Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 123

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 123 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 22 February 1999 JUDGMENT DATE : 22 February 1999

JOHN MARSDEN (Plaintiff)

PARTIES : v

AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J

I Barker Q.C. G O'L Reynolds S.C. R G McHugh (Plaintiff) COUNSEL : W H Nicholas Q.C. J S Wheelhouse R Titterton (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jacques (Defendant) CATCHWORDS : On form of questions to be answered by the jury DECISION : See paragraph 16

- 5 - DLJT: 14 (Ex Tempore - Revised) THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

MONDAY 22 FEBRUARY 1999

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant)

JUDGMENT (On form of questions to be answered by the jury) 1 HIS HONOUR: One of the preliminary matters that arose this morning concerned the form of the questions to be answered by the jury. Various drafts of the form of the questions have been provided by counsel for the plaintiff and comments have been made by counsel for the defendant on such drafts and upon the draft that I faxed to the parties on Friday. 2 The matter can be focused by reference, for example, to the Second Further Amended Statement of Claim in the second action in which the plaintiff in paragraph 4 pleads that the relevant publication gave rise to the following imputations: "(a)(i) The plaintiff has had sexual intercourse with 15 year old boys having deliberately refrained from asking those boys how old they were; or (ii) the plaintiff has had sexual intercourse with 15 year old boys." 3 The draft of the questions prepared by myself was in the following terms: "Has the plaintiff established the second program conveyed to the ordinary reasonable viewer any of the following imputations" 4 and there is set out (a) or (b). 5 In relation to the second of those two imputations two words have been used: One, it is a "fall-back" imputation and it is "an alternative" imputation. 6 It was contended for the plaintiff that the questions to the jury should include a specific note to the effect, for example, that imputation (b) is intended to be an alternative for imputation (a), you should consider imputation (b) only if you have answered no to imputation (a). 7 For the defendant it is contended that no such specific note is required when the nature of the issue to be decided by the jury is properly understood. 8 To seek to gain the proper understanding one has to have recourse to a series of decisions of Hunt J, principally two decisions of His Honour, the first dated 12 August 1988, and the second of 26 August 1988 in the matter of Carson v Slee & Anor to which decisions His Honour writing elsewhere ("Aspects of the Law of Defamation in New South Wales", editor J Gibson, p 12) directs attention to understand what he means by the pleading of a "fall-back" imputation. 9 It seems clear to me on reading what his Honour said in relation to the imputations in question in that case and what His Honour in fact ruled on 26 August 1988, that in relation to "fall-back" imputation being the second of two he ruled that it would go to the jury "as an alternative to imputation (a)." 10 At the first trial of Carson v Slee, presided over by Loveday J, the jury was directed by His Honour in relation to the alternative imputation in the following way, and I am grateful to Mr Reynolds S.C. for providing to me page 5 of the transcript of his Honour's summing up, His Honour said: "It is only if you should answer 1(a) in relation to the article of 6 May 1988 that it is necessary for you to go on to consider 1(b)." 11 The position taken by the defendant is that such an approach really does not represent the reality of that which confronts the jury, which is a choice. The jury will decide whether or not it means (a) or (b). They will consider both and decide one. The formulation of the note compels consideration of the first first rather than the consideration of both. 12 The framework of the suggested note and the wording of what His Honour said to the jury in Carson to my mind reflects the ultimate outcome of the jury having made a choice between one or other of the two imputations. Obviously if they decide one they will not decide the other. But the jury should not be precluded from considering both. I do not read the note, the direction given by His Honour, in such a way as to compel consideration of first the first and then the second. It will be for the jury to decide which, if either, the matter complained of in fact conveys. 13 Thus I do not propose to incorporate into the written form of the questions the note to which reference is made in the drafts supplied by counsel for the plaintiff. 14 It seems to me that a fall-back imputation when one considers its history as referred to in Carson and other decisions of His Honour, for example Anderson v Mirror Newspapers (1986) 5 NSWLR 735 and His Honour's unreported decision in Elphick v John Fairfax of 25 June 1988, that the fall-back imputation legitimately can be pleaded and properly can be left to the jury was one that differs in its seriousness from the other imputation relied upon. The choice however remains that for the jury; it should not be constrained by a direction as to how they exercise it but rather by general directions in the summing up that one or other is available and it is a matter for the jury to decide. 15 In that sense I do not disagree with the submission put by Mr Nicholas that to that extent the imputations, all of them, are there before the jury, which if any they choose to find as having been conveyed will be a matter for them. 16 Thus I will have handed down to counsel the final form of the questions in which I will note matters hitherto noted that the word "convey" has been substituted for "carried" and the word "or" has been inserted in the sets of questions where, conformably with the pleading, the imputations have been pleaded in the alternative.