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 2008JUDGMENT 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 CASES CITED: 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;
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…
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Details
- Case
- [2008] NSWCA 21
- Decision Date
CaseChat Overview and Summary
Channel Seven Sydney Pty Ltd (the appellant) appealed a decision of the primary judge in a defamation proceeding brought by Mohammed (the respondent). The dispute concerned whether certain imputations were conveyed by material broadcast by Channel Seven. The appeal was heard in the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the judge's summing-up to the jury in the section 7A trial contained an excess in the expression of his views, thereby imperilling the jury's independence, and if so, whether this error necessitated the discharge of the jury. Further, the court had to determine whether, despite any error, a substantial wrong or miscarriage of justice had occurred, and whether the judge had erred in his costs order for the section 7A trial.
The Court of Appeal found that the judge had indeed expressed his views too strongly, potentially overawing the jury and encroaching on their function. However, the court concluded that it was required to determine for itself whether the imputations were conveyed, and found that they were. Despite the error in the summing-up, the court determined that no substantial wrong or miscarriage of justice had occurred, meaning a new trial was not warranted. The court also set aside the primary judge's costs order for the section 7A trial, finding that it was not a waste of time as previously held, and therefore the discretion to make that order had miscarried.
The appeal was allowed in part. The costs orders made on 9 February 2007 were set aside, and in their place, it was ordered that the costs of the trial be reserved. The appeal was otherwise dismissed, with the appellant ordered to pay 80 per cent of the respondent's costs.
The primary legal issues before the Court of Appeal were whether the judge's summing-up to the jury in the section 7A trial contained an excess in the expression of his views, thereby imperilling the jury's independence, and if so, whether this error necessitated the discharge of the jury. Further, the court had to determine whether, despite any error, a substantial wrong or miscarriage of justice had occurred, and whether the judge had erred in his costs order for the section 7A trial.
The Court of Appeal found that the judge had indeed expressed his views too strongly, potentially overawing the jury and encroaching on their function. However, the court concluded that it was required to determine for itself whether the imputations were conveyed, and found that they were. Despite the error in the summing-up, the court determined that no substantial wrong or miscarriage of justice had occurred, meaning a new trial was not warranted. The court also set aside the primary judge's costs order for the section 7A trial, finding that it was not a waste of time as previously held, and therefore the discretion to make that order had miscarried.
The appeal was allowed in part. The costs orders made on 9 February 2007 were set aside, and in their place, it was ordered that the costs of the trial be reserved. The appeal was otherwise dismissed, with the appellant ordered to pay 80 per cent of the respondent's costs.
Orders
Orders of the court
(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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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