ellas (1963) 80 WN 869;
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77;
Mastronardi v State of New South Wales [2007] NSWCA 54;
Mohammed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213;
Monie v Commonwealth of Australia [2007] NSWCA 230;
Nasr v State of New South Wales [2007] NSWCA 101; (2007) 170 A Crim R 78;
Pavy v John Fairfax Publications Pty Ltd [2004] NSWCA 177;
R v D (1997) 68 SASR 571;
R v Heron [2000] NSWCCA 312;
R v Lau and Nguyen [2002] VSCA 157;
R v Machin (1996) SASR 526;
R v RTB [2002] NSWCCA 104;
R v Tikos (No 2) (1963) VR 306;
R v Webb (1997) 68 SASR 545;
R v Zorad (1990) 19 NSWLR 91;
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620;
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219;
Taleb v R [2006] NSWCCA 119;
Tory v Megna [2007] NSWCA 13;
Tsigos v The Queen (1965) 39 ALJR 76;
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.

TEXTS CITED:


DECISION:
(1) Appeal allowed in part; (2) Set aside the costs orders made on 9 February 2007 and in lieu thereof order that the costs of the trial be reserved; appeal otherwise dismissed; (3) Appellant pay 80 per cent of the respondent's costs.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40094/07

CL 20064/05

GILES JA

CAMPBELL JA

MATHEWS AJA

Thursday 6 March 2008

CHANNEL SEVEN SYDNEY PTY LTD v MOHAMMED

Judgment

1 GILES JA: The respondent brought proceedings for defamation against the appellant. The matters complained of were telecasts on 22 June 2004 and subsequent days of two promotions for the “Today Tonight” programme and the telecast on 29 June 2004 of the promoted programme.

2 On 8 and 9 February 2007 Adams J presided over a jury trial to determine, pursuant to s 7A of the Defamation Act 1974, whether the imputations alleged by the respondent were conveyed and if so whether they were defamatory. The jury determined that each of the three imputations alleged with respect to the first promotion was conveyed, that each of the three imputations alleged with respect to the second promotion was conveyed and that five of the seven imputations alleged to have been conveyed with respect to the programme itself were conveyed; the remaining two of the last-mentioned imputations were not conveyed. While not conceded, it was not really in contest that the imputations, if conveyed, were defamatory of the respondent, and the jury determined that all the imputations conveyed were defamatory.

3 On the respondent’s application his Honour ordered that the appellant pay 90 per cent of the respondent’s costs of the trial, that the costs should be on an indemnity basis and that they could be assessed forthwith.

4 The jury’s determinations were verdicts for the purposes of s 102(a) of the Supreme Court Act 1970, enabling appeal as of right pursuant to that section: Bennette v Cohen [2005] NSWCA 341; (2005) 64 NSWLR 81. The appellant appealed against the verdicts on the ground that his Honour erred in not acceding to an application for discharge of the jury made after the summing-up on the basis that “the practical effect of [the summing-up] was in relation to some of the questions ... to substantially direct [the jury] as to the conclusion they should reach”. The appellant also appealed against the costs orders.

The telecasts

5 The subject-matter of the “Today Tonight” programme was dealings between the respondent, said to be a financial adviser and mortgage broker, with a Doreen Smith, said to be an elderly pensioner suffering from dementia. Its thrust was that, taking advantage of Doreen Smith’s dementia, the respondent had arranged borrowings on the security of her properties and had money transferred to himself; the detail can be seen in the schedules next mentioned.

6 I indicate some visual images and set out the words in the respective telecasts in the schedules to these reasons. The presenter in the telecasts was Naomi Robson, the reporter was David Richardson, and others in the telecasts included Doreen Smith, Trevor and Tony Smith apparently sons of Doreen Smith, and the respondent. Schedule A is the first of the promotions, telecast on days prior to 29 June 2004. Schedule B is the second of the promotions, telecast on 28 June 2004. Schedule C is the programme telecast on 29 June 2004.

7 Viewing a DVD of the telecasts, the remarks of McColl JA at [27] of the reasons in the earlier appeal to which I shortly refer are well borne out –

“It should also be noted that on each occasion the word “Stolen” was uttered in the second matter complained of, its appearance on the screen in capitalised red letters was accompanied by a loud thump suggesting it was being stamped on the picture. A similar sound effect was used at the same stage of the third matter complained of. The combination of the graphics and the sound effects gave the matters complained of a particularly dramatic effect which would, in my view, have made a strong impression on the viewer.”

History

8 The respondent commenced his proceedings on 18 March 2005. A trial pursuant to s 7A of the Defamation Act was held in October 2005. Fifteen imputations were alleged, three each with respect to the promotions and nine with respect to the programme. The jury found that only one of the imputations was conveyed, the imputation “The plaintiff is a dishonest financial adviser and mortgage broker.”

9 The respondent appealed. The respondent abandoned one of the imputations, and this Court held that as to all but one of the remaining imputations the determinations that they were not conveyed were ones no reasonable jury could reach. The jury’s verdicts as to those imputations were set aside, and on 2 August 2006 it was ordered that the respondent’s claim in relation to twelve extant imputations be remitted for determination by a jury in accordance with s 7A: Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213.

10 It does not appear from the reasons of the Court that a submission was made that, having found that the jury’s verdicts were unreasonable, the Court should enter verdicts for the respondent. It had earlier been held that s 108(3) of the Supreme Court Act gave power to do so, see Charlwood Industries Pty Ltd v Brent [2000] NSWCA 201; Gorman v Barber [2004] NSWCA 402; (2004) 61 NSWLR 543; Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675. That came under challenge in an appeal to the High Court from the lastmentioned decision and was not affirmed until mid-2007, see John Fairfax Publications v Gacic [2007] HCA 28; (2007) 235 ALR 402. Perhaps it was accepted in the appeal that the outstanding determination of whether the imputations were defamatory called for the remission, see Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [105] per Hunt AJA. Be that as it may, in the new trial it was for the jury to determine whether the imputations were conveyed.

11 At the commencement of the trial in February 2007 two of the twelve imputations were amended and a further imputation was added. The imputations ended up as follows, with the amendments from the imputations the subject of the earlier appeal indicated by lining out and the added imputation in bold print. I adopt the numbering 1, 3 and 5 for the respective promotions and programme from numbering of the questions put to the jury at the trial.

12 With respect to the first of the promotions –

“1. (a) The Plaintiff ripped off a million dollars from a

dementia patient;

(b) The Plaintiff kept stealing money from a dementia patient;

(c) Because of his dealings with a dementia patient the Plaintiff deserved to spend a lot of time in gaol.”

13 With respect to the second of the promotions –

“3. (a) The Plaintiff is a thief.

(b) The Plaintiff ripped off one million dollars from a dementia patient.

(c) The Plaintiff took advantage of a dementia patient and took everything she had.”

14 With respect to the programme –

“5. (a) The Plaintiff ripped off $1 million from a dementia

patient.

(b) The Plaintiff took advantage of a dementia patient and took everything she had.

(c) The Plaintiff swindled Doreen Smith out of everything she owns.

(d) The Plaintiff gave such bad financial advice to Doreen Smith that she lost all her properties.

(e) The Plaintiff stole large sums of money from Doreen Smith by transferring the monies from her bank account to his own personal account.

(f) The Plaintiff is a thief.

(g) The Plaintiff charged Doreen Smith outrageous fees.”

15 The two imputations found not to have been conveyed were imputations 5(d) and (e). It will be noted that in the earlier appeal the Court had considered that a jury acting reasonably could not determine that imputations 5(d) and (e) were not conveyed. The respondent did not cross-appeal in that respect.

Prelude to the summing-up

16 The trial commencing on 8 February 2007 followed the conventional course of a s 7A trial where publication and identification are not in issue. The promotions and the programme were put before the jury by the tender of video tapes, which were played. No other evidence was led. The jury were provided with written questions setting out the imputations and providing for yes/no answers to whether the imputations were conveyed and whether they were defamatory. Counsel addressed, first counsel for the respondent (Mr Evatt, leading Mr Rollinson) and then counsel for the appellant (Mr Smark). The presiding judge summed up to the jury, and in due course the verdicts were returned.

