New South Wales Supreme Court CITATION : Purcell & Anor v Cruising Yacht Club of Australia & 2 Ors [2001] NSWSC 926 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20473 of 2000 HEARING DATE(S) : 15 October 2001 JUDGMENT DATE : 15 October 2001 MONDAY 15 OCTOBER 2001 RICHARD GORDON PURCELL (First Plaintiff) ALLURE MARKETING PTY LIMITED (Second Plaintiff) PARTIES : v CRUISING YACHT CLUB OF AUSTRALIA PTY LIMITED (First Defendant) JOHAN CHRISTIAN HUGO van KRETSCHMAR (Second Defendant) PETER HALLAM BUSH (Third Defendant) JUDGMENT OF : Levine J T Tobin Q.C. P Gray (Plaintiffs) COUNSEL : W H Nicholas Q.C. T Blackburn (Defendants) Berne Murray & Tout (Plaintiffs) SOLICITORS : Corrs Chambers Westgarth (Defendants) CATCHWORDS : On application to tender transcript of video tape LEGISLATION CITED : Evidence Act 1995 Buck v Jones & Ors (Barr J, unreported, 15 June 2000) CASES CITED : Goldsworthy v Radio 2UE Sydney Pty Limited [1999] NSWSC 90 Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 87 Vacik Distributors Pty Limited v ABC & Anor (Sperling J, unreported, 14 November 1999) DECISION : See paragraph 12 - 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST 20473 of 2000 JUSTICE DAVID LEVINE MONDAY 15 OCTOBER 2001 RICHARD GORDON PURCELL (First Plaintiff) ALLURE MARKETING PTY LIMITED (Second Plaintiff) v CRUISING YACHT CLUB OF AUSTRALIA PTY LIMITED (First Defendant) JOHAN CHRISTIAN HUGO van KRETSCHMAR (Second Defendant) PETER HALLAM BUSH (Third Defendant) JUDGMENT (On application to tender transcript of video tape) 1 HIS HONOUR: For the purposes of this trial it can be stated, relevantly, that the plaintiff by his Amended Statement of Claim filed on 28 June this year sues the three defendants in respect of a publication on 1 June 1999 said to give rise to one imputation. That is the evidence as it presently stands and as I understand, it is what the case essentially is about: namely, on that day in 1999 the three defendants spoke words at a press conference. It is upon those words the plaintiff sues by reason of his contention that they give rise to the imputation of the cause of action. It is fundamentally the case that under the old law it would be described as a slander. 2 It so happens that a video tape of the words being spoken was made and by consent that has become Exhibit A. What the plaintiff now seeks to have before the jury is a transcript of part of Exhibit A, being a transcript said to coincide with the material appended to the amended statement of claim, which in fact is part of the whole of the occasion on 1 June 1999 when members of the media attended the press conference. 3 The use of a transcript in defamation actions has given rise to a variety of first instance judgments. Those judgments, I will list them shortly, have been concerned with publications either of a television broadcast or a radio programme. This is one step removed from that kind of situation. 4 It is contended for the plaintiff that a transcript of the kind tendered is admissible under the Evidence Act (see s 48) and that my discretion should be exercised in favour of it being placed before the jury. One cannot lose sight of the fact that the publication which Mr Purcell sues is made up of words spoken of which it happens there is a video tape record. In a sense, that video tape record, Exhibit A, could be viewed in the same way as a transcript of a radio programme taped or television programme video taped. But it is in its form a transcript of a piece of evidence that is some evidence itself, and indeed, I presume will be the only evidence of what someone said, which is different to a transcript of a video tape or an audio tape, which is evidence of what the broadcast was. One would think, as a matter of good sense and efficiency, there will hardly be an argument about the availability of a transcript. 5 Each case, particularly what I will call a media case, might depend upon its own circumstances in terms of convenience being weighed against prejudice. But as I said this is not such a case. This is a case where the jury has a an advantage of a video of people speaking, and that will be available to them as evidence of what those people said, how they said it, to enable the jury to project the ordinary reasonable listener when they come to answer the questions. In my decision in the Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 87 and in Goldsworthy v Radio 2UE Sydney Pty Limited [1999] NSWSC 90 (Dunford J), both for different reasons as I understand it, the transcript was excluded (see also Vacik Distributors Pty Limited v ABC & Anor (Sperling J, unreported, 14 November 1999) and Buck v Jones & Ors (Barr J, unreported, 15 June 2000). But a component of the respective decisions was that it must be borne in mind that the jury members do not decide what they think the programme meant. The jury decides, after addresses and instruction, what the ordinary reasonable person present would have understood the words spoken to have meant. 6 There is a real danger, in my view, of the jury being distracted from that path by the use of transcript of a piece of evidence which happens to exist and recorded spoken words, the spoken words themselves in the circumstances attending them, being the foundation for the action. 7 I make the following further observations. No executive summary is in evidence, and I do not anticipate it will be. The jury will determine from the demeanour, and words, and tones, and affect and things like that that by the words spoken whether, the imputation is conveyed. 8 The test is not what the ordinary reasonable professional journalist would have understood, the test is and always remains the ordinary reasonable listener. To my mind, unless I am otherwise persuaded, the fact there were experienced journalists taking notes for re-publication and the fact of re-publication is irrelevant. 9 Next, I would observe that it is not safe to say, with respect, that if there were a trial by judge alone it necessarily follows that the judge would have the benefit of a transcript by reason of the matter of principle to which I have referred. The judge is to project the ordinary reasonable listener or reader just as the jury does. 10 Next, the parties will, no doubt, refer to segments of that piece of evidence that exists as to what was said, namely, the video tape, and are free to do so as has been pointed out. The jury's task in that regard can be made much easier by their attention being drawn to say the point recorded at 18 minutes .27 and 25 minutes .25 when they view the evidence of what was said. 11 There is a real risk in this case, which is one step removed from the normal kind of case involving video evidence, that the jury will be distracted, to the prejudice of both parties, and thus the administration of justice by the temptation unduly to concentrate on a written record when there happens to be video evidence of the spoken words, which founds the essence of the plaintiff's claim. 12 The document handed up to me as Schedule A will be marked for identification 2. I decline to provide it to the jury. ********** Last Modified: 10/22/2001 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.