New South Wales Court of Appeal CITATION: Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 HEARING DATE(S): 26 July 2006 JUDGMENT DATE: 2 August 2006 JUDGMENT OF: Handley JA at 1; Santow JA at 2; McColl JA at 3 DECISION: 1. Appeal allowed; 2. Set aside the verdicts for the respondent; 3. Order that the appellant's claim in relation to imputations 1(a) - (c), 2(a) - (c) and 3(a) - (c) and 3(f), (g) and (h) be remitted for determination by a jury in accordance with s 7A of the Defamation Act 1974; 4. Respondent to pay the appellant's costs of the appeal; 5. Set aside the costs order made by the trial judge. CATCHWORDS: DEFAMATION - 7A(3) Defamation Act 1974 - whether jury's determination only one of fifteen imputations of which the appellant complained was conveyed was one no reasonable jury could reach - HELD - jury's determination that imputations 1(a) - (c), 2(a) - (c), 3(a) - (c) and 3(f), (g) and (h) were not conveyed were decisions no reasonable jury could reach.(D) LEGISLATION CITED: Defamation Act 1974 Supreme Court Rules 1970 Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 Australian Broadcasting Corporation v Reading [2004] NSWCA 411 Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 Burrows v Knightly (1987) 10 NSWLR 651 CASES CITED: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 Lewis v Daily Telegraph Ltd [1964] AC 234 Ramrahka v Chaundry [2006] NSWCA 42 PARTIES: Peter Mahommed - Appellant Channel Seven Sydney Pty Ltd - Respondent FILE NUMBER(S): CA 40852/05 COUNSEL: C Evatt, M Rollinson - Appellant K Smark - Respondent SOLICITORS: Michael Corrigan Lawyers - Appellant Malleson Stephen Jaques - Respondent LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): CL 20064/05 LOWER COURT JUDICIAL OFFICER: Nicholas J LOWER COURT DATE OF DECISION: 6 October 2005 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40852/05 CL 20064/05 HANDLEY JA SANTOW JA McCOLL JA Wednesday 2 August 2006 Peter Mahommed v Channel Seven Sydney Pty Ltd Judgment 1 HANDLEY JA: I agree with McColl JA. 2 SANTOW JA: I agree with McColl JA 3 McCOLL JA: Over the period 22 – 29 June 2004 Channel Seven Sydney Pty Ltd, the respondent, telecast material concerning Peter Mahommed, the appellant, on its "Today Tonight" show. The appellant brought proceedings claiming that each broadcast conveyed imputations which were defamatory of him. At a jury trial, over which Nicholas J presided, to determine whether the imputations of which the appellant complained were carried by the broadcasts (s 7A(3), Defamation Act 1974) the jury found that only one of 15 imputations relied upon by the appellant was carried and was defamatory of him. 4 The appellant appeals from the jury's decision that none of the other imputations were conveyed. Statement of the Case 5 The appellant is a mortgage broker and financial adviser. 6 He alleged that: (a) on 28 June 2004 the respondent telecast certain promotional material concerning him for the "Today Tonight" programme (the "first matter complained of"). The transcript of the first matter complained of is set out in Schedule A. (b) on 28 June 2004, and on other days from 22 to 29 June 2004, the defendant telecast promotional material concerning him for the "Today Tonight" programme (the "second matter complained of"). The second matter complained of is set out in Schedule B. (c) on 29 June 2004 the defendant telecast further material concerning him on the "Today Tonight" programme ("the third matter complained of"). The third matter complained of is set out in Schedule C. C1 identifies the material broadcast at the commencement of the programme. C2 identifies the principal broadcast, transmitted after another story. The paragraph numbers used in the Schedules were those used by the pleader for convenience of reference in the transcripts of the broadcasts. 7 The appellant alleged that all three matters complained of were broadcast for general reception in New South Wales and all other States, the Australian Capital Territory and the Northern Territory. The appellant also alleged that the third matter complained of was telecast on Sky News on 29 June 2004. The pleader pleaded the appellant's case separately as to each of those States and Territories and on Sky News, relying on the same imputations for all publications. 8 Neither the first or second matter complained of identified the appellant by name. The respondent's solicitors confirmed prior to the s 7A hearing that identification of him in those broadcasts was not in issue. 