17 Counsel for the appellant had not completed his address at the end of 8 February 2007. On the morning of 9 February 2007 his Honour raised with him, in the absence of the jury, how he could seek from the jury verdicts which the Court of Appeal had said were unreasonable. His Honour’s concern was made plain, and was at times strongly expressed (for example, “it just seems to me it just brings the administration of justice into disrepute” and “now that is just madness”). It included stating that his concern “means that my directions to the jury will be strong on this matter; I can see that my duty is that they not be led into error”, and “I think they would be led into error, to decline to find the imputations that were found, that were directly considered by the Court of Appeal.” It also included that his Honour had “considered, subject to anything [counsel] might say, that this is a case where there ought to be in my view an order for indemnity costs for the plaintiff”.

18 In the discussion counsel for the appellant sought to maintain his position on the bases first, that some of the imputations differed from those considered by the Court of Appeal and secondly, that on earlier occasions the Court of Appeal had “yield[ed] to jury verdicts when they are presented the second time around”. He referred to Harvey v John Fairfax Publications Pty Ltd and Pavy v John Fairfax Publications Pty Ltd [2004] NSWCA 177, although the reports were not gone to and the latter case does not seem to support the proposition. (Counsel’s position was later given some support when the jury determined that imputations 5(d) and (e) were not conveyed.) The discussion was inconclusive. His Honour observed that the respondent “hasn’t taken the point”, and said that he “just wanted to state that I was troubled by it and I will let you go on”.

19 After some other matters were dealt with counsel for the respondent adverted to “this point raised by your Honour”, which immediately before the jury returned brought the exchange –

“HIS HONOUR: Well Mr Evatt I just don’t see how it doesn’t bring the administration of justice into disrepute where the matter is suffered to go to the jury upon a basis on which the Court of Appeal has held it’s perverse to come to a different verdict.

EVATT: I hope your Honour won’t change your Honour’s mind because in my submission your Honour is correct. If you think I agree with you – usually I am wrong.

HIS HONOUR: The matter is going to finish today and I might say this, hopefully the jury might not bring in unreasonable verdicts.

EVATT: I hope so, because it’s such a strong clear case.

HIS HONOUR: But I think I propose to make orders, subject to what Mr Smark might say, I propose to make orders for indemnity costs.”

The summing-up

20 Early in the summing-up his Honour said –

“Let me say something about our mutual tasks, our separate tasks because I do propose to say some things about the facts. Indeed, I propose to make some strong comments about the facts and it is really important that you understand your status as fact finders. Now I am the judge of the law in this case, as counsel have quite rightly told you, and I will be corrected if I am wrong by the Court of Appeal. You are the judges of the facts, not me. I have not taken an oath in relation to the facts. I am entitled to comment on the facts and in certain circumstances, entitled to comment quite strongly on the facts. Indeed, I intend to do so in this case, but though I do so, and if I do so strongly, that does not in one iota reduce your responsibility for making your decisions. Hear what I have to say, but ultimately you are responsible for your decision and not me and if you think that what I say is not justified, or you are not inclined to follow it, do not defer to me. Rely on your own judgment.”

21 After brief reference to another matter, his Honour said –

“I must tell you, and this is a comment on the facts, it seems to me that with a possibility, with one possible exception, none of these questions are really all that complicated. Counsel have shown a great deal of ingenuity in complicating what are essentially simple questions, you might think, and I must tell you that my feeling is that that is what has happened in this case. In the end, this case is quite a simple case, largely because the plaintiff has chosen mostly to quote what was said and that makes things much simpler.”

22 In due course his Honour turned to the questions provided to the jury, and went through the imputations sequentially.

23 He referred to imputation 1(a), “The Plaintiff ripped off a million dollars from a dementia patient “. He identified a number of matters in the promotion, and said –

“Now, ladies, it is for your to ask and answer whether this alleges that the plaintiff ripped off a million dollars from a dementia patient. I must confess for myself, if this article or this programme did not say that, I cannot think of what it did say. Now that is a strong observation and I do not have a duty to come to that decision. But, members of the jury, if you accept that the question is what do the words mean, the English words mean, what would be understood by what those words said, I must tell you and I think it my duty to tell you that you would be unreasonable to find that the words did not have the meaning that the plaintiff ripped off a million dollars from a dementia patient.”

24 His Honour then referred to imputation 1(b), that the respondent “kept stealing money from a dementia patient”. He said that it –

“ ... simply quotes the second sentence:

‘She kept forgetting so her mortgage broker kept stealing her money.’

How, I ask rhetorically, could it be suggested that the article said anything else than that? It uses the word ‘stealing’, it uses the phrase ‘kept stealing’ and kept stealing her money because of her condition. It is a matter for you whether that imputation, as I said, is made, but again, members of the jury, I think it my duty to say that it would be unreasonable for you to hold that that imputation was not conveyed by the plain words of what was said on the television.”

25 His Honour then referred to imputation 1(c), that “[b]ecause of his dealings with a dementia patient the Plaintiff deserved to spend a lot of time in gaol”. He said that this –

“ ... falls into the same category. Mr Smith is reported as saying,

‘I would like to see him spend a lot of time in gaol.’

Why? Because he has robbed her blind. That is he deserves it, he deserves to be punished in gaol, and it may be that he does, but to suggest that this item did not convey in its plain terms that because of what he had done, the plaintiff deserved to spend a lot of time in gaol, again strikes me as quite unreasonable and it would only be because of the complications introduced to this case by counsel that would lead you to think that it would be reasonable to hold those imputations not present. But, as I say, ultimately I have not taken an oath. You must do it fairly and reasonably. I am just telling you I cannot see how you could, being fair and reasonable, think other than that those imputations were in fact conveyed by those words.”

26 Going then to imputations 3(a), (b) and (c), as part of dealing with them globally his Honour said –

“Really, members of the jury, it could not mean anything else. What else could be conveyed but that what was ripped off were the properties identified as stolen? This is not rocket science, this is a simple headline and the allegation is that the mortgage broker took everything she had and it is clear, you might think, that what was taken was what was identified as stolen. It was not saying ‘These were stolen by other persons and the mortgage broker took everything that she had’. That is plainly absurd.

So these imputations commence with the assertion that it alleges that the plaintiff is a thief, that he ripped off one million dollars. This is the language, a one million dollar dementia patient rip-off, and that he took advantage of her and took everything she had.

Again, members of the jury, I must tell you that if you found other than that these imputations were conveyed by the programme, you would have to be acting unreasonably. To my mind, and I think to any reasonable person, the imputations simply are necessarily involved in and conveyed by the emphatic language used in that programme. But, of course, if you think I am wrong about that and if you think that no, another or other meanings – that these meanings, I should say, are not conveyed more probably than not, they you will find no.”

27 I will not set out such lengthy passages from the summing-up in relation to the imputations with respect to the programme. The following shorter passages indicate the nature of his Honour’s comments.

28 As to imputation 5(a), his Honour referred to what counsel for the appellant had put to the jury and said –

“So members of the jury, was there indeed any qualification for the assertion that he ripped off a million dollars from this person? Mr Smark said well, there is, and you would not gather that. It is a matter for you, but I cannot see anything for myself which suggests the slightest qualification.”

29 As to imputation 5(b), his Honour again referred to what counsel had put to the jury and said –

“Is there anything in those words which would lead you to infer that there was any qualification in this programme of the assertion that he took everything that she had? That is a matter for you, members of the jury, but I feel bound to tell you that it is very difficult to see anything in this programme that qualified those words.”

30 As to imputation 5(c), his Honour noted that Mr Smark had said that it was “a difficult imputation for him to seek to have you reject”, and after identifying a question as the question raised by what counsel had put to the jury said “I think you will easily be able to answer that question”.

31 Imputation 5(d) was one of the two imputations which the jury determined had not been conveyed. His Honour did not express or indicate his own view, but concluded his dealing with it by posing for the jury –

“It is a question of you looking at the whole of that. You do have to look at the whole of it because the actual words are not there. On the whole of it, does it suggest that his financial advice was bad and does it suggest as a consequence of that that she lost properties.”

