LEVER v MURRAY MURRAY v LEVER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and CLARKE JJA 17 September 1992, 5 November 1992 [1992] NSWCA 132 PRACTICE — jury — discharge of — comments by counsel in closing address — lengthy defamation trial — whether discharge order wrong having regard to applicable principles — distinction between assertion of "racist remarks" and "racist attacks" and assertion that person responsible is a "racist" — relevance of "pragmatic" concessions and offers by counsel at the trial attempting to save the hearing — held: (Clarke JA; Kirby P and Priestley JA concurring): The trial judge erred in concluding that the objectionable comments had created an irremedial situation requiring discharge of the jury — costs of first trial to abide result of pending, second trial. Morgan v John Fairfax and Sons Ltd (1988) 13 NSWLR 208 applied. David Syme and Co and Anor v Canavan (1918) 25 CLR 234 applied. Kirby P In the appeal by Mr Lever against the discharge of the jury in the first trial and the cost order which followed, I agree with Clarke JA. In the summons for leave to appeal brought by Mr Murray, I agree with Clarke JA that time should be extended; leave granted and the cross appeal dismissed. In the way in which the law has developed upon the subject matters of the cross appeal, explained by Clarke JA in his reasons, I agree in the conclusions which he has reached in respect of each of the publications sued upon concerning the issues of identification and the capacity of the matter complained of to bear the special meaning pleaded. Talso agree with the consequential orders proposed by Clarke JA as to the costs both of the trial and of the appeal. Priestley JA I agree with Clarke JA. Clarke JA Mr Samuel Lever (the plaintiff) sued Mr Wal Murray (the defendant) inrespect of statements made by the defendant which he claimed were defamatory. The statements which led to the action were made on two separate occasions. The first were made shortly before 5 November 1988 to Mr Brad Forrest, a journalist employed by the Gold Coast Mail newspaper, and these statements were republished in the 5th November edition of the newspaper. The second was a statement made by the defendant when being interviewed on Channel 10 on 2 June 1989. Both statements were made in the context of a controversy relating to proposed developments in the vicinity of Fingal Head, a small coastal town in northern New South Wales near the Queensland border. The plaintiff lived in an aboriginal village near the township of Fingal Head and he and other local residents were strongly opposed to the proposed developments, one of which involved the development of a resort and hotel in an area known as Letitia Spit. The defendant was the Deputy Premier and the Minister for Public Works and State Development in the New South Wales 2 UNREPORTED JUDGMENTS Government. He supported the developments, had stopped aboriginal housing projects at fingal Head and on the two occasions which led to this litigation he made statements which could be considered to be critical of its opponents. The plaintiff claims to be an aboriginal. I express it in that way because his claim was disputed during the trial and it is not appropriate that I should express myself in terms which suggest that I have formed a view on this issue. As I have said he lives in the aboriginal village with members of his family. He actively opposed, and was one of the aboriginal spokesmen on, these developments. He was also one of the persons who set up an embassy tent which became the focal point of the aboriginal protest against the developments. (He said he was the person who set up the tent but there was some controversy about this and it is better to express it in the way that I have.) What the defendant said to Mr Forrest appears clearly enough for the purposes of the appeal in the article published on 5 November. That article read: "Imports won't dictate to Minister. By Brad Forrest An unrepentant NSW Deputy Premier Wal Murray said his decision to stop Aboriginal housing projects at Fingal Head was due to the Tweed River feasibility study. "We are not going to be pushed around by a heap of imports or the so called environmentalists' the Public Works Minister said of Thursday's decision. 'The housing projects are on the wrong side of the river... a river which has been silting up.' The decision has riled aborigines, who are fighting for their land rights claim and the proposed Ocean Blue Resorts Pty Ltd plan for a $200 million resort hotel. While their land council executive considers a $1 million housing offer from the developer, other aborigines say they are disgusted by any 'trade off deals and the latest decision to stop the projects. However Mr Murray said he was not going to have a 'bar' of the aborigines who set up a protest tent embassy, describing them as 'imports'. "Most people understand the need for a new river outlet... and most people are happy about moves for development.' he said. See report on Fingal, at 5." The plaintiff pleaded that the defendant's statements conveyed two defamatory imputations. He did not claim that the imputations arose as the natural and ordinary meaning of the words spoken by the defendant. He pleaded a true innuendo claiming both that the defendant was responsible for the republication of his words in the newspaper and that those words conveyed to persons with special knowledge of the controversy