Goldsworthy v Radio 2UE Sydney Pty Limited [1999] NSWSC 290

New South Wales Supreme Court CITATION : Goldsworthy v Radio 2UE Sydney Pty Limited [1999] NSWSC 290 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 20133/95 HEARING DATE(S) : 22 March 1999 JUDGMENT DATE : 22 March 1999

Allan John Goldsworthy (Plaintiff) PARTIES : Radio 2UE Sydney Pty Ltd (ACN 000 796 887) (First Defendant) Ray Hadley (Second Defendant) JUDGMENT OF : Dunford J

COUNSEL : Mr SM Littlemore QC / Mr T Molomby (Plaintiff) Mr SD Rares SC / Mr KP Smark (Defendants) SOLICITORS : Gells Solicitors (Plaintiff) Bush Burke & Company Solicitors (Defendants) CATCHWORDS : Application for directions as to presentation of case to jury. ACTS CITED : Defamation Act 1974 Evidence Act 1995 Radio 2UE Sydney Pty Ltd & Anor v Parker (1992) 29 NSWLR 448 TCN Channel 9 Pty Ltd & Ors v Mahony (1993) 32 NSWLR 397 CASES CITED : Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 87 Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180 DECISION : Directions sought, refused.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J 22 MARCH 1999 20133/95 Allan John GOLDSWORTHY v RADIO 2UE SYDNEY PTY LIMITED & ANOR JUDGMENT ( re directions sought by defendants in relation to the opening address) 1 HIS HONOUR: In the absence of the jury a number of directions have been sought on behalf of the defendants; firstly, that in his opening address to the jury counsel for the plaintiff should be limited to addressing in relation to those issues which are matters for the jury pursuant to s 7A of the Defamation Act 1974 as amended by the 1994 Act; secondly, the number of times a tape of the radio broadcast, the subject of the proceedings, can be played to the jury; thirdly, that the jury should not be informed of the imputations alleged until after the tape of the broadcast has been played; and fourthly, whether the jury can have with them in the jury room during their deliberations the tape of the broadcast and/or a transcript thereof. 2 The first matter, namely whether the opening should be limited to the issues which are for the jury's determination under s 7A creates no problems because senior counsel for the plaintiff concedes that his address should be so limited. 3 The other issues all arise because of s 7A in the context that whereas all issues in the trial were previously matters for the jury, and in the course of the trial it would be necessary to refer to the matters complained of and the context in which the words were used on a number of occasions, it is said that such requirement no longer exists since the jury's function has become so limited, and reliance is sought to be placed on the dicta of the Court of Appeal in a number of cases dealing with radio and television broadcasts, pointing to the transient nature of the publication of the allegedly defamatory matter and the need for the jury to consider what would be the first impression on hearing or seeing that matter of the ordinary, reasonable listener or viewer of average intelligence. Reference was made in particular in this context to Radio 2UE Sydney Pty Ltd & Anor v Parker (1992) 29 NSWLR 448; TCN Channel 9 Pty Ltd & Ors v Mahony (1993) 32 NSWLR 397 and Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158. 4 Mr Rares, senior counsel for the defendants, frankly concedes that he cannot point to any case where such directions as he now seeks have been given but similar directions were sought in Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 87 and were refused by Levine J. In that case, the directions sought included the following: "2. That in each action the videotape comprising the matter complained of be played once only to the jury; 4. That in each action the jury not be informed of the imputations until the jury has seen and heard the matter complained of...; 5. That no part of the video containing the matter complained of is to be played during addresses and 6. The jury will not be supplied with transcripts of the matters complained of". The directions sought in this case are virtually the same, allowing for the difference between a radio and a television broadcast and as I say, the directions were refused in that case. 5 I have considered his Honour's reasons in that case and I consider they should be followed, not only in the interests of judicial comity but because, with respect to his Honour, I consider he was correct. 6 As his Honour pointed out at [22], the course suggested for the defendant is, in effect, "unheard of" and "deconstructs the orthodoxy attendant upon the usual procedure in defamation actions on the issue of whether or not the matter complained of conveys the imputations". It is important to bear in mind that his Honour said, at [34]: "The jury does not decide whether it, that is, its four members, are of the view that the matter complained of carries the defamatory imputations. The jury decides whether the hypothetical ordinary, reasonable viewer would understand the matter to carry those defamatory imputations." His Honour also pointed out, at [39], that one of the sanctions available to redress the affect of excessive playing of the allegedly defamatory matter would: "be to the effect that the more the plaintiff has to play the videotape, the less likely, it would be argued forensically, that the ordinary reasonable viewer would understanding (sic) it as carrying the defamatory imputations." 7 Reference was made in the judgment to Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180 and the fact that the tape becomes admissible only because with proper equipment, it is capable of being used to prove what is recorded on it by being played over, and it is that evidence, aurally received, which is admissible to prove the relevant fact. 8 This aspect is now the subject of s 48(1)(C) of the Evidence Act 1995 which renders the tape and a transcript of it admissible. However, I can see some difficulty in a transcript in that the provision of a written transcript of what was said may tend to mislead the jury into considering the material as if it were print media, eg a book or newspaper, rather than an oral broadcast and I therefore exercise my discretion, under s 135 of the Evidence Act, to exclude the evidence by way of a transcript of the material, although it would otherwise be admissible pursuant to s 48(1)(C). 9 Finally, it was submitted that if during its deliberations the jury wished to replay the tape, they should send a request, the Court be reassembled and it should be replayed in Court. It was said that in that way the Court would know how many times they played it and it may, here or elsewhere, determine whether they have proceeded correctly, in considering what the words would convey on a first impression. 10 This approach, in my view, would constitute an unwarranted and illegal intrusion into the secrecy of the jury's deliberations. Those deliberations are secret and must remain so, and just as the conversations of jurors in the jury room are immune from review, their replaying of the tape and the number of times they do so would, in my view, amount to no more than a review of their deliberations and cannot be permitted. 11 For these reasons, I refuse the directions sought on behalf of the defendants. **********