Nationwide News Pty Ltd v Aitken

[2004] NSWCA 311

CITATION:	NATIONWIDE NEWS PTY LTD v AITKEN [2004] NSWCA 311 revised - 15/11/2004
HEARING DATE(S):	1 September 2004
JUDGMENT DATE:	23 September 2004
JUDGMENT OF:	Sheller JA at 1; Santow JA at 21; Ipp JA at 22
DECISION:	Application refused with costs.
CATCHWORDS:	DEFAMATION - whether jury should have been discharged at close of plaintiff's counsel's address - whether jury misled by counsel as to defendant's intentions and truth or falsity of assertions - whether jury answers unanimous - whether the trial Judge should have questioned the foreperson - whether miscarriage of justice justice
LEGISLATION CITED:	Defamation Act 1974
CASES CITED:	Mourani v Jeldi Manufacturing Pty Ltd (1983) 57 ALJR 825
PARTIES :	Nationwide News Pty Ltd - Claimant Sydney Francis Aitken - Opponent
FILE NUMBER(S):	CA 40186/04
COUNSEL:	T D Blackburn SC/A Leopold - Claimant S M Littlemore QC - Opponent
SOLICITORS:	Blake Dawson Waldron - Claimant Rankin & Nathan - Opponent

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	20097/03
LOWER COURT JUDICIAL OFFICER :	Studdert J

CA 40186/04
SC 20097/03

SHELLER JA
SANTOW JA
IPP JA

NATIONWIDE NEWS PTY LTD v AITKEN

On 27 August 2002, the claimant published an article about the opponent in The Daily Telegraph under the headline “Slain by her dad or alive and well with kids”. As a result of this article, the opponent brought proceedings against the claimant to recover damages for defamation. In the defamation proceedings, the opponent alleged that the article contained the following imputations; firstly that he had killed his daughter Kathleen Aitken when he was in a drunken rage or secondly, in the alternative, that he had so conducted himself as to warrant reasonable suspicion that he had killed his daughter Kathleen Aitken and thirdly that he had falsely denied murdering his daughter Kathleen Aitken.

The jury, at a trial in accordance with the requirements of s7A of the Defamation Act 1974, found that the second and third of these imputations, or a meaning not substantially different from them, were conveyed to the ordinary reasonable reader and that these imputations were defamatory of the plaintiff. The jury found that the first imputation alleged was not conveyed. After the foreperson announced the jury’s answer to the last question he indicated that “it presented some difficulties” before being interrupted by another jury member and the trial Judge. Counsel for the defence made an application, which was refused, for the foreperson to be questioned to determine whether the answers given by the jury where unanimous.

At the close of counsel for the defendant’s address in the trial, counsel for the plaintiff applied to have the jury discharged on grounds including that counsel for the defence had misled the jury by raising for their consideration the issue of the claimant’s intention and also had put to the jury the issue of the truth or falsity of the assertions in the article. The trial Judge declined to discharge the jury.

On the application for leave to appeal, counsel for the claimant, Mr Blackburn, contended that the trail Judge, at counsel's request, should have questioned the foreperson to find out whether the answers to each of the questions was unanimous. It was further submitted that there was a sufficient risk that the jury so failed to understand its task in answering the questions left to it that a substantial wrong or miscarriage of justice occurred. The claimant also contended that the trial Judge erred in failing to discharge the jury at the close of counsel for the defendant’s address to the jury.

Held: per Sheller JA, Santow and Ipp JJA agreeing:

1. The jury had been directed by the trial Judge during his summing-up that the answers given to the questions the jury was required to answer must be unanimous. It was highly unlikely that after that direction the affirmative answers by the jury were not unanimous. The trial Judge acted well within the scope of his discretion, and correctly, in refusing to ask the foreperson whether the verdict was the verdict of them all. For like reason, the submission that the jury’s verdict was unsafe should be rejected.

Mourani v Jeldi Manufacturing Pty Ltd (1983) 57 ALJR 825 distinguished.

2. Defence Counsel’s words, in the first passage complained of in his address to the jury, were especially directed to impressing upon the jury that the truth of the assertions in the article was not an issue. The language used by counsel was emotive but so was the article. Counsel did not step over the line of either propriety or legitimate insinuation. There was no reason to interfere with the trial Judge’s refusal to discharge the jury on this ground.