32 Imputation 5(e) was the other imputation which the jury determined had not been conveyed. Again, his Honour did not express or indicate his own view. He concluded his dealing with it –

“It is a matter for you, if you think that this is the only amount suggested in his article as having gone to Mohammed in the context of assertions about a million dollar rip-off and that he kept stealing from her because she kept forgetting what she had done.

In a sense I suppose it is implicit, but not asserted, that he got all the money as distinct from took it from her, but you might think that that is not a real distinction, that he is identified as the thief when you fairly look at the programme as a whole, but that is, as I say, a matter for you.”

33 As to imputation 5(f), his Honour’s brief remarks included, “For myself, I cannot see why that is not saying that he is a thief.”

34 The final imputation 5(g) was the imputation added at the commencement of the trial, that “The Plaintiff charged Doreen Smith outrageous fees”. His Honour said –

“I think that means fees which are morally indefensible. You might think that to put acid in the wound, to steal from someone and charge them for stealing something takes a real chutzpah and, for myself, I wouldn’t have any trouble saying I would think that was outrageous. However, it is a matter for you. The only amount is mentioned specifically, 25,000, but you need to bear in mind whether or not the earlier passage which suggests much larger sums are suggested to be fees paid to him or does the article in the end say that he charged sums which were morally indefensible? It is a matter for you.”

35 At the conclusion of the summing-up his Honour said –

“I want to come back to something that I started with and that is I have expressed my opinion strongly to you. I do not resile from anything that I have said. What I said I did because I can see my duty to do so having regard to the arguments that were put to you by counsel, but at the end of the day it is your responsibility to make this decision upon the imputations and upon their defamatory meaning and it is not for me.

You are at liberty in the exercise of your constitutional power as a jury to come to a different view than the one that I have suggested to you and you should not defer to me. In the end, the decision is yours. That is extremely important and all I can say is that I have no doubt that the trust given to you as jurors to exercise your jurisdiction in this case will not be exercised except reasonably, sensibly and fairly having regard to the directions of law which I have given you.”

The application to discharge the jury

36 At the conclusion of the summing-up his Honour called on counsel in the absence of the jury. The transcript records –

“SMARK: ... Your Honour there are two matters. One is relevant only as a precursor to the second. The Court of Appeal in this case had a power under section 108 of the Supreme Court Act to send the matter back for retrial or to substitute a verdict. They did not substitute a verdict, they send the matter back for retrial. In those circumstances, in my submission, the jury has a function to perform in answering the questions as framed under the Act. Not a controversial proposition.

HIS HONOUR: Certainly.

SMARK: In my submission, first, your Honour plainly, with respect, drew the jurors’ attention to the fact that while you were expressing opinions, they were only opinions and that they were still free to form their own opinions. Your Honour did that on a number of occasions and concluded with that observation. Nevertheless, in my submission, the practical effect of your Honour’s summing-up was in relation to some of the questions – I can’t make this submission in relation to all of them, but in relation to some of the questions that they had was to substantially direct them as to the conclusion they should reach.

Now there is a tension between those two propositions. One is a matter of form and one is a matter of substance.

HIS HONOUR: You say in substance I took away from them their freedom to make the determination as they thought appropriate.

SMARK: On some imputations.

HIS HONOUR: I understand that. All I can say to that, as I have said already, I thought it necessary and, indeed, I said to the jury, I thought it my duty to express my view in strong language.

SMARK: And your Honour foreshadowed that.

HIS HONOUR: Yes.

SMARK: My application on that basis is that your Honour would take this matter away from the jury on a discharge basis and if I could formulate a direction which I would ask your Honour to give, I would, but I don’t seek to take that course and that is my application.

HIS HONOUR: You say, I take it, that a direction could not cure the strength of the directions that I have made and, accordingly, you see a discharge of the jury?

SMARK: That is the application.

YOUR HONOUR: For the reasons that I think I have already stated, I reject that submission.”

Sufficiency of the application

37 The respondent submitted that the complaint of failure to discharge the jury – in substance, of excess in expressions of his Honour’s view to the jury – was not open, or at least should not be upheld, because the appellant had not identified the imputations in relation to which his Honour had substantially directed the jury as to the conclusion they should reach.

38 The applicant was not applying to discharge the jury from coming to determinations with respect to some imputations but not others, but for discharge as a whole – “take this matter away from the jury”. Partial discharge could not sensibly be contemplated, and was not. Nor was the appellant asking for further directions to the jury in order to correct the summing-up or cure what it said was in substance a direction as to the conclusion to be reached in relation to particular imputations. The basis of the application was that the expressions of view had vitiated the trial as a whole.

39 The summing-up was fresh in everybody’s minds, and his Honour was well aware that, as he himself had put it, he had expressed his opinion strongly; he had just acknowledged that. In the circumstances of the application, in my opinion it was not necessary for the appellant to go further than he did by identifying the “some imputations”. The application did not call for their identification, and in any event his Honour clearly enough appreciated, by his responsive “I understand that”, the imputations as to which he had strongly expressed opinions.

Did his Honour’s comments go too far?

40 In summing-up to the jury the judge is entitled to express a view as to the facts, but with qualifications. In R v Zorad (1990) 19 NSWLR 91 the Court of Criminal Appeal said at 106-7 –

“A judge is always entitled to express his view of the facts, provided that he does so with moderation and provided always that he makes it clear that it is the jury’s function (and not his) to decide the facts and that it is their duty to disregard the view which he has expressed (or which he may appear to hold) if it does not agree with their own independent assessment of the facts: Hoger v Ellas (1962) 80 WN (NSW) 869 at 875-876; [1963] NSWR 1033 at 1042-1043; cf R v Stranger (Court of Criminal Appeal, 28 June 1989, unreported at 10-12).”

41 In RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at [42] Gaudron ACJ and Gummow, Kirby and Hayne JJ said succinctly that “it has long been held that a trial judge may comment (and comment strongly) on factual issues”. Their Honours cited for that statement Tsigos v The Queen (1965) 39 ALJR 76(n), the note reading –

“Special leave to appeal refused from the decision of the Supreme Court of New South Wales sitting as a Court of Criminal Appeal dismissing an appeal against a conviction for murder and refusing a new trial. On a point not raised before the Court of Criminal Appeal, namely whether the summing-up was vitiated by a statement that ‘on the evidence before the court it is my duty to tell you that you will be flying in the face of the oath you took namely to return a verdict on the evidence, if you were to return a verdict of acquittal, because on the evidence I can see no escape from the verdict of murder or manslaughter’, the Court (Kitto J dissenting), held that in the context of the whole summing-up the statement was not such as might have led the jury to think that they were being told in point of law that they could not acquit the accused. (Barwick CJ, Taylor, Windeyer and Owen JJ, Kitto J dissenting) 2nd April 1965.”

42 A more full account of Tsigos v The Queen can conveniently be taken from the reasons of Williams J in R v Webb (1997) 68 SASR 545 at 562-3 –

“That case is instructive as a statement of principle but is also demonstrative of the scope for difference of opinion in its application. Tsigos was found guilty of murder and the leave application was directed towards the propriety of the following extract from the summing-up:

‘When we resume I shall call to your mind the evidence that has been given in this case; the facts which are not contradicted or which are contradicted, and it is for you to make up your mind on the facts as they have been given in evidence here without fear of favour on your part, to say whether or not the Crown has proved the charge of murder or, if you are not satisfied of that, you then consider the question of manslaughter. I think I should tell you this, gentlemen, on the evidence before the court it is my duty to tell you that you will be flying in the face of the oath you took, namely to return a verdict on the evidence, if you were to return a verdict of acquittal, because on the evidence I can see no escape of the verdict of guilty of murder or manslaughter.’

Barwick CJ (with the concurrence of Taylor, Windeyer and Owen JJ) said:

‘The question which has exercised the Court’s mind is whether by these expressions, taken in the context of the trial and of the summing-up as a whole, his Honour conveyed to the jury that they could not, as distinct from should not, acquit the applicant. If I thought that the jury acquired or could have acquired this impression from the summing-up, I should not be deterred from holding that the applicant’s conviction should be set aside by the circumstance that the propriety of the summing-up had not been raised before the Court of Criminal Appeal or that counsel had not taken any exception at the trial to this portion of the summing-up. The departure from the fundamentals of a regular trial constituted by a direction to convict would be so great and its effect on the general administration of the Criminal Law so serious that the case would clearly be one for special leave.

