New South Wales Supreme Court CITATION : Phelps v Nationwide News Pty Ltd & Anor [2003] NSWSC 1104 HEARING DATE(S) : 24 -25 November 2003 JUDGMENT DATE : 25 November 2003 JUDGMENT OF : Miles AJ DECISION : Application to discharge jury refused CATCHWORDS : application for discharge of jury - potential prejudice - issue of truth or falsity - reference to Macquarie Dictionary for purpose of definition of meaning - prohibited imputation Dr Kerryn Phelps - Plaintiff PARTIES : Nationwide News Pty Limited - First Defendant Piers Akerman - Second Defendant FILE NUMBER(S) : SC 20092/03 COUNSEL : P Gray SC with PM Sibtain - Plaintiff TD Blackburn SC with DR Sibtain - Defendants SOLICITORS : Diamond Peisah & Co - Plaintiff Blake Dawson Waldron - Defendants IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST MILES AJ Tuesday 25 November 2003 20092/03 Dr Kerryn PHELPS v NATIONWIDE NEWS PTY LTD & Anor JUDGMENT 1 HIS HONOUR: Mr Blackburn, senior counsel for the defendants, has applied for the discharge of the jury on the opening and closing addresses of Mr Gray, senior counsel for the plaintiff. A number of authorities were cited in relation to the principles to be applied in applications of this nature. It is not necessary for me to discuss them. The principles are clear. A discharge of a jury is a serious step in the administration of justice. It may be that at a later stage in the proceedings, in longer proceedings, the more serious a step it may be, so in that respect I acknowledge that this is a case which commenced yesterday in the afternoon and the application to discharge was foreshadowed at the close of business yesterday, when Mr Gray's closing address was not yet completed and still is not yet completed. 2 The principle, in general terms, is that if there is prejudice, actual or potential, to a party in a case that is being tried by a jury, then the jury has to be discharged and the case start again, but if that actual or potential injustice can be cured not necessarily absolutely but sufficiently for justice to be done by the trial judge giving appropriate directions to the jury, or indeed some other course or combination of courses adopted, then the discharge can be avoided. 3 There are a number of grounds on which Mr Blackburn's application is based, and they can be taken into consideration one by one, although the total effect of the matters that he raises must be taken into account even if any one matter is not sufficient to require the jury to be discharged. 4 The first matter of which complaint is made is that plaintiff's counsel informed the jury, during the course of his opening address, that the plaintiff was a frequent commentator on the media, and still contributes to the Women's Weekly as a commentator. She was, of course, at all times, the President of the Australian Medical Association and a qualified medical practitioner and on page 5 of the transcript, Mr Gray is recorded as saying: "So in all of these positions, and in particular as President of the AMA, and you may or may not remember this, from your own experience, she was often the subject of publicity in the media and she would be asked to comment on issues relating to doctors and public health and so on on television or radio or in newspapers and articles and stories were published about her." 5 Mr Gray went on to mention the defendant Nationwide News, the publisher of the Sunday Telegraph, and Mr Piers Akerman, the second defendant, whom he described as a journalist, and said that he wrote a column: " ... which you will see shortly which has his full name and his photo at the top, so he is a fairly well-known journalist in Sydney". 6 I accept the submission that what Mr Gray said goes outside context of what the jury can read for themselves in the matter complained of, which I will call the article, and it is irrelevant because the truth or falsity of such matters is irrelevant. The background matters are irrelevant for the purposes of the proceedings at this stage. 7 It may be permissible as background of which the jury is aware but, on the other hand, the jury can be told to ignore what counsel has said in that regard. Indeed, the same applies to the reference made to Mr Piers Akerman. The jury may not know at all what counsel suggested they do know, but the complaint is that the jury are being invited to consider that the plaintiff's professed opinion about anthrax vaccination was given in the context of someone whose views are frequently sought out and publicly cited and, to that extent of course, it is irrelevant. I accept that it may be of some prejudice to the defendants. 8 That potential prejudice, however, is very slight, in my view, and may be cured by the jury being told of the irrelevance of these matters and also that anything said by counsel in addresses is not evidence and, indeed, the only evidence that they have before them is the matter complained of. I note that as far as this particular ground is concerned it was not made at the close of counsel's opening address where what Mr Gray said occurred. 9 The next complaint is the use, by Mr Gray, of the word "suppose" or "supposedly" during the course of his address. I give one example only from page 22 where he said: "We would suggest to you that the ordinary reasonable reader would have no trouble in understanding that it's Dr Phelps who is supposed to be trumping up these concerns." 10 The complaint here is that the use of the word "supposed" raises in the jury's mind the issue of truth or falsity again, and suggests that the representations about Dr Phelps are untrue. 11 Whilst that did not occur to me during the plaintiff's counsel's addresses, I think on reflection and on examination of the transcript, indeed as closely as the matter complained of, that it is possible that counsel's use of the words "suppose" or "supposed" may conjure up an hypothesis which is untrue. Again, however, the issue of truth of course is irrelevant and the jury will be told so. The potential prejudice to the defendants is slight and it is enough, in my view, to again instruct the jury that any suggestion by counsel is, on this issue as to the truth or falsity, if the jury thought there was such a suggestion, is something they should cast from their minds. 12 The next ground for discharging the jury is reference to the Macquarie Dictionary for the purpose of a definition of the words "trumped up". It is common ground that dictionary meanings are not receivable in evidence and, indeed, Mr Gray concedes that reference to the Macquarie Dictionary should not have been made and the reason is accepted that the jury may think that it gives an authority, or imprimatur to a particular meaning when the matter of meaning is entirely something within the province of the jury. 13 Whilst I cannot imagine that any prejudice could flow to the defendants in this regard, I propose to instruct them that they should ignore any reference to the Macquarie Dictionary. 14 The remaining complaint is that plaintiff's counsel told the jury that the expression "medicos' barrel-girl" was presumably intended to suggest that Dr Phelps was just silly, or dumb, a dumb blonde. Counsel went on to say: "Sorry to say that in the present company but this is presumably the idea running through the expression "dumb barrel-girl". 15 I think I said during the course of argument that the term "medicos' barrel-girl" had not been used in the article. In fact, it had, but I did mean to say that I thought the term "dumb barrel-girl" had not been used in the article and I adhere to that view. 16 The thrust of the complaint here is that Justice Levine had already entered judgment for the defendants on an imputation previously pleaded in the statement of claim before it was amended in accordance with his Honour's decision. That imputation was: "The plaintiff is a trivial bimbo - like a television quiz show barrel-girl." 17 Of that his Honour said only that it stretches the concept of reasonableness beyond acceptable limits. There was, however, no reference in that previous pleaded imputation to a dumb blonde, or a blonde, or even to anybody being dumb or silly. I do not think that the words used by plaintiff's counsel trespass into the area of any prohibited imputation, so-called. 18 However, more importantly, it appears that the point Mr Gray was making at this part of his address was that the plaintiff is not relying on any suggestion that the plaintiff is simply ignorant or silly. This is a somewhat subtle point which I must confess escaped me at the time it was first made, and it will need to be made again to the jury in directions. 19 For all those reasons the application to discharge the jury is refused. ********** Last Modified: 12/09/2003 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. 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