Murphy v Nationwide News

NEW SOUTH WALES SUPREME COURT

CITATION: Murphy v Nationwide News [2000] NSWSC 1251

CURRENT JURISDICTION:

FILE NUMBER(S): 20112/98

HEARING DATE{S): 16/02/00-17/02/00

JUDGMENT DATE: 17/02/2000

PARTIES:
Christopher Murphy v Nationwide News Pty Limited

JUDGMENT OF: James J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
BR McClintock SC- Plaintiff
AB Shand QC/RG McHugh - Defendant

SOLICITORS:
Gilbert & Tobin - Plaintiff
Blake Dawson Waldron - Defendant

CATCHWORDS:

ACTS CITED:

DECISION:

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION.
JAMES J
AND A JURY OF FOUR.
THURSDAY 17 FEBRUARY 2000.
020112/98 - CHRISTOPHER MURPHY v. NATIONWIDE NEWS PTY LTD
SUMMING-UP.

HIS HONOUR: Members of the jury, you have heard addresses by counsel for the plaintiff and counsel for the defendant. Now I will sum up to you.
In these proceedings the plaintiff, Mr Christopher Murphy, has sued the defendant, Nationwide News Pty Ltd, as the printer, publisher and proprietor of the Daily Telegraph newspaper claiming that he was defamed by part of an article published in the Daily Telegraph newspaper on 16 February 1998.
Each of you has a copy of the questions which you, as the jury, have to answer. Each of the two questions contains two parts, (a) and (b), so there are really four questions: 1(a), 1(b), 2(a) and 2(b).
Your answer to each question you have to answer must be “yes” or “no”. Your answer to each question, whether it is “yes” or “no” must be unanimous. All four of you must agree on what answer should be given.
Counsel for the plaintiff, in accordance with his function as counsel for the plaintiff, has sought to persuade you in his address to you that you should answer the questions in the way suggested by him. He has submitted that all of the four questions should be answered “yes”.
Counsel for the defendant, in accordance with his function as counsel for the defendant, has sought to persuade you in his address to you that you should answer the questions in the way suggested by him. He has submitted that questions 1(a) and 1(b) should both be answered “no”, so that you do not have to answer question 2 at all. Alternatively, he has submitted that, even if you answer question 1(a) or question 1(b) “yes”, you should answer the corresponding part of question 2 “no”.
It is no part of my function to answer any of the questions or to seek to persuade you that you should answer any of the questions in any particular way. How you decide to answer the questions is exclusively a matter for you. I intend to avoid expressing any view on how I might think any of the questions should be answered. If, in the course of the summing-up, I happen to express a view on how any of the questions should be answered or if I appear to you to hold a view on how any of the questions should be answered, then it is your duty to disregard the fact that I have expressed a view or appear to hold a view.
I have told you that how you decide to answer the questions is exclusively a matter for you. For the purposes of this trial you are judges and acting judicially requires you to put aside any emotion or any prejudice and to act according to reason. It may be that you have strong views about the legal system or about lawyers or about newspapers or about drugs or about some other subject raised in the article. However, both parties are entitled to your judgment, free from any sympathy or aversion or any other emotion and free from any prejudice or partiality.
If a submission was put to you by counsel which appeared to you to be expressed in emotional language, you have to deal with the submission calmly and dispassionately on its merits.
In the summing-up I will, broadly speaking, do two things. Firstly I will give you directions about the legal principles you are to apply in answering the questions. Secondly, I will review some of the submissions or arguments which have been put to you by counsel.
As to the first matter, the directions I give you about the legal principles you are to apply are binding on you. You are bound to accept and to apply my directions about the law. To some extent counsel in their addresses referred to some of the legal principles. It was appropriate for counsel to do that, so that you could understand their submissions. However, in this trial I am the authority on the law and you must apply my directions about the legal principles involved.
As to the second matter, summarising counsel's arguments, I will not be attempting to refer to every argument which was put to you by counsel. You should not be influenced in your assessment of the strength or weakness of an argument put by counsel by whether I happen to refer to it or happen not to refer to it in my summing-up. It is for you to determine what weight you should give to an argument put by counsel.
When I refer to an argument which has been put by counsel you should not think that I am personally endorsing the argument or I am expressing a view one way or the other about whether you should accept the argument.
I would ask you to turn to your individual copies of the questions you have to answer. You will see that question 1(a) opens with the words:
"Has the plaintiff established that the article in the Daily Telegraph of 16 February 1998 conveyed to the ordinary reasonable reader any of the following imputations or imputations not different in substance, and, if so, which".
The two alleged imputations are then set out in (a) and (b).
I will now give you some directions about some of the words and expressions in those opening words of question 1. The first words in question 1 are "has the plaintiff established" and the same words occur in question 2 "has the plaintiff established". What I am about to say applies to those words in both questions 1 and 2. The words "has the plaintiff established" indicate that the onus of proof on both parts of both questions rests on the plaintiff. I will give you directions which you are bound to accept and apply about the onus and standard of proof.
I have told you that on each of the questions, that is on each part of each of questions 1 and 2, the onus of proof is on the plaintiff. The defendant does not bear the onus of proof on any of the questions. On each part of question 1 and question 2 it is for the plaintiff to satisfy you that he should succeed. What is the standard according to which the plaintiff has to satisfy you? The standard according to which the plaintiff has to satisfy you is proof on the balance of probabilities.
I should immediately remind you, as counsel did, that this is a civil case and not a criminal case. You might know, from having served as a juror in a criminal trial or from having watched films or television or having read books about criminal trials, that in a criminal trial the prosecution is required to prove the guilt of the accused person “beyond reasonable doubt”. That is the standard of proof in criminal trials, proof beyond reasonable doubt. It is the highest standard of proof known to the law. It is not the standard of proof that applies in this civil case. In this civil case the standard of proof is proof on the balance of probabilities.
What is meant by proof on the balance of probabilities? It means that the plaintiff has to satisfy you that, more probably than not, what he contends for is correct.
This concept of proof on the balance of probabilities is usually explained to juries, as it was by counsel, by the trial Judge referring to an old fashioned pair of scales, with two scales or pans or dishes on the two sides.
Counsel referred to this method of explanation in their addresses. You may have seen pictures of a figure representing Justice, the figure blindfolded and holding a pair of scales.
You can regard one pan or side of the scales as having the plaintiff's case placed on it and the other pan or side of the scales as having the defendant's case placed on it. You can take into account the article, the directions of law I give you and the submissions which have been put to you by counsel. Taking those matters into account, you assess the comparative weight of the plaintiff's case and the defendant's case. If on a question the plaintiff in your estimation has succeeded in weighing down his side of the scales because his case has greater weight, then the plaintiff has succeeded in satisfying you on the balance of probabilities that that question should be answered in the way suggested by the plaintiff.
If, on the other hand, when you assess the comparative weight of the plaintiff's case and the defendant's case the plaintiff has not succeeded in weighing down his side of the scales, then the plaintiff has not succeeded in satisfying you on the balance of probabilities that the question should be answered in the way suggested by him and you should answer the question in the way suggested by the defendant.
The plaintiff could fail to satisfy you on the balance of probabilities, either because when the two cases are put on opposite sides of the scales the scale on which the defendant's case is put is weighed down compared with the scale on which the plaintiff's case is put, or because, when the two cases are put on opposite sides of the scales, the two sides of the scales are left in complete balance, in complete equipoise, with one side not weighed down at all in comparison with the other. If there is a complete balance or equipoise, then the plaintiff has not succeeded in discharging the onus of proof.
You have to answer each part of each question separately and determine whether in relation to each part of each question the plaintiff has established that more probably than not that part should be answered in the way suggested by him.
You need not necessarily come to the same answers in respect of both of the alleged imputations. It would be possible for you to answer both parts of question 1, that is 1(a) and 1(b), “yes”. It would be possible for you to answer both parts of question 1, “no”. It would be possible for you to answer one part of question 1 “yes” and the other part “no”.
