Murphy v Nationwide News [2000] NSWSC 1251

New South Wales Supreme Court

CITATION : Murphy v Nationwide News [2000] NSWSC 1251 FILE NUMBER(S) : SC 20112/98 HEARING DATE(S) : 16/02/00-17/02/00 JUDGMENT DATE : 17 February 2000

PARTIES : Christopher Murphy v Nationwide News Pty Limited JUDGMENT OF : James J at 1

COUNSEL : BR McClintock SC- Plaintiff AB Shand QC/RG McHugh - Defendant SOLICITORS : Gilbert & Tobin - Plaintiff Blake Dawson Waldron - Defendant DECISION :

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION.

JAMES J AND A JURY OF FOUR.

THURSDAY 17 FEBRUARY 2000.

020112/98 - CHRISTOPHER MURPHY v. NATIONWIDE NEWS PTY LTD

SUMMING-UP.

1 HIS HONOUR: Members of the jury, you have heard addresses by counsel for the plaintiff and counsel for the defendant. Now I will sum up to you. 2 In these proceedings the plaintiff, Mr Christopher Murphy, has sued the defendant, Nationwide News Pty Ltd, as the printer, publisher and proprietor of the Daily Telegraph newspaper claiming that he was defamed by part of an article published in the Daily Telegraph newspaper on 16 February 1998. 3 Each of you has a copy of the questions which you, as the jury, have to answer. Each of the two questions contains two parts, (a) and (b), so there are really four questions: 1(a), 1(b), 2(a) and 2(b). 4 Your answer to each question you have to answer must be "yes" or "no". Your answer to each question, whether it is "yes" or "no" must be unanimous. All four of you must agree on what answer should be given. 5 Counsel for the plaintiff, in accordance with his function as counsel for the plaintiff, has sought to persuade you in his address to you that you should answer the questions in the way suggested by him. He has submitted that all of the four questions should be answered "yes". 6 Counsel for the defendant, in accordance with his function as counsel for the defendant, has sought to persuade you in his address to you that you should answer the questions in the way suggested by him. He has submitted that questions 1(a) and 1(b) should both be answered "no", so that you do not have to answer question 2 at all. Alternatively, he has submitted that, even if you answer question 1(a) or question 1(b) "yes", you should answer the corresponding part of question 2 "no". 7 It is no part of my function to answer any of the questions or to seek to persuade you that you should answer any of the questions in any particular way. How you decide to answer the questions is exclusively a matter for you. I intend to avoid expressing any view on how I might think any of the questions should be answered. If, in the course of the summing-up, I happen to express a view on how any of the questions should be answered or if I appear to you to hold a view on how any of the questions should be answered, then it is your duty to disregard the fact that I have expressed a view or appear to hold a view. 8 I have told you that how you decide to answer the questions is exclusively a matter for you. For the purposes of this trial you are judges and acting judicially requires you to put aside any emotion or any prejudice and to act according to reason. It may be that you have strong views about the legal system or about lawyers or about newspapers or about drugs or about some other subject raised in the article. However, both parties are entitled to your judgment, free from any sympathy or aversion or any other emotion and free from any prejudice or partiality. 9 If a submission was put to you by counsel which appeared to you to be expressed in emotional language, you have to deal with the submission calmly and dispassionately on its merits. 10 In the summing-up I will, broadly speaking, do two things. Firstly I will give you directions about the legal principles you are to apply in answering the questions. Secondly, I will review some of the submissions or arguments which have been put to you by counsel. 11 As to the first matter, the directions I give you about the legal principles you are to apply are binding on you. You are bound to accept and to apply my directions about the law. To some extent counsel in their addresses referred to some of the legal principles. It was appropriate for counsel to do that, so that you could understand their submissions. However, in this trial I am the authority on the law and you must apply my directions about the legal principles involved. 12 As to the second matter, summarising counsel's arguments, I will not be attempting to refer to every argument which was put to you by counsel. You should not be influenced in your assessment of the strength or weakness of an argument put by counsel by whether I happen to refer to it or happen not to refer to it in my summing-up. It is for you to determine what weight you should give to an argument put by counsel. 13 When I refer to an argument which has been put by counsel you should not think that I am personally endorsing the argument or I am expressing a view one way or the other about whether you should accept the argument. 14 I would ask you to turn to your individual copies of the questions you have to answer. You will see that question 1(a) opens with the words: "Has the plaintiff established that the article in the Daily Telegraph of 16 February 1998 conveyed to the ordinary reasonable reader any of the following imputations or imputations not different in substance, and, if so, which". 15 The two alleged imputations are then set out in (a) and (b). 