Channel Seven Sydney Pty Ltd v Mahommed

[2008] HCATrans 270

[2008] HCATrans 270

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S154 of 2008

B e t w e e n -

CHANNEL SEVEN SYDNEY PTY LIMITED

Applicant

and

PETER MAHOMMED

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 AUGUST 2008, AT 11.11 AM

Copyright in the High Court of Australia

MR K.P. SMARK, SC:   If the Court pleases, I appear with my learned friend, MR D.R. SIBTAIN, of behalf of the applicant.  (instructed by Mallesons Stephen Jaques)

MR C.A. EVATT:   May it please the Court, I appear with MR M.K. ROLLINSON for the respondent.  (instructed by Michael Corrigan)

GUMMOW J:   Yes, Mr Smark?

MR SMARK:   Thank you, your Honours.

KIRBY J:   When did that provision first come into the rules about establishing an error in a jury trial but not necessarily getting another jury trial?  I think that has really been there almost as long as there have been statutory appeals, has it not?

MR SMARK:   Yes, 1873 or 1874.

KIRBY J:   Yes, or when the Court of Appeal in England was established, I think that ‑ ‑ ‑

MR SMARK:   It was part of the rules that came in, as your Honour says, as part of the ‑ ‑ ‑

GUMMOW J:   Part of the rules for the judicature, is it not?

MR SMARK:   Yes.  It is rule  48.  It is set out in Weiss’ Case.

GUMMOW J:   What was the reason for that rule?  I ask against your submission.

MR SMARK:   The reason for it was because without it, that is without that limit, any error would lead to fresh trials, or to the extent that there was not – it would lead to first jury trial or indeed a fresh trial before a judge alone and that would ‑ ‑ ‑

KIRBY J:  It must have been mildly shocking in England at the time because it meant that judges were supervening their opinions for the opinions of juries and a jury trial had, including in civil matters, a certain sacredness and yet that is what was provided in the rules in England and it was copied when we set up courts of appeal in Australia and it is now expressed in the new Uniform Civil Procedure Rules.

MR SMARK:   Yes, in its common form throughout Australia and the common law world as far our research ‑ ‑ ‑

KIRBY J:   It is there, I suppose, in order to keep the eye of the appellate court on the main chance, on the game, that is to say, okay, there has been a mistake, we have identified the mistake so that we hope that will not happen again, but we then have our own responsibility to look at whether or not there has been a miscarriage and we say there is not.  What was wrong with that conclusion in this case?  That is the bottom line in this case, is it not?

MR SMARK:   Yes, that is right, with respect.  I mean courts are there not to carry out academic exercises, they are there to decide cases.

KIRBY J:   That notwithstanding your prima facie entitlement have a lawful jury trial before a jury which is still, at least as far as I am concerned, and important right.

MR SMARK:   It is important, but as this Court pointed out in Weiss’ Case, and it was not necessarily a novel idea, that is the right subject in appellant intervention.  Yes, of course.

KIRBY J:   Yes, well, we have set the setting now.  Now we have to get into the bowels of the jungle.

MR SMARK:   Yes.  Paragraph 71 of the Court of Appeal’s judgment, application book 107 and also, of course, the rule itself because all this is a statutory construction exercise.

KIRBY J:   I can see that.  It is interesting that that expression of the principle made by the Court of Appeal is precisely what was the source of the argument in the earlier criminal appeal which we have heard.  At least in this case that court has said, “We do not seek to predict what a jury or hypothetical jury would have done.  This court must determine for itself whether the imputations were conveyed and defamatory”.  Do you accept that that is correct as matter of law?

MR SMARK:   We accept that to the extent that they were to decide to go into the question of outcome.  It was their determination, not the jury’s determination that mattered, absolutely.

KIRBY J:   Had that been said in the Court of Criminal Appeal in the earlier case, Mr Barker would not have had one of his main arguments.

MR SMARK:   No, there would have been a much shorter application.

KIRBY J:   Yes.