If you come to question 2 you need not necessarily answer both parts of question 2 in the same way.
The next word or expression in the opening words of question 1 about which I will give you directions is the word "imputations". The singular of imputations is, of course, imputation. You have heard the word imputation or imputations used many times in counsel's addresses to you. An imputation simply means an accusation or a charge or, more generally, simply a meaning.
In defamation proceedings the plaintiff is obliged to specify what he says are the imputations or meanings conveyed by the publication he is complaining about. The jury in a defamation hearing is not asked whether the plaintiff has established that a publication was in some general way defamatory of the plaintiff. The jury is asked, as you are being asked, whether the plaintiff has established that the words which were published about him conveyed the specific imputations which he, the plaintiff, has alleged.
What I have just said is subject to this qualification. In the opening words of question 1 you will see the words in the second and third lines, "or imputations not different in substance". In respect of each imputation, it would be sufficient for the plaintiff to establish that, although the precise imputation alleged was not conveyed, nevertheless an imputation not different in substance from the imputation alleged was conveyed.
The next word or expression in the opening words of question 1 to which I wish to refer is the word "conveyed". The word "conveyed" simply means what it says, it simply means "carried". Has it been established that the article carried or conveyed to the ordinary reasonable reader either of the imputations?
The opening words in question 1 refer to “the ordinary reasonable reader”. The expression "the ordinary reasonable reader" was used many times in counsel's addresses. I will have to say a number of things about “the ordinary reasonable reader”. It may be that, for the sake of convenience, I will not always repeat in full the whole expression "the ordinary reasonable reader" and simply refer to "the reader". If I do so, you will understand that by the expression "the reader" I mean "the ordinary reasonable reader". When I use a pronoun to refer to the ordinary reasonable reader I will begin by saying "he or she". That is a somewhat cumbersome expression and it may be that I will sometimes refer to the ordinary reasonable reader as "he" or refer to the ordinary reasonable reader as "she". You will understand that by "he" or "she" I mean "he or she".
There is undeniably some artificiality and unreality about this concept of the ordinary reasonable reader. The ordinary reasonable reader is not some single identifiable person. The ordinary reasonable reader is not an actual person at all.
The ordinary reasonable reader is a hypothetical person who represents the community as a whole. The ordinary reasonable reader is taken as representing a uniform view of the whole community, based upon what the community generally would understand to be conveyed by the article, based upon general community knowledge, standards and attitudes.
The ordinary reasonable reader is to be regarded as fair-minded and of ordinary perception, commonsense and understanding. The ordinary reasonable reader is prepared to draw inferences from what is directly said but the inferences must be inferences which could reasonably be drawn, the ordinary reasonable reader does not engage in mere speculation or conjecture, the ordinary reasonable reader does not look for strange or unlikely constructions of the words that actually appear in what is being read, the ordinary reasonable reader is not a person who lives in an ivory tower or thinks that everything is good and perfect in the world.
On the other hand, the ordinary reasonable reader is not a person with a morbid or suspicious mind or a person who is hungry or avid for scandal. He or she is not a person who looks for the worst in everything or who is suspicious merely for the sake of being suspicious.
You have to decide in relation to each imputation alleged by the plaintiff whether the plaintiff has established that the imputation alleged or an imputation not substantially different would have been conveyed by what appears in the article to the ordinary reasonable reader.
The ordinary reasonable reader would not have read the article in a Court room or in a jury room. He or she would be likely to have read the article on 16 February 1998 or at any rate soon afterwards. The ordinary reasonable reader could have read the article in a variety of situations; at home in the morning, on the way to work, at work or on the evening of 16 February. I am not suggesting that that would exhaust all the situations in which the ordinary reasonable reader would have read the article. The ordinary reasonable reader is to be taken as having read the whole article. It is likely that he or she would have read the article only once. However, he or she might have been able to read the article or some parts of it more than once.
The ordinary reasonable reader would not have heard addresses by two barristers or a summing-up by a Judge. The ordinary reasonable reader would not have been asked how he or she interpreted the article and would not have been subjected to a questionnaire about the article.
It should be obvious from what I have said, members of the jury, that you are not in the position of the ordinary reasonable reader. You have read the article in the Court room and probably in the jury room. You have probably read the article or parts of it several times or perhaps many times. You have heard addresses by counsel and a summing-up by a Judge. You have heard the article analysed by counsel in a way which would not have happened in the case of the ordinary reasonable reader. You have known from the beginning or near the beginning of this trial that you would have to answer questions about the article.
I repeat that you have to determine in relation to each alleged imputation whether the imputation would have been conveyed to the ordinary reasonable reader; not whether, in the vastly different circumstances in which you have read the article, the imputation is conveyed to you.
Members of the jury, that concludes my directions of law about the first question. Counsel for the plaintiff submits that both parts of question 1 should be answered “yes”. Counsel for the defendant submits that both parts of question 1 should be answered “no”.
I move to the second question on the sheet. Just above question 2 on the sheet you will see the note, "If you have answered “no” in respect of any imputation, then do not answer question 2 in respect of that imputation". Question 2 also commences with the words, "If the answer to question 1 above was “yes” with respect to any of the imputations". I trust that the note and the opening words of question 2 are clear. If you have answered question 1(a) “no”, then you do not answer question 2(a). If, on the other hand, you have answered question 1(a) “yes”, then you have to answer question 2(a). If you have answered question 1(b) “no”, then you do not have to answer question 2(b). If you have answered question 1(b) “yes”, then you do have to answer 2(b).
I have already drawn your attention to the fact that question 2 includes the words, "Has the plaintiff established" and the directions about onus and standard of proof which I gave earlier apply to those words in question 2.
In question 2 the word "defamatory" appears. What is the test of whether an imputation was defamatory? The test is simply whether the imputation would cause the ordinary reasonable reader, that is to say ordinary right thinking people in the community, to think less of the plaintiff. Ordinary right thinking people in the community, like the ordinary reasonable reader, are to be regarded as representing the community in general.
It is not sufficient for the plaintiff to prove that an imputation was not complimentary to the plaintiff. It is necessary for the plaintiff to prove that an imputation was defamatory of the plaintiff. In deciding whether any imputation was defamatory, you are to disregard any belief you might happen to have about whether the imputation was true or false or likely to be true or false.
Counsel for the plaintiff has submitted that you would answer both parts of question 2, “yes”. Counsel for the defendant has put a primary submission that you would answer both parts of question 1 “no”, so that you don't have to answer question 2. Counsel for the defendant put an alternative submission, that if you answer either part of question 1 “yes”, nevertheless you would answer the corresponding part of question 2 “no”.
I will now seek to review some of the arguments which were put to you by counsel. I repeat that I will not refer to all of the arguments put by counsel and that in referring to an argument I am not to be taken as giving the argument any endorsement from myself. I am not expressing an opinion one way or the other about whether you should accept the argument.
Mr McClintock, counsel for the plaintiff, said a number of things to you about such matters as onus and standard of proof and other legal matters which I have covered in my directions to you. I do not intend to repeat everything Mr McClintock said on those matters.
Mr McClintock pointed out to you that he as counsel for the plaintiff had to address first, that he had only one opportunity to address you and that he would not have any opportunity of replying to what Mr Shand said in his address. Mr McClintock put to you that if Mr Shand put an argument which had not been anticipated by Mr McClintock in his address, nevertheless you should ask yourself whether or not there was a good answer to the argument put by Mr Shand.