3. In the second passage complained of, defence counsel’s phrase “it is tendentious” was used in the context of the proposition that the article had a very strong tendency in a particular direction against the opponent. Otherwise counsel’s address to the jury in this regard was in relation to what must be commonplace, that newspapers and journalists choose the words and photographs they use to create an impression. None of this entitled the claimant to have the jury discharged. The trial Judge gave the clearest direction that the intention of the publisher of the article was irrelevant for the jury’s purposes.

Legislation:
Defamation Act 1974

Cases cited:
Mourani v Jeldi Manufacturing Pty Ltd (1983) 57 ALJR 825

ORDERS
Application refused with costs.
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CA 40186/04
SC 20097/03

SHELLER JA
SANTOW JA
IPP JA

Thursday, 23 September 2004

NATIONWIDE NEWS PTY LTD v AITKEN

Judgment

1 SHELLER JA: The claimant, Nationwide News Pty Ltd, has applied by amended ordinary summons for leave to appeal from a jury decision of 16 February 2004 on questions left to the jury at a separate trial before Studdert J under s7A of the Defamation Act 1974 and from the decision of Studdert J on that day rejecting the claimant’s application for the discharge of the jury. The opponent, Sydney Francis Aitken, by an amended statement of claim alleged that on or about 27 August 2002 the claimant published in its newspaper, The Daily Telegraph, matters of and concerning the opponent in an article which was Schedule A to the amended statement of claim. The article contained, so it was alleged, the following imputations:

(a) That he killed his daughter Kathleen Aitken when he was in a drunken rage; or alternatively

(b) That he had so conducted himself as to warrant reasonable suspicion that he had killed his daughter Kathleen Aitken;

(c) That he had falsely denied murdering his daughter Kathleen Aitken.

2 The imputations were said to arise from the headline “Slain by her dad or alive and well with kids” and various identified paragraphs in the article and photographs that were part of it. As to imputations (a) and (b) the identified paragraphs included:

“Yesterday, her mother told Westmead Coroner’s Court she believed her ex-husband Sydney Aitken, 73, murdered Kathleen in a drunken rage.”
“However, the last person to see her alive was her father – although the date was disputed by her mother.”
“The sisters hardly knew Ms Aitken, but believed her father ‘did away with her somewhere, somehow’.”

3 As to imputation (c) the identified paragraphs (sentences) included:

“Mr Aitken, denied she was murdered, saying she visited him several times in the 1980s to ask for money with three primary school-aged children, Rachel, Luke and Matthew or Mark, who now would be in their mid-20s.
Mr Aitken produced photographs of the children and a letter his daughter allegedly wrote to his sister.
He said he had failed to mention the children to police when he was interviewed last year because his sister had the only photograph of them.
Deputy State Coroner Carl Milovenoich warned Mr Aitken there would be ‘grave concerns’ about his involvement in Ms Aitken’s disappearance if the photographs were not of her children.”

Also identified was a photograph of the plaintiff and three children with the caption “These are ‘her children’ ”.

4 The hearing began before Studdert J and a jury on 16 February 2004. After tendering the article Mr Littlemore QC, who appeared for the opponent, in part addressed the jury as follows:

“LITTLEMORE: We have just read the article together ladies and gentlemen and no doubt as ordinary reasonable members of the community, the first thing you want to know is whether she is dead or alive. I am not allowed to tell you that. Your job is to work out what this means, what it’s saying about Sydney Aitken.
That part of this business about the changes to the law of defamation means Mr Aitken doesn’t get into the box to tell you what the truth is. I am entitled to say this to you, do not assume for one moment, that there is a word of truth in this article. Do not assume for one moment that Kathleen Aitken is dead. Equally, you can’t assume she’s alive. You can’t assume she hasn’t been murdered. But don’t assume this is true. You just have to deal with the words on the page. This is the wisdom of Parliament, taking from you what used to be your role.”