16 I will now give you some directions about some of the words and expressions in those opening words of question 1. The first words in question 1 are "has the plaintiff established" and the same words occur in question 2 "has the plaintiff established". What I am about to say applies to those words in both questions 1 and 2. The words "has the plaintiff established" indicate that the onus of proof on both parts of both questions rests on the plaintiff. I will give you directions which you are bound to accept and apply about the onus and standard of proof. 17 I have told you that on each of the questions, that is on each part of each of questions 1 and 2, the onus of proof is on the plaintiff. The defendant does not bear the onus of proof on any of the questions. On each part of question 1 and question 2 it is for the plaintiff to satisfy you that he should succeed. What is the standard according to which the plaintiff has to satisfy you? The standard according to which the plaintiff has to satisfy you is proof on the balance of probabilities. 18 I should immediately remind you, as counsel did, that this is a civil case and not a criminal case. You might know, from having served as a juror in a criminal trial or from having watched films or television or having read books about criminal trials, that in a criminal trial the prosecution is required to prove the guilt of the accused person "beyond reasonable doubt". That is the standard of proof in criminal trials, proof beyond reasonable doubt. It is the highest standard of proof known to the law. It is not the standard of proof that applies in this civil case. In this civil case the standard of proof is proof on the balance of probabilities. 19 What is meant by proof on the balance of probabilities? It means that the plaintiff has to satisfy you that, more probably than not, what he contends for is correct. 20 This concept of proof on the balance of probabilities is usually explained to juries, as it was by counsel, by the trial Judge referring to an old fashioned pair of scales, with two scales or pans or dishes on the two sides. 21 Counsel referred to this method of explanation in their addresses. You may have seen pictures of a figure representing Justice, the figure blindfolded and holding a pair of scales. 22 You can regard one pan or side of the scales as having the plaintiff's case placed on it and the other pan or side of the scales as having the defendant's case placed on it. You can take into account the article, the directions of law I give you and the submissions which have been put to you by counsel. Taking those matters into account, you assess the comparative weight of the plaintiff's case and the defendant's case. If on a question the plaintiff in your estimation has succeeded in weighing down his side of the scales because his case has greater weight, then the plaintiff has succeeded in satisfying you on the balance of probabilities that that question should be answered in the way suggested by the plaintiff. 23 If, on the other hand, when you assess the comparative weight of the plaintiff's case and the defendant's case the plaintiff has not succeeded in weighing down his side of the scales, then the plaintiff has not succeeded in satisfying you on the balance of probabilities that the question should be answered in the way suggested by him and you should answer the question in the way suggested by the defendant. 24 The plaintiff could fail to satisfy you on the balance of probabilities, either because when the two cases are put on opposite sides of the scales the scale on which the defendant's case is put is weighed down compared with the scale on which the plaintiff's case is put, or because, when the two cases are put on opposite sides of the scales, the two sides of the scales are left in complete balance, in complete equipoise, with one side not weighed down at all in comparison with the other. If there is a complete balance or equipoise, then the plaintiff has not succeeded in discharging the onus of proof. 25 You have to answer each part of each question separately and determine whether in relation to each part of each question the plaintiff has established that more probably than not that part should be answered in the way suggested by him. 26 You need not necessarily come to the same answers in respect of both of the alleged imputations. It would be possible for you to answer both parts of question 1, that is 1(a) and 1(b), "yes". It would be possible for you to answer both parts of question 1, "no". It would be possible for you to answer one part of question 1 "yes" and the other part "no". 27 If you come to question 2 you need not necessarily answer both parts of question 2 in the same way. 28 The next word or expression in the opening words of question 1 about which I will give you directions is the word "imputations". The singular of imputations is, of course, imputation. You have heard the word imputation or imputations used many times in counsel's addresses to you. An imputation simply means an accusation or a charge or, more generally, simply a meaning. 29 In defamation proceedings the plaintiff is obliged to specify what he says are the imputations or meanings conveyed by the publication he is complaining about. The jury in a defamation hearing is not asked whether the plaintiff has established that a publication was in some general way defamatory of the plaintiff. The jury is asked, as you are being asked, whether the plaintiff has established that the words which were published about him conveyed the specific imputations which he, the plaintiff, has alleged. 