But the critical question remains, whether the expressions used by his Honour in the context of the trial were such as might have led the jury to think that they were being told in point of law that they could not acquit this applicant.

...He was entitled, to express to them his own view of the facts, reminding them that none the less they were the sole judges of them and at liberty to discard his views. This he did tell them. He was entitled to remind them of their oath to return a verdict according to the evidence.

In my opinion, in the circumstances of this case, in expressing himself as he did he was doing no more than he was entitled to do, however direct and forceful the language in which he conveyed his observation, and however unnecessary, as I think it was, in this case to speak as he did. I do not think the summing-up as a whole was calculated to or would convey to the jury that in point of law they must convict the applicant either of murder or of manslaughter.’

In dissenting Kitto J said:

‘...The summing-up would not, of course, be necessarily vitiated by an expression, even a strong expression, of his Honour’s own opinion on these questions of fact, so long as he made it clear that he was not denying to the jury the right and the duty of giving effect to their own views whether they agreed with his or not.

I express with diffidence my own opinion the passage was apt to be understood by the jury to mean that because of the view the Judge took of the evidence their sworn duty obliged them to convict the applicant of either murder or manslaughter. If there was any substantial likelihood of the jury gaining that impression the trial must have miscarried in a fundamental respect’.”

43 The succinct statement in RPS v The Queen was made, however, after emphatic reference at [42] to the division of functions between judge and jury and the remainder that “[I]t is for the jury, and the jury alone, to decide the facts”. It was followed by the suggestion that the safer course may be to make no comment on the facts beyond reminding the jury of counsel’s arguments. The division of functions whereby it is for the jury alone to decide the facts can be marred otherwise than by a direction that in law they must come to a particular result. Despite abjurations that the judge’s expressions of view are to be disregarded should they not be the jury’s view, if from immoderation or in any other way the jury might be led to depart from the proper exercise of their function, the division of functions will be distorted and there will have been departure from the judge’s fundamental task of ensuring a fair trial. So in Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 Gaudron ACJ and Gummow, Kirby and Hayne JJ said at [52] that –

“ as with all judicial comments on the facts in a jury trial, it will often be better (and safer) for the judge to leave the assessment of the facts to the determination of the jury in the light of the submissions of the parties. Unnecessary or extensive comments on the facts carry well-recognised risks of misstatements or other errors and of blurring the respective functions of the judge and the jury.”

44 In B v The Queen [1992] HCA 68; (1992) 175 CLR 599 Brennan J, with whom Mason CJ and Deane J agreed, said at 605-6 –

“A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury. It must exhibit a judicial balance so that the jury is not deprived “of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence”. I agree with the observations of the Full Court of the Supreme Court of South Australia in Reg v Hulse [(1971) 1 SASR 327 at 335]:

‘[T]o use the words of the Privy Council in Broadhurst’s Case [Broadhurst v The Queen (1964) AC 441 at 464], there is a danger of the jury being overawed by the judge’s views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge’s views’.”

45 His Honour’s reference to the danger of the jury being overawed by the judge’s views was taken up with elaboration by Olsson J, with whom Millhouse and Williams J agreed, in R v Machin (1996) SASR 526. His Honour said at 540-1 –

“(2) The trial judge must be conscious of the likely impact of what he or she says on a jury. As was stressed by the Court of Appeal in Regina v Pavlukoff (1953) 106 CCC 249 at 267, the presiding judge occupies a position of great power and prestige and what he or she says cannot fail to bear heavily on the jury. ‘To the jury the presiding judge appears as the great neutral. Anything that emanates from him, carries for them at least all the ear-marks of balanced justice.’

(3) Where a judge expresses personal views ‘there is a danger of the jury being over awed by the judge’s views, where, even though the jury are told that the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge’s views’ (R v Hulse (1971) 1 SASR 327 at 335, approved in B v The Queen [1992] HCA 68; (1991-92) 175 CLR 599 at 605 – where Brennan J (as he then was) also made the point that ‘comment must stop short of over awing the jury. It must exhibit a judicial balance so that the jury is not deprived ‘of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence’.)’

(4) Care must also be taken in the mode of expression employed in promoting views related to the evidence. To adopt the dictum of Southwell J in R v Nation (1995) 78 A Crim R 125 at 130:-

‘... To suggest to the jury that it ‘should have no difficulty’ in making adverse findings against the applicant in relation to the first two facts mentioned, was in the circumstances of this case tantamount to telling the jury that it should have no difficulty in convicting the applicant. For my part I doubt whether such a comment, whether or not accompanied by a direction that the jury is at liberty to ignore that comment, can ever properly be justified when it goes to the heart of a critical issue at the trial. Often such a comment is made, entirely justifiably, about an element of an offence which is not in issue: eg in a charge of causing serious injury where upon any view the injury must be regarded as serious. But it is altogether another thing for a judge to make the comment here quoted. The language itself assumes the aura of command – it was not ‘you may think’, or ‘you might not have too much difficulty’ – here it was ‘you should have no difficulty’.’

In this regard what also fell from the Court of Appeal in Reg v Pavlukoff (supra), in this regard, is very pertinent:-

‘It seems an absurdity for a Judge after telling the jury the facts are for them and not for him, then to volunteer his opinions of facts followed then or later by another caution to the jury that his own opinion cannot govern them and ought not to influence them. If his opinion ought not to govern or influence the jury then why give his opinion to the jury. To a person who is not a lawyer, but has some training in the science of correct thinking and some knowledge of the workings of the human mind, a Judge who expresses his own opinions to the jury is in effect unconsciously perhaps but nevertheless subtly and positively undermining the plain instruction he has given the jury that ‘the facts are for them and not for him’; in reality he is in true effect attempting to persuade the jury not to exercise their own minds freely (as in law he has told them they must do) but instead to be guided by the factual conclusions he volunteers to them’.”

46 Olsson J went on to say, at 541, that “it will rarely be appropriate for a trial judge to proffer what is tantamount to an expression of his or her personal assessment of the matter”. So far as R v Machin stood for that, and possibly more widely, doubt was cast upon it in the subsequent cases of R v Webb and R v D (1997) 68 SASR 571, and his Honour’s citation from R v Pavlukoff (in fact from the reasons of O’Halloran JA and not endorsed by the other four members of the Court) was regarded as inconsistent with the accepted position.

47 In the later cases Williams J considered that what had been said in R v Machin at 541 was per incuriam, and accepted that there could be comment which stopped short of overawing the jury and exhibited the judicial balance (R v Webb at 564). Bleby J adopted the principle “that a trial judge may, generally speaking, express opinions on the facts provided, as Olsson J says, that it is made clear to the jury that it is their exclusive function to decide factual disputes, that they are entitled to reject whatever views the judge may have expressed, and provided that any such views are expressed with moderation and in a manner which does not render the summing-up unfair and unbalanced” (R v Webb at 568). Cox J preferred the “traditional position ...that a trial judge is entitled to comment on the evidence, whether favourably to the prosecution or the defence, as long as the effect of his remarks is not to overbear the jury” (R v D at 579).

48 In Taleb v R [2006] NSWCCA 119 at [76]- [77] Simpson J noted what Olsson J had said with apparent approval, although without reference to the subsequent consideration in R v Webb and R v D. Her Honour cited cases in which it was said that a matter “should not receive the added weight of the intervention of the judicial officer” (R v RTB [2002] NSWCCA 104 at [60] per Spigelman CJ, Wood CJ at CL and Kirby J), and that it was likely that the judge’s words “create[d] the impression that he was convinced of the appellant’s guilt [and his] reference to the jury being the ultimate finders of fact would not have negated that impression” (R v Lau and Nguyen [2002] VSCA 157; (2002) 5 VR 129). Her Honour’s analysis of the authorities was seen by Grove J, with whom Howie J agreed, as a trend that judges will be required to exercise greater restraint in comment than demolition of an accused’s case: at [13].