and the plaintiff's position in local society the following imputations: (a) The plaintiff falsely pretends to be an Australian Aboriginal; (b) The plaintiff has acted unreasonably in supporting Aboriginal housing projects at Fingal Head. The plaintiff had not been named by the defendant but he contended, and sought to prove, that the defamatory statements had been republished to persons with particular knowledge who identified him as a person who was being spoken of by the defendant. The second statement was made by the defendant in the course of a programme concerning the Fingal Head development presented on 2 June 1989 by Channel 10. The programme featured a journalist, Paul Mullins, Mr Farrer, a witness in the action, and the plaintiff (wrongly called Samuel Leven). They each made statements about the controversy, the plaintiff saying: "As far as we're concerned, URJ LEVER v MURRAY MURRAY v LEVER (Clarke JA) 3 we're going to fight them all the way - till we have this bit of land protected under some kind of legislation that will keep it for everyone and not just for a little handful". After the plaintiff had said this Mr Mullins made a statement and he was followed by the defendant who said: "Well, claims have been made in regard to land rights. The fact is that the people who are here are not of Aboriginal descent. They are of Kanak Island descent." That statement was said by the plaintiff to convey to persons with special knowledge concerning the plaintiff and the controversy involving Fingal Head that: (a) The plaintiff falsely pretended to be an Australian Aboriginal; (b) The plaintiff had knowingly claimed land rights to which he is not entitled." The trial commenced on 2 December 1991 and on 9 December 1991 after the evidence had concluded and both counsel had given final addresses his Honour, on the application of the defendant, discharged the jury. The plaintiff sought, and was granted, leave to appeal from this decision and the consequential costs order which was made and the defendant, belatedly, sought leave to cross appeal in order to challenge rulings which had been made by his Honour to the effect that the defendant's statements were capable of being understood to have been published of the plaintiff and of conveying the imputations relied upon. In the circumstance that there was an appeal concerning the matter presently before the Court it was clearly appropriate to grant leave to the defendant to prosecute his cross appeal and argument proceeded upon the basis that any orders necessary to enable the defendant to press his cross appeal would be made. The fact that if the defendant is successful in his cross appeal there will be no need for a new trial is another reason why it is appropriate to permit the matter to be ventilated in the Court. It also presents as a reason why it is convenient to deal with the cross appeal in the first instance rather than the appeal itself which relates in substance only to the question of costs. First Publication. Identification. The plaintiff was not named in the article and there was no suggestion that when the defendant spoke to Mr Forrest he named the plaintiff. In those circumstances the question arose whether it was open to the jury to conclude that the words had been published to persons acquainted with the plaintiff who would reasonably have understood them as referring to him. This question directs attention to the terms of the published material in the context of the evidence of persons who knew the plaintiff and identified him with that material. Before Carruthers J and on this appeal the defendant made two submissions. First, his counsel submitted that the libel, if there was one, was directed at an amorphous group of people and was incapable of being understood as casting any slur upon each member of that group. The law relevant to this submission is well settled. Where the libellous words are directed at the whole of a class or group of persons one member of that group can sue only if the libel can fairly be read as defaming each member of the class or group (McCormick v John Fairfax and Sons Ltd 16 NSWLR 485 at 487-8; Knupffer v London Express Newspaper Ltd 1944 AC 116; David Syme and Co v Canavan (1918) 25 CLR 234, at 238). So much was accepted by counsel for the defendant. 4 UNREPORTED JUDGMENTS He argued, however, that the newspaper article did not identify a definite class of people of whom it could be said that each member had been touched by the libel. In developing this submission counsel pointed out that the evidence revealed that the people who might be regarded as forming the class were transient and indeterminate as to number and identity and that the group was undefined as to time, place or geography. In my opinion the point which is raised requires an examination of the published matter in order to determine what that is capable of conveying to the reasonable reader who knew the plaintiff. It is not to the point that the evidence as it develops in the case might demonstrate that what is spoken of as a clearly defined group in the article turns out to be a much looser group of people whose membership varied from time to time. This point was clearly made by Hunt J when he rejected a similar argument in a separate trial of the issue of capacity and identification. As his Honour said the group was, or could be regarded as having been, variously referred to as a "heap of imports" and "the aborigines