Tingle & Anor v Harbour Radio P/L & Anor [No 1] [1999] NSWSC 404

New South Wales Supreme Court CITATION : Tingle & Anor v Harbour Radio P/L & Anor [No 1] [1999] NSWSC 404 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 21262/95 HEARING DATE(S) : 27 April 1999 JUDGMENT DATE : 27 April 1999

John Tingle (1 Pl) PARTIES : The Shooters Party Limited (2 Pl) Harbour Radio Pty Limited t/as 2GB New Plus 873 (1 Def) Ron Casey (2 Def) JUDGMENT OF : Kirby J

T D Blackburn (1 Pl) COUNSEL : No appearance (2 Pl) B R McClintock SC/R Lancaster (Defs) SOLICITORS : Barker Gosling (1 Pl & 2 Pl) Bush, Burke & Co (Defs)) CATCHWORDS : Defamation; Whether permissible for either party to play tape of matter complained of more than once CASES CITED : Marsden v Amalgamated Television Services P/L (Levine J, unreported, 18 February 1999) Goldsworthy v Radio 2UE Sydney Pty Ltd (Dunford J, unreported, 22 March 1999) DECISION : See para 7

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

KIRBY J

Tuesday 27 April 1999

21262/95 - JOHN TINGLE & ANOR v HARBOUR RADIO PTY LTD & ANOR [No 1]

JUDGMENT (Re question of playing tape in front of jury - see p 33 of transcript) 1 HIS HONOUR: In the course of an action for defamation brought by John Tingle against a company responsible for the radio station 2GB, an issue arose as to whether it was permissible for the plaintiff, or indeed either party, to play the tape which contains the matter complained of more than once. 2 Mr McClintock, who appears with Mr Lancaster on behalf of the defendants, says that the tapes should be played only the once. He make this submission on the basis that the ordinary reasonable listener may be taken to have heard the tapes but once, and to have formed an impression upon that basis. 3 I have had the advantage of reading the decision of Levine J in Marsden v Amalgamated Television Services Pty Ltd (unreported, 18 February 1999), where his Honour deals with a similar issue which arose in the context of that case. I have also had the opportunity of examining the judgment of his Honour Dunford J in Goldsworthy v Radio 2UE Sydney Pty Ltd (unreported, 22 March 1999.) 4 It was argued by the defendant that neither decision should be followed. Although the test was the reaction of the hypothetical reasonable listener, it would be unreal to image that the jurors could ever divorce their own reaction, and place themselves in the shoes of the hypothetical listener. Inevitably the jurors are guided by their own reaction. It is wrong to approach the issue upon any other basis. It is illogical, in the defendants' submission, to place the jurors in a position which is utterly different from that which may have been experienced by the ordinary reasonable listener, by exposing the jurors to the repeated playing of the broadcast. 5 Although there is some force in these arguments, I prefer the reasoning of Levine J and Dunford J. Given that counsel has the right to address the jury before they retire, and given that the understanding of each juror will be supplemented by that of other jurors before any questions are answered, it is impossible to re-create, in the context of the courtroom, the circumstances in which the ordinary reasonable listener may have experienced the words said. To attempt to do so is to distract the jurors from the test which they must apply, namely an objective test based upon the ordinary reasonable listener. 6 In Marsden, counsel for the defendant asserted that the tape should not be marked, and should not be available to the jury, to be played and replayed. In this matter, Counsel for the defendants did not go that far. He acknowledged the inevitability of the jury having the tape of the broadcast when they retire. Even were that concession not made, I believe that the jury should have the broadcast available. 7 The tape has now been played once. Counsel may, if they wish, play it again when addressing the jury on the issues which the jury must now determine. **********