30 What I have just said is subject to this qualification. In the opening words of question 1 you will see the words in the second and third lines, "or imputations not different in substance". In respect of each imputation, it would be sufficient for the plaintiff to establish that, although the precise imputation alleged was not conveyed, nevertheless an imputation not different in substance from the imputation alleged was conveyed. 31 The next word or expression in the opening words of question 1 to which I wish to refer is the word "conveyed". The word "conveyed" simply means what it says, it simply means "carried". Has it been established that the article carried or conveyed to the ordinary reasonable reader either of the imputations? 32 The opening words in question 1 refer to "the ordinary reasonable reader". The expression "the ordinary reasonable reader" was used many times in counsel's addresses. I will have to say a number of things about "the ordinary reasonable reader". It may be that, for the sake of convenience, I will not always repeat in full the whole expression "the ordinary reasonable reader" and simply refer to "the reader". If I do so, you will understand that by the expression "the reader" I mean "the ordinary reasonable reader". When I use a pronoun to refer to the ordinary reasonable reader I will begin by saying "he or she". That is a somewhat cumbersome expression and it may be that I will sometimes refer to the ordinary reasonable reader as "he" or refer to the ordinary reasonable reader as "she". You will understand that by "he" or "she" I mean "he or she". 33 There is undeniably some artificiality and unreality about this concept of the ordinary reasonable reader. The ordinary reasonable reader is not some single identifiable person. The ordinary reasonable reader is not an actual person at all. 34 The ordinary reasonable reader is a hypothetical person who represents the community as a whole. The ordinary reasonable reader is taken as representing a uniform view of the whole community, based upon what the community generally would understand to be conveyed by the article, based upon general community knowledge, standards and attitudes. 35 The ordinary reasonable reader is to be regarded as fair-minded and of ordinary perception, commonsense and understanding. The ordinary reasonable reader is prepared to draw inferences from what is directly said but the inferences must be inferences which could reasonably be drawn, the ordinary reasonable reader does not engage in mere speculation or conjecture, the ordinary reasonable reader does not look for strange or unlikely constructions of the words that actually appear in what is being read, the ordinary reasonable reader is not a person who lives in an ivory tower or thinks that everything is good and perfect in the world. 36 On the other hand, the ordinary reasonable reader is not a person with a morbid or suspicious mind or a person who is hungry or avid for scandal. He or she is not a person who looks for the worst in everything or who is suspicious merely for the sake of being suspicious. 37 You have to decide in relation to each imputation alleged by the plaintiff whether the plaintiff has established that the imputation alleged or an imputation not substantially different would have been conveyed by what appears in the article to the ordinary reasonable reader. 38 The ordinary reasonable reader would not have read the article in a Court room or in a jury room. He or she would be likely to have read the article on 16 February 1998 or at any rate soon afterwards. The ordinary reasonable reader could have read the article in a variety of situations; at home in the morning, on the way to work, at work or on the evening of 16 February. I am not suggesting that that would exhaust all the situations in which the ordinary reasonable reader would have read the article. The ordinary reasonable reader is to be taken as having read the whole article. It is likely that he or she would have read the article only once. However, he or she might have been able to read the article or some parts of it more than once. 39 The ordinary reasonable reader would not have heard addresses by two barristers or a summing-up by a Judge. The ordinary reasonable reader would not have been asked how he or she interpreted the article and would not have been subjected to a questionnaire about the article. 40 It should be obvious from what I have said, members of the jury, that you are not in the position of the ordinary reasonable reader. You have read the article in the Court room and probably in the jury room. You have probably read the article or parts of it several times or perhaps many times. You have heard addresses by counsel and a summing-up by a Judge. You have heard the article analysed by counsel in a way which would not have happened in the case of the ordinary reasonable reader. You have known from the beginning or near the beginning of this trial that you would have to answer questions about the article. 41 I repeat that you have to determine in relation to each alleged imputation whether the imputation would have been conveyed to the ordinary reasonable reader; not whether, in the vastly different circumstances in which you have read the article, the imputation is conveyed to you. 42 Members of the jury, that concludes my directions of law about the first question. Counsel for the plaintiff submits that both parts of question 1 should be answered "yes". Counsel for the defendant submits that both parts of question 1 should be answered "no". 