9 The appellant alleged the broadcasts carried the imputations set out below, or imputations not substantially different therefrom. For convenience, I have numbered the groups of imputations 1, 2, 3 to accord with the matter complained of to which they relate; those numbers do not reflect the paragraphs in the Further Amended Statement of Claim: The first matter complained of: 1(a) the Plaintiff ripped off a million dollars from a dementia patient; 1(b) the Plaintiff kept stealing money from a dementia patient; 1(c) because of his dealings with a dementia patient the Plaintiff deserved to spend a lot of time in gaol. The second matter complained of 2(a) the Plaintiff is a thief; 2(b) the Plaintiff ripped off one million dollars from a dementia patient; 2(c) the Plaintiff took advantage of a dementia patient and took everything she had. The third matter complained of 3(a) the Plaintiff ripped off $1 million dollars from a dementia patient; 3(b) the Plaintiff took advantage of a dementia patient and took everything she had; 3(c) the Plaintiff swindled Doreen Smith out of everything she owns; 3(d) the Plaintiff took advantage of Doreen Smith by setting up some dubious mortgages because he knew she suffered from dementia and was not capable of making business decisions; 3(e) the Plaintiff is a dishonest financial adviser and mortgage broker; 3(f) the Plaintiff gave such bad financial advice to Doreen Smith she lost all her properties; 3(g) the Plaintiff stole large sums of money from Doreen Smith by transferring the monies from her bank account to his own personal account; 3(h) the Plaintiff is a thief; 3(i) the Plaintiff lied when he denied to the Channel Seven reporter that he did anything wrong in connection with Doreen Smith. The jury found that only the underlined imputation, 3(e), was carried and was defamatory of the appellant. 10 On 6 October 2005 his Honour entered a verdict for the respondent in respect of all but imputation 3(e). He ordered the appellant to pay the respondent's costs in respect of the two promotional programmes on the basis that they were separate claims in which the respondent had obtained a verdict. Submissions 11 Mr C Evatt, who appeared for the appellant, both at trial and on appeal, made two essential submissions. The first was that the jury's determination that none but one of the imputations was conveyed, was unreasonable and ought be set aside. Early in the oral argument he informed the Court that he did not press the appeal in respect of imputation 3(i). Secondly, he submitted the jury might have been distracted in considering the questions by impermissible references in counsel for the respondent's address to the jury principally on issues of identification and truth. Mr Evatt faced difficulty in raising the second argument as, in my view and despite a faint suggestion by Mr Evatt to the contrary, neither he or his junior raised any objection to these matters at the trial. 12 As to the first point, he pointed out that imputations 1(a), 3(b) and 3(c) were virtually the exact words used in the respective matter complained of, while imputation 1(c) was partly based on the exact words and partly inference, while imputation 3(a) was based on inference. 13 Mr K Smark, who appeared for the respondent both at trial and on appeal, submitted that Mr Evatt's second point invited the Court to analyse the parties' addresses to the jury, an exercise in which the Court ought not generally engage, relying on Ramrahka v Chaudry [2006] NSWCA 42; cf Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107. 14 As to the first point, Mr Smark submitted that whether an imputation used the words of the matter complained of was not determinative of whether, in the context, the imputation was conveyed. Rather, he contended, referring to Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [126] – [129], use of the exact words may obscure, rather than distil, any sting. 15 Mr Smark submitted that the jury's verdicts on the first and second matters complained of were reasonably explicable on the basis that they could have regarded each of those broadcasts as in the nature of a promotion or trailer in respect of which the ordinary reasonable viewer would not rush to judgment or, to put it another way, would suspend judgment about the appellant until seeing the actual programme. As to the third matter complained of, he pointed out that it was open to the jury to conclude that each of the imputations the appellant pressed was more specific than imputation 3(e) which the jury found was conveyed. He contended it would have been a reasonable conclusion on the jury's part having regard to the detail of the other imputations that the pleader had pitched his case too high and that the ordinary reasonable viewer would not have understood the third matter complained of in that sense. Consideration 16 It is unnecessary to deal with Mr Evatt's second argument as the case can be determined by considering whether the jury's verdict was one no reasonable jury could reach. 