New South Wales Supreme Court CITATION : Murphy v Nationwide News [2000] NSWSC 72 FILE NUMBER(S) : SC 020112/98 HEARING DATE(S) : 16-17/02/2000 JUDGMENT DATE : 16 February 2000 PARTIES : Christopher Murphy v Nationwide News Pty Limited JUDGMENT OF : James J LOWER COURT Supreme Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : COUNSEL : BR McClintock SC - Plaintiff AB Shand QC/RG McHugh - Defendant SOLICITORS : Gilbert & Tobin Blake Dawson Waldron DECISION : Application for discharge of jury refused THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION JAMES J AND A JURY OF FOUR Wednesday 16 February 2000 20112/98 - Christopher Murphy v Nationwide News Pty Ltd JUDGMENT (On the application by Mr Shand for a discharge of the jury). 1 HIS HONOUR: After senior counsel for the plaintiff had concluded his address to the jury an application was made by senior counsel for the defendant that an order should be made discharging the jury because of highly prejudicial statements submitted by counsel to have been included in counsel for the plaintiff's address. 2 A number of parts of counsel for the plaintiff's address were referred to and I will endeavour to deal with counsel for the defendant's submissions seriatim. 3 1. Early in his address counsel for the plaintiff asked the jury a question "What do you think is the lowest form of life in Australia?" and counsel for the plaintiff suggested an answer, namely "drug dealers, people who sell drugs… to young people in Australia and who make money by destroying those people's lives". If drug dealers were not the lowest form of life, "they have to be right down there". 4 Counsel for the plaintiff then suggested that the second lowest form of life would be "the lawyers who act for guilty drug dealers and get them acquitted, so that they can go out again and continue their disgusting trade". Counsel for the plaintiff then put to the jury that the defendant newspaper had accused the plaintiff of being that second lowest form of life. 5 It was submitted by counsel for the defendant that it was highly prejudicial for counsel for the plaintiff to describe lawyers who act for guilty drug dealers and get them acquitted as being "the second lowest form of life". 6 It was also submitted by counsel for the defendant that a lawyer could merit such a description (if at all), only if he knew that his clients were indeed guilty of drug dealing. Counsel for the defendant referred to Mirror Newspapers v Harrison (1982) 149 CLR 293 at 301, where Mason J said that a statement in a newspaper that a person had been arrested and charged with an offence is incapable of giving rise to an imputation that the person arrested and charged is in fact guilty of the offence, the ordinary and reasonable reader being aware of the presumption of innocence and the need for guilt to be determined by a jury. 7 There is no doubt that the expressions "the lowest form of life" and "the second lowest form of life" have emotional connotations but I do not accept the submission that what was said by counsel for the plaintiff was so improperly prejudicial as to require the discharge of the jury. 8 Counsel for the defendant will have the opportunity of himself addressing the jury. Counsel for the defendant can put to the jury a submission to the effect that it cannot be discreditable for a lawyer to act for a client accused of a drug offence, even if the client is guilty of the drug offence, in the absence of a lawyer knowing that the client is guilty of the drug offence and that in any event guilt or innocence is a matter to be determined by a court. 9 I will give the jury the usual kind of direction that they must act judicially and avoid prejudice and I can, if it seems appropriate at the time I sum up, reinforce the usual kind of direction. 10 2. Counsel for the plaintiff in his address referred to young people's lives being destroyed by drug dealers. 11 It seems to me that what was put by counsel for the plaintiff was something which counsel for the plaintiff was entitled to put, as being a matter of common experience within the knowledge of the jury and the ordinary reasonable reader, and the submission was not expressed in unduly emotional language. 12 3. Counsel for the plaintiff said in his address that it would be within the knowledge of the ordinary reasonable reader that "newspapers don't come up and punch you in the nose but come up behind and stab you in the back". Elsewhere in his address counsel for the plaintiff said that the ordinary reasonable reader would know that newspapers don't walk up to people and punch them in the face but sneak up from behind and make hints. 13 It was submitted by counsel for the defendant that it was improper to suggest that newspapers had such a general habit or that it would be within the experience of the ordinary reasonable reader that newspapers have such a general habit. 14 It seems to me that this was a submission that counsel for the plaintiff was entitled to put to the jury. That newspapers at least sometimes say derogatory things about people indirectly or stealthily ("the author is anxious to wound but fearful to strike too obviously") has been adverted to in the cases. See for example Lloyd v David Syme & Co Limited (1985) 3 NSWLR 728, cited in Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 169 per Hunt CJ at CL. 15 4. It was submitted by counsel for the defendant that in asking the jury what they themselves thought was the lowest form of life and the second lowest form of life in Australia, counsel for the plaintiff had misled the jury. What the jury had to determine was, not what they themselves thought, but what the ordinary reasonable reader would think. 16 I do not consider that the jury would have been misled by anything said by counsel for the plaintiff. The questions to be answered by the jury, copies of which were distributed to the jury during counsel for the plaintiff's address, refer to the "ordinary reasonable reader". Counsel for the plaintiff in his address made copious references to "the ordinary reasonable reader". I will be giving the jury directions about how to perform their task and I will emphasise the concept of the ordinary reasonable reader. 17 5. Counsel for the plaintiff submitted that the ordinary reasonable reader knows "if you say there is smoke, there is going to be fire, even if it does not say in the article there is fire…". 18 It was submitted that it was inaccurate to say that the ordinary reasonable reader would reason that wherever there is smoke there is fire. Counsel for the defendant referred to what was said by Lord Devlin in Lewis v Daily Telegraph (1964) AC 234 at 285, which was quoted by Brennan J in Mirror Newspapers v Harrison (at 304). 19 I would agree that it is not always the case that the ordinary reasonable reader would reason that, wherever there is smoke, there is fire. In Lewis v Daily Telegraph Lord Devlin said inter alia, "a man who wants to talk at large about smoke may have to pick his words very carefully, if he wants to exclude a suggestion that there is also fire; but it can be done". However, Lord Devlin went on to say, "one always gets back to the fundamental question - what is the meaning that the words convey to the ordinary man: you cannot make a rule about that". 20 It seems to me that, in the context of his whole address, counsel for the plaintiff made the remark about smoke and fire in support of a submission that, although it was not openly asserted in the article that the plaintiff had obtained the acquittals of drug dealers by unprofessional or questionable methods, nevertheless the article should be taken as having invited the ordinary reasonable reader to ask himself or herself how it was that the plaintiff had obtained the acquittals of drug dealers and to infer that the acquittals had been obtained by unprofessional or questionable methods. 21 I consider that this was a submission which counsel for the plaintiff was entitled to make. I note that in Nationwide News Pty Limited v Murphy (1999) NSWCA 118, an appeal in the present case, Sheller JA said at par20:- "The concentration on the 'celebrity' plaintiff's alleged success in the case of drug dealers (that is to say, persons who in fact deal in drugs) indicates that the writer set out to put in the mind of the ordinary reasonable reader the idea that this success was due to unprofessional or questionable methods". 22 6. Counsel for the plaintiff said to the jury that the article in question was a gossip column and that the ordinary reasonable reader would expect that in gossip columns attacks would be made on the persons mentioned in them. 23 It was submitted by counsel for the defendant that this would not be part of the general experience of the ordinary reasonable reader and that counsel for the plaintiff in making the submission had not made it clear that the jury had to consider the general experience of the ordinary reasonable reader, rather than their own general experience. 24 I consider that this was a submission which counsel for the plaintiff could properly make. In Amalgamated Television v Marsden Hunt CJ at CL said at p 165:- "The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed." 25 In Nationwide News Pty Limited v Murphy Meagher JA said at par 8:- "The fact that they (that is the allegedly defamatory words) appear in a gossip column would indicate they are not meant to be an anodyne". 26 I consider that it would have been quite clear to the jury that they had to consider the position of the ordinary reasonable reader, rather than their own position. 27 7. Counsel for the plaintiff suggested in his address that the ordinary reasonable reader would know that journalists use certain devices to affect the meaning of words they use, one such device being inverted commas. In the article in question the plaintiff is described as a celebrity lawyer, with the word "celebrity" being placed within inverted commas. 28 It was submitted by counsel for the defendant that any such use of journalistic devices would not be part of the general experience of the ordinary reasonable reader. 29 In my opinion, this was a submission that counsel for the plaintiff was entitled to put. In Nationwide News Pty Limited v Murphy both Meagher JA at par 8 and Sheller JA at par 20 referred to the placing of inverted commas around the word "celebrity" in the article. At par 8 Meagher JA said:- "And the inverted commas around the word "celebrity" give rise to the inference that his (that is the plaintiff's) fame is not entirely salutary". 30 8. Counsel for the plaintiff referred to a part of the article in which it was stated that the plaintiff had also represented "rugby league bad boys Scott Wilson and Mark Geyer". 31 It was pointed out by counsel for the defendant that the plaintiff had not attempted to base any allegedly defamatory imputation on this part of the article. 32 However, I consider that counsel for the plaintiff was entitled to refer to this part of the article, as being capable of reinforcing the impression the ordinary reasonable reader could receive that the plaintiff had acted for drug dealers, who were bad people, who were in fact guilty of drug dealing. 33 9. It was submitted by counsel for the defendant that counsel for the plaintiff had invited the jury to engage in what was mere speculation as to how it was that the plaintiff had succeeded in obtaining acquittals for his clients. 34 However, it seems to me that the ordinary reasonable reader, without engaging in mere speculation, could properly infer that it was being suggested in the article that it was by unprofessional or questionable methods that the plaintiff had succeeded in obtaining acquittals for his guilty clients. I note that the majority of the Court of Appeal in Nationwide News v Murphy held that the article was capable of conveying the imputation that the plaintiff was a "shyster", that is a lawyer who used unprofessional or questionable methods. 35 I do not consider that what was said by counsel for the plaintiff in his address was such as to require the discharge of the jury. 36 Counsel for the defendant will of course have the opportunity of himself addressing the jury and after counsel for the defendant has addressed the jury I will sum up to the jury. Even if the defendant has suffered any prejudice, and I am not to be taken as finding that the defendant has sustained any prejudice, I am confident that any prejudice can be dispelled by counsel for the defendant's address and by my summing-up. ********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.