49 While authority clearly permits a judge to comment on the facts, even strongly, where the facts are for the jury the judge’s expression of a view should be in discharge of the judge’s task of ensuring a fair trial, and so justified only if in aid of a fair trial. It must be questioned what part expression of the judge’s view of the facts has in bringing about a fair trial, let alone such a strong conclusory statement as that found in R v Tsigos. The judge’s view is in principle beside the point. If the jury in the exercise of its function takes a particular view of the facts, it does not matter what the judge’s view is, and a “duty” to tell the jury that they would be flying in the face of their oaths if they acquitted is difficult to justify as necessary or desirable in order to ensure a fair trial. Part of ensuring a fair trial is assisting the jury to assess the facts and come to conclusions, and no doubt comment on the facts can properly assist. But there is a danger that giving the judge’s assessment of the facts or his conclusion, even if short of an assessment or conclusion said to be the jury’s duty to come to, will trespass beyond assistance and distort of the division of functions earlier mentioned. Telling the jury that they should disregard the judge’s view if it does not agree with their own independent assessment of the facts underlines the difficulty; a truly independent assessment of the facts must disregard the judge’s view, which is beside the point and need not have been made known.

50 In R v Heron [2000] NSWCCA 312 at [79]- [80] Priestley JA, with whom Foster AJA and Simpson J agreed, said that “as a matter of rationality it is difficult to dispute” the absurdity expressed by O’Halloran JA in R v Pavlukoff, but recognised that the judge could state the judge’s own opinion on factual matters to the jury so long as the effect was not to overbear the jury. So must I recognise the established entitlement of a judge to comment on the facts. The ultimate question in an appeal against conviction in New South Wales is whether there was a miscarriage of justice: Criminal Appeal Act 1912, s 6(1). The judge’s expression of a view of the facts must be tested against that criterion. There is likely to be a miscarriage of justice if the expression of a view “threw the summing-up out of a fair balance” (Broadhurst v The Queen (1964) AC 441 at 464), and I respectfully doubt that the robustness of Tsigos v The Queen should now be found acceptable.

51 Whether or not the limits have been exceeded “depends on the impression gained by reading the summing-up as a whole”: B v The Queen [1992] HCA 68; (1992) 175 CLR 599 at 605 per Brennan J. In gaining the impression one way or the other, there should be borne in mind the danger that the jury will through being over-awed, or perhaps less impressively through attributing weight to the judge’s view, be led despite being told it was a matter for them to think that they must come to the same view: for that will infringe their mastery of the facts.

52 Summing-up to the jury in a civil trial has been generally placed in the same position as summing-up to the jury in criminal proceedings. In Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 Glass JA, with whose reasons Reynolds JA agreed, said at 225 that the judge “is at liberty when summing-up to express a strong opinion on the facts provided he does not take the determination of them out of the jury’s hands”. His Honour cited Hoger v Ellas (1963) 80 WN 869, a personal injuries case, and R v Tikos (No 2) (1963) VR 306, a murder/manslaughter case. Hoger v Ellas was one of the cases cited in R v Zorad.

53 In John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77 Gleeson CJ referred at [2] to the constitutional role of the jury and to its representative function surviving in a s 7A trial. In addition to this link with the jury in criminal proceedings, a s 7A trial may be, and in this case was, peculiarly evocative of the jury’s representative function. The jury in the present case was not called on to find whether the facts occurred whereby an accused robbed or supplied cannabis, as in R v Zorad. Their determinations of what the promotions and the programme conveyed and whether the imputations if conveyed were defamatory did not involve evaluating the evidence of witnesses and finding what occurred, but application of the jury’s understandings of what ordinary reasonable viewers would think of the promotions and the programme and of their defamatory impact. These were very much for community understanding through a jury. Whether the judge presiding at a 7A trial exceeds the limits of expressing the judge’s views involves regard to the nature of the determination to be made by the jury in a case such as the present. Particular care must be exercised lest the jury’s function as fact-finder involving the important application of community standards be displaced.

54 I have set out a number of passages from the summing-up, but repeat that the summing-up must be read as a whole. In the end the impression is just that, an impression, which can be stated but not fully articulated.

55 The appellant accepted that early in the summing-up his Honour had said emphatically that the jury were the judges of the facts, that he proposed to comment strongly, but that the decision was for the jury and they should not defer to him. It accepted that from time to time as he made his comments the judge said to the effect that it was a matter for the jury, and that at the conclusion of the summing-up the judge reiterated that the jury was to make the decision and should not defer to him.

56 The respondent relied on these matters, and submitted that his Honour’s comments were justified because the imputations could not reasonably be denied and because the judge had nevertheless made plain to the jury that whether the imputations were conveyed was a matter for them whatever he might say. The appellant submitted that despite these matters the strength of the comments and the language in which they were expressed would have powerfully influenced the jury, and that the directions to the effect that they should not defer to him were unlikely to have overcome the deference which the jury would have felt obliged to afford to the judge’s strong statements of his view and of their duty. The appellant pointed to repeated statements that his Honour felt duty bound to make the comments, giving the comments particular weight, and while accepting that in some instances his Honour’s view was not put forward in that way the overall effect was beyond the limits of permissible comment.

57 His Honour’s concern that imputations which the Court had held in the earlier appeal were necessarily conveyed were again in contest in the trial is understandable, although it can now be suggested, in the light of the determinations with respect to imputations 5(d) and (e), that it could have been tempered. As seen at the time, the amendments to imputations 5(c) and (d) did not detract from this Court’s view and the amended imputations would have appeared to be a fortiori cases; imputation 5(g), however, was a new imputation on which the Court had not pronounced.

58 It had nonetheless been ordered that the respondent’s claim in relation to the imputations be remitted for determination by a jury in accordance with s 7A, and the appellant was entitled to have determinations by the jury. It was still necessary to hold a fair balance between the parties in the conduct of the trial.

59 In saying to the jury that it was his duty to tell them that it would be unreasonable to find that words in the first promotion did not have the meaning that the plaintiff ripped-off a million dollars from a dementia patient (imputation 1(a)), his Honour was in substance saying that the jury would be untrue to their oaths in finding otherwise: that is, that it was not open to them in the proper discharge of their function to do anything but find that the imputation was conveyed. In that instance the comment was not accompanied by a reminder that the jury should not defer to his Honour. In my view even such a reminder, and the commencing and concluding directions that the decision was for the jury, would have had little impact. The jury was being told that coming to a different decision would be unreasonable, and would be unreasonable to the extent of rejection of a view which his Honour thought it was his duty to make known to the jury.

60 Similar contributions to the overall impression are in my view made by the comments on succeeding imputations, in particular imputations 1(b) and (c), 3(a), (b) and (c) and 5(c), notwithstanding in some cases reminders that it was a matter for the jury. The comments were differently expressed, and in relation to imputations 5(d) and (e) his Honour did not express his own view; that to my mind gave some emphasis to the occasions when he did express his own view. The later comments were broadly speaking less forceful than the earlier comments, but it seems to me the continuing impression from the early references to a duty to make known a view to the jury would have carried over to add weight to the judge’s less forceful comments.

61 The concluding reminder did not in my opinion salve the likely effect of the preceding comments. It included repetition of his Honour’s duty to say what he had said. The last sentence bears repetition: it was that his Honour had no doubt “that the trust given to you as jurors to exercise your jurisdiction in the case will not be exercised except reasonably, sensibly and fairly having regard to the directions of law which I have given you.” On a number of occasions his Honour had told the jury to the effect that being reasonable, or being fair and reasonable, meant that they had to find that the imputation was conveyed. That made rather hollow the reminder that the decision was theirs.

62 I respectfully consider that the summing-up was not fairly balanced, and was apt to lead the jury to think that they must come to the same view as his Honour had expressed. There was error in declining to discharge the jury.

Should a new trial be ordered?

63 Part 51 r 53(1) of the UCP Rules 2005, applicable to this appeal, provides –

“(1) The Court must not order a new trial on any of the following grounds:

(a) misdirection, non-direction or other error of law,

(b) improper admission or rejection of evidence,

© that the verdict of the jury below was not taken on a question that the trial judge was not asked to leave to the jury,

(d) on any other ground,

unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned.”

