BLEYER v TCN CHANNEL NINE PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and SHELLER JJA 9 September 1993, 9 September 1993 [1993] NSWCA 27 DEFAMATION — directions to jury — relevance of evidence — context of evidence in alleged imputations not explained — misdirections. SUMMING UP — unbalanced — judge placed respondents' arguments before jury — appellant's case explained by reference to its criticism of respondents' case. Mahoney JA The Court is in a position to give judgment on the matter. Clarke JA is to give the first judgment. Clarke JA. On 9 August 1985 the respondents broadcast from Channel 9 an interview with a number of people and, during the course of the interview, they played back sections of an interview which had taken place between the third respondents and the plaintiff on 6 August. The plaintiff considered that parts of the broadcast of 9 August defamed him. He sued to recover damages. He relied upon 5 imputations which he said had been conveyed by the published material. Those imputations were as follows: (a) the plaintiff had damaged the cause of cell therapy treatment for children suffering from Down's Syndrome; (b) the plaintiff falsely pretends to have knowledge of the Down's Syndrome and its treatment; (c) the plaintiff has insincere motives in promoting the cell therapy treatment for children suffering from Down's Syndrome; (d) the plaintiff has questionable motives in promoting cell therapy treatment for children suffering from Down's Syndrome; and (e) the plaintiff has held himself out as an expert on cell therapy, when he has no expertise or training which can qualify him as such. The respondents, that is, the publishers, denied that the material was capable of conveying those imputations. It denied that the material in fact conveyed those imputations and raised a number of defences. The only defence which is presently relevant is the defence under s15 of the Defamation Act, that is, that the imputations were matters of substantial truth, and related to matters of public interest. The trial was heard over a number of days before Maxwell J and a jury. At the conclusion of the trial, the jury found that the first four imputations had been conveyed by the published material, that they were defamatory and, in addition, found that each of those four imputations was substantially true. Accordingly, his Honour, who had previously ruled in favour of the respondents on the issue of public interest, directed the entry of judgment for the respondents. I should say, although it is probably obvious, the jury found that the fifth imputation had not been conveyed by the published material. The appellant has appealed from the jury verdict and has relied on four grounds of appeal each of which challenge his Honour's directions to the jury. Before proceeding to deal with those alleged misdirections it is appropriate that I say something about the background to the case. 2 UNREPORTED JUDGMENTS The appellant was a director of hair care clinics in Sydney and Melbourne. He had three children, one of whom, Caroline, was born in 1981 and was afflicted with the Down Syndrome. Following the birth of Caroline, the appellant became, so he said, interested in Down's Syndrome and a rather controversial form of treatment described as cell therapy. It is unnecessary, in order to resolve the present appeal, to delve into the intricacies of cell therapy, but the Court was informed that it involves injections of animal cells into a Down's Syndrome child with the object either of rejuvenating the child's brain cells or giving the child extra cells. I have described this form of therapy as controversial and it is my understanding that it was so regarded in 1989, at the time of the broadcast. The appellant had himself travelled to Switzerland and there visited a clinic in which cell therapy treatment was provided. Furthermore, there was in Sydney a cell therapy association which comprised parents who believed cell therapy could assist, and had assisted, their Down's Syndrome children. The appellant was not a member of this association but his wife was and she was also a committee member. The appellant said that he had become interested in cell therapy treatment but recognised that there had been no significant evaluations of the benefits of the treatment. He proposed to set up a programme in Australia for the conduct of trials into the benefits of the treatment. I have earlier said that he conducted hair clinics and, as I understand it, his proposal was that he provide moneys for the setting up of clinics in this country for the trials and that pending the setting up of those clinics therapy and tests could be administered in his clinics. Shortly before the first of the broadcasts he issued press releases setting out the details of his ambitious proposal. It is, I think, fair to say that the respondents were somewhat sceptical of the appellant and regarded his apparent assumption of titles as indicating that he may not be all he seemed to be. Accordingly, the third respondents arranged for him to be interviewed on the programme on 6 August 1985 and, as I have said, portions of that broadcast were re broadcast in the later show on 9 August 1985. Although nothing presently turns upon it the third respondent was, at least in the first programme, highly critical of the appellant, particularly in his assumption of what the third respondent described as phoney titles. I should emphasise at this stage that although there were two programs it was the second programme which was said by the appellant to give rise to the imputations. The trial was hotly contested but it would seem from the transcript