Pavy v John Fairfax Publications Pty Ltd [2005] HCATrans 242 (22 April 2005)

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Pavy v John Fairfax Publications Pty Ltd [2005] HCATrans 242 (22 April 2005)

Last Updated: 9 May 2005

[2005] HCATrans 242

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S243 of 2004

B e t w e e n -

ERROL PAVY

Applicant

and

JOHN FAIRFAX PUBLICATIONS PTY LTD

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 APRIL 2005, AT 2.15 PM

Copyright in the High Court of Australia

MR T. MOLOMBY, SC: May it please the Court, I appear for the applicant with MR R.K.M. RASMUSSEN. (instructed by Bertock & Associates)

MR B.R. McCLINTOCK, SC: If it please the Court, I appear with my learned friend, MR K.P. SMARK, for the respondent. (instructed by Freehills)

GLEESON CJ: Yes, Mr Molomby.

MR MOLOMBY: Your Honours, this matter raises fundamental points on which we say the review by the Court of Appeal was so inadequate that there has been a miscarriage. Those two points, just to identify them by labels, are the imputation point, as to whether the imputation had an innocent explanation, and the prejudice point. Particularly in relation to how the Court of Appeal dealt with that point, we say there is an important general point arising and that is this, as to whether there is properly any inhibition on appellate review of what happens in a trial where at the trial there is no evidentiary contest and where everything is transcribed, which were the circumstances of this hearing.

The Court of Appeal relied, for its only reason on declining to intervene to review what her Honour had done, on what was said at page 67 of the application book – I do not suggest your Honours need necessarily go to it – where this was said at line 25:

I do not think it possible for this Court, removed from the trial courtroom and the atmosphere in which the case was run, to say that her Honour erred in concluding that she would be able appropriately and effectively to deal with [it].

In our submission, there are two errors in that. The first is that in the context of this sort of case, that is, where there has been no evidentiary contest below at all, no assessment, not only of credibility but of any sort of competing evidence, to be made, where everything is recorded, there is, in fact, nothing tangible or intelligible identifiable as “the atmosphere of the trial” to be taken into account. Indeed, it is an error to proceed on that basis because of that.

Your Honour, the review of hearings of this nature is perhaps of more importance at the moment, or on the threshold of being of more importance even than it currently is, because of the proposals, of which your Honours would know, to introduce uniform defamation law throughout the nation, one aspect of which, apart from in South Australia which has already introduced its Bill, is to introduce full jury trials on all aspects other than damages. There is, nevertheless, a problem in New South Wales, which this case throws up quite clearly.

The second difficulty with this aspect of the Court of Appeal’s approach is that the court failed entirely to assess the very real considerations which did exist in the trial as to what the prejudice was and whether it could conceivably be cured by direction. No assessment of that was made at all. The simple reason given was, “We do not know what the atmosphere was. We weren’t there, so we’re staying away”. In our submission, that is a serious error. On the point I have just addressed, it goes to the merits of the individual case, but it is, as a general proposition, not something of which any account can rationally be taken at all when there is no evidentiary contest and the matter was fully recorded.

Might I come briefly to the two fundamental matters I mentioned at the start. The imputation question – the article was found to suggest, and it obviously is correct in so finding, that there was the imputation that the plaintiff had broken six ribs of his baby son by doing a similar sort of act to shaking him. Now, even without any context, it is, in our submission, difficult to find an innocent explanation for that, but there may be one. But the context – it is uncontroversial – must be taken into account and in this context that was overwhelmingly, without any equivocation at all, a condemnatory statement of the applicant.

The article is on page 13 of the application book and the imputation arises from a quotation of something said by the trial judge, which is just before line 45 on application book 13:

Justice James said the offence –

that is the offence for - - -

GLEESON CJ: I would have thought your case would have been put a little higher than that. He was not just a trial judge, he was a sentencing judge.

MR MOLOMBY: I am sorry, your Honour.

GLEESON CJ: So that when he said:

“a similar sort of act” –

he was meaning, “similar to the criminal act for which I am sentencing him”.