5 Later, in his address, Mr Littlemore said:

“Let me put myself in the position of my learned friend Mr Blackburn for a moment. What’s he going to say to you? What possible argument can he raise with you, in attempting to persuade you that black is white? Isn’t all he can say, well look, even the headline is saying there are two possibilities. Maybe he murdered her, but on the other hand, she might be alive and well and have children.
So the ordinary reasonable reader is not told which it is. The article doesn’t have a line that says, and in the opinion of the Daily Telegraph Court Reporter Sydney Aitken is guilty. Well, neither are you, nor the ordinary reasonable reader idiots. The ordinary reasonable reader has this capacity with a sensational article, to read between the lines and to gain the entire impression.
If this article said on the one hand, the family who have no evidence whatsoever, claim he may have killed her, and on the other hand Mr Aitken says she’s alive and well and he saw her in the 80s and lent her money and saw her children and police are investigating, that might be one thing. That might be neutral. That might be even handed. You might say no, we are not plumping for one or the other.
But when everything that Sydney Aitken said is a claim, and when his evidence is dealt with as it’s according to Mr Aitken, and when he says there are children and that’s put in the inverted commas, that means ‘not’. And when he’s the last person to see her alive, and when she has disappeared without a trace since 1976, nobody has every seen her in more than a quarter of a century, and when they speak of her in the past tense, she was 170 to 175 centimetres tall, they have gone beyond an even handed exposure of what went on in the court. They are coming down heavily against Sydney Aitken.
Even in the choice of the photograph. Look at him, he is an ordinary man. There has been a photograph chosen, just as the words have been chosen ‘according to’, ‘claims’, ‘however’. Those are all choices of words that create an impression. The photograph is a choice. That creates an impression of a hulking drunken brute.
So this isn’t even handed which is what my learned friend is going to, I anticipate, try to persuade you. Far from it. It’s a sensational page 3 article, in colour, with a very strong tendency. It is tendentious. It goes in a particular direction against my client. And an argument that I anticipate you are likely to hear that this is really an innocent, neutral report, is actually nonsense. It insults your intelligence. But what else can the newspaper say, if it’s going to fight this case at all? If it’s going to fight this case, they are forced into that sort of strained argument, we submit to you.”

6 When Mr Littlemore had completed his address and in the absence of the jury, Mr Blackburn SC, who appeared for the claimant, applied to Studdert J to discharge the jury. The submission was that Mr Littlemore misled the jury by raising for their consideration the issue of the claimant’s intention. Counsel said:

“The first matter; just before the break my learned friend said to the jury that the photograph was chosen, just as the words have been chosen. In the context of what my learned friend said on that occasion, it plainly suggested an intention on the part of my client to the jury, to down, or to denigrate Mr Aitken. Your Honour will recall the words that my learned friend used. They were a very clear invitation to the jury to infer that the newspaper had intended to do a hatchet job on the plaintiff.
He referred to the drunken brute. I may not be using the exact words; the drunken thug, or words to that effect. He said the photograph has been chosen, just as the words have been chosen. It was nothing, if not an attempt to make the jury think, or speculate about the intention of my client. One thing which is irrelevant in these trials is the intention of, or supposed intention of the defendant in publishing the matter complained of. It shouldn’t have been said.”

7 Counsel continued:

“The other matters are these: It is, of course, true that the truth or falsity of the imputations, or what appears in the newspaper are irrelevant, and the jury must be told however, my friend pointedly suggested, or attempted to suggest to the jury, that it was all a pack of lies.
The first thing my learned friend said, relevantly, was that Mr Aitken can’t get into the witness box to tell you the truth. If he had stopped there, I might not be making the application that I am now making, but my learned friend went on to say this, and very pointedly. Your Honour will recall the delivery, do not assume that there is a word of truth in this article.
The vice of that submission is twofold. The first is that it was a very clear signal to the jury whether it be the fact or not, is that the article was a pack of lies. Do not assume that there is a word of truth in this article. But the advice went further than that, because in choosing those words, what Mr Littlemore was doing, or attempting to do, or what his words were calculated to do, were to make the jury think to a greater or lesser extent, the entire article was a fabrication, that they should start to doubt where [whether] there was an inquest. Do not assume that there is a word of truth in this article. That went far beyond what someone should say in a 7A trial.
Certainly they should be told that they must not speculate, or assume that the imputations are true or assume that they are untrue. What Mr Littlemore said in the two comments that I have told you, that Mr Aitken can’t climb in the box and tell you the truth, and the direction to the jury that they must not assume that there was a word of truth in the article, was a coded way of saying there was no truth in it.
One further thing, my friend invited the jury to speculate that this article was a complete fabrication. He invited them to think that the coronial inquest didn’t happen. It went far too far.
I can indicate this, that if your Honour is against me in this present application, I intend to say to the jury in response to the remark of my learned friend, that by the same token, they should not assume that a single word of the article is not true. They should not make an assumption one way or the other.”

The submission was that Mr Littlemore had put to the jury the issue of the truth or falsity of the assertions in the article.

8 Studdert J said:

“3 I have listened carefully to the address of Mr Littlemore. Of course, the jury is not concerned with the truth or falsity of the content of the article, and they will be given directions to that effect. Their role is a narrow one and I will be giving directions as to precisely what their role is. I do not consider that anything that has been said in Mr Littlemore’s address warrants the drastic step of discharging this jury and requiring the matter to be reheard. The application for the discharge of the jury is rejected.”