of evidence that the significant issue was the issue on which the respondents bore the onus of proof and that is whether the imputations were substantially true. The impression created by the appeal book was confirmed in argument when both counsel said that that was the major area of dispute between the parties. Earlier I mentioned that the appellant had a child who suffered from Down's Syndrome. It was his case that following the birth of the child he had become deeply interested in the condition and cell therapy as a possible course of partial remedy. In his final address Mr Evatt, who appeared for the appellant, placed a large amount of emphasis on this factor and treated the appellant's child as a significant cause of his initial and continuing interest in the condition. After his address closed and before the learned trial judge commenced his summing up, senior counsel for the respondents took the unusual course of seeking a number of directions in relation to the closing address of counsel for the appellant. The first direction was recorded in writing and was: URJ BLEYER v TCN CHANNEL NINE PTY LTD (Clarke JA) 3 "The mere fact that the plaintiff has a Down's Syndrome daughter is incapable of establishing as plaintiffs counsel suggested it did, that the imputation, the plaintiff falsely pretended to have knowledge of the Down's Syndrome and its treatment is false. The jury should be directed that the fact that the plaintiff has a Down's Syndrome daughter is irrelevant to their consideration of the truth of this imputation. " Counsel amplified the submission in his oral arguments, saying: "The mere fact that the plaintiff has a Down's Syndrome daughter is, we say, incapable of itself, of giving rise to the imputation, or of proving the imputation, that the plaintiff falsely pretends to have knowledge. It may be a factor, but certainly as my learned friend has put to the jury, it cannot, we would submit that it cannot, and that is an important matter that your honour would take into account. " The submission seems to have been truncated to a degree, but I would read it as indicating that counsel was submitting that the fact that the appellant had a Down's Syndrome daughter was not of itself sufficient to establish that the imputation was false. When his Honour came to sum up to the jury, he took a most unusual course. Before dealing with more formal directions of law he gave specific directions concerning the address to the jury given by counsel for the appellant. It was said that the reason for that was very simple. Senior counsel for the respondents concluded his address some days earlier and Mr Evatt's address would still have been ringing in the ears of the members of the jury. His Honour perceived, so it was suggested, that it was necessary, in order to redress the balance, to put the jury straight right at the outset. He sought to do that by giving a number of directions including the one I am about to come to which could only be understood as a direction of law. What his Honour said was: "\.. what I direct to you is this, that as unfortunate as that is, the fact that the plaintiff has a Down's Syndrome daughter is irrelevant to the situation of the truth of the imputation." The word imputation is singular. His Honour then proceeded to give other directions concerning Mr Evatt's address. There are a number of problems with this direction. The first one is that there were five imputations under consideration but his Honour spoke only of one and did not identify that imputation. The confusion that may thereby have been created was not cleared up later in the summing up for his Honour did not make any further reference to that topic, except on one occasion, and that was when he was reading the arguments which had been put to the jury by senior counsel for the respondents. His Honour gave no further direction in relation to the significance of the fact that the appellant had a Down's Syndrome daughter. In these circumstances it is impossible to know how the jury would have understood the direction. The most likely possibility is that the jury would have understood the word "imputation" as conveying the plural. In that way the direction had sense, otherwise his Honour was giving a direction in relation to an unidentified imputation, which could hardly have been helpful to the jury. The appellant complains that this was a clear misdirection. Mr Evatt concedes that it may be that the fact that the appellant had a Down's Syndrome daughter was irrelevant to the first imputation, although he would dispute even that. Even conceding, however, that the fact that Caroline suffered from Down's Syndrome 4 UNREPORTED JUDGMENTS was of no relevance to the first imputation, Mr Evatt submits it was clearly of some relevance, perhaps of critical relevance, to the other three imputations. He asks rhetorically: "How could the jury decide whether the appellant had falsely pretended to have knowledge of the Down's Syndrome and its treatment unless they paid regard to his evidence, that it was the advent of his afflicted daughter that set in train his inquiries?" For my part, whatever interpretation one places on imputations b, c and d, it is impossible to deny the existence of the afflicted daughter as a relevant factor. I could agree that it might be hard to say that her existence was the sole cause of his knowledge, or might have been the sole motivating factor operating in his mind, but I am quite unable to understand how it could be said that you could determine whether, for instance, he had knowledge of the syndrome without an understanding of his evidence relating to his acquisition of his