64 Part 51 r 53 is the successor to Pt 51 r 23 of the Supreme Court Rules, recently considered in Tory v Megna [2007] NSWCA 13. Beazley and Bryson JJA agreed with the reasons of Spigelman CJ. It was held that the trial judge had misdirected the jury. The Chief Justice referred to the test of a substantial wrong or miscarriage taken from the judgment of Dixon CJ in Balenzuela v DeGail [1959] HCA 1; (1959) 101 CLR 226, in particular to his Honour’s statement at 235 that “the court, where the determination of questions of fact is not entrusted to it, cannot substitute its judgment for that of the jury in purporting to decide whether a substantial wrong or miscarriage has occurred”. He said at [44] that the reasoning in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 was “applicable to the application of the rule found in Pt 51 r 23”, and after setting out an extensive passge from the reasons of the Court in Weiss v The Queen said at [46] that the reasoning “is not entirely consistent with Balenzuela and should be adopted for purposes of Pt 51 r 23”. Considering the evidence at the trial, his Honour was of the view that no substantial wrong or miscarriage had occurred.

65 Weiss v The Queen was concerned with the proviso in s 6(1) of the Criminal Appeal Act, which reads –

“(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.” (emphasis added)

66 Examining the history of the proviso, the High Court said at [18] that the phrase “substantial miscarriage of justice” was more than mere ornamentation, and was intended to direct attention beyond the “bare question” under the Exchequer rule whereby any departure from trial according to law brought a new trial regardless of the nature or importance of that departure. The same operation of “substantial” in Pt 51 r 53 is apparent, and indeed can be seen in their Honour’s reference at [14] to the rules enacted by the Supreme Court of Judicature Act 1873 (UK) which are lineal predecessors to Pt 51 r 53.

67 The High Court emphasised that it was necessary to look to the language of the statute, by which the task committed to the appellate court was to decide the appeal, and “so far as that task requires considering the proviso it is not to be undertaken by attempting to predict what a jury (whether the jury at the trial or some hypothetical future jury) would or might do”: at [35]. The proviso fell for consideration when the appellate court had decided that there was some irregularity at the trial, otherwise there was no occasion to consider the proviso: at [36]. Their Honours explained –

“41 That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.

42 It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration.”

68 Referring at [44] to “the permissive language of the proviso”, that is, the discretion in the words that the court “may” dismiss the appeal, their Honours said –

“45 Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.

46. It is unnecessary in this appeal to examine that issue further, or to consider the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso.”

69 In Tory v Megna the Chief Justice said at [46] that he would have reached the same conclusion “even if the Balenzuela formulations had been applied”. His Honour’s discussion of Weiss v The Queen was noted in Mastronardi v State of New South Wales [2007] NSWCA 54 at [79] (Basten JA, Ipp and Campbell JJA agreeing), but that it was an appeal from a judge sitting alone appears to have governed finding a substantial miscarriage in the trial judge’s failure properly to assess the evidence. The application of the reasoning in Weiss v The Queen to Pt 51 r 23 was accepted in Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21 at [53] (McColl and Bryson JJA); Nasr v State of New South Wales [2007] NSWCA 101; (2007) 170 A Crim R 78 at [27] (Campbell JA, Beazley and Hodgson JJA agreeing – an appeal from a judge sitting alone); and Monie v Commonwealth of Australia [2007] NSWCA 230 at [226] (Campbell JA, Mason P and Beazley JA agreeing – again an appeal from a judge sitting alone).

70 I also take guidance in the application of Pt 51 r 53 from the reasoning in Weiss v The Queen.

71 This Court should not seek to predict what the jury or a hypothetical jury would have determined if his Honour had refrained from the strong comments earlier described (a difficult prediction in any event – what permissible expression of the judge’s view should be assumed?). It must determine for itself whether the imputations were conveyed and if so whether they were defamatory. That means, in my opinion, rejection of the appellant’s submission (relying on Balenzuela v DeGail) that being deprived of determinations by a properly directed jury is itself a substantial wrong or miscarriage. Although by s 7A the legislature has committed the determinations to a jury, exercising the important representative function to which I have earlier referred, through Pt 51 r 53 any “right” to have determinations by a jury is “qualified by the possibility of appellate intervention” (Weiss v The Queen at [30]). That any such right can not be asserted without qualification is also seen in the prospect of the Court entering judgment pursuant to s 108(3). That is, it can not be said that, because by s 7A the determinations were to be made by the jury, there was a substantial wrong or miscarriage in process notwithstanding that the outcome is considered to have been correct.

72 In this respect I note that in Weiss v The Queen at [45]-[46] the High Court contemplated that significant denial of procedural fairness or an error or miscarriage amounting to a sufficiently serious breach of the presuppositions of the trial might cause the court to refuse to apply the proviso. This remains for elucidation, see most recently Evans v The Queen [2007] HCA 59 at [37]- [51] (Gummow and Hayne JJ); [115]-[120] (Kirby J); [262] (Heydon J), but foreshadows that some miscarriages in process might come into the application of the proviso. The reservation so flagged was in relation to the discretion in s 6(1) of the Criminal Appeal Act. I do not think, however, that there was such miscarriage in process in the present case as to cause this Court, if it had a discretion, to order a new trial although satisfied for itself that the imputations were conveyed and were defamatory: for the reasons in the preceding paragraph, there is not an unqualified right to have determinations by the jury. But in any event I do not think there is any discretion under Pt 51 r 53. It provides that the Court “must not order a new trial” unless “some substantial wrong or miscarriage“ appears to the Court. Some substantial wrong or miscarriage must positively appear to the Court, and if it does not a new trial can not be ordered.

73 There is a potential for application of Pt 51 r 53 differently from the proviso. Under the proviso the court must be satisfied that a substantial miscarriage of justice did not actually occur. Hence there may be cases where the “natural limitations” of appellate proceedings (Weiss v The Queen at [41]), for example in assessing credibility, leave the court unable to decide one way or the other, and there will be a new trial. Under Pt 51 r 53 the court must be satisfied that a substantial wrong or miscarriage did occur. If the court is unable to decide one way or the other, must it decline to order a new trial? It is to that, I apprehend, that Basten JA was referring in Mastronardi v State of New South Wales at [81]-[82], deciding what his Honour there referred to as a “dilemma” in the case of demeanour based assessments. Dismissing the appeal where the court cannot decide one way or the other would constitute a substantial wrong or miscarriage. This, however, is not the same as deprivation of a jury’s determination constituting a substantial wrong or miscarriage.

74 I turn then to whether the imputations were conveyed. Counsel for the appellant recognised the reasons for the Court’s conclusion in the earlier appeal that the imputations with respect to which there was remission were conveyed, although it is appropriate to recall that the jury declined to determine that imputation 5(d) and (e) were conveyed. The amendment to imputation 5(c) did not lessen the force of those reasons. The appellant argued against conveyance of the imputations by incorporating in his submissions his address to the jury at the trial. It is sufficient to say, in my opinion, that the submissions scarcely touch the plain force of the promotions and the programme in conveying the imputations other than imputation 5(g). Coming to my own conclusion, I consider that the imputations were conveyed. Although it is not necessary to go so far, I do not think it could reasonably be determined otherwise.

75 Imputation 5(g), the new imputation “That the Plaintiff charged Doreen Smith outrageous fees”, is not so readily resolved.

76 The programme spoke in general of the respondent getting Doreen Smith’s money, but specifically as to fees that “Bank documents show large sums of money being transferred directly to Mohammed’s account. He says they were for outstanding fees”. The amounts involved were not necessarily the amounts of $80,000, $100,000 or $150,000 referred to immediately before the general statement “Bank documents show large sums of money being transferred ... “, nor were they necessarily the $20,000 here, $25,000 to you” to which reference was later made. What fees were charged is not made express, and that constrains concluding that the fees were outrageous.

77 The word “outrageous” is strong. Outrageousness might be found in fees which were wholly excessive for what was done, or in the circumstances in which fees were charged at all. I do not think the programme so attributed either quality to the transfers of amounts of money said to be for outstanding fees that a determination that the imputation was not conveyed was not reasonably open. But in my opinion, when the reference to fees is seen as part of the strongly critical assertions of ripping off, stealing and money going into the respondent’s account, in assessing the programme the ordinary reasonable viewer would not apply analytical precision and would understand that the fees were part of the ripping off and in the circumstances outrageous.