Mr McClintock asked you rhetorically what you would think was the lowest form of life in Australia and he offered his own answer, “drug dealers”. He then suggested that you would think that the second lowest form of life were lawyers who act for guilty drug dealers so that those drug dealers can go out again and continue their trade. That submission by Mr McClintock was replied to by Mr Shand. As with all counsel’s submissions, it is a matter for you whether you accept that submission Mr McClintock put to you, that that was what this case was about, that the defendant had accused the plaintiff of belonging to the second lowest form of life. I remind you that you will have to assess that argument coolly and dispassionately.
It was submitted by Mr McClintock that you would consider that the article would have conveyed to the ordinary reasonable reader the second imputation alleged, that the plaintiff was a shyster, that is a lawyer who uses unprofessional, questionable methods in his cases.
Mr McClintock referred to the concept of the ordinary reasonable reader. He suggested that the ordinary reasonable reader would have read the article in a variety of circumstances. He submitted to you that the ordinary reasonable reader would know from his or her general experience of life and human affairs that newspapers do often say bad things, derogatory things, about people and that they often say those bad things, not directly, but by way of hinting.
Mr McClintock submitted to you that the ordinary reasonable reader would know from his or her general experience of life that the meaning which can be given to an article in a newspaper can vary with the kind of article it is. If the article is in a gossip column, then the ordinary reasonable reader would expect to find spicy titillating pieces of gossip, often containing attacks on the persons referred to in the column. Gossip about people is often uncomplimentary. Mr McClintock submitted that when you read the article as a whole you would regard the article as falling in the category of a gossip column. He compared the article with the sort of dry article about business that might appear in a paper such as the Financial Review.
Ladies and gentlemen, it is virtually 1 o'clock. I am obviously not going to finish. We will take the adjournment. It is difficult for me to know how much longer I will be, I certainly anticipate that we will conclude some time in the mid afternoon. I now propose to adjourn so I ask you to go with the officer.
IN THE ABSENCE OF THE JURY
McCLINTOCK: The first is in relation to the balance of proof. Your Honour used the phrase "weighing down". That is correct, but your Honour did not use the phrase that generally is used "be it ever so slightly" and "weighed down" on its own might give a false --
HIS HONOUR: I am inclined to say that, it is certainly very often said.
McCLINTOCK: My second point is, in dealing with my submission to the jury relating to the second lowest form of life theme, your Honour there referred only to the fact that I put to the jury that Mr Murphy acted for these people the drug dealers. In fact, I said "acted for and got them acquitted", which was the key imputation. I ask your Honour to add that point.
HIS HONOUR: It is a matter of significance
McCLINTOCK: It is the acquittals that gives the kick, we say, not the fact of acting.
McCLINTOCK: I may have a note but my recollection is I think it was simply just acting for.
HIS HONOUR: Yes, I sort of half said it, I said so they could continue their trade.
McCLINTOCK: I would ask your Honour to make it explicit. That's all I wish to raise your Honour.
HIS HONOUR: Yes, Mr Shand?
SHAND: I only wish to comment upon the matters raised in two ways. First of all with regard to the return by your Honour to Mr McClintock's proposition in which he suggests your Honour omitted the words 'and got them acquitted', they have heard from both counsel the expression so many times that we submit there is no possibility that if your Honour did not completely state that proposition they would go away feeling otherwise than --
HIS HONOUR: I don't think it does any harm. I think it's quite possible that the jury were not in any way misled but I don't think it does any harm to make it explicit.
SHAND: If your Honour were to re-direct the jury concerning the balance of proof adding the expression 'ever so slightly' we would ask your Honour to use the words which haven't yet been used by your Honour from Briginshaw that there must be an actual persuasion, the plaintiff must bring about an actual persuasion.
HIS HONOUR: I am disinclined to say that. It's not usually said. You do have the sort of situations that Briginshaw was concerned with, grave allegations in a civil case. We're not in that field. I'm not inclined to do it Mr Shand.
SHAND: I only make the submission, your Honour.
HIS HONOUR: I think I will probably be about half an hour after lunch if there are no applications. I don't say that to deter applications. But all I propose to do from now on is to summarise submissions. It is quite possible that counsel will say that - will submit I have misrepresented a submission in some way and I will certainly hear what counsel have to say but I would hope that if those are the only matters objected to, that they can be dealt with fairly readily. I don't propose to give any further directions of law apart from the one matter that Mr McClintock has raised. I will also deal with the second matter Mr McClintock raised.
LUNCHEON ADJOURNMENT
IN THE PRESENCE OF THE JURY
HIS HONOUR: Members of the jury, a couple of matters. When I was giving you directions about the onus and standard of proof, I told you that if upon a question the plaintiff in your estimation has succeeded in weighing down his side of the scales because his case has greater weight, then the plaintiff would have succeeded in satisfying you on the balance of probabilities that the question should be answered in the way suggested by the plaintiff.
I also said to you that if, when the two cases, the plaintiff's case and the defendant's case, are put on the opposite sides of the scales, the two sides of the scales are left in perfect balance, in complete equipoise with one side not weighed down at all in comparison with the other, then the plaintiff would not have succeeded in discharging the onus of proof.
It follows that if on a question the plaintiff in your estimation has succeeded in weighing down his side of the scales because his case has greater weight, be it ever so slightly, then the plaintiff has satisfied - has succeeded in satisfying you on the balance of probabilities that the question should be answered in the way suggested by him.