knowledge and the reasons for that acquisition. Mr McClintock, who appeared for the respondents, submitted that once one understood the meaning of the imputations, one could discern that the existence of the child was quite irrelevant. He submits that knowledge in the second imputation meant scientific knowledge and he submitted that the insincere and questionable motives referred to in the third and fourth imputations could exist with other bona fide motives and nonetheless the imputation would be true. There are some problems with the submission, not the least of which being that neither party sought to have a clearer definition of the imputations during the course of the trial and his Honour gave no clear direction as to their meaning. As I see it, it was incumbent upon the respondents, in order to sustain their defence relating to the second imputation, to establish that the appellant did not have knowledge of the Down Syndrome, but was holding out that he did have that knowledge. If that is correct, the first question, that is, whether he had knowledge was intimately bound up with the existence of his afflicted child. At least it was connected with it. Whatever meaning one puts on the second imputation, I think it is quite wrong to suggest, as a matter of fact, that the existence of the child was irrelevant. Obviously, therefore, it was wrong to give a direction as a matter of law that the existence of the child was irrelevant. It is unnecessary to rule upon the meaning attributed to the third and fourth imputations as the case was litigated. In other words, I do not think it necessary to review the course of the trial to see whether the imputations went to the jury as meaning that the impugned motives were the paramount, or sole, motives on the one hand or simply one of many motives on the other. Whatever view is taken on that question the evidence concerning Caroline was inextricably bound up with an examination of the appellant's motives. In my opinion the direction to which I have referred was a misdirection and should never have been made. The question whether that misdirection requires the ordering of a new trial depends upon a consideration of other facts under the Supreme Court Rules Pt51 R16 and I will put that consideration to one side for the moment. The other two grounds of appeal were essentially different ways of putting the same proposition - "His Honour's summing-up on the issue of truth, was unfair, unbalanced and partial. It was not a fair description of the opposing cases to which both parties are entitled and on this ground alone there should be a new trial." URJ BLEYER v TCN CHANNEL NINE PTY LTD (Clarke JA) 5 The principles against which the submission should be considered were most recently discussed in R v Courtney - Smith (No 2) (1992) 48 ACR 49, at 55 to 60. The principles are well understood and repetition will not improve them. However, I should emphasise that the summing up should not be considered in isolation. It must be understood in the light of the conduct of the trial and particularly in the light of the final addresses of counsel which were recorded in this case. Furthermore, in considering whether there has been a misdirection the Court is required to have regard not only to the particular section of the summing up in question but to the whole of the summing up in order to determine whether the particular passage when seen as part of the summing up as a whole reflects overall unfairness. Before I come to the relevant portion of the summing up I should say that it is usual and desirable for a trial judge to identify with clarity the particular issues in which the parties are joined and then to give, in summary form, a short description of the contentions of each party on the issue. It is undoubtedly true to say that a trial judge can express his or her own opinion but provided there is a clear, albeit short, description of the competing cases the mere fact that a trial judge records that opinion will be unlikely to lead to a finding that the summing up was not impartial. It is also important in considering the particular submissions to keep in mind the direction which was the subject of the other points which I have discussed. That is, the direction about which complaint is now made must be seen in the light of the earlier direction. Now, his Honour did say something about the contentions of both parties but he did it in such a way, in my opinion, as to present a distorted and quite unfair picture. Instead of putting forward a summary of the contentions of each side his Honour, in effect, disparaged the appellant's case on the issue of truth and then read at length from the address of senior counsel for the respondents, in order to ensure that he was putting their, that is, the respondents', case adequately before the jury. What he said when introducing the subject was as follows: "Now, it is necessary, although it is essentially a jury question, to find whether or not there has been a proof by the defendant, that the imputations were matters of substantial proof as to what the parties have said. Unfortunately, in this regard Mr Evatt, and I do not say this by way of any criticism by me, dealt with the question of truth by reference to all the inconsistencies he would have you accept in the evidence on behalf of the defendants. He seeks to establish the lack of the substance of truth by referring you to matters which he claims go to the discredit of the various witnesses of the defendants and thus endeavouring to persuade you to the view that in those circumstances and by reason of that evidence you should answer the question, no." His Honour then