9 On this application Mr Blackburn complained that the trial Judge did not deal with his submission about intention.

10 In summing up on the same day, 16 February 2004, Studdert J said:

“Because of the submissions that have been made in the course of counsels’ addresses, there are two matters that I want to say to you by way of direction. The first is this, the truth or falsity of any one of these assertions, for which the plaintiff here contends in this case, is irrelevant. You are not concerned to try to determine whether there is any truth in anything that is said in this article, or whether what is in the article is false. They are not matters for you. They are not your concern in this trial.
There may be, depending upon the verdict you reach, the answers to which you arrive here, there may be another trial, a later trial, at which those issues may become relevant. But you do not have any evidence upon which you could determine those questions, for the very simple reason that it is not a matter that concerns you here. So do not be troubled about trying to determine what you are not in a position to determine, and what it is not your function to determine. Do not worry here about whether any assertion you are considering is true or false. You simply cannot and are not required to determine any such question.
I also direct you that the intention of the publisher of this article is irrelevant for your purposes. You do not seek to determine what the publisher was trying to do in putting together this article. Your concern is rather how these various questions on those two sheets of paper are to be answered. That is all you are concerned with here members of the jury.”

11 At the conclusion of the summing up, Mr Blackburn, when asked by the trial Judge whether there was anything that he wanted the trial Judge to put to the jury, replied “No, your Honour”.

12 At 3.04 pm the jury retired to consider the questions put in accordance with the practice in s7A hearings, namely, questions directed to each imputation whether the plaintiff had established that the matter complained of, in its natural and ordinary meaning, conveyed to the ordinary reasonable reader, the imputation pleaded or an imputation which was not different in substance and, if so, whether the plaintiff had established that the imputation was defamatory of the plaintiff. As to the first imputation, the jury answered the first question “No”. As to the second and third imputations, the jury answered the first question “Yes” and the second question “Yes”. According to the transcript, after the foreperson answered the last question “Yes”, the foreperson said: “Your Honour, it presented some difficulties – ”. The transcript records “(Another jury member indicated that the foreperson should say no more)”.

13 Studdert J then said:

“I don’t think you should say any more. As I indicated to you, and there is good reason for it, juries are not called upon to expose their reasoning processes in this sort of case. In answering those questions in the way you have answered the questions, you have discharged your function members of the jury and I do express the court’s appreciation for the service you have given to the community in attending and in sitting as jurors in this case.
BLACKBURN: Could I ask your Honour to ask the foreperson whether that was the verdict of them all?
HIS HONOUR: Mr Blackburn in all my experience as a judge of this court I have never asked that question. Normally the question is asked – in a full trial, other than a 7A trial, they are asked whether they have agreed on a verdict, not as put in these questions.

LITTLEMORE: It’s implicit in the first question asked of the jury.
HIS HONOUR: I don’t think that it is. I suppose it is.
LITTLEMORE: I would add this that in Moranie(?)and Geldie(?) Manufacturing, [ Mourani v Jeldi Manufacturing Pty Ltd (1983) 57 ALJR 825] once the jury has returned a general verdict, it cannot be interrogated on any subject.
HIS HONOUR: These are verdicts which call for responses to specific questions.
LITTLEMORE: It’s special a verdict, yes.
HIS HONOUR: The jury was directed, of course, that they had to be unanimous. Are you asking me to act on the assumption that the jury has not complied with that direction?
BLACKBURN: It might be appropriate for the jury to step out at the moment.
HIS HONOUR: Would you be good enough to retire. I will not discharge you just yet members of the jury.
JURY RETIRED AT 4.10 pm.”