who set up a protest tent embassy and who were described as imports". Those descriptions are capable of referring to each member of the group and, upon the assumption that the published material was capable of conveying the allegedly defamatory statements to those readers who knew the plaintiff, of being regarded as defamatory of him. In Canavan (at 238) Isaacs J said: "Tf in the circumstances the description is such that a person hearing or reading the alleged libel reasonably believe that the plaintiff was referred to, that is a sufficient reference to him." lam satisfied that the words published were capable of giving rise to the belief of which Isaacs J speaks in the minds of the witnesses who knew the plaintiff and I agree with the previous decisions that the submission should be rejected. The second submission was that there was no evidence that the matter complained of was published to persons with knowledge of extrinsic facts which could rationally support the true innuendos pleaded. Although the argument ranged rather widely it is necessary, in my opinion, only to go to the extrinsic facts which were identified in the questions which his Honour had intended to present to the jury. The relevant question directed attention to the following four extrinsic facts: He holds himself out as being a Fingal Head aborigine; the plaintiff is a Fingal Head aborigine; the plaintiff set up the protest tent embassy; the plaintiff was associated with an aboriginal housing project. I do not think it is necessary to descend to the detail of the evidence of all the witnesses who spoke on this issue. There is a wealth of evidence that the article was read by persons who regarded the plaintiff as the leader of the Aboriginal community at Fingal Head and who identified him as a person at whom the libels were directed. They did so primarily for the reason that they saw him as a leader of the local community and as directly involved in the setting up of the protest embassy tent. Counsel for the defendant directed our attention to statements by some of these witnesses to the effect that they did not regard the plaintiff as an import but considered that he was an aborigine. He then sought to use those statements in support of the submission with which I am now dealing. Those statements do not, however, bear on the present question which, relevantly, is "Could those statements which conveyed the defamatory imputations reasonably be understood to refer to the plaintiff?" In considering this question one is not concerned with whether those persons who identified the plaintiff as one of the URJ LEVER v MURRAY MURRAY v LEVER (Clarke JA) 5 people struck by the alleged libel actually believed the message it was conveying. On the contrary the issue directs attention at what the published matter was, or more accurately was capable of, conveying to those readers who had knowledge of special facts. I would, accordingly, uphold the trial judge's rulings on this issue. Capacity. The plaintiff pleaded and relied upon a true innuendo. That is, he contended that the words spoken by the defendant, and republished in the newspaper, bore a special meaning to those persons who read the article who had particular knowledge of the plaintiff The particular facts which were regarded by the parties as bearing upon this question appeared in the agreed questions and have already been set out by me. There was clear evidence supporting the first three of these facts although I am not quite so sure about the fourth. But that does not appear to me to be of much consequence. A peculiar feature of this case is that the parties conducted the separate trial before Hunt J on the issue of the capacity of the words spoken by Murray, and republished in the newspaper, to convey the imputations upon the basis that the court was concerned to enquire whether the imputations could be found to be within the natural and ordinary meaning of the matter published. In other words during that trial the plaintiff relied only on a false innuendo and did not seek recourse to any extrinsic facts. Hunt J held, and Carruthers J agreed with his conclusion, that the imputations were capable of arising from the natural and ordinary meaning of the matter published. If this conclusion is correct then, as it seems to me, it would not matter if the plaintiff had failed to lead evidence of any of the extrinsic facts. However, I am not constrained to approach the matter in that way in the light of the pleadings and the course of the trial. The answer to the question which is raised concerning the first imputation depends in large measure upon the breadth of the expression "imports". If that is capable of being understood as referring to persons who are not aborigines then it would follow that publication of the matter to persons who identified the plaintiff as one of its objects because he had set up, or assisted in setting up, the protest tent embassy would be sufficient to convey the imputation to those persons. One possible view is that when the defendant used the word "import" he was referring to Aboriginal people who came to the area from other parts of Australia to participate in the protest. This is consistent with the colloquial meaning of the word according to the Macquarie Dictionary and is supported by the second reference to "imports" as aborigines who set up the embassy. I myself would regard that as the most obvious meaning of the