MR SMARK:   The terms of the rule – and your Honours have it behind tab 9 of our application, it is also found in the judgment, but it is conveniently found at tab 9 of the applicant’s bundle – is predicated upon a substantial wrong or miscarriage.  Your Honours will be familiar in a general sense with the reflections of this Court in Weiss’ Case upon the range of issues latent in the language of the criminal proviso.  There is probably a slightly smaller collocation of issues thrown up by this rule and it is ‑ ‑ ‑

KIRBY J:   The Court has said many times, we just have to focus on the law made by or under Parliament and that is this rule.

MR SMARK:   Absolutely, and it is the rule.  Our submission is a fairly naked one which is that the Court of Appeal, including in paragraph 71 to which I have just taken the Court briefly, put a gloss on this rule, that is, they, in effect, did not simply apply the statutory question relevantly at the conclusion of sub‑rule (1).

KIRBY J:   Where is the gloss?

MR SMARK:   Can I assist your Honour, Justice Gummow with ‑ ‑ ‑

KIRBY J:   What is the gloss that they have put?

MR SMARK:   That there is not a substantial wrong or miscarriage to be found if it would not have made any difference to the result.  That is the gloss.

KIRBY J:   Is this not what the rule 51.53 says in the closing section:

unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned.

GUMMOW J:   Is that not the force of the word “substantial”?

MR SMARK:   The force of the word “substantial” will be made out, we would respectfully submit, necessarily where the court is confident – there are different levels of satisfaction – but where the court is confident that the wrong, error would have made a difference.  In other words, we are saying it is a necessary but not a sufficient condition.  So a case of the wrongful admission of evidence or the wrongful exclusion of evidence would typically lead the Court of Appeal to inquire for itself into whether or not the absence of that evidence would have made a difference or, more accurately, whether or not the record – because it is not concerned with the jury outcome other than that the jury verdict is itself part of the material available to the Court of Appeal – whether or not the material with the inclusion of the wrongfully excluded evidence, or vice versa, would have led or might have led to a different result.  So that is the differential outcome analysis. 

What we say is that there is also to be discerned in some sort of cases, of which we say this is one, situations where something goes wrong with the process where you simply do not, as an appellate court, need to concern yourself with the fact that the result may well have been the same and where, in effect, the trial judge suborn the jury, that would be such an example.  What the Court of Appeal seems to have done is taken what might be the paradigm case, something has gone wrong, would it have made a difference on our assessment, and taken that as the uniform case.  That is saying that this rule requires in every case that we may not – that is to say must not – order a new trial unless we are satisfied it would have made difference and we say well, where is that in the rule?.

KIRBY J:   But is it not correct to say, especially because of the mandatory word “must” at the beginning of the rule, as the Court of Appeal did, it must determine for itself whether the imputation conveyed and, if so, whether they were defamatory and not go around speculating on what a jury might have done?

MR SMARK:   What the jury might or might not have done is irrelevant.  It is the court’s own function.  If differential outcome is important, it is the Court of Appeal’s assessment that matters.  What we say is that in a case like this, because of what Justice Adams had said to the jury and because of the Court of Appeal’s correct conclusion that that was of such a magnitude that he ought to have discharged the jury, once that point had been reached, then the fact that the Court of Appeal’s own assessment of the matter was that the result should have been the same is beside the point.

KIRBY J:   But why is it not available to the Court of Appeal to say, well, Justice Adams should not have said what he said.  We have indicated that, we have corrected that, we have laid down that principle.  That will be available in the future if judges act in that way.  But now we are required by this rule – 140 years old, effectively – to look at whether it appears to us that some substantial wrong or miscarriage of justice has been done and if it appears to us that the imputations were conveyed and that they were defamatory, then we are enjoined that we must not order a new trial.

MR SMARK:   Yes.  Could I illustrate it by way of examples of the nature – they will be stronger than this case.  That is the nature of these things.  Imagine that a trial judge charged with a jury in some matter – it need not be defamation – were to say to the jury, “I direct you that the only verdict you may find is one for the plaintiff.” or if we wish more outré examples; “I will not release you until you find for the plaintiff”, or even in a fanciful world ‑ ‑ ‑

KIRBY J:   Did that come up in Manock?

MR SMARK:   Yes, it did.  Or even in a fanciful world a circumstance where the judge says “I will pay you if you find for the jury” or “I will have the sheriff’s officer beat up your children”.  The list of horribles is endless.  In short, is there not, we say rhetorically, a level of departure from the norms of civil litigation – and this need not only involve a jury matter, it could involve a judge alone ‑ ‑ ‑

KIRBY J:   Well, this is your argument that the depravation of determination of a properly directed jury is itself a substantial wrong or miscarriage.  That is hard to fit with this rule.