14 The following interchanges took place:

“BLACKBURN: Your Honour this is a most unusual decision, because the answer to imputation 3 seems, at least on one view, to be at odds with imputation 1.
Putting that to one side, the foreperson tried to make some sort of statement about the results. He was forcibly told to be quiet, or to restrain from doing so, by the juror at the end. In those circumstances, in particular in circumstances where it appears that there may be some inconsistency between the answers to Questions 1 and 3, in my submission the foreperson should be explicitly asked whether they have agreed on each of the answers.
LITTLEMORE: I ought to place on the record that we do not agree that the foreman was restrained by another member of the jury. It was your Honour who restrained him.
HIS HONOUR: Well, something was being said from the other end.
LITTLEMORE: That was not what restrained him.
BLACKBURN: He protested your Honour.
HIS HONOUR: Something was begun to be said. Have you got anything you want to say to me? Have you got any authority you want to refer me to?
BLACKBURN: Your Honour, all I can say is I have done a number of these 7A trials, and it is a question that is invariably put.
HIS HONOUR: It’s a question infrequently put.
BLACKBURN: I agree with your Honour, I can’t say invariably put, but infrequently put, if there are grounds for thinking their answers may not be unanimous.
HIS HONOUR: You want to impeach the verdict do you?
BLACKBURN: I want the foreman to be sworn and asked --
HIS HONOUR: I couldn’t contemplate swearing him --
BLACKBURN: -- to ask him specifically whether each answer is the answer of them all. That’s the only question I would like put your Honour. I don’t want to impeach the verdict.
HIS HONOUR: Mr Blackburn, the difficulty I have with that is commonly in jury cases, civil jury cases, my 40 years of experience with them has been, that the first question the jury is asked is, have you agreed on your verdict? It’s a very formal question but the answer is then given, yes. And then they are asked to proceed with the questions, do you find the plaintiff, the defendant negligent or not? And the answer is given and there it is. That’s not been asked of this jury, but they were directed, I trust in clear terms, that they had to arrive at verdicts which were unanimous.
BLACKBURN: They were your Honour.
HIS HONOUR: One should always approach looking at a jury’s verdict, upon the basis that they have complied with directions of principle. To do otherwise is to interrogate them. I am uncomfortable about that, absent any authority for me to do what you ask me to do.
BLACKBURN: In principle it is no different – just going back a step – your Honour, of course, has had a great deal more experience of civil jury trials than I have. In the many 7A trials I have done, I have as your Honour points out, heard the question asked prior to the answers, have you agreed upon your answers?
HIS HONOUR: I suspect it would only be asked if they were directed specifically on their list of questions and that was one of them.
BLACKBURN: No your Honour. In all the ones I have done that has been Question 1, have you agreed upon your answers?
HIS HONOUR: I have never in any trials that I have conducted, had my associate ask any questions other than those which were agreed to by counsel and put on the sheets of paper.
BLACKBURN: I have heard many times the judge’s associate first put to the jury whether they have agreed upon their answers. It has never appeared on the question sheet.
HIS HONOUR: Your experience is different from mine. As far as I am concerned when counsel settle a list of questions, they are the questions the jury will be asked in 7A trials.
But that is not the problem that I see Mr Blackburn. The problem is that the jury has been given the instruction that these verdicts have to be unanimous. The foreman announces the verdict. They have, I trust, understood that, and this foreman has come along and announced their verdict. I know there may be an argument of inconsistency there and that may have consequences elsewhere, but however tempting it may be to try to clarify it, to avoid some challenge somewhere else, it is a question of whether it is appropriate for me to go further than has been ventured and I do not think it is Mr Blackburn.
BLACKBURN: I can only say if it’s appropriate to ask the question before they give their answer, there can be no difference in principle, in asking the question after they have given their answers and indeed, I have heard it done. That’s the submission.
HIS HONOUR: If you have worked with those who have done, it then if that is the case so be it. I do not think I will accede to that application but you are protected. Your application is noted.”

The jury returned and were discharged.

15 As argued, the final ground upon which Mr Blackburn sought leave to appeal was that the trial Judge, at counsel's request, should have asked the foreperson whether the answers to each of the questions were unanimous. Reliance was placed upon the High Court decision in Mourani but the facts were quite different. At the conclusion of the summing up in Mourani the trial Judge had given the jury written questions for their consideration including questions as to whether the respondent had been negligent, whether it had been negligent in relation to the statutory count, and, in that event, what was the measure of the appellant’s damages. The jury answered the first question “No”, the statutory negligence question “Yes” and the damages question “Nil”. In a joint judgment rescinding special leave to appeal, the High Court said at 826:

“The answers which the jury gave to the series of questions which was left with it by the learned trial judge in the present case did not constitute a general verdict. They were answers to questions of fact which, if properly framed, his Honour was entitled to leave to the jury and which the jury was, under s90, required to answer. When it appeared from the answer given to one of the questions that the jury may have, to adapt the learned trial judge’s words, misunderstood or misapprehended their precise task, his Honour was entitled, in the exercise of his discretion, and subject to the ordinary supervision by an appellate court of the exercise of such a discretion, to seek elucidation of the answer which the jury had given to a particular question and, if the jury was prepared to provide such elucidation, to give the jury an opportunity of amending the answer to overcome the effect of manifest error or mistake. The course of seeking such elucidation is fraught with danger and the discretion to seek it should be exercised sparingly and with care. The circumstances of the present case, however, plainly justified the learned trial judge in seeking such elucidation and, once it was obtained, in giving to the jury the opportunity of correcting the error they had made, as a result of an omission in his Honour’s summing-up, in the particular answer. This did not involve a questioning by the trial judge of the jury on matters lying behind a general verdict. At the relevant time, all that the jury had done was to answer the questions that had been left to it.
The learned trial judge omitted to give, in his summing-up, any real direction in relation to the workers’ compensation payments which the appellant had received. In the very unusual circumstances of the present case, his Honour was entitled to overcome this omission by further direction. The appellant seeks to rely both on the original failure and on suggested incompleteness of the direction that was finally given. No objection was, however, taken in respect of either at the trial and we are of the view that, in the circumstances of the present case, the appellant has failed to show that any substantial wrong or miscarriage was occasioned thereby ( Supreme Court Rules Pt 51, r16).”

16 Mr Blackburn accepted that the trial Judge had a discretion whether or not to ask the foreperson whether the verdict was the verdict of them all. Mr Blackburn submitted that the words recorded were capable of indicating that the jury’s answer to one or more of the questions was not unanimous. The jury had been directed by Studdert J towards the end of a short summing up as follows:

“Members of the jury, your verdict must be unanimous. You may have read and there has been (it has died down a bit now) but in recent times there has been debate about with whether majority verdicts should be brought in, in particular in the context of criminal trials. For present purposes let me say this to you, you must be unanimous in the answers that you give to the questions you are required to answer. That does not mean that you have to arrive at those answers by precisely the same route of reasoning. What it does mean is that you must arrive at the answers , heeding the directions of principle that I have given to you. But the course of reasoning which you may follow, independently of each other, may not be precisely the same. Ultimately you have to arrive at the same answer and in arriving at the same answer, you must apply the directions of legal principle that I give you.”

17 It was highly unlikely that after that direction the affirmative answers were not unanimous. Mr Blackburn faintly suggested that there was some inconsistency in the answers, particularly to question 1, about conveying the first imputation alleged, in the negative and to question 3, about conveying the third imputation, in the affirmative. But the first imputation was directed to killing his daughter “when he was in a drunken rage”. The pleader regarded this as different from the third imputation that he had falsely denied murdering his daughter. They were both allowed to go to the jury and they were not inconsistent. In my opinion, Studdert J acted well within the scope of his discretion and correctly in refusing to ask the foreperson whether that was the verdict of them all. I reject for like reason the submission that the jury’s verdict was unsafe.

18 What Mr Littlemore put to the jury in the first quoted passage complained of was robust and can be read as emphasising that the jury should not regard the assertions in the article as true. Counsel’s words were especially directed to impressing upon the jury that this was not an issue. The jury must not form the view that the substance of the article was true and for that reason reject the plaintiff’s case. The language is emotive but so was the article, the heading to which started with the words “Slain by her dad..”. I am not persuaded that Mr Littlemore stepped over the line of either propriety or legitimate insinuation. Studdert J did not think so and there is no reason to interfere with his refusal to discharge the jury on this ground.

19 Mr Blackburn submitted that the second quoted passage complained of in Mr Littlemore’s address raised for the jury an issue about the claimant’s intention. Particular reliance was put upon the sentence “it is tendentious”. “Tendentious” has a dictionary meaning “having a purposed tendency; composed or written with such a tendency or aim” and an example given is “a false and tendentious account of what had taken place”; see the Oxford Dictionary. I doubt whether a jury hearing Mr Littlemore would rise to this level of subtlety. The phrase was used in the context of the proposition that the article had a very strong tendency in a particular direction against the opponent. Otherwise the passage is directed to what must be commonplace, namely, that newspapers and journalists choose the photograph they publish and the words they use and no doubt choose them to create an impression. None of this, in my opinion, entitled the claimant to have the jury discharged. His Honour gave the clearest direction that the intention of the publisher of the article was irrelevant for the jury’s purposes. It was not for the jury to seek to determine what the publisher was trying to do in putting together the article.

20 Despite the careful and earnest efforts of Mr Blackburn, I am not persuaded that he advanced an arguable case that his Honour erred in any of the respects complained of. Accordingly, in my opinion, the application should be refused with costs.

21 SANTOW JA: I agree with Sheller JA.

22 IPP JA: I agree with Sheller JA.

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Last Modified: 11/18/2004