MR MOLOMBY: Exactly, your Honour. Similar to the act identified just after line 30, that is:

shaking to death his three-month old baby –

That is what he was convicted of. The judge, in sentencing, says you are:

“generally gentle, caring - - -

GLEESON CJ: Shaking a baby to death is not a crime. Homicide is a crime. You have to shake it with a particular intent for it to be a crime.

MR MOLOMBY: Quite so, or recklessness, but yes, indeed, your Honour. Certainly.

GLEESON CJ: Yes.

MR MOLOMBY: I am sorry, I was attempting to be perhaps a bit too shorthanded in dealing with that.

GLEESON CJ: I would have thought this was a point in your favour in your address to the jury. Where it leads at this stage of the proceedings is a different matter, but I imagine that your argument to the jury was that these remarks that were quoted were the remarks of a sentencing judge, sentencing for a criminal offence of which the plaintiff had been convicted, and that was the context in which he referred to:

“a similar sort of act” –

Similar to what? “Similar to the crime for which I am punishing him”.

MR MOLOMBY: Exactly so and that is what happened, your Honour. The circumstances of that crime being somewhat identified, as I said, just after line 30 in the article, that is, where it there says:

shaking to death –

obviously with the required intent or at least a reckless state of mind.

GLEESON CJ: The problem for us is that this was a jury decision.

MR MOLOMBY: Yes, and therefore, we accept, cannot be interfered with unless – and this was the test which appears in the Court of Appeal’s judgment – unless there is no innocent explanation for the imputation. Indeed, that appears in the Court of Appeal judgment, where judgments in this Court in Rivkin are cited. So the question is, is there an innocent explanation? Well, in our submission, the context makes this entirely and overwhelmingly a condemnatory suggestion about the applicant.

What the sentencing judge was saying was, “I am sentencing you now for this matter of which you have been found guilty. You are generally a gentle, caring and non-violent person to children, but this act – that is, the one I am sentencing you for – was not a lone, isolated aberration, in that on a previous occasion you broke six of the child’s ribs by doing a similar sort of act”. In sentencing terms, that would be called an aggravating factor. The judge is saying, “You are guilty of this, but you cannot claim it is the only time you have done something non-benign, non-innocent, which has damaged the child. You did this on a previous occasion”.

GLEESON CJ: He had never been prosecuted, had he, on that previous occasion?

MR MOLOMBY: Yes, your Honour, and, indeed, there was a joint trial. He was convicted of both and both convictions were quashed. And what this article does, by reporting the quashing of the murder conviction, but pulling in this detail of the other matter without saying it had been quashed, is actually to import a sting in the tail to what would otherwise be a favourable impression in the article – this man has been acquitted – and say to the readers, “He has been acquitted, but he was a bit lucky because he had previously done something pretty much the same”. That is the real sting of the defamation – “He was lucky to get away with it” – when the truth is he was acquitted of both.

GLEESON CJ: According to the article, he was not acquitted. According to the article, the conviction was quashed. Was a judgment of acquittal entered?

MR MOLOMBY: Yes, your Honour. I am sorry, I - - -

GLEESON CJ: Look at paragraph 1 of the article.

MR MOLOMBY: I am sorry. I have told your Honour something which did happen, but is not in the article.

GLEESON CJ: I see.

MR MOLOMBY: In fact, what happened was that both convictions were quashed and judgments of acquittal were entered and, of course, the court might divine that because - - -

GLEESON CJ: In other words, no new trial was ordered.

MR MOLOMBY: No, and the photo certainly shows him outside the court on the day, so it was a very quick bail application if he had gone through one. But no, verdicts of acquittal were entered. Your Honour, in our submission, the context – the Court of Appeal did not refer to this context at all. Might I go to that particular section of the judgment. It is paragraph 40 of the judgment on application book 66. Indeed, we say that the considerations here referred to are entirely irrelevant, but the point I make at the moment is that they are not the context. They are concentrating entirely on