MR SMARK:   That is hard to square with Gajic.  Yes, your Honour.  I am not quite putting it that way, your Honour.  The way I am putting it is this.  Once Justice Adams was asked to discharge the jury, and it is concluded that he ought to have, there was a departure from the norms of judicial administration which is analogous to what occurs in a case of apparent bias, it is, we say – although it is a little unsettled in this Court – but we say as a matter of principle it ought be no answer to a case where it is concluded that there is strong apparent bias to say, well, there was no actual bias, so it would have made no difference.  That has never been answered.

GUMMOW J:   It goes to jurisdiction.  Bias goes to jurisdiction.

MR SMARK:   Yes, and this would only go to jurisdiction if one could say in the strictest sense there was no trial at all and that is the old venire de novo thinking and this is not that.

GUMMOW J:   That is right.  Let us look at the reality of this.  Have you pleaded some defences?

MR SMARK:   No.  That occasion has not arisen yet.

GUMMOW J:   I know that, but will you be pleading any defences.  You do no have to tell us, I suppose.

MR SMARK:   I do not propose to tell your Honour.

GUMMOW J:   All right.  But the next step, anyway, is for you to make your mind whether you are putting on some defences and, if so, what and they will be determined and, if that goes one way, damages will be assessed, I suppose.

MR SMARK:   Yes, that would be the course, subject to us getting a further hearing.  Now, a difficulty that the applicant faces ‑ ‑ ‑

GUMMOW J:   That is a product of this peculiar New South Wales procedure.

MR SMARK:   Yes, but that is not why this is a case for special leave.  It does not matter that this is a defamation case.  This could have been a personal injury case.  This need not have been a jury case.

KIRBY J:   Except that you do not get juries in personal injury cases now, do you?  I suppose you can get them in medical negligence or something like that.

MR SMARK:   Yes, and you can, I think, with the consent of both parties too from recollection.  The rule in question is not applicable only to jury trial.  It could be a new trial before a judge alone.  This is a matter of general application to any civil case in any jurisdiction in Australia and, indeed, so far as overseas courts seek guidance from this Court, the common law world.  It is a general question, is there a point at which the conduct of the trial is not to be cured by the Court of Appeal saying, well, shame about what happened at trial ‑ ‑ ‑

GUMMOW J:   What I am putting to you is, this is a not a trial in any common law sense.

MR SMARK:   No.

GUMMOW J:   It is a trial of a chunk and the chunk has been cut off by some peculiar New South Wales legislation.

MR SMARK:   But, nevertheless, it is still a verdict.

GUMMOW J:   Yes, I understand that.

MR SMARK:   It may not be the complete proceedings, but it is still ‑ ‑ ‑

GUMMOW J:   It is not to the point to say that this could have been a negligence case, that would not have turned out this way.

MR SMARK:   Yes, I accept that, your Honour.  But the conduct, the charge to the jury is not to be distinguished, in my respectful submission, from the sort of charge the judge might have made in any case, including a criminal case.  The only difference if it had been a criminal matter is that it would have been the proviso and under the structure of the proviso, relevantly, there would have been a further discretion which was engaged at the end of it.  But we say one does not get to that and one can see from the decisions like Quartermaine and Wilde that this Court has not used only the discretion in the proviso as the filtering process ‑ ‑ ‑

KIRBY J:   I may be wrong, Mr Smark, but I feel that it is more important that a criminal accused have trial by jury than a civil case because most civil cases in New South Wales now are overwhelmingly performed by judges and therefore it is not such a big unusual deal for them to be decided in this case by three judges in the Court of Appeal, the senior judges of the State and that is, in fact, the instruction of the rule, “must not order”, whereas the proviso is concerned with the fundamental, some call it constitutional, right to trial by jury and that is a slightly different ballpark.

MR SMARK:   If I may illustrate it this way, we say that the situation would be the same if we did not have a jury.  The parties could have elected not to have a jury.  It could have been held before a judge alone.