When I was summarising one of Mr McClintock's arguments I put to you that Mr McClintock had submitted to you that the second lowest form of life consisted of lawyers who act for guilty drug dealers so that they can continue their trade. What Mr McClintock said expressly and what was intended by me to be implicit in my summary of his submission was that he was putting that the second lowest form of life consisted of lawyers who act for guilty drug dealers and get them off, secure their acquittals on criminal charges, so that those drug dealers can continue their trade.
I was summarising some of the arguments put by Mr McClintock. He submitted to you that the ordinary reasonable reader would know that journalistic devices can be used to convey meaning and to affect the meaning conveyed by words. One such journalistic device would be the use of inverted commas or quotation marks. In the present article the plaintiff is described as celebrity criminal lawyer Chris Murphy' and the word 'celebrity' is placed in quotation marks. You will see that in the second last paragraph in the first column.
Mr McClintock put to you that, if in an article a barrister, for example, was described as being an honest barrister but the word 'honest' was put in quotation marks, then a quite different meaning would be conveyed, than if quotation marks were not used. He submitted to you that in the present article the effect of putting quotation marks around the word 'celebrity' is to put in question the description around which the quotation marks are placed, to throw into question whether Mr Murphy is truly a celebrity.
Mr McClintock, as I understood him, endeavoured to anticipate an argument which he thought might be put by Mr Shand. Mr McClintock appeared to me to anticipate that Mr Shand might put an argument that the article, so far from being defamatory of Mr Murphy, said nice things about Mr Murphy. For example, that he was an able lawyer.
Mr McClintock said to you that it does occasionally happen that people who are innocent are charged with having committed crimes. If a lawyer represents a person who is charged with a crime, who he believes is innocent, and succeeds in obtaining an acquittal for that person, then the lawyer has served the ends of justice and it would not be defamatory to say of the lawyer that he had obtained the acquittal of that person.
However, Mr McClintock put to you that the ordinary reasonable reader would consider that this article was conveying that the plaintiff repeatedly, or at least on a number of occasions, had acted for people being drug dealers who were in fact guilty of offences and had succeeded in obtaining their acquittals.
Mr McClintock conducted an analysis of the article. He referred to various aspects of the article, for example the name of it, the picture of Mr Mayne at the top of the article, the photograph of the other Mr Murphy with the smiling woman, the use of expressions such as 'Chris Cross' under the photograph of the other Mr Murphy, the use of the expression 'lots in a name' immediately above the printed part of the article, the use of the word 'breathless' in the body of the article in the second paragraph.
He referred to all of these things to indicate that this is a gossip column. It is not a dry article about some business subject in a business newspaper. He said that the word 'breathless' was intended to be a teaser to drag the reader along.
Mr McClintock said the ordinary reasonable reader would think that the other Mr Murphy, Mr C M Murphy, did not want to be confused with the plaintiff Christopher Murphy, the lawyer. He submitted to you that the article conveyed to the ordinary reasonable reader that the other Mr Murphy does not want people to think that he is the lawyer Christopher Murphy.
Mr McClintock repeated the submission that the use of inverted commas around the word 'celebrity' would suggest to the ordinary reasonable reader that the plaintiff's celebrity was not deserved or was questionable, like calling a barrister honest but placing 'honest' in quotation marks.
Mr McClintock referred you to what you might think is a good part of the article. It is at the top of the second column, the reference to 'solicitor Murphy better known for getting drug dealers and advertising guru John Singleton off criminal charges'. Mr McClintock pointed out the article uses the word 'drug dealers'. The article does not say 'persons accused of drug offences'. It does not say 'persons alleged to have committed drug offences'. It says 'drug dealers'. Mr McClintock put to you that you would think that the ordinary reasonable reader would think that Mr Murphy's clients had been actual drug dealers. It was submitted by Mr McClintock that the ordinary reasonable reader would think from the use of the word 'known' and from the use of the word 'drug dealers', in the plural, that it was being conveyed that Mr Murphy had acted for actual drug dealers on a number of occasions.
Mr McClintock submitted to you that you would have no real doubt that the article conveyed imputation (a).
Mr McClintock referred to the reference later in the article to Mr Murphy having also represented 'Rugby League bad boys Scott Wilson and Mark Geyer'. It was submitted in effect that this assertion strengthened the impression the ordinary reasonable reader would receive that the drug dealers for whom Mr Murphy acted were 'bad boys', they were actual drug dealers.
Mr McClintock turned to the second imputation, that is the imputation that the plaintiff was a shyster. He said that a shyster was a lawyer who uses questionable or unprofessional methods in his cases. He asked rhetorically: How would the ordinary reasonable reader think that the imputation that the plaintiff was a shyster was conveyed by the article? It is clear, of course, that the word 'shyster' does not appear in the article. Mr McClintock submitted to you that it is asserted in the article that the plaintiff was known for getting drug dealers, that is actual drug dealers, off criminal charges. He submitted the ordinary reasonable reader would think that the plaintiff Mr Murphy had succeeded in obtaining acquittals for a number of actual drug dealers. The ordinary reasonable reader would ask himself or herself: "How does he do it? How does he get actual drug dealers off criminal charges?" and Mr McClintock submitted to you that the ordinary reasonable reader would infer that Mr Murphy had succeeded in obtaining acquittals for a number of actual drug dealers by unprofessional or questionable methods.
Mr McClintock turned to question 2. He submitted to you that, if you find that the article conveyed imputation (a), you would be satisfied that that imputation is defamatory. To say that someone is known for obtaining acquittals for persons who were in fact guilty of drug dealing is defamatory.