gave a short description of particular aspects of the evidence criticised by counsel for the appellant. That is all his Honour said about the appellant's case. We have been referred to the closing address given by Mr Evatt and it is readily apparent he devoted a lot of time in seeking to persuade the jury that each of the imputations was false and in doing so he referred the jury to a large quantity of evidence which, according to his argument, supported his case. None of that material received mention from his Honour. This may have been an acceptable course, but whether it was or not, depends upon the way in which he dealt with the case for the respondents. If he had dismissed their case in a similar fashion then it may be correct to say that he kept the scales in balance. But he did 6 UNREPORTED JUDGMENTS not do that. He adopted the course, which may be thought unusual, of reading out substantially the whole of the arguments of the respondents' counsel concerning the issue of truth. It may be, as Mr McClintock reminded us, that those arguments had been put forward by counsel one or two days previously and that his Honour thought that he should re emphasise them. But the reality is that he put before the jury in full, and with his imprimatur, the whole of the arguments, or substantially the whole of the arguments, put by the respondents. Of course, when I say with his imprimatur I do not mean to suggest that he gave any particular direction indicating that he gave to those submissions an imprimatur. What I mean is that by reading the arguments in the way he did he obviously emphasised them as matters of importance to be considered by the jury. This may have been alright if a similar course had been taken in relation to the appellant's case. It would not have been necessary to read everything Mr Evatt had said. It probably was far too long. It would have been sufficient if a short summary of the case had been put but, in my opinion, it was essential that the appellant's case be put in some way or other that was reasonably satisfactory. To introduce the description of the appellant's case with the word "unfortunately" and as depending almost solely upon criticism of the opposing case was akin to suggesting that the appellant had no case at all. In my opinion it is impossible to describe this summing up, at least on this particular issue, as a balanced or fair one. In my opinion it presented a distorted picture and created in my mind an impression of partiality. I do not for one minute think his Honour intended to be biased in favour of one side or the other but I am firmly convinced that the manner in which his Honour dealt with this issue created a strong impression of partiality. Whether other people would agree with that conclusion or not I think it is impossible to escape the conclusion that there was a lack of balance in the summing up. That finding leads to the next inquiry which is, whether having regard to the summing up as a whole, the lack of balance should be found to be substantially a misdirection. I do not think there can be any doubt that it was. Accordingly, I have concluded that the appellant has made good both his complaints about the trial judge's directions. At the conclusion of the summing up counsel for the appellant sought redirections on both matters. He sought a redirection that the existence of Caroline was a relevant factor for consideration as a matter of fact and he sought that his Honour withdraw those directions relating to truth which created the imbalance of which I have spoken. Accordingly, this is not a case in which the appellant sat back and failed to take a point. In these circumstances, my opinion is that the appellant has not only established two errors upon which he relies, but has demonstrated that a miscarriage of justice has occurred and that he is entitled to a new trial. In my opinion the appeal should be allowed, a new trial ordered on all issues, the judgment below set aside, the costs of the first trial should abide the outcome of the second trial, costs of the appeal should be paid by the respondents who should, if qualified, have a certificate under the Suitors Fund. Mahoney JA I agree in general with what has been said by Clarke JA and with the orders he proposes. As the matter is going back to a retrial I shall add some brief comments of my own. URJ BLEYER v TCN CHANNEL NINE PTY LTD (Mahoney JA) 7 The plaintiff had proposed, in substance, so he said, to spend money on carrying out procedures described as cell therapy in respect of Down's Syndrome children in the hair clinics conducted by him. The defendants had, in two television programs including the one here in question, taken a very critical view of what he had said. As the facts emerged they had said at least four things about him. These constitute the imputations which the jury found to have been made. However, the jury held that the imputations made by the defendants were not merely defamatory of him but substantially true and therefore gave a verdict for the defendants. As Clarke JA has said (and I may interpolate, as a result of the case management of the appeal), two grounds have been pressed by the appellant. The first is that there was a misdirection by the judge in relation to the particular facts and the relevance of them, and secondly, that there was a failure by the judge to give to the jury a full and proper direction as to the facts such as produced a miscarriage of the trial. As to the first ground: the substance of it is, as Clarke JA has said, that the judge ruled, and in my opinion clearly ruled, that the fact that the plaintiff has a Down's Syndrome daughter