KIRBY J:   I realise that, but we have to read that right to jury in a legal context that also, and for 140 years, has included 51.53, or its equivalent, and that has always, as I remember from my Court of Appeal days, been expressed in this mandatory language “must not order”.

MR SMARK:   It always has been, and what we say is that in the terms of the statutory criterion, “substantial wrong or miscarriage”, there has always been embedded the prospect of the Court of Appeal looking at what happened and saying that was a wrong and, either against the background of its own assessment of what the outcome would have been or not, as the case may be, that is of such a magnitude that we ought to intervene.  It is a substantial wrong, therefore the criterion of the rule is satisfied and therefore the implied power to grant the appeal under section 102 may be exercised.  Could I give, by way of further illustration, this example.  One is an example, one is a prediction.

The example is; what about in a case where, for example, the bias, if it be a bias case – and we say bias is just a species of which this is a species and there is a genus which is a substantial miscarriage effecting the process of the trial – what if there were bias of such a pronounced character that the Court felt, as has often been the case in civil matters, it could deal with the matter simply by looking at the conduct of the judge and not inquiring further whether or not there was strong case in any event?  How is that to be fitted within the framework of 51.53 in a civil case?  How could it be done?  Because, sure, the Court of Appeal has its own assessment, but is it to be supposed that a naked display of apparent bias is to be met with the answer “We need not worry about that because the party whose favour the bias was shown had such a strong case, there is no harm done”?

KIRBY J:   Well, the Court of Appeal was conscious of the fact that you had suffered an injustice to some extent by what it felt was the intervention, the unfairness of Justice Adams’ comments and so they were very conscious of that, but they then went on to say “Well, now, look we are going to now, as the three senior judges of the State, to look at the substance of this matter”, and then they did.  So I can understand your point, but the problem is the point has to be weighed by courts in the context of a rule which is of such antiquity and is in such mandatory language.

MR SMARK:   Yes. 

KIRBY J:   We had a case, a New South Wales case, where, notwithstanding, I think it was the second ‑ ‑ ‑

GUMMOW J:   Gajic, I think, was it not?

KIRBY J:   Yes.  The question arose as to whether they should have a further trial.

MR SMARK:   Yes, and in this case – because we have been through this process before in this case – the Court of Appeal directed that there would be a further jury trial.  But our point is not that we have been deprived of jury trial, that is not our point here, it is that Justice Adams in his conduct took away, in effect, the jury function.  He effectively directed the jury to find what they found.  It may be, as the Court of Appeal found ‑ ‑ ‑

KIRBY J:   They put that aside and then looked at it for themselves.

MR SMARK:   Yes, they did.  We say that the nature of the error by Justice Adams, that is, his failure to discharge the jury because of his conduct, first of all, that differential outcome would have meant there would have been no trial.  But leaving that to one side, the nature of that error was such as to call for intervention per se.  If it were otherwise, we say, what is stop trial judges from engaging in such conduct in the future?  The Court of Appeal has a normative effect, quite apart from my client ‑ ‑ ‑

KIRBY J:   The answer to that question that you asked rhetorically is the law, the law as clarified by the Court of Appeal.  Now, that will not operate in every case, but it should, and the Court of Appeal has dealt with your primary complaint and I think that is what the system is supposed to do.

MR SMARK:   Those are my submissions, your Honour.

GUMMOW J:   We do not need to call on you, Mr Evatt.

The case in favour of the applicant for special leave has been fully and cogently presented.  However, we find no error in the approach and analysis of the Court of Appeal of the Supreme Court of New South Wales.

For more than a century and into the present time a provision in the form of Part 51 rule 53.1 of the Uniform Civil Procedure Rules (NSW) has applied and it has been the law that the finding of error in the conduct of a jury trial does not automatically give rise to a right of retrial. Whilst the right in civil cases to trial by jury must be respected, so must the function of the appellate courts and their entitlement to conclude that, despite error, no “substantial wrong or miscarriage” has been occasioned to the complaining party.

We consider that in this case that conclusion was open to the Court of Appeal.  An appeal to this Court, therefore, would not enjoy reasonable prospects of success.  Special leave is refused with costs.

We will adjourn to reconstitute.

AT 11.33 AM THE MATTER WAS CONCLUDED