With regard to imputation (b), if you found that imputation (b) was conveyed by the article, then, in his submission, on the face of it you would think an imputation that a lawyer was a shyster was defamatory.
I now propose to summarise some of the arguments that were put to you by Mr Shand. Mr Shand commenced by saying there were some parts of Mr McClintock's address which he would have to challenge. He referred to the part of Mr McClintock's address in which Mr McClintock referred to what Mr McClintock said were 'the two lowest forms of life'. Mr Shand did not say anything about what was alleged to be the lowest form of life but he turned to the submission that lawyers who obtain acquittals for drug dealers are the second lowest form of life. He submitted to you that that submission made by Mr McClintock was preposterous. Apart from anything else, he submitted a lawyer would not come within the second lowest form of life if he appeared for a guilty person and obtained that person's acquittal, unless he knew that the client for whom he was appearing or acting was guilty.
In the present case the plaintiff is not suggesting that the article would have conveyed to the ordinary reasonable reader that the plaintiff knew that the persons he was acting for and getting acquitted were guilty. The plaintiff is merely asserting that it was being conveyed that the persons for whom he was acting were in fact guilty of drug dealing, whether he, Mr Murphy, knew it or not.
Mr Shand turned to submissions made by Mr McClintock in which Mr McClintock asked you whether you thought that the Telegraph, in the article, was trying to be nice to Mr Murphy. Mr Shand submitted to you that the test of whether an imputation is defamatory is not whether the publisher was or was not trying to be nice to the plaintiff; the test of whether an imputation is defamatory is the test that I have outlined to you.
It may be that, when Mr McClintock put that argument to you, he was not suggesting that he was propounding a test of whether an imputation was defamatory. It may be that Mr McClintock was merely trying to anticipate an argument that he thought might be put by Mr Shand that the article, so far from being defamatory, was actually being complimentary to Mr Murphy.
Mr Shand put an argument to you that there is nothing defamatory on the face of the article. He submitted to you that, if an article is to be defamatory, it should be clear on the face of the article that it is defamatory. I have given you directions that the ordinary reasonable reader can draw inferences from the actual words used in the article but the inferences must be such as could reasonably be drawn and the ordinary reasonable reader would not draw inferences which are strange or far-fetched or fanciful. The ordinary reasonable reader is not, however, confined to the literal meaning of the actual words used in the article.
Mr Shand pointed out to you that the imputations alleged to be conveyed by the article contain words which don't appear in the article itself. For example, in the first imputation the word "notorious" does not appear in the article itself, the word "guilty" in front of "drug dealers" does not appear in the article itself. It was put by Mr Shand that words foreign to the article, that is words which don't appear in the article, have been imported into the imputations said to have been conveyed by the article. Likewise, in the second imputation the word "shyster" does not appear in the article itself.
It was put by Mr Shand that you would regard the second imputation as a sort of stopgap or fall-back, because the plaintiff was conscious, so it was said, of the weakness of the argument that the article conveys the first imputation. Counsel for the plaintiff, Mr McClintock, said the word "shyster" meant a lawyer who uses unprofessional or questionable methods. It was put by Mr Shand that there is no allegation in the article, at least no express allegation, that Mr Murphy used unprofessional or questionable methods. That allegation doesn't appear in the article.
Mr Shand put submissions to you that counsel for the plaintiff, Mr McClintock, was inviting you to find that the ordinary reasonable reader would place a construction on the article which was not based on the language used in the article, that Mr McClintock was inviting you to find that the ordinary reasonable reader would read between the lines of the article, rather than reading the lines themselves. I repeat again that the ordinary reasonable reader is not prohibited from reading between the lines but any reading between the lines must have some basis in what appears in the article itself.
Mr Shand submitted to you that, contrary to what Mr McClintock put to you, it would not be part of the general knowledge of the ordinary reasonable reader that it is a common practice for newspapers to attack people stealthily, indirectly or sneakily. It was also put that it would not be part of the general knowledge of an ordinary reasonable reader that gossip columns in newspapers commonly contain attacks on the people mentioned in them or, at any rate, serious or gross attacks on persons' reputations. It was put to you that the very word "gossip" suggests something rather trivial, that the ordinary reasonable reader would not conclude gossip columns were used as a vehicle to make gross attacks on people.
Mr Shand turned to the submission by Mr McClintock based on the use of inverted commas around the word "celebrity" in "celebrity” lawyer. He submitted it would be fanciful that the ordinary reader would attach the significance to the quotation marks which Mr McClintock said he or she would.
Mr Shand made a submission to you that some of the submissions made on behalf of the plaintiff could only be accepted, if the reader was a person hungry for scandal, hyper-suspicious and the ordinary reasonable reader is to be taken as a person not hungry for scandal or hyper-suspicious.
Mr Shand repeated the submission that you would reject the submission that the ordinary reasonable reader would think that a lawyer who appears for criminals, even if he succeeds in obtaining their acquittal, is the second lowest form of life.
Mr Shand turned to an argument put to you by Mr McClintock particularly in regard to imputation (b). It was put to you by Mr McClintock that the ordinary reasonable reader would ask himself or herself how it was that the plaintiff had succeeded in obtaining a number of acquittals for people who were actually guilty of drug dealing and that the ordinary reasonable reader would conclude that it was by the use of unprofessional or questionable methods. Mr Shand submitted to you that that was not an inference that the ordinary reasonable reader would draw. That inference, Mr Shand submitted, is quite speculative and quite fanciful, it is a matter of conjecture.

