Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd (No 4)

[2008] NSWDC 274

CITATION:	Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd (No 4) [2008] NSWDC 274
HEARING DATE(S):	1 and 2 December 2008
EX TEMPORE JUDGMENT DATE:	2 December 2008
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Skaf directions previously read to the jury are provided to them in written form pursuant to s 55B Jury Act 1977 (NSW).
CATCHWORDS:	PRACTICE AND PROCEDURE - Skaf directions provided in writing to jury in defamation jury trial
LEGISLATION CITED:	Defamation Act 1974 (NSW), s 7A Defamation Act 2005 (NSW) Jury Act 1977 (NSW), s 55B
CASES CITED:	Griffith v Australian Broadcasting Corporation [2002] NSWSC 86 Griffith v Australian Broadcasting Corporation [2003] NSWSC 298 Griffith v Australian Broadcasting Corporation (No 1) [2007] NSWSC 711 Griffith v Australian Broadcasting Corporation [2008] NSWSC 764 R v Mirza; R v Connor [2004] 1 All ER 925 R v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37
TEXTS CITED:	Australian Defamation Law and Practice J. Horan, “Communicating with jurors in the twenty-first century” (2007) 29 ABR 75
PARTIES:	First Plaintiff: Sayar Dehsabzi Second Plaintiff: Malyar Dehsabzi Defendant: John Fairfax Publications Pty Ltd
FILE NUMBER(S):	150 of 2008
COUNSEL:	Plaintiffs: Mr C A Evatt / Mr R Rasmussen Defendant: Mr K P Smark SC
SOLICITORS:	Plaintiffs: Bullivant Legal Defendant: Freehills

JUDGMENT

1. This is a s 7A trial in which I have raised with the parties whether or not it is appropriate to give directions to a civil jury of the kind set out in R v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37. Following discussion with counsel I read to the jury an abridged Skaf warning (as they are now called) which is set out in a schedule to this judgment.

2. The introduction of juries on all issues except quantum under the Defamation Act 2005 (NSW) led to speculation that Skaf warnings would be given as a general rule in defamation jury trials. I note in particular, comments to this effect in Bulletin 38 (March 2006) of Australian Defamation Law and Practice. Despite there being a number of decisions involving defamation jury trials since then, both under s 7A and more recently under the Defamation Act 2005, I am not aware of there being any judicial consideration of whether or not Skaf warnings should be given in civil jury trials, or if Skaf warnings have been given, although Mr Smark SC has told me that the trial judge gave a ruling similar to Skaf in the s 7A jury trial of Griffiths v Australian Broadcasting Corporation (Griffith v Australian Broadcasting Corporation [2008] NSWSC 764; Griffith v Australian Broadcasting Corporation (No 1) [2007] NSWSC 711; Griffith v Australian Broadcasting Corporation [2003] NSWSC 298; Griffith v Australian Broadcasting Corporation [2002] NSWSC 86).

3. The problem of juries making their own inquiries is not limited to Australia. In R v Mirza; R v Connor [2004] 1 All ER 925, the English courts considered a number of cases where jurors had made impermissible inquiries, ranging from a Ouija board to the Internet, and the problems that can ensue. A number of jury studies bear this out. J. Horan in “Communicating with jurors in the twenty-first century” (2007) 29 ABR 75 comments on the difficulty that jurors have, especially younger members of the public who are used to looking up material on the Internet or by other electronic search methods, when told that they should only listen to what is said in court.

4. There is a real risk in this case, for a number of reasons. First of all, the plaintiffs have an unusual surname. It is very easy to put that surname into a search engine and to obtain results which would result in information irrelevant to s 7A issues, such as my prior rulings on the New South Wales Caselaw website concerning limitation and imputations rulings.

5. Mr Smark SC has referred very helpfully to what he called the "melancholy history of s 7A" and resultant perverse verdicts. Anything that can prevent the handing down of a perverse verdict is desirable. Accordingly, I gave directions in this matter in accordance with a document which is a revised version of the Skaf directions for this s 7A civil jury trial and is an annexure to this judgment.

6. It seems to me that the risk of juror inquiries, especially given some recent international events involving matters that are not dissimilar to some of the issues in the matter complained of is such that I must, in the interests of protecting both parties' rights, make sure that the jury is not distracted from their task of considering s 7A issues. Accordingly, I propose to hand to the jury copies of the directions which I will now have marked as MFI 1 in these proceedings.

7. I have asked the parties if there is a problem with the provision of these directions to the jury in writing. Mr Smark SC has indicated that his client consents. Mr Evatt has indicated that his client neither consents nor opposes, but Mr Evatt is concerned, of course, that the jury may be distracted. I am conscious of the fact that this set of directions, which is in similar form to that handed to juries in a number of criminal matters in this court (but with a number of excisions, which were very helpfully suggested at the time by Mr Evatt) being handed to the jury on the second day of the trial may perhaps distract the jury. I very much hope it will not. I intend to tell them to put it away, and to listen to Mr Evatt.

Orders

1. Skaf directions previously read to the jury are provided to them in written form pursuant to s 55B Jury Act 1977 (NSW).

Annexure

DIRECTIONS CONCERNING JURORS’ CONDUCT DURING TRIAL

Section 55B Jury Act 1977

These directions are required to be given by a trial judge in every trial in this state. A failure to follow these directions may result in a miscarriage of justice.

Until you are discharged at the end of this trial, each of you is required to abide by the written directions set out below. These written directions are a summary to help you understand and remember the verbal directions given to you by the judge at the beginning of trial in regard to your responsibilities as a juror. They are to be used in conjunction with the judge’s spoken directions given at that time and any other times during the trial. You must follow all direction of law given by the trial judge whether given in writing or verbally.

1. Your verdict/s must be based solely upon the evidence presented to you in court in the presence of the parties and their legal advisors, i.e. the material that they are aware of and had the opportunity to test challenge or rebut.

2. Do not speculate about matters that are not the subject of the evidence.

3. Do not discuss the case with anyone apart from your fellow jurors in the privacy of the jury room.

4. Do not undertake any form of research or inquiry [whether via the internet or any other means] concerning any matter connected with the case.

5. You must not undertake your own research [whether via the internet or any other means] into the law. The judge will give you the directions of law during the trial and in the summing up.

6. You must exclude from your minds any publicity in the media about the trial.

7. You must exclude from your minds any publicity in the media about other cases.

8. Avoid speaking to or communication in any fashion with anyone in the precincts of the court, and in the streets and facilities nearby the court.

9. You must leave and approach the court complex by the quickest and most direct route.

10. Please follow the directions that the court officers give you about how to leave the court complex and how to enter it and make your way to the jury room.

11. You must direct any query that you have about the evidence, the law or procedure to the trial judge. Do that via written note handed to the court officer.

12. You must not bring computers or mobile phones with you to the jury room.

13. If, in the course of the trial, you become aware that any matter that is not part of the evidence has found its way into the jury room, then you must bring it to the attention of the trial judge before the end of the trial.

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