expression particularly if regard is had to the circumstance that at about the time of the making of the statement many aboriginals had come to the area from other parts of Australia. But in the context of the reference to the Aboriginal housing project it seems to me, as it seemed to Hunt J, that while readers might consider that only Aborigines would normally be involved in such a project they would not necessarily exclude aborigines from other parts of the country. If a reader took that view then he or she might well understand that imports were persons who were not Aborigines. There are difficulties in reconciling that approach with the latter reference to aborigines whom the defendant described as "imports" but the words as published do not present as a serious discussion on the topic and given that the reasonable reader would be entitled to a fair degree of loose thinking I have on balance concluded that the words are capable of conveying the first imputation. I might add I am confirmed in this view by the wealth of evidence that there were 6 UNREPORTED JUDGMENTS people who lived in the area who had come from Pacific islands. A reader who knew that fact may well have concluded that it was those people whom the defendant was speaking about rather than aborigines from other parts of the country. Consequently the new trial of the action, which has been set down for hearing in December will proceed and in those circumstances I would not be disposed to rule in the appellant's favour in relation to the second imputation. As at presently advised, and because I have doubts as to whether publication of the matter to persons who knew that the plaintiff was involved in the Aboriginal housing projects was proved, I have reservations as to whether the matter is capable of conveying that imputation. However, upon a new trial it would be open to the plaintiff to call evidence to establish that fact and if that evidence is called then I would agree with the earlier views that the matter was capable of conveying that imputation. Second Publication Identification It is unnecessary, in my opinion, to attend to the detail of the evidence on this issue. Minutes prior to the defendant speaking the offending words the plaintiff had been shown as a member of the Aboriginal Land Council saying "We're going to fight them all the way". The defendant's reference to the people "who are here" was, clearly enough, a reference to local residents and, having regard to the reference to land rights, more particularly local residents who claimed to be aborigines. Once again the statement was capable of being regarded as aimed at each of those people. Furthermore, there was evidence of publication to at least one person, Phillips who knew the plaintiff and knew he was involved in the land rights claims. Indeed Mr Farrer said that the tent embassy was put up in the interests of land rights and was symbolic of the struggle in which the aborigines were involved. Having regard to the fact that the plaintiff was featured on the same programme and there was evidence of the nature I have described I have no difficulty in concluding that there was evidence fit for submission to the jury on the issue of identification. Capacity In the context in which the defendant made his statement the first imputation, the plaintiff falsely pretends to be an Australian aborigine, was clearly capable of being conveyed. The statement that the people "here" are not of Aboriginal descent but are of Kanak Island descent is, in my view, easily understood as a statement that those people are not aborigines. Once it is accepted that there was evidence which enabled a jury to conclude that there had been publication to persons who identified the plaintiff with the allegedly defamatory comments the conclusion follows, almost as of course, that the words were capable of conveying the imputation complained of. The issue concerning the second imputation is not so easily disposed of. Putting to one side any extrinsic facts the defendant's statements could be understood to be suggesting a number of things. First, that there had been claims in the area in regard to land rights; secondly, that people who are locally resident and claim to be aborigines are not of Aboriginal descent, thirdly, that they are of Kanak Island descent and, fourthly, that persons who are making land rights claims are not aborigines but Kanak Islanders. The latter statements could be understood, in my opinion, to mean that people who are not of Aboriginal descent are claiming that they are in order to advance land right claims. Further, in my view, it would be open to a juror to conclude that the speaker was implying that URJ LEVER v MURRAY MURRAY v LEVER (Clarke JA) 7 the people of whom he was speaking were deliberately and falsely asserting Aboriginal descent in order to make these claims. Upon that basis I would conclude that the words used, according to their natural and ordinary meaning, and without regard to any extrinsic facts were capable of conveying the imputation. In a sense it would seem to me that the critical questions in relation to the televised statement concerned the issue of identification. If the jury concluded in the plaintiff's favour on that issue then it is not a great step for them to take also to conclude that the pleaded imputations were made against him. Discharge of Jury Senior Counsel for the defendant applied for a discharge of the jury at