was irrelevant to "the situation of the truth of the imputations". This, I think, would have been taken by the jury to mean that the fact that the plaintiff had a down's Syndrome daughter was to be put aside by them in considering, inter alia, whether the imputations made were true. In my opinion it was relevant, in relation to the allegations that the plaintiff had "insincere motives in promoting cell therapy treatment" and had "questionable motives in promoting that treatment", to establish that he had himself a Down's Syndrome child. (I put aside questions of onus in putting the mater in this way.) It was relevant for the plaintiff to establish that one at least of his motives for doing what he proposed to do was derived from the fact that he had such a child. I think this is not seriously in contest. The defendants sought to contest the error of the direction in various ways. The substantial matter put by Mr McClintock for the defendants was in substance this, that it was submitted that the trial had been conducted on the basis that for the defendants to succeed, they need establish only that one of the plaintiffs several motives for doing what he did was "insincere" or "questionable", or the like, and that because of this the fact that the plaintiff had a Down's Syndrome child was irrelevant. I do not think that this argument is correct. Whatever be the proper reading of the imputations, and indeed reading them as Mr McClintock has suggested they should be read, it would, in my opinion, clearly have been relevant for the plaintiff to show that he had a "sincere" or "unquestionable" motive and that that related to and derived from the fact that he had a Down's Syndrome child. Whatever else may have been established as to his motivation would not mean that it was not relevant for him to establish that he had such a motive for doing what he did. The existence of the Down's Syndrome child may well have been seen by the jury as an important factor in deciding what his true motivation was. I should add that Mr McClintock sought to establish that the trial was conducted as I have said, on the basis that it was sufficient for the defendants to establish that one of several motives which the plaintiff had was insincere or questionable. For myself, I am not satisfied that the trial was conducted on that basis. It is a very special basis and would no doubt have required the judge to give careful and particular directions to the jury as to their approach to the imputations made. Reading the summing-up in detail I do not find there any 8 UNREPORTED JUDGMENTS direction that would suggest that the judge understood that to be the basis on which the trial was conducted. And I do not, from what was said by counsel, take it that that really was the substance of the matter. I do not mean that counsel did not refer to motive and motives from time to time in such a way that might raise a suggestion of this kind. But when one looks at the judge's summing up I would not draw the inference that the case was conducted that way. However, even if it be assumed that it was, I do not think that that establishes that the fact in question that the plaintiff had a Down's Syndrome child, was irrelevant in the way suggested by the judge. As to the second ground, viz, the failure to make a proper direction in relation to the facts, I do not add substantially to what Clarke JA has said. I think that the learned judge perhaps endeavoured to summarise the case in a convenient way by incorporating in his summing up the portions of the defendants' submissions. But, in my respectful opinion, I think in doing that he left the case in such a situation that the full substance of the plaintiffs case had not been fully and appropriately put to the jury. I would add, before leaving the case, three points. It is, I think, unfortunate that these matters were not corrected at the trial. They could have been corrected. I am not critical of what was done by counsel at the end of a long and difficult trial. But these points were clearly taken for the plaintiff. In my opinion the substantial correctness of them was reasonably clear at the time. The delay and the difficulties of a retrial might have been avoided had counsel taken a different course at the trial. However, there may have been reasons why they did not. All one can do is to see the pity of the situation. Secondly, there has been significant delay in bringing this appeal on for hearing. The judgment was given in July 1989. All that can be said is that it is not due to the process of the Court that such delay has taken place. The third matter I would add is this. The trial was evidently fought with some heat and at considerable length. Nothing that has been said by me should be any indication as to the merits of the claims of either party, either as to the plaintiff's claims or the defendants' actions. I agree to the orders as proposed by Clarke JA. Sheller JA I agree with the orders proposed by Clarke JA for the reasons that he has given. I also agree with the remarks that have been made by Mahoney JA and I have nothing to add. Mahoney JA: The orders of the Court are, therefore, those as proposed by Clarke JA. (1) Appeal allowed;. (2) A new trial ordered on all issues; (3) The judgment below set aside; (4) The costs of the first trial should abide the outcome of the second trial; (5) Costs of the appeal should be paid by the respondents who should, if qualified, have a certificate under the Suitors Fund Act. Counsel for the Appellant: CA EVATT and JA YOUNG Instructed by: NEWMAN and ASSOCIATES Counsel for the Respondent: BR McCLINTOCK Instructed by: ALLEN ALLEN and HEMSLEY