MILLER v TCN CHANNEL NINE PTY LTD [1993] NSWCA 181

MILLER v TCN CHANNEL NINE PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and CRIPPS JJA 5, 6 August 1993, 15 September 1993

[1993] NSWCA 181

The appellant was found guilty of contempt for attempting to suborn witnesses proposed to be called by the respondent in a defamation action. The appellant had brought defamation proceedings against the respondent for its portrayal of the appellant's "Talent Scouts" agency on the "Willessee" programme. The appeal was only on the question of guilt.

The notice of appeal alleged the trial judge erred in law in directing himself as to the nature and application of the onus of proof and in his observations with respect thereto that there was an evidentiary onus on the appellant to which it could be inferred that there was a reasonable hypothesis consistent with innocence. It was also claimed that if the trial judge had evidence before him which the appellant asked the appeal court to receive he may not have made the findings he did.

Held: The trial judge had erred in his reasoning process in respect of one witness. However, the circumstance that a finding of fact is either erroneous or less persuasive than it ought to be does not of itself require a conclusion that the decision of the trial judge be set aside. The trial judge's conclusions of fact were manifestly correct. The fresh evidence was not admitted. The trial judge was correct in allowing the jury to return a verdict on the circumstantial evidence as the circumstances were such as to be inconsistent with any reasonable hypothesis other than the guilt of the appellant. The trial judge did not err in his comments concerning the evidentiary onus.

Listening Devices Act 1984

Supreme Court Act 1970 s75A(b)(6), s75A(10), s75(8)

John Fairfax and Sons Ltd v Cojuangco (1988) 165 CLR 346 AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98 R v Turnbull [1977] QB 224 Alexander v The Queen (1985) 145 CLR 135 R v EJ Smith [1984] 1 NSWLR 461 Regina v Brownlow (1987) 7 NSWLR 461 Gallagher v R (1986) 160 CLR 392 Peacock v The King (1911) 13 CLR 619 Barca v The Queen (1975) 133 CLR 82 Purkess v Crittenden (1965) 114 CLR 164 Caswell v Powell Duffryn Assoc Collieries Ltd [1940] AC 152