17 A jury's finding that imputations were not conveyed can only be successfully challenged on appeal if it was one no reasonable jury could reach: John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 (at [185]) per Callinan J (with whom Gleeson CJ and Heydon J agreed); Australian Broadcasting Corporation v Reading [2004] NSWCA 411 at [120] (Ipp JA); [165] (McColl JA); Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [51] per Hunt AJA (Santow JA agreeing). 18 In Rivkin (where the jury had rejected all imputations, a decision held to have been perverse by this Court) Gleeson CJ observed (at [2]) that where an appellate court is asked to consider this issue "[i]t is not uncommon, and not inappropriate, for judicial reference to such an issue to be accompanied by admonitions intended to remind appellate courts of a need for restraint." The need for such restraint has been frequently referred to in this Court in the context of challenges to the outcome of s 7A(3) hearings: see, for example, Australian Broadcasting Corporation v Reading at [143] – [165] (McColl JA); Harvey v John Fairfax Publications Pty Ltd at [29] – [30] (Basten JA). 19 Gleeson CJ added (at [3]) that "[c]omments about the difficulty of challenging a jury's decision are often made in a context in which the jury has returned a single inscrutable verdict" and observed that such was not the case where the jury gave answers to a number of questions which, as in this case, was divided into two parts asking, in respect of each imputation upon which the appellant relied, whether the matter published by the appellant of the respondent conveyed that imputation and, if so, whether the imputation was defamatory of him. 20 Dealing with one imputation, the "associate" imputation, Gleeson CJ (at [4] – [5]) observed that "the jury's answer … present[ed] a challenge even to the most adroit rationalisation", and that "[t]he negative answer to the question whether the matter published conveyed that imputation is, to use a familiar simile, like the thirteenth stroke of a clock: not only wrong in itself; but such as to cast doubt on everything that went before." He then said: "[6] While the same test is to be applied to each answer - whether it was an answer that no reasonable jury properly directed could have given - restraint on the part of an appellate court is likely to wane when one of the answers is of that quality. When an appellate court is reviewing a trial judge's findings of fact, it may conclude that a particular finding is so glaringly improbable that the level of scrutiny to which all the findings are to be subjected should be intensified. Put another way, the benefit of a doubt that might be given to a trial judge's findings in one context might be forfeited in another. The same may happen if, because a jury has answered a number of questions, there is a better than usual opportunity to assess its form. [7] It does not follow, however, that it is unnecessary to deal with the appellate challenge, on its merits, in the case of each individual answer…." 21 Speaking of the "associate" imputation, Kirby J said (at [146]) that "[i]n the setting, any innocent reading of the accusations stated or hinted in the case of Mr Rivkin would border on the starry-eyed". Although he accepted that "[r]ead in isolation, as words only, clever verbal hypotheses might be raised to excuse or explain the jury's answer on this imputation", he added: "[147] Nothing in the function of the Court of Appeal, performing its statutory duty, required that Court to take such an unrealistic approach. Performing a proper appellate reconsideration of the jury's answer in this respect did not require the Court of Appeal to clutch at the straws of unrealistic hypotheses that put a uniformly innocent gloss on an imputation that, in the context, partook of what the matter complained of itself described as a 'most sinister' matter. The Court of Appeal did not err in concluding that, in this respect, the jury's verdict was appealably unreasonable." 