Channel Seven Sydney Pty Ltd v Mohammed [2008] NSWCA 21

Reported Decision: 70 NSWLR 669 Appeal Outcome: Special leave refused with costs by the High Court - 1 August 2008

New South Wales Court of Appeal

CITATION: Channel Seven Sydney Pty Ltd v Mohammed [2008] NSWCA 21

HEARING DATE(S): 12 February 2008

JUDGMENT DATE: 6 March 2008

JUDGMENT OF: Giles JA at 1; Campbell JA at 92; Mathews AJA at 99

DECISION: (1) Appeal allowed in part; (2) Set aside the costs orders made on 9 February 2007 and in lieu thereof order that the costs of the trial be reserved; appeal otherwise dismissed; (3) Appellant pay 80 per cent of the respondent's costs.

CATCHWORDS: Defamation - s 7A trial - determination that imputations were conveyed - summing-up - judge expressed views that were conveyed - including that it was his duty to tell jury they would be unreasonable if they found otherwise - refused application to discharge jury - whether excess in expression of views - danger of overawing jury - consideration of division of functions between judge and jury - was error and should have discharged jury - no new trial unless substantial wrong or miscarriage of justice - whether there was - court to decide for itself whether imputations conveyed - they were conveyed - although error, no new trial - immediate order for costs of s 7A trial - on basis trial was a waste of time - previous appellate holding that reasonable jury could not determine imputations were not conveyed - but was one new imputation and jury did determine some imputations not conveyed - not a waste of time - discretion miscarried - costs order set aside.

LEGISLATION CITED: Defamation Act 1974, s 7A

CATEGORY: Principal judgment

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50; B v The Queen (1992) 175 CLR 599; Balenzuela v De Gail (1959) 101 CLR 226; Bennette v Cohen [2005] NSWCA 341; (2005) 64 NSWLR 81; Broadhurst v The Queen (1964) AC 441; Charlwood Industries Pty Ltd v Brent [2000] NSWCA 201; Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21; Evans v The Queen [2007] HCA 59; Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675; Gorman v Barber [2004] NSWCA 402; (2004) 61 NSWLR 543; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255; Hoger v Ellas (1963) 80 WN 869; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77; Mastronardi v State of New South Wales [2007] NSWCA 54; Mohammed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213; CASES CITED: Monie v Commonwealth of Australia [2007] NSWCA 230; Nasr v State of New South Wales [2007] NSWCA 101; (2007) 170 A Crim R 78; Pavy v John Fairfax Publications Pty Ltd [2004] NSWCA 177; R v D (1997) 68 SASR 571; R v Heron [2000] NSWCCA 312; R v Lau and Nguyen [2002] VSCA 157; R v Machin (1996) SASR 526; R v RTB [2002] NSWCCA 104; R v Tikos (No 2) (1963) VR 306; R v Webb (1997) 68 SASR 545; R v Zorad (1990) 19 NSWLR 91; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620; Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219; Taleb v R [2006] NSWCCA 119; Tory v Megna [2007] NSWCA 13; Tsigos v The Queen (1965) 39 ALJR 76; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.