43 I move to the second question on the sheet. Just above question 2 on the sheet you will see the note, "If you have answered "no" in respect of any imputation, then do not answer question 2 in respect of that imputation". Question 2 also commences with the words, "If the answer to question 1 above was "yes" with respect to any of the imputations". I trust that the note and the opening words of question 2 are clear. If you have answered question 1(a) "no", then you do not answer question 2(a). If, on the other hand, you have answered question 1(a) "yes", then you have to answer question 2(a). If you have answered question 1(b) "no", then you do not have to answer question 2(b). If you have answered question 1(b) "yes", then you do have to answer 2(b). 44 I have already drawn your attention to the fact that question 2 includes the words, "Has the plaintiff established" and the directions about onus and standard of proof which I gave earlier apply to those words in question 2. 45 In question 2 the word "defamatory" appears. What is the test of whether an imputation was defamatory? The test is simply whether the imputation would cause the ordinary reasonable reader, that is to say ordinary right thinking people in the community, to think less of the plaintiff. Ordinary right thinking people in the community, like the ordinary reasonable reader, are to be regarded as representing the community in general. 46 It is not sufficient for the plaintiff to prove that an imputation was not complimentary to the plaintiff. It is necessary for the plaintiff to prove that an imputation was defamatory of the plaintiff. In deciding whether any imputation was defamatory, you are to disregard any belief you might happen to have about whether the imputation was true or false or likely to be true or false. 47 Counsel for the plaintiff has submitted that you would answer both parts of question 2, "yes". Counsel for the defendant has put a primary submission that you would answer both parts of question 1 "no", so that you don't have to answer question 2. Counsel for the defendant put an alternative submission, that if you answer either part of question 1 "yes", nevertheless you would answer the corresponding part of question 2 "no". 48 I will now seek to review some of the arguments which were put to you by counsel. I repeat that I will not refer to all of the arguments put by counsel and that in referring to an argument I am not to be taken as giving the argument any endorsement from myself. I am not expressing an opinion one way or the other about whether you should accept the argument. 49 Mr McClintock, counsel for the plaintiff, said a number of things to you about such matters as onus and standard of proof and other legal matters which I have covered in my directions to you. I do not intend to repeat everything Mr McClintock said on those matters. 50 Mr McClintock pointed out to you that he as counsel for the plaintiff had to address first, that he had only one opportunity to address you and that he would not have any opportunity of replying to what Mr Shand said in his address. Mr McClintock put to you that if Mr Shand put an argument which had not been anticipated by Mr McClintock in his address, nevertheless you should ask yourself whether or not there was a good answer to the argument put by Mr Shand. 51 Mr McClintock asked you rhetorically what you would think was the lowest form of life in Australia and he offered his own answer, "drug dealers". He then suggested that you would think that the second lowest form of life were lawyers who act for guilty drug dealers so that those drug dealers can go out again and continue their trade. That submission by Mr McClintock was replied to by Mr Shand. As with all counsel's submissions, it is a matter for you whether you accept that submission Mr McClintock put to you, that that was what this case was about, that the defendant had accused the plaintiff of belonging to the second lowest form of life. I remind you that you will have to assess that argument coolly and dispassionately. 52 It was submitted by Mr McClintock that you would consider that the article would have conveyed to the ordinary reasonable reader the second imputation alleged, that the plaintiff was a shyster, that is a lawyer who uses unprofessional, questionable methods in his cases. 53 Mr McClintock referred to the concept of the ordinary reasonable reader. He suggested that the ordinary reasonable reader would have read the article in a variety of circumstances. He submitted to you that the ordinary reasonable reader would know from his or her general experience of life and human affairs that newspapers do often say bad things, derogatory things, about people and that they often say those bad things, not directly, but by way of hinting. 54 Mr McClintock submitted to you that the ordinary reasonable reader would know from his or her general experience of life that the meaning which can be given to an article in a newspaper can vary with the kind of article it is. If the article is in a gossip column, then the ordinary reasonable reader would expect to find spicy titillating pieces of gossip, often containing attacks on the persons referred to in the column. Gossip about people is often uncomplimentary. Mr McClintock submitted that when you read the article as a whole you would regard the article as falling in the category of a gossip column. He compared the article with the sort of dry article about business that might appear in a paper such as the Financial Review. 55 Ladies and gentlemen, it is virtually 1 o'clock. I am obviously not going to finish. We will take the adjournment. It is difficult for me to know how much longer I will be, I certainly anticipate that we will conclude some time in the mid afternoon. I now propose to adjourn so I ask you to go with the officer.