22 Even McHugh J, who held that the Court of Appeal had erred in all respects in which it had set aside the jury's verdict, said of the "associate" imputation: "[62] Of all the imputations asserted by Mr Rivkin, the imputation that he 'is a close associate of criminals' had the strongest basis in what was published. The article reported Wood as saying: '[Rivkin] used to hang out with a whole stack of people at the cafe which, I am sure, you probably discovered has a reputation for being a hangout for ex-drug dealers ... Joe's Cafe ... Some of Rene's closest cronies are ... have certain criminal backgrounds or are rumoured to have it.' [63] There is little doubt that, if an imputation had been pleaded that closely followed the text of the above quotation, no jury could reasonably reject either it or its defamatory content ." (emphasis added) 23 The test of how the jury should approach the exercise of determining how the ordinary reasonable reader would understand a matter complained of was restated in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716, where Gleeson CJ, McHugh, Gummow and Heydon JJ said, relevantly (footnotes omitted): "[10] In determining what reasonable persons could understand the words complained of to mean, the Court must keep in mind the statement of Lord Reid in Lewis v Daily Telegraph Ltd : 'The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.' [11] Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd , that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges … [17] … Ultimately, the question is what a jury could properly make of it. In Lewis v Daily Telegraph Ltd , Lord Reid said: 'Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question.' " (emphasis added) 24 It is trite that the mode or manner of publication is relevant to the question whether the relevant publication would be understood to have conveyed the pleaded imputations. Whether, and what, imputation is conveyed by a publication is essentially a matter of impression. The more sensational a book, for example, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care it may otherwise have been given and the less the degree of accuracy which would be expected by the reader: Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 165 per Hunt CJ at CL (with whom Mason P and Handley JA agreed). 25 These propositions have particular significance in the case of electronic broadcasts as Hunt CJ at CL (with whom Mason P and Handley JA agreed) explained in Amalgamated Television Services v Marsden (at 165 –166), in a passage upon which Mr Smark relied: "All of these considerations, and more, apply to matter published in a transient form - and particularly in the electronic media. Whereas the reader of the written document has the opportunity to consider or to re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity: Gorton v Australian Broadcasting Corporation (1973) 1 ACTR 6 at 11; Brown v Australian Broadcasting Corporation (Hunt J, 4 May 1987, unreported) at 11. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant programme, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the programme as would otherwise have been given to the written article, ( Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) at 420) and may have missed the significance of the existence, earlier in the programme, of a qualification of a statement made later in the published material." 26 It is also the case, as Callinan J observed in Rivkin (at [187]) that while each publication has to be considered as a whole: "… that does not mean that matters that have been emphasized should be treated as if they have only the same impact or significance as matters which are treated differently. A headline, for example, expressed pithily and necessarily incompletely, but designed to catch the eye and give the reader a predisposition about what follows may well assume more importance than the latter ... True it may be that readers may take an article or articles on impression, but the fact that they may do so is likely to have the consequence that ideas and meanings conveyed by graphic language will create the strongest impressions. Of course publishers are entitled to use colourful and seductive language, but in using it they may run the risk of seducing readers into believing only what is colourful and on occasions scandalous, rather than the facts conveyed by straight reportage." 