78 The imputations in question were clearly defamatory. It does not appear to me that there was a substantial wrong or miscarriage in the ground of appeal upheld, because the imputations in question were conveyed and were defamatory. A new trial must not be ordered. Notwithstanding that the appellant’s complaint has been upheld, the appeal against the jury’s verdicts should be dismissed.

79 There were submissions directed to whether this Court could and should direct verdicts for the respondent pursuant to s 108(3) if it thought imputations were necessarily conveyed and defamatory. It is not necessary to go into this.

The appeal against the costs orders

80 The appellant contended that, rather than making immediately enforceable orders for costs on an indemnity basis, his Honour should have reserved costs of the trial or, if an order for costs was made, should have ordered costs on a party and party basis only.

81 When the respondent applied for an order for costs, his counsel accepted that the conventional order at the conclusion of a s 7A trial where the plaintiff had succeeded in whole or in part was for costs in the cause. He submitted that the circumstances were special, because the appellant had sought to defend the conveying of imputations rejection of which had been found in the earlier appeal to be not open to a jury acting reasonably, and that the respondent’s failure on two of the remitted imputations at the new trial could be met by “a fractional order”. Counsel for the appellant sought to maintain the conventional practice, submitting that it was “fundamentally a question of prematurity in circumstances where the defendant may yet be wholly successful in these proceedings, utterly successful on a range of defences”.

82 His Honour’s reasons did not expressly refer to prematurity, but it is evident that he accepted that the circumstances were special. He was unimpressed by the appellant’s success as to imputations 5(d) and (e), and said –

“5. Although it must be conceded that defamation law has become an arcane sphere of learning difficult for ordinary mortals to understand, let alone master, I cannot help but make the observation that to permit a party to seek a verdict on precisely or substantially the same material as that considered by the Court of Appeal and to found to justify but one answer seems to constitute a reproach to the administration of justice.

6. Fortunately, the jury exercised its commonsense appropriately in relation to the imputations, except for two imputations as to which the Court of Appeal has already held a decision adverse to the plaintiff was unreasonable. Those verdicts were unreasonable then and they are no less unreasonable now. Nevertheless, I am bound, I think to enter verdicts in favour of the defendant in respect of those imputations.

7. Leaving aside the added imputation to which I have already referred, the present trial has been a waste of time. They not only resulted in the needless expenditure of substantial costs, but involved taking up valuable Court time which should have been expended on genuine litigation.”

83 The nub of his Honour’s reasons was –

“10. In those circumstances, the Court has only limited means by which it can induce parties to consider whether proceedings are justified. In substance, it can do little more than make orders for costs, although in respect of a major corporation, such orders may be a mere pinprick. Nevertheless, as little as it is the Court can do, I think in the exceptional circumstances of this case the Court must do it.

11. In my view, the plaintiff ought not to have been forced into the expense of a new trial on imputations as to which the Court of Appeal considered adverse verdicts were unreasonable.

12. It is, I think, self-evident that had the defendant admitted to the imputations which were the subject of the appeal, there would have been no amendments and the new imputation would not have been added. It seems to me, therefore, appropriate that an order for costs of the trial should be made in favour of the plaintiff against the defendant.

13. Since the defendant obtained verdicts (though they must be regarded as unreasonable), I do not think it appropriate to make this an unqualified order and, had the new imputation stood alone, I would have made reserved costs even though the plaintiff was successful in relation to it. In the circumstances, I think the fair order is that the defendant will pay 90 per cent of the plaintiff’s costs.”

84 The appellant submitted that there was “no sufficient basis” for the order. It submitted that had been the remission for a s 7A trial, and that it was necessary that it be held and the appellant was entitled to have it conducted.

85 It does not follow that an order for the costs of the trial should not have been made at the conclusion of the trial. Costs were in the discretion of the judge, and it was open to his Honour to see a price tag on any entitlement of the appellant to have the jury’s determinations at a new trial. Where his Honour’s discretion miscarried in my view, was in the extent of his regard to the trial as a waste of time. The appellant was partially vindicated. It was successful as to imputations 5(d) and (e), and I respectfully do not think that success could be devalued by his Honour’s opinion that the jury had been unreasonable in determining that those imputations had not been conveyed; as I have said, there is no cross-appeal in that respect. Imputation 5(g) was a new imputation. His Honour appears to have intended to allow for the appellant’s partial success by reducing the costs by 10 per cent, although I respectfully find his [13] a little difficult; but the first question was whether the costs should have been then ordered or reserved, and as to that I consider his Honour proceeded on the erroneous basis that, save only as to imputation 5(g), the trial was a waste of time.

86 In the course of submissions as to costs his Honour observed that he “had in mind the view that with the exception of the new imputation, the opposition of the defendant in light of the Court of Appeal decision was wholly unreasonable”. Counsel for the respondent took this up as the occasion for costs on an indemnity basis. Counsel for the appellant submitted that indemnity costs should not be awarded because the appellant’s success on two of the imputations showed that its opposition was “not unjustified”, and further because of the prematurity earlier mentioned.

87 In the reasons his Honour said only, at [14], “In my view, the appropriate order, not only out of justice to the plaintiff, but also because of the waste of Court time involved, should be that costs will be paid on an indemnity basis”. Without elaboration, in my opinion, the extent of his Honour’s regard to the trial as a waste of time caused his discretion to miscarry in this respect also. It is not necessary to consider whether waste of the Court’s time played a separate part as a matter to be held against the appellant and whether that was an irrelevant consideration.

88 It is necessary to re-exercise the discretion. The appellant may yet succeed in the proceedings. That is for the future, and this Court is not in a position to forecast even that it is unlikely to succeed. For the reasons I have given, the new trial was not a waste of time. I do not think that disquiet that some at least of the imputations were indefensible warrants an order as to the costs of the trial, at this stage of the proceedings, even an order reflecting the appellant’s partial success.

89 The appeal against the costs should be upheld.

Costs of the appeal

90 The appellant has been unsuccessful on the matter of major contention, but successful on the discrete matter of costs. In my opinion the appellant should pay 80 per cent of the respondent’s costs of the appeal.

Orders

91 I propose the orders –

1. Appeal allowed in part.

2. Set aside the costs orders made on 9 February 2007 and in lieu thereof order that the costs of the trial be reserved; appeal otherwise dismissed.

3. Appellant pay 80 per cent of the respondent’s costs.

92 CAMPBELL J: I agree with the judgment of Giles JA, but add the following.

93 Section 102 Supreme Court Act 1970 provides:

“Where, in any proceedings in the Court, there is a trial of the proceedings or of any issue in the proceedings with a jury, an application for:

(a) the setting aside of a verdict or judgment,

(b) a new trial, or

(c) the alteration of a verdict by increasing or reducing any amount of debt, damages or other money,

shall be by appeal to the Court of Appeal.”

94 When this statutory provision allows an application to be made to the Court of Appeal for a new trial following a trial by jury of any issue in proceedings, that impliedly confers or recognises the power of the Court of Appeal to make an order for a new trial in such a situation. The ambit of that power is restricted by Rule 51.53 UCP, set out in the judgment of Giles JA. The effect of the “must not ... unless ...” form in which Rule 51.53 is written is that it is only if the Court of Appeal comes to the positive view that some substantial wrong or miscarriage has been occasioned by the relevant error in the court below, that it can order the new trial. Thus, in substance an applicant under Rule 51.53 for a new trial bears an onus of persuading the Court that there has been such a “substantial wrong or miscarriage”.

95 The criminal appeal proviso confers a discretion on the court to dismiss an appeal if error in the court below is found but no substantial miscarriage of justice has occurred. By contrast, Rule 51.53 prohibits the ordering of a new trial unless an error in the court below has caused some substantial wrong or miscarriage.

96 The wording of Rule 51.53 appears to leave it open whether an appellate court would actually order a new trial, once it had overcome the prohibition on ordering one by finding that there had been error and that it had been productive of some substantial wrong or miscarriage. However I cannot think of any circumstance in which an appellate court would decline to order a new trial once it had found both error, and substantial wrong or miscarriage caused by that error, that the Court of Appeal could not itself remedy.