Mr Shand put again that it was not defamatory to say of a lawyer that he acted for people who were in fact guilty and obtained their acquittals, if it is not suggested that the lawyer knew that the clients were guilty of the offences with which they were charged. Mr Shand put submissions to you that the ordinary reasonable reader would be aware of the presumption of innocence, that a person who is charged with an offence is presumed to be innocent, and that the onus is on the prosecution to prove that the person charged with an offence is guilty of the offence.
The lawyer who acts or appears for a person charged with an offence performs an important function. He endeavours to satisfy the jury that the prosecution - I withdraw that sentence and start again. The lawyer who appears for an accused person seeks to resist and test the Crown case. He puts the prosecution to proof of the Crown case. He endeavours to persuade the jury that there is at least a reasonable doubt about the guilt of his client. It was put to you by Mr Shand that there is nothing unethical about that, that the ordinary reasonable reader would not think that such conduct on the part of the lawyer was discreditable.
Mr Shand returned to the submission made by Mr McClintock that the ordinary reasonable reader would ask himself or herself how it was that the plaintiff succeeded in obtaining acquittals for people who were in fact guilty of drug dealing. I have already referred to the submission that Mr Shand made that the inference which Mr McClintock said the ordinary reasonable reader would draw was merely fanciful. Mr Shand put a further argument that if the ordinary reasonable reader asked himself or herself that question, why wouldn't the ordinary reasonable reader draw the conclusion that it was not by unprofessional or questionable methods that Mr Murphy achieved these results but by hard, effective work? Reference was made to part of the article in which Mr Murphy himself was quoted in the article as saying, "I have to sing for my supper, I have to stand up in court each day and it is damned hard work."
Mr Shand made some analysis of the article. He said you would think that the ordinary reasonable reader would think that it is a chatty, mildly amusing article, not very deep or very serious. It is about two relatively well-known persons who have the same name and that circumstance has given rise to some confusion. The article touches on the different careers of the two Christopher Murphy’s. The other Christopher Murphy has just made an investment. He is a former manager of a rock band and he is the part-owner of a radio station. The article then turns to the plaintiff. The article says that the plaintiff is better known for getting drug dealers and advertising guru John Singleton off criminal charges.
He submitted to you that the ordinary reasonable reader would think that the effect of the remarks is that the plaintiff is a criminal lawyer, he has appeared for a number of clients, he has had some challenging cases involving drug dealers, Mr John Singleton and two rugby league players, who were described as bad boys, and that the plaintiff has demonstrated his ability and his capacity for hard work by obtaining acquittals, at least for the drug dealers and Mr Singleton.
It was put to you by Mr Shand that the ordinary reasonable reader would not think that any improper conduct is suggested on the part of either Mr Murphy.
An argument was put by Mr Shand that the ordinary reasonable reader would have interpreted the expression "drug dealers" as meaning, not actual drug dealers, but as meaning alleged drug dealers or persons who faced drug-dealing charges. It was pointed out that drug dealers are coupled with Mr Singleton and the article would not have been taken by the ordinary reasonable reader as conveying that Mr Singleton was guilty of anything.
It was submitted by Mr Shand that the word "celebrity" when used in connection with Mr Murphy was not so much a reference to Mr Murphy himself but a reference to his clients. Mr Murphy was a celebrity lawyer in the sense that his clients were celebrities. It might be that the article was suggesting that some of his clients were not as high grade or as true celebrities as others. The quotation marks placed around the word "celebrity", if they do have any significance, cast doubt on the celebrity status of some of Mr Murphy's clients, rather than on Mr Murphy himself.
Mr Shand referred to an argument by Mr McClintock that the ordinary reasonable reader would think that it was being conveyed that Mr Murphy had repeatedly appeared for actual drug dealers and secured their acquittal. He pointed out that the word "repeatedly" is not used. It is, of course, a matter for you. The word is "drug dealers" in the plural and it is also said that Mr Murphy was known for getting drug dealers off criminal charges, so the argument put by the plaintiff is that, if not repeatedly, then at least on a number of occasions Mr Murphy had acted for drug dealers and succeeded in obtaining their acquittals.
I don't propose to say anything more about any of the submissions. Are there some points? I repeat that I do not propose to repeat every argument that has been put.
SHAND: Nothing, thank you, your Honour.
HIS HONOUR: Ladies and gentlemen of the jury, that concludes my review of counsel's arguments. I repeat that I have not attempted to refer to every argument put by counsel. You have copies of the questions you have to answer. You answer each part of each question or such parts as you are required to answer either “yes” or “no”. Any answer, whether yes or no, must be a unanimous answer of all of you. The plaintiff says that you should answer each part of each question yes, you should answer the questions 1(a), 1(b), 2(a) and 2(b) “yes”. The defendant says that you should answer each part of question 1 “no”.
Alternatively, the defendant says that if you answer either part of question 1 “yes”, you should answer the corresponding part of question 2 “no”. You have to consider each part of each question separately. You do not necessarily give the same answer to both parts of question 1 or both parts of question 2, assuming you have to answer question 2. When you have arrived at an answer to a question, I make the suggestion that you circle either “yes” or “no”, whichever is appropriate, alongside the question on your copies of the questions.
When you have arrived at an answer to all the questions or all the questions you need to answer, you should inform the court officer. The court officer will inform me and I will have the court reconvene. The foreperson of the jury will then be asked to stand. My associate will read the questions out aloud one by one. For example, my associate will first read out, "Has the plaintiff established that the article in the Daily Telegraph of 16 February 1998 conveyed to the ordinary reasonable reader the following imputations, or imputations not different in substance: The Plaintiff was a solicitor notorious for obtaining acquittals of guilty drug dealers", that is question 1(a), and the foreperson will say either “yes” or “no” to announce your answer.