27 Before turning to the individual imputation, and bearing in mind that the three matters complained of must be considered severally (the appellant did not plead all three matters complained of on the basis they were related: cf Burrows v Knightley (1987) 10 NSWLR 651), it is nevertheless relevant to note that each of the matters complained of was presented in a sensational manner. I have set out the words used in the matters complained of in the schedules, as well as identifying some graphics included in the second and third matters complained of. It should also be noted that on each occasion the word "Stolen" was uttered in the second matter complained of, its appearance on the screen in capitalised red letters was accompanied by a loud thump suggesting it was being stamped on the picture. A similar sound effect was used at the same stage of the third matter complained of. The combination of the graphics and the sound effects gave the matters complained of a particularly dramatic effect which would, in my view, have made a strong impression on the viewer. 28 Further, each matter complained of made dogmatic statements about the appellant's conduct. In the case of the first matter complained of, the subject of the programme was identified as "a million dollar dementia patient rip-off" with the patient's "conditions [meaning] that she kept forgetting so her mortgage broker kept stealing her money." The same propositions introduced the second matter complained of, which also included the clarion call "Stolen, Stolen, Stolen", accompanied by the graphics and sound effect I have mentioned. The third matter complained of was introduced by a combination of the two introductions to the first and second matters complained of. These dogmatic statements, in my view, would have firmly implanted in the ordinary reasonable viewer's mind the proposition that it was the appellant who had ripped-off one million dollars from the dementia patient and repeated that conduct, taking advantage of her condition or stolen her properties. This proposition is particularly significant when considering the respondent's submissions concerning the sense in which the jury would have considered the ordinary reasonable viewer would most probably have interpreted the third matter complained of. 29 Turning to the first and second matters complained of, in my view, to adopt Gleeson CJ's statement in Rivkin, the jury's rejection of these imputations presents a challenge to the most adroit rationalisation. As Callinan J said (Rivkin at [176]), "the clarity and defamatory thrust of the actual matter itself need[ed] no elaboration" in the pleaded imputations, and was not given any. This was not a case where use of the exact words of the broadcasts led to any obscurity. Mr Smark's promotional broadcast submission suggests a viewer living in the ivory tower it has long been accepted the ordinary reasonable viewer (or reader) does not occupy: (Lewis v Daily Telegraph Ltd [1964] AC 234) or one with a starry-eyed disposition (Rivkin, [146]). 30 Imputation 1(a) repeated the second phrase in the first sentence of that broadcast almost verbatim (albeit with some transposition which did not alter the sense) adding only what clearly emerged from paragraph 4, that it was the appellant who was guilty of the rip-off. Imputation 1(b) picked up, again almost verbatim, the second phrase in the second sentence of paragraph one. Imputation 1(c) clearly emerged from Mr Smith's observation (paragraph 8) about what he would like to see happen to the appellant having regard to his conduct in relation to Mrs Smith. 31 As to the second matter complained of, introduced by the emphatic and dramatic words, "Stolen, Stolen, Stolen", the proposition that it was reasonable for the jury to find that the imputation that the appellant was a thief was not conveyed was like "the thirteenth stroke of a clock" (Rivkin [5]) and cast doubt on what had gone before as well as what was to follow. The same observation can be made about the jury's response to imputation 2(b) which, again (subject to a slight transposition) repeated the words used in the second matter complained of. Imputation 2(c) clearly emerged from the second sentence in paragraph one which clearly connected the appellant taking "everything she had" to the proposition that the dementia patient who "kept forgetting" was the subject of this conduct. 32 It was unreasonable for the jury to find the imputations pleaded in respect of the first or second matters complained of were not conveyed. 