97 In the present case, the only candidates presented to us as possible ways in which “some substantial wrong or miscarriage” might have been occasioned in the court below were that the trial judge’s direction led or may have led the jury into error concerning those imputations that they found made out, and that having a decision on whether a particular imputation was conveyed made other than by a jury, was in itself a substantial wrong or miscarriage.

98 When, for the reasons given by Giles JA, the Court is satisfied that the result arrived at in the court below is correct, that removes the first ground upon which a substantial wrong or miscarriage is alleged in the present case. And, for the reasons given by Giles JA, having the decision on whether a particular imputation is conveyed made other than by a jury is not a “substantial wrong or miscarriage” within the meaning of the Rule.

99 MATHEWS AJA: I agree with Giles JA.

******

I certify that this and the preceding 36 pages are a true copy of the reasons for judgment of the Hon Justice R D Giles and of the Court.

Associate

6 March 2008

SCHEDULE A

1. Filmed images of Naomi Robson, the Plaintiff, David Richardson, Doreen Smith and Tony Smith.

2. Words:

1. Naomi Robson: ‘Now to tomorrow night and a million dollar dementia patient rip off. Her condition meant that she kept forgetting so her Mortgage broker kept stealing her money.’

2. David Richardson: ‘She has dementia mate, she can’t work.’

3. Doreen Smith: ‘I’m just a nervous wreck, I can’t sleep.’

4. Tony Smith: ‘He has robbed her blind.’

5. David Richardson: ‘Where’s her money?’

6. Peter Mohammed: ‘What money?’

7. David Richardson: ‘Where’s her money?’

8. Tony Smith: ‘I would like to see him spend a lot of time in jail.’

9. David Richardson: ‘Nice car – did she pay for that?’

[The respondent was shown driving away in a car]

10. Naomi Robson: ‘And I’ll have that story for you tomorrow night and so until then I hope you have a good evening. Please take care and good night.’

SCHEDULE B

1. Visual images of the respondent, Doreen Smith and David Richardson.

2. Words –

1. Voice Over: ‘Stolen, Stolen, Stolen! - The one million dollar dementia patient rip off. She kept forgetting so this Mortgage broker took everything she had’.

2. Where’s her money?’

[As the words “Stolen, Stolen, Stolen” were uttered, images of three different houses over each of which the word “STOLEN” in red capital letters was superimposed, were shown; then an image of a document with the words “$1 million taken” superimposed appeared; the word “EVERYTHING” again in red capitals was superimposed over an image of Doreen Smith.]

SCHEDULE C

1. Visual images of the respondent, Naomi Robson, David Richardson, Doreen Smith, Trevor Smith, Tony Smith and Chris Field. Images of Doreen Smith’s home and various other properties.’

2. Naomi Robson: Also tonight, stolen, stolen, stolen. Homes and money, it’s the million dollar rip-off of a dementia patient. She kept forgetting so this mortgage broker took everything she had.

David Richardson: Nice car, did she pay for that?

...

Naomi Robson: Now to the story of a sick woman who may lose her home and could lose a lifetime of assets all because of her dealings with a mortgage broker. Doreen Smith suffers from dementia, an illness her mortgage broker seized upon, and he’s been able to swindle a forgetful Doreen out of everything she owns. David Richardson investigates.

[As these words were spoken, an image of the respondent, Doreen Smith and the words “$1 million rip-off” appeared on the screen behind the presenter.]

Reporter: Peter Mohammed, David Richardson from Today Tonight. Can we ask some questions about some rather dubious mortgages you set up for Doreen Smith and her illiterate son, Tony?

Peter Mohammed: Oh, is that right?

Reporter: Yes.

Peter Mohammed: Well, I think you’ve got all that wrong.

Reporter: Really?

He calls himself a financial adviser and mortgage broker but Peter Mohammed’s so-called advice has seen an elderly woman lose everything.

Where’s the money” She’s lost all of her properties because of you, sir.

Peter Mohammed: She hasn’t.

Reporter: Yes, she has.

Doreen Smith: I don’t know what I’m doing. That’s where I live all day. Every day in my life other than the doctor’s I live there.

Reporter: And this is his victim, 77-year-old Doreen Smith, a pensioner suffering depression and dementia, now on the verge of losing the family home.

Doreen Smith: I didn’t know what I was doing. I didn’t know what I was doing. I was in another world.

Reporter: Doreen’s problems began about 18 months ago. She needed some cash. She hunted through the local papers, stumbling across Peter Mohammed’s ad in the shares and finance section.

Trevor Smith: She wanted to buy Christmas presents for people and had she come to me I would have gave her the money.

Reporter: But you didn’t know.

Trevor Smith: I didn’t know. I had no idea.

Reporter: What Doreen ended up doing was mortgaging her home, a house she owned outright. Peter Mohammed prepared the loan papers, initially for $50,000 which was upped to $90,000, his company Vestacorp sourcing the money from Liberty Financial.

Reporter: Did you know what you were signing?

Doreen Smith: I didn’t look at any documents that Peter Mohammed gave me. I put them in the filing cabinet in the folder that he gave me. I read nothing other than signing my name.

Reporter: Mohammed listed Doreen as a sales manager for a company called Country Power Newspapers earning $38,000 a year.

Trevor Smith: My mother is receiving * in receipt of a war veteran’s pension and is not a sales manager.

Reporter: Son, Trevor should know. He registered the name Country Power Newspapers but it’s never got off the ground. It was never an operating business. The address for the so-called company is a derelict office on the first floor of a shopping arcade and it wasn’t just one loan.

Reporter: How much all up did she borrow?

Trevor Smith: Between $800,000 and $1.2 million.

Reporter: You’re kidding.

Trevor Smith: No, I’m not kidding. I’ve seen the documentation in relation to this.

Reporter: The money loaned by Liberty Financial was paid into Doreen’s account at her local St George Bank. Bank documents show Doreen drew out $10,000 for herself but other transactions are extremely suspicious.

Trevor Smith: The money came through from Liberty, whether it’s $80,000 or $100,000 or $150,000, three minutes later he had money transferred to his own personal account.

Reporter: Bank documents show large sums of money being transferred directly to Mohammed’s account. He says they were for outstanding fees.

Did Peter Mohammed tell you not to tell Trevor?

Doreen Smith: Told me not to tell anybody.

Reporter: Remember, Doreen has a mental illness. Her doctor of 20 years told us she’s not capable of making business decisions. Nor is her other son, a housebound schizophrenic who was also signed up by Peter Mohammed for a business loan.

Trevor Smith: He’s illiterate. He can’t read or write.

Reporter: Again the money was provided by Liberty Financial. No one in this story seems to know where all the cash has gone.

Liberty Financial headquarters here in Melbourne wouldn’t comment on camera about Doreen’s case but the company did say it was satisfied with the checks it had run on Doreen before lending her any money at all. The company claims it has bank documents proving Doreen was earning a whopping $185,000 a year but that makes you wonder, if she was earning that much, why she needed a loan at all.

Chris Field: Of all the cases that I’ve seen involving mortgage brokers and moneylenders this strikes me as one of the absolute worst.

Reporter: Lawyer and executive director of the Consumer Centre, Chris Field, agreed to examine Doreen’s mortgage documents for Today Tonight.

Field: They’ve been introduced to a broker and a moneylender and they’ve gone from a position of comfort to potentially the poorhouse.

Reporter: Doreen Smith has now lost her two investment units, sold to repay Liberty Financial. She’s hanging on to her home by the skin of her teeth, still owing $320,000. Peter Mohammed denies he did anything wrong. In fact, he claims Doreen is trying to con him and she doesn’t have any mental disability at all.

What about the withdrawals? Money goes into her account, $20,000 here, $25,000 to you.

Peter Mohammed: You see, you need to check your facts.

Reporter: I have checked my facts.

Field: It’s cases like this that show you just what can go wrong in the mortgage broking industry and one of the reasons why things can go wrong is because mortgage brokers aren’t licensed and not effectively regulated and it’s high time that occurred.

Robson: David Richardson reporting there and if you have a story for us, please go to our website.”

LAST UPDATED:
6 March 2008