the end of the closing address of the plaintiff's counsel. A number of grounds were relied upon but his Honour considered only one of those grounds and concluded that he should discharge the jury. That ground was described by his Honour as the question of racism. In his reasons his Honour observed that counsel for the plaintiff had not suggested in his opening address that the matters complained of were of a racist nature. Further, his Honour noted, no suggestion was made during the course of the trial that the imputations contained any element of racism and no suggestion was made that any one race was inferior, or superior, to another race. According to his Honour the defendant suggested that the plaintiff had not established that he was an aborigine who was entitled to participate in campaigns or claims for land rights for Australian aborigines. His Honour recognised that references were made to the plaintiff's ancestry and to the fact that some persons who reside in the Fingal area are descended from Kanaks but those references were not, in his Honour's view, racist in nature. The closing address of counsel for the plaintiff commenced at about 3.30 pm on 10 December. Early in the address he said: "The plaintiff is here because Mr Murray has on two occasions, seven months apart, made racist remarks or brought a racist attack on the plaintiff and the other Aborigines in that area, and he should not have done so in public on national TV, through a newspaper. A man in the position of Mr Murray, who does not give evidence although present in court for some of the earlier proceedings, should not publicly while holding high office make remarks, statements, nothing to do with the environmental issues, but he made racist remarks describing the plaintiff and other Aborigines as imports. Mr Murray used derogatory racially insulting words and he should not have done so, and he was invited in my opening categorically, in front of his Honour and you members of the jury, to apologise and he was present when that invitation was made, and no apology has been given." No application was made on that afternoon or the following morning for a discharge of the jury or for steps to be taken to remedy any perceived difficulties which were thought to flow from what counsel had said. Later in his address on Wednesday counsel for the plaintiff proceeded to say: "What he said about 3.1, he said 'On St Patrick's Day I could go into the hotel and hold myself out as an Irishman and get a free drink'. He has obviously not done it. If you hold yourself out as an Irishman on St Patrick's Day, you don't get a free drink, you have got to pay for the drinks. That is not this case. That does not raise any of the problems that we are dealing with in this case. There are many hotels in the country the plaintiff would not be allowed into, not just - this is a really sensitive issue because it involves his race and the position of the Aboriginal people and the problems they have, and the description and use of the word 'imports' and the imputations that they convey. It is just not a question of Mr Lever going into a hotel and saying 'I am an Irishman'. That is not the way 8 UNREPORTED JUDGMENTS to approach this case. The plaintiff holds a prominent position in his community, and you might think well earned, and that the community is well off, better off for having a man like him as their leaders. " In his judgment dealing with the application his Honour set out these two passages and expressed his opinion that if one says that a person has made a racist remark that is the same as classifying that person as a racist. Having made that observation his Honour proceeded: "So we have a picture painted in this closing address, totally unrelated to the evidence and the way in which the case had been conducted, of a powerful government figure who is a racist making racially insulting remarks about the plaintiff, who is denied service to hotels in this country, and it is said that the case raises sensitive issues relating to the position of Aboriginal people. " Having done that his Honour considered the principles of law which should be applied and concluded: "T have with the greatest reluctance and after the most anxious consideration formed the view that there has been a miscarriage of justice. I consider Mr Evatt was guilty of deliberately making inflammatory comments of a racist nature, and that it is beyond my power to redress the balance. Regrettably his client must suffer the consequences of his own counsel's misconduct. I believe that I would be untrue to my judicial oath if I were to allow this matter to go to the jury, and that I would impose an intolerable burden upon the jury to adhere to their oath by expecting them to deal impartially with the matter, where it left in this state, even with the redirection by me which has been suggested. " Before dealing with the submissions which were made in the appeal I would make two observations: (1) The decision by a trial judge to discharge a jury on account of a prejudicial incident during the trial is not unexaminable. Nonetheless an appellate court should exercise great caution in considering whether a trial judge erred in the exercise of his discretion to discharge the jury, giving great weight to the trial judge's opinion and interfering only in cases in which error has been clearly established and where to allow the erroneous decision to stand would be inimical