My associate will then say, "Has the plaintiff established that the article in the Daily Telegraph of 16 February 1998 conveyed to the ordinary reasonable reader the following imputations, or imputations not different in substance: That the Plaintiff was a shyster?", and the foreperson will say either “yes” or “no”, according to what your answer is. Then, depending on what answers you have given to question 1, we will turn to question 2. I propose to have my Associate ask you separately question 1(a) and question 1(b) and then, if necessary, separately question 2(a) and question 2(b).
If during your retirement you have any problem about any directions I have given you or any other problem about how you should proceed, you can send me a note through the foreperson. I cannot, of course, tell you how you should decide the case. I will now ask you to retire and consider your answers to the questions. Thank you. I have in fact slightly marked the questions.
McCLINTOCK: I have a clean copy of the questions, your Honour.
HIS HONOUR: The jury, of course, have individual copies. Court officer, please show Mr Shand that copy of the questions.
McCLINTOCK: That is the one that should form part of the record.
HIS HONOUR: I shall make that MFI 1.
McCLINTOCK: There is already an MFI 1.
HIS HONOUR: I am saying that the document which is MFI 1 I have slightly marked. MFI 1 is now an unmarked copy of the questions, which has just been handed up to me. The jury will also have exhibit A.
JURY RETIRED TO CONSIDER THEIR VERDICT AT 2.50PM
IN THE ABSENCE OF THE JURY
HIS HONOUR: Could counsel leave telephone numbers? Counsel are welcome to remain in the precincts of the court but I wouldn't require counsel to remain in the precincts of the court provided that they can get to the court in five minutes or so.
McCLINTOCK: The last jury I had on one of these cases took less than five minutes.
HIS HONOUR: Are you suggesting we remain here?
McCLINTOCK: No, I am not suggesting that but I have learnt not to leave the precincts.
HIS HONOUR: I ask you not to be any further away than five minutes.
COURT ADJOURNED
HIS HONOUR: I have received a communication from the jury, "Could we request a dictionary please".
McCLINTOCK: I was just saying to Mr Shand that I can't imagine what question they are going to ask, I should have thought of that one. The answer to that question has to be no.
HIS HONOUR: Do you suggest any different answer, Mr Shand?
SHAND: No, I don't.
HIS HONOUR: They don't say it, but I would guess that they have problems with the word "shyster".
McCLINTOCK: With respect, may I suggest an appropriate way to deal with the request is to say, "Members of the jury, I have your request. Unfortunately we cannot supply you with a dictionary. The words used are ordinary English words and you know and are taken to know their meanings. You heard from counsel explanations of the meanings of each of the imputations and those, in light of your knowledge, should be sufficient for your purposes", something like that, your Honour. I recall there was a reported case in the United States where the judge instructed the jury specifically they were not to refer to a dictionary. It turned out they went home and looked up the meaning of the words "reasonable" and "doubt".
HIS HONOUR: Could I say, "You are to rely on the submissions made by counsel and on your knowledge". In some ways it is rather strange. If I was a tribunal of fact my understanding is that I am quite entitled to refer to a recognised dictionary.
SHAND: I beg your pardon, your Honour?
HIS HONOUR: I am just saying it is somewhat paradoxical that if a judge is the tribunal of fact it seems to be well established that the judge is entitled to refer to a recognised dictionary.
McCLINTOCK: The reason lies usually in the different tasks the jury is performing and the judge is performing. I don't know of any specific authority for the proposition that if they ask for one they can't have one, but it is the position as always understood. Your Honour put to me, "in the light of your own knowledge", it is really your knowledge and understanding of the English language and so on.
HIS HONOUR: Mr Shand, do you submit that I should give any different answer to the jury?
SHAND: My learned junior thinks there is some guidance in Readers Digest v Lamb, so I might read that. Before I do, I can imagine one of the difficulties at least which could be encountered is that there are numbers of dictionaries and they tend to contain in respect of some words very different definitions and applications of the words. One might find that they were looking at meanings that weren't represented by imputation.
HIS HONOUR: This is the case in which Sheller JA referred to a dictionary meaning of "shyster". He referred to the Macquarie dictionary. I have in fact got a small copy of the Macquarie dictionary and the Concise Oxford dictionary here. Perhaps unsurprisingly, it is defined as Sheller JA says it is defined, "a lawyer who uses unprofessional or questionable methods". Do you suggest that the jury should or can be supplied with a dictionary?
SHAND: It is my submission that, apart from what dictionary would be chosen for that purpose, that it would be a most dangerous course.
HIS HONOUR: Has your junior had a chance to check that reference? I am prepared to wait.
McCLINTOCK: I am not sure - it was a case in which direct evidence had been led. That may have had some bearing on the meaning, it may be a difference analogy. What Brennan J said was, "Whether the alleged lie ... meaning of the language used." That may or may not admit use of a dictionary.
HIS HONOUR: Unless I hear something to the contrary from either of you, I take it that you are in agreement that a dictionary should not be supplied to the jury.
SHAND: That is our position, your Honour.
HIS HONOUR: Do you have any submission to make about the additional things that Mr McClintock suggested I say. I would prefer to say something in addition to simply a curt “no” to the jury.
SHAND: I would have thought that at least they should be given an indication that this is governed by rules of one kind or another, evidentiary rules, and the precedent exists not to do so, something of that nature.
HIS HONOUR: What about the suggestion that I tell the jury that they are ordinary English words, you are taken to know the meanings of the words. You have heard submissions from counsel about the meanings of each imputation. You have to rely on the submissions by counsel and your own general knowledge and understanding of the English language.
SHAND: I first of all hesitate to say that that description fits "shyster". It contains an enormous variety of meanings, meaning that it is not an ordinary English word at all, it is extraordinary one.
