Bass v McDonald & TCN Channel Nine Pty Ltd (No.1) [2001] NSWSC 954

New South Wales Supreme Court

CITATION : Bass v McDonald & TCN Channel Nine Pty Ltd (No.1) [2001] NSWSC 954 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 16791/90 HEARING DATE(S) : 15 October 2001 JUDGMENT DATE : 15 October 2001

Robin Bass PARTIES : Thomas McDonald TCN Channel Nine Pty Ltd JUDGMENT OF : Sperling J at 1

COUNSEL : Mr T Molomby with Mr R Rasmussen for the Plaintiff Mr B McClintock SC with Mr M Richardson for the Second Defendant SOLICITORS : William Oates Lawyers for the Plaintiff Gilbert & Tobin Lawyers for the Second Defendant CATCHWORDS : Jury Trial - discharge of jury - counsel's opening DECISION : See paragraphs 9 and 10 of the judgment.

- 3 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Sperling J

Monday 15 October 2001

16791/90 Robin Bass v Thomas McDonald & TCN Channel Nine Pty Ltd

Judgment (No.1)

1 HIS HONOUR: At this stage of the proceedings, Mr Molomby, counsel for the plaintiff, has not completed his opening to the jury. At the morning tea adjournment, which provided a natural break in his address, Mr McClintock, counsel for the defendant, applied to me, in the absence of the jury, for an order discharging the jury, basing his argument upon an aspect of Mr Molomby's address. 2 The matter complained of is a television broadcast, a segment of which included a statement by the plaintiff to the effect that he was being victimised by union action and other statements to that effect. It also included statements by the state secretary of the union which, on the plaintiff's case, were disparaging of the plaintiff in relation to allegedly dishonourable industrial practises on his part. The material thus included assertions and counter assertions. 3 In the course of his opening, Mr Molomby gave examples which he said were remote from the present case and which factually were unlike the facts of the present case. 4 In the arguments of counsel, on the present application, Mr Molomby's position was that the purpose, point and effect of the examples was to impress on the jury that they should not speculate as to the truth of what was said because that could be unfair to one side or the other. Mr McClintock's position was that the examples were so framed as to suggest to the jury that the assertions by the union representative were untrue. 5 I need not recount or summarise the examples, which were given. It is sufficient for present purposes to observe that the treatment was lengthy and detailed. Assuming, for the purpose of the argument, that the jury appreciated that the point of the examples had something to do with the question of the truth or otherwise of the statements made in the programme, it seems to me that the examples, and the way in which they were given in terms of length and detail, gave rise to a serious risk of arousing or heightening speculation on that question rather than allaying it. Put another way, I think the part of the address to which I have referred may well have made the jury more curious rather than less about where the truth lay and more motivated rather than less to speculate about that. That is on the assumption that what to do about the question of the truth or otherwise of representations made in the programme would have been understood by the jury to be the point of the examples. 6 The examples were introduced by Mr Molomby with an observation to the effect that the jury should not speculate as to what was behind the statements that were made. I have probably not captured his words verbatim but that was more or less what was said. I do no know what the jury would have made of that. I am not at all sure that the jury would have understood the examples to have been directed to the point that they should not speculate about the truth of the representations in the programme. I think there is a serious possibility that the jury may have taken the examples to relate to some other aspect of the context in which the statements were made. I have a serious concern that the effect of what was said may have led the jury to speculate inappropriately about some such other aspect of the case to the prejudice of one side or the other. 7 I have no reason to believe, and I do not believe, that Mr Molomby put forward the examples to which I have referred, or incorporated what I have mentioned as a point in his address in order to obtain an unfair advantage, or even that, as he saw it, he was doing was sailing close to the wind. But it is necessary, is for me to form an independent and objective assessment of the possible effect of what was said on the jury. For that purpose it is unnecessary and irrelevant to consider further any question of intent, which seems to me not to arise at all. 8 I have considered whether, by Mr Molomby saying anything further in the continuation of his address, or by Mr McClintock being given leave at this stage to make an opening submission to the jury or having the opportunity of dealing with what has been said later in the proceedings, or whether anything I could now say to the jury would be effective to overcome what may be a prejudice that has arisen. I do not believe that there is any practical way of dealing with the present situation. As I have said, the relevant part of Mr Molomby's address was of some length and detail. To deal with it at all would involve descending into the detail, even to identify the passages and to remind the jury of the substance of them. To do that now would be to revive what may have been the untoward effect. If I might use a homely analogy - to tell someone not to think of the colour blue leads to the inevitable result that they will. To tell them at length not to do so leads to the inevitable result that they will continue to do so. 9 In these circumstances and having regard to the early stage, which the trial has reached, I propose to make an order discharging this jury in the hope that it may be possible to recommence the trial in the course of the day. 10 I reserve the question of costs of the trial that will now be discontinued.