33 The conclusion that the jury's answers to the imputations pleaded in respect of the first and second matters complained of were, in effect, manifestly unreasonable gives no confidence about the manner in which it approached its task (cf Rivkin at [6] – [7]). However it did find one imputation was conveyed in relation to the third matter complained of; further, Mr Evatt abandoned another rejected imputation and, as shall be apparent, in my view, the jury reasonably rejected another. Notwithstanding some misgivings, I will review the jury's answers in respect of the third matter complained of on the basis it sought properly to discharge its task and with the cautious approach authority dictates. 34 Mr Smark submitted that the third matter complained of fell into a different category to the first two. It was longer and contained more qualifying material. He drew attention to fact that (in paragraph 36) the third broadcast said that while two of Mrs Smith's properties had been sold to repay Liberty Financial, she retained her home albeit "by the skin of her teeth". Accordingly, he contended, it was reasonable for the jury to reject any of the imputations pleaded in relation to that broadcast (being 3(b), 3(c) and 3(f)) which suggested she had lost everything. 35 In my view that submission should be rejected. The proposition that the appellant had taken everything from Mrs Smith and that she had lost all her properties was stated in the introductory segment (C1) which graphically depicted three houses (presumably intended to represent the three properties she owned) as having been stolen. It was repeated in the main programme (C2) in paragraphs (1) and (6). The proposition that she managed to hang onto her home emerged only towards the end of the programme after, in my view, the ordinary reasonable viewer would have had well-entrenched in his or her mind the impression conveyed by the introductory words, graphics and sound effects. Unlike Marsden, this was a case where the initial impact of the programme opener and the early portions of the broadcast would have made the greatest impact on the viewer. 36 Imputation 3(a) was in substantially the same terms as the words used in the programme opener (C1), while 3(b) came almost in terms from paragraph one of C2. Imputation 3(c) was taken directly from paragraph one of C2, albeit that the word "forgetful" was omitted. Imputation 3(h) was clearly conveyed by the same words which supported the conclusion that imputation 2(a) was conveyed. The jury's decision that these imputations were not conveyed was not one a jury could reasonably have reached. 37 Imputation 3(d) is more problematic. There is no doubt that paragraph one of C2 says the appellant "seized upon" Mrs Smith's dementia "to swindle a forgetful Doreen out of everything she owns". However the pleader, no doubt concerned to identify an imputation which differed in substance from 3(b) (former Supreme Court Rules, Pt 67, r 11(3)), embellished the imputation with the proposition that the appellant knew Mrs Smith "was not capable of making business decisions." The respondent's argument against this imputation before the jury, and repeated in this Court, was that it was unrealistic to conclude that the ordinary reasonable viewer would have understood the appellant was aware of the extent to which Mrs Smith's illness affected her decision making capacity. That was, in my view, a reasonable argument the jury was entitled to accept. It could reasonably conclude that imputation 3(d) was not conveyed. 38 As to imputation 3(f), it should be noted that Mr Smark conceded in his address to the jury that the "notion of bad financial advice … is plainly there", but (in a submission which suggested he was clutching at straws) argued the programme did not convey that as a consequence of that advice, Mrs Smith lost all her properties. That was the extent of his argument before this Court as well. In my view it should be rejected. The overwhelming force of the opening segment of the programme clearly imprinted on the viewer's consciousness that the consequence of the appellant's bad financial advice was that Mrs Smith had lost all her properties. It was unreasonable for the jury to find imputation 3(f) was not conveyed. 39 As to imputation 3(g), the programme made it clear from the outset that the appellant was a thief, that he had ripped $1 million off Mrs Smith and had transferred money from her account to his own in suspicious circumstances and that no one knew where all the "cash" Mrs Smith had borrowed on the security of her properties had gone. It was unreasonable for the jury to find that imputation 3(g) was not conveyed. 40 The appeal should be allowed. Mr Evatt accepted that the matter should be remitted for a further s 7A hearing only to the extent he succeeded in challenging the jury's verdict: see Rivkin at [213]. 