to the interests of justice. Those principles are clearly settled and were expressed most recently in Morgan v John Fairfax and Sons Ltd (1988) 13 NSWLR 208; (2) I have previously said that an order discharging the jury towards the end of a lengthy trial should be made only in extreme circumstances. While there may be cases in which the prejudicial effect of the incident which has led to the application is so great that it would be beyond the power of the trial judge to remedy the prejudice such cases must be rare for a trial judge should be able to redress the balance in most instances. No doubt the trial judge is well placed to evaluate the possible prejudicial effect of, for instance, prejudicial statements, but in exercising his discretion it is of primary importance that he only take the step of discharging the jury as a last resort and where he is satisfied that those statements have created, as a matter of practical reality, a real risk of serious prejudice to a fair trial. Counsel for the plaintiff made three submissions. The first, the statements made by Mr Evatt, counsel for the plaintiff at the trial, were, in the context of the evidence at the trial, appropriate and justifiable. The second, which is associated with the first, was that a person who makes a racially insulting remark is not necessarily a racist. Accordingly, where his Honour had concluded to the contrary he was in error. In the third, he contended that if there had been transgression by counsel then this could have been easily remedied. URJ LEVER v MURRAY MURRAY v LEVER (Clarke JA) 9 In developing those submissions counsel submitted that an examination of the transcript and the exhibits demonstrated that questions of racial ancestry were very much to the fore of the issues in dispute, not the least being the racial ancestry of the plaintiff and whether he was a person who might make claims on behalf of the Aboriginal Council under the Aboriginal Land Rights Act. Indeed much evidence was led from the plaintiff concerning his membership of the Aboriginal race, the tribe he belonged to and the Aboriginal legends he was taught as a child. He himself said that he had been terribly hurt by the description "imports" and that following the publication of the newspaper article at least one person had said to him that he was not a Goori (the Aboriginal word for Aborigines of that area). In relation to the statements made on television the plaintiff said he had been upset to hear the defendant calling him, and others, Kanaks. During the cross examination of the plaintiff much time was taken examining his racial origins and emphasis was placed on those ancestors who had come from South Sea Islands. The plaintiff's claim to have been upset by the description "imports" was supported by a witness called for the defendant, a Ms Pasepa Close. She said she found it very offensive to be described as an "import". She said she thought it was terrible. She thought it was unfair. In that context counsel for the plaintiff has submitted that his Honour was in error when he said "So we have a picture painted in this closing address, totally unrelated to the evidence and the way in which the case had been conducted, of a powerful Government figure who is a racist making racially insulting remarks about the plaintiff... ". The statements that were actually made were not, according to counsel, unrelated to the evidence or issues in the case. There can, in my opinion, be no doubt that the racial origins of the plaintiff were focused upon during the trial and that the plaintiff claimed, and received some support for this claim, that the defendant's statements were racially insulting to him. In that context I have some difficulty in understanding why his Honour said that the picture painted in the closing address was totally unrelated to the evidence. It is, perhaps, unfortunate that counsel used the word "racist" for it is often used to describe persons who claim racial superiority. But the word was not used to describe the defendant. Rather it was used in an adjectival sense to describe the nature of the remarks about which the plaintiff complained. Where, for instance, counsel said: "Mr Murray used derogatory racially insulting words", he was, I believe, accurately describing the stand taken by the plaintiff and where he used the word "racist" he was using it as an alternative to, or short form for, the phrase "racially insulting". That this was so, becomes reasonably clear from counsel's reference to the description of the plaintiff and other aborigines as "imports" as a racist remark. Rather that description was, according to the plaintiff, a racially insulting remark and counsel was, as it seems to me, guilty of some inaccuracy in his use of words. In the earlier excerpt he had used the word racist to qualify the remarks which had been made by the defendant. The complaint was not that the defendant was a racist but that he made racist (meaning racially derogatory) remarks. In my opinion if counsel had adhered to the expression "derogatory racially insulting remarks" no possible complaint could have been made. That was completely consistent with the case his client sought to make. True it is that he was guilty of inaccuracy in his use of the word "racist" but the context in which that word was used does not suggest to me that he was seeking to present a 10 UNREPORTED JUDGMENTS distorted picture but rather that he was using