HIS HONOUR: Should I merely say to the jury that, "I have received your request. I have to tell you that the answer to your request is that a dictionary cannot be supplied to you"?
SHAND: By reason of evidentiary rules.
HIS HONOUR: "By reason of rules which are binding on the court".
SHAND: Yes. May I suggest, your Honour, that perhaps, as they have this idea in mind, should they continue their deliberations overnight and be allowed to go home that they shouldn't be consulting dictionaries if they do.
HIS HONOUR: I don't think I need to say something about that at this stage. I will send them out again. I would expect them to continue deliberating for some time. I won't allow them to separate, assuming they haven't reached answers, without bringing them into the courtroom and I will give them further directions when I bring them into the courtroom again.
SHAND: Thank you, your Honour. When your Honour has directed them to return to their deliberations there is one very small matter we wish to raise with your Honour.
HIS HONOUR: It might be convenient to raise it now, it might require me saying something to the jury.
SHAND: We are slightly concerned about the fact that in respect of the meaning of "shyster", as to which my friend and eventually everyone appeared to be clear about the precise meaning that might go to the jury and did in address. Some of the uses of that meaning varied a bit. We are anxious to make sure there has been no departure from the particular meaning, which was "unprofessional or questionable methods".
HIS HONOUR: Yes.
SHAND: Maybe this was a misrecording or my learned friend missed out a word. On page 15, for instance, my learned friend referred to "shyster" and said that, "it is an ordinary English word. It means a lawyer who uses unprofessional, questionable methods in his cases". That is a bit ambiguous as it is taken down.
HIS HONOUR: I think it is all right, really. If he uses unprofessional and questionable methods, he is doubly a shyster.
SHAND: Yes. In any case, your Honour, so long as we have it recorded we are, that is both parties, and your Honour, as your Honour has indicated we believe in the summing up, still fully agreed upon and regard the proper meaning as being "or", "unprofessional or questionable methods" then the record will show it.
HIS HONOUR: That will be recorded.
McCLINTOCK: I would like to consider my position. I will say something after the jury has gone out. There was a search definition. I was concerned about the 'or' in there as well. I don't think this requires anything to be said to the jury. The proposition I put when this came up on the first morning was simply that there is no ambiguity in the word 'shyster' and that the way it was defined by the Court of Appeal was conveying one act or characteristic on the part of the lawyer in question. It's wrong to say that Justice Sheller was defining it as if this were, to use an American phrase, the law of the case for all time.
HIS HONOUR: He was however saying that, if the word was understood in that sense, it was not lacking in specificity.
McCLINTOCK: I don't know why Mr Shand is raising this. I believe it's an attempt to reserve for somewhere else that this is ambiguous. Questionable and unprofessional may have different meanings. I went to the jury on the basis that it was syncretic, it was one condition of that lawyer, one characteristic, being unprofessional, using unprofessional questionable tactics. I can't myself see any real difference between unprofessional and questionable in the context. The point seems to be one that goes nowhere. My natural suspicion but no doubt unjustifiable suspicion was raised and I didn't think I should let it go by my silence.
IN THE PRESENCE OF THE JURY
HIS HONOUR: Members of the jury, I have received your request: "Could we request a dictionary please". I have to say that you cannot be supplied with a dictionary. I give that answer because of rules which are binding on the Court; that is, binding on you and on me. I repeat that you cannot be supplied with a dictionary. I would ask you then to retire again and resume deliberating. I will have the request marked for identification “2”.
AT 3.34 PM THE JURY RETIRED TO FURTHER CONSIDER
THEIR VERDICT.
HIS HONOUR: I have been informed the jury have arrived at their answers.
AT 4.35 PM THE JURY RETURNED TO COURT WITH THE FOLLOWING ANSWERS TO THE QUESTIONS:
ANSWER TO QUESTION 1(a): YES.
ANSWER TO 1 QUESTION 1(b): YES.
ANSWER TO QUESTION 2(a): YES.
ANSWER TO QUESTION 2(b): YES.
HIS HONOUR: Thank you. Members of the jury, you have answered all four questions: “yes”. I thank you for having served as jurors at this trial. I know you have given the matter your careful attention. I thank you. I now discharge you and ask you to go with the officer for the last time.
JURY EXCUSED FURTHER ATTENDANCE.
SHAND: One thing, there are matters which as a result of these questions being answered as they have, will need directions and procedure.
HIS HONOUR: Should I have the matter placed in some list for the making of directions? Is that appropriate or what's the appropriate course?
McCLINTOCK: I think we agree it should go back to the defamation list. There is a list tomorrow. That would be I think inappropriate. There is a list on March 3 I believe.
HIS HONOUR: Should I direct this matter be placed in the defamation list on 3 March 2000?
McCLINTOCK: Yes.
HIS HONOUR: I don't think there is anything further?
McCLINTOCK: I seek costs of the separate trial which is being conducted under part 31 rule 2 and I seek an order that the defendant pay the costs of this separate trial of the plaintiff.
SHAND: I haven't studied that situation as to whether in fact costs should be reserved to abide the result of the ultimate trial. Costs in the cause, it's suggested might be more appropriate because there are many issues which will be decisive of the result yet to be determined.

HIS HONOUR: Mr McClintock, I think I will just reserve the costs. I don't necessarily think I should make it costs in the cause.
McCLINTOCK: We have come here to fight an issue on which we have won. In the ordinary event costs would follow. In relation to if we win or lose, they can be dealt with discretely. When costs are reserved and they go off into never-never land and are never dealt with --
HIS HONOUR: If necessary you can bring it back before me. It seems to me to be a matter that a subsequent Judge, even if it's not me, can readily deal with.
McCLINTOCK: I accept that. Putting that aside, under no circumstances should it be costs in the cause. If your Honour's minded to reserve costs I have nothing further to say.
HIS HONOUR: I will just reserve costs. I find it hard to see how the defendant should not have to pay costs of this separate hearing but I propose simply to reserve the costs.
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LAST UPDATED: 06/04/2001

[2000] NSWSC 1251

17 February 2000