41 As to costs, the appellant has succeeded on all but one imputation and, in my view, should have his costs of the appeal. 42 I propose the following orders: 1. Appeal allowed. 2. Set aside the verdicts for the respondent. 3. Order that the appellant's claim in relation to imputations 1(a) - (c), 2(a) - (c) and 3(a) - (c) and 3(f), (g) and (h) be remitted for determination by a jury in accordance with s 7A of the Defamation Act 1974. 4. Respondent to pay the appellant's costs of the appeal. 5. Set aside the costs order made by the trial judge. ********************* Schedule A 2. Filmed images of Naomi Robson, the Plaintiff, David Richardson, Doreen Smith and Tony Smith. 2. Words:- 1. Naomi Robson: "Now to tomorrow night and a million dollar dementia patient rip-off. Her condition meant that she kept forgetting so her Mortgage broker kept stealing her money." 2. David Richardson: "She has dementia mate, she can't work." 3. Doreen Smith: "I'm just a nervous wreck, I can't sleep." 4. Tony Smith: "He has robbed her blind." 5. David Richardson: "Where's her money?" 6. Peter Mahommed: "What money?" 7. David Richardson: "Where's her money?" 8. Tony Smith: "I would like to see him spend a lot of time in jail." 9. David Richardson: "Nice car – did she pay for that?" [The plaintiff was shown driving away in a car] 10. Naomi Robson: "And I'll have that story for you tomorrow night and so until then I hope you have a good evening. Please take care and good night. *********** Schedule B 1. Filmed images of the Plaintiff, Doreen Smith and David Richardson. 2. Words:- 1. Voice Over: "Stolen, Stolen, Stolen! − The one million dollar dementia patient rip-off. She kept forgetting so this mortgage broker took everything she had." 2. "Where's her money?" [As the words "Stolen, Stolen, Stolen" were uttered, images of three different houses over each of which the word "STOLEN" in red capital letters was superimposed, were shown; then an image of a document with the words "$1 million taken" superimposed appeared; the word "EVERYTHING" again in red capitals was superimposed over an image of Mrs Smith.] ************* Schedule C 1. Visual images: Images of the Plaintiff, Naomi Robson, David Richardson, Doreen Smith, Trevor Smith, Tony Smith and Chris Field. Images of Doreen Smith's home and various properties. 2. See transcript: Transcript – Today Tonight C1 In Program Opener – 29 June 2004 Naomi Robson: This innocent mum was bashed senseless by eight police, so she fought for justice and won. But can you believe it, some of the police have been promoted and she's been left with a staggering $600,000 legal bill. Woman: I'm just absolutely disgusted at what's happened. Naomi Robson: Hello and welcome to Today Tonight, it's justice gone mad. Her story in a moment. Naomi Robson: Also tonight, stolen, stolen, stolen. Homes and money, it's the million dollar rip-off of a dementia patient. She kept forgetting so this mortgage broker took everything she had. [Again, as the words "Stolen, Stolen, Stolen" were uttered, images OF THREE DIFFERENT HOUSES OVER each of which the word "STOLEN" in red capital letters was superimposed, were shown] David Richardson: Nice car, did she pay for that? ………………………… C2 Transcript 1. Naomi Robson: Now to the story of a sick woman who may lose her home and could lose a lifetime of assets all because of her dealings with a mortgage broker. Doreen Smith suffers from dementia, an illness her mortgage broker seized upon, and he's been able to swindle a forgetful Doreen out of everything she owns. David Richardson investigates. [As these words were spoken, a shot of the plaintiff, Mrs Smith and the words "$1 million rip-off" appeared on the screen behind the presenter.] 2. Reporter: Peter Mahommed, David Richardson from Today Tonight . Can we ask some questions about some rather dubious mortgages you set up for Doreen Smith and her illiterate son, Tony. 3. Peter Mahommed: Oh, is that right? 4. Reporter: Yes. 5. Mahommed: Well, I think you've got all that wrong. 6. Reporter: Really? He calls himself a financial advisor and mortgage broker but Peter Mahommed's so-called advice has seen an elderly woman lose everything. Where's the money? she's lost all of her properties because of you, sir. 7. Mahommed: She hasn't. 8. Reporter: Yes, she has. 9. Doreen Smith: I don't know what I'm doing. That's where I live all day. Every day in my life other than the doctors I live there. 10. Reporter: And this is his victim, 77-year-old Doreen Smith, a pensioner suffering depression and dementia, now on the verge of losing the family home. 11. Doreen Smith: I didn't know what I was doing. I didn't know what I was doing. I was in another world. 