an inappropriate label to describe the insulting statements that had been made. His Honour also placed some emphasis on the fact that the complaint made in the opening address that the defendant had failed to apologise had been converted in the closing address to a complaint about a failure to apologise for derogatory racially insulting words. I do not think, however, that the nature of the complaint about the lack of an apology changed. It seems clear to me that the plaintiff was at all times complaining that insulting remarks about his race had been levelled at him and that he was hurt by the failure of the defendant to apologise for them. Were it not for events which occurred during the making of submissions on the application for discharge I would conclude that the statements made by counsel on the Tuesday afternoon created no distortion of the issues nor a real risk that the trial would miscarry. I will return to those events later but in order to make good my point that counsel was using the word "racist" in an obviously inaccurate manner let me repeat one of his uses of that word about which complaint is made. What counsel said was, "He made racist remarks describing the plaintiff and other aborigines as 'imports"'. The adjective was used to qualify the remark, which was that the plaintiff and other aborigines were imports. That may not strictly have been a racist remark but on the evidence it could have been considered to be racially insulting. Tam also of opinion that his Honour was in error when he concluded that "to say that a man makes racist remarks or a racist attack on someone or uses derogatory racially insulting words is to classify the person who makes those remarks as a racist". In some cases that may be so but it is not always the case. It depends upon the words used and the context in which they were used. Here I do not think that counsel was saying that the defendant was a racist as I have pointed out. The word was used to qualify remarks which had been made by the defendant and which were clearly identified both throughout the trial and in counsel's closing address. Finally on this aspect of the case the absence of complaint made to the trial judge at 4pm after the jury had been discharged for the evening is not inconsequential. If the perception of counsel had been that there was a grave risk of the trial miscarrying as a result of the use of the offensive words then one would have expected an application for discharge of the jury or some other relief to have been made. The fact that one was not made tells against the gravity of the asserted misconduct by counsel. What counsel said on the next day raises different considerations. I am unable to accept that the references by counsel for the defendant, regarded in their context, provoked or justified counsel's response. It may be that he believed that the references to the Irishman trivialised the plaintiff's case. But that did not justify the introduction of the difficulty Aboriginal people may have in obtaining service in hotels into the dispute. Accordingly, I am unable to accept counsel's submissions that these comments were appropriate and justifiable. Having said that I am, with respect, unable to see the great harm which it was perceived that these words may cause. After all although the case involved an assertion by the plaintiff that the defendant had made racially insulting remarks about him, references to hotel problems were quite foreign to any of the evidence and could, in my opinion, have been dismissed by the trial judge as totally irrelevant comments which represented an unwelcome intrusion into the case. If a direction of that nature had been given then I am unable to see how the jury could have been diverted from its proper deliberation of the issues raised by the questions URJ LEVER v MURRAY MURRAY v LEVER (Clarke JA) 11 which were to be submitted to it. Even if there had been no direction it should not be overlooked that counsel himself told the jury that what he had just been discussing was not the way to approach the case. His Honour was clearly troubled by the statements made on the second day of the address particularly as he thought they must "necessarily be linked to the earlier remarks" about which complaint had been made. Counsel for the plaintiff has submitted, and I agree with his submission, that there is nothing linking the two statements. One directed attention at the basis of the plaintiff's complaints and the other was presented as an answer to a portion of the address of counsel for the defendant. In my opinion there are two important errors which pervade his Honour's judgment. The first is the linking to which I have just referred and the second is the equating of a person who makes "racially insulting words" with "'a racist". It seems to me that those two conclusions were fundamental to his Honour's approach to the application and led to his ultimate conclusion. Insofar as they were, in my opinion, erroneous it must follow that the conclusion was based on insupportable reasoning. For my part, and subject to the events which I earlier mentioned and to which I will return, while I am unable to accept that everything that was said by counsel was justified or appropriate I am unable to discern the substantial grounds upon which the decision to discharge the jury could have been based. No doubt there were sensitive issues involved in the case but at its heart was a complaint by the plaintiff that he had been the victim of racially insulting remarks. This was not a case, as counsel for the defendant submitted, in which there was no question of race but simply a question of genealogy or ancestry. There was, of course, a question of ancestry raised but in its context it bore directly on race. I have, however, been troubled by statements made by the plaintiffs counsel during the application for discharge. Although counsel argued that the defendant's remarks could fairly be described as "racist" he offered (the judge thought that the offer was made as a matter of pragmatism) to apologise to the defendant, to withdraw the comments that he had made and to make an appropriate explanation to the jury. This proposal was said by the defendant's counsel to be unacceptable. Counsel also conceded that the second statement about which complaint was made was indefensible. Because of the serious consequences flowing from an order discharging the jury a process of consultation was adopted at the end of which counsel for the plaintiff informed his Honour that he was prepared to make the following statement to the jury in his summing up: "Mr Evatt, during the course of his address, made submissions to the effect Mr Murray made racist statements or a racist attack. He later said the plaintiff would not be allowed into many hotels, and referred to the position of Aboriginal people and their problems. Mr Evatt has conceded these submissions were wrong and should not have been made. He has expressed his regret for making them. I direct you that the statements made by Mr Evatt should not have been made and having nothing to do with the matters for your determination. There is no question or issue relating to racism or the status and problems of Aborigines in the case. Mr Evatt's remarks are unfortunate and you must entirely put them out of your mind. I direct you accordingly." For his part counsel for the defendant, while maintaining his stand that the jury should be discharged, proposed that the following additional words should be included in the charge to the jury: 12 UNREPORTED JUDGMENTS "The only purpose or effect of Mr Evatt's remarks would have been to deflect you from your duties and deliberations and prejudice your thinking about the case. His remarks therefore were wrong and as I have said, Mr Evatt has withdrawn them." Tf the latter statement had been made by the trial judge to the jury there would, in my opinion, have been a serious risk of prejudice to the plaintiff and I agree with his Honour that if that direction had been given there would have been a serious risk of a miscarriage of justice. What troubles me most is that the plaintiff's counsel conceded directly, whether as a matter of pragmatism or not, that his submissions were wrong and should not have been made and furthermore agreed that it was in order for his Honour to make the additional statements proposed by counsel for the defendant. That conduct on the part of counsel throws some doubt upon the validity of the submissions that have been made, admittedly by another counsel, that the comments were justifiable and appropriate.Nonetheless, the critical question remains whether the remarks created the risk of a miscarriage of justice. Upon that question I have concluded, despite the concessions made by plaintiffs' counsel, that his Honour was in error in concluding that they had and in determining that nothing he could say would correct any prejudice and remove the risk of unfairness. While I accept that there may have been occasion for the giving by his Honour of specific directions to ensure that the jury did not pay regard to irrelevant matter I am quite unable to agree with his Honour that what occurred created an irremediable situation which called for the discharge of the jury. I would propose, therefore, that the appeal be upheld and that the consequential costs order be set aside. In all the circumstances.2 the appropriate order in my opinion is that the costs of the first trial abide the result of the second trial. The orders I would propose are: (1) Appeal allowed; (2) The order that the plaintiff pay the defendant's costs of the trial be set aside and in lieu thereof order that the costs of the first trial abide the result of the second trial. (3) Time extended for the defendant to apply for leave to cross appeal. (4) Leave to cross appeal granted. (5) Cross appeal dismissed. (6) Defendant to pay the plaintiff's costs of the appeal and cross appeal and to have a certificate under the Suitors Fund Act in respect of the costs of the appeal. 1. Appeal allowed; 2. Order that the order of Mr Justice Carruthers that the plaintiff pay the defendant's costs of the trial set aside and, in lieu thereof, order that the costs of the first trial abide the result of the second trial; Time extended for the defendant to apply for leave to cross appeal; Leave to cross appeal granted; Cross appeal dismissed; and Defendant to pay the plaintiff's costs of the appeal and cross appeal and to have a certificate under the Suitors ' Fund Act in respect of the costs of the appeal. AAPY Counsel for the Appellant: J Basten, Instructed by: Aboriginal Legal Service URJ LEVER v MURRAY MURRAY v LEVER (Clarke JA) 13 Counsel for the Cross respondent: CA Evatt, Instructed by: Aboriginal Legal Service Counsel for the Respondent/Cross appellant: RR Stitt QC/RS McColl, 5 Instructed by: HK Roberts, Crown Solicitor