12. Reporter: Doreen's problems began about 18 months ago. She needed some cash. She hunted through the local papers, stumbling across Peter Mahommed's ad in the shares and finance section. 13. Trevor Smith: She wanted to buy Christmas presents for people and had she come to me I would have gave her the money. 14. Reporter: But you didn't know. 15. Trevor Smith: I didn't know. I had no idea. 16. Reporter: What Doreen ended up doing was mortgaging her home, a house she owned outright. Peter Mahommed prepared the loan papers, initially for $50,000 which was upped to $90,000, his company Vestecorp sourcing the money from Liberty Financial. 17. Reporter: Did you know what you were signing? 18. Doreen Smith: I didn't look at any documents that Peter Mahommed gave me. I put them in the filing cabinet in the folder that he gave me. I read nothing other than signing my name. 19. Reporter: Mahommed listed Doreen as a sales manager for a company called Country Power Newspapers, earning $38,000 a year. 20. Trevor Smith: My mother is receiving in receipt of a war veteran's pension and is not a sales manager. 21. Reporter: Son, Trevor, should know. He registered the name Country Power Newspapers but it's never got off the ground. It was never an operating business. The address for the so-called company is a derelict office on the first floor of a shopping arcade and it wasn't just one loan. 22. Reporter: How much all up did she borrow? 23. Trevor Smith: Between $800,000 and $1.2 million. 24. Reporter: You're kidding. 25. Trevor Smith: No, I'm not kidding. I've seen the documentation in relation to this. 26. Reporter: The money loaned by Liberty Financial was paid into Doreen's account at her local St George Bank. Bank documents show Doreen drew out $10,000 for herself but other transactions are extremely suspicious. 27. Trevor Smith: The money come through from Liberty, whether it's $80,000 or $100,000 or $150,000, three minutes later he had money transferred to his own personal account. 28. Reporter: Bank documents show large sums of money being transferred directly to Mahommed's account. He says they were for outstanding fees. Did Peter Mahommed tell you not to tell Trevor? 29. Doreen Smith: Told me not to tell anybody. 30. Reporter: Remember, Doreen has a mental illness. Her doctor of 20 years told us she's not capable of making business decisions. Nor is her other son, a housebound schizophrenic who was also signed up by Peter Mahommed for a business loan. 31. Trevor Smith: He's illiterate. He can't read or write. 32. Reporter: Again the money was provided by Liberty Financial. No one in this story seems to know where all the cash has gone. Liberty Financial headquarters here in Melbourne wouldn't comment on camera about Doreen's case but the company did say it was satisfied with the checks it had run on Doreen before lending her any money at all. The company claims it has bank documents proving Doreen was earning a whopping $185,000 a year but that makes you wonder, if she was earning that much, why she needed a loan at all. 33. Chris Field: Of all the cases that I've seen involving mortgage brokers and moneylenders, this strikes me as one of the absolute worst. 34. Reporter: Lawyer and executive director of the Consumer Centre, Chris Field, agreed to examine Doreen's mortgage documents for Today Tonight . 35. Field: They've been introduced to a broker and a moneylender and they've gone from a position of comfort to potentially the poorhouse. 36. Reporter: Doreen Smith has now lost her two investment units, sold to repay Liberty Financial. She's hanging on to her home by the skin of her teeth, still owing $320,000. Peter Mahommed denies he did anything wrong. In fact, he claims Doreen is trying to con him and she doesn't have any mental disability at all. What about the withdrawals? Money goes into her account, $20,000 here, $25,000 to you. 37. Mahommed: You see, you need to check your facts. 38. Reporter: I have checked my facts. 39. Field: It's cases like this that show you just what can go wrong in the mortgage broking industry and one of the reasons why things can go wrong is because mortgage brokers aren't licensed and not effectively regulated and it's high time that occurred. 40. Robson: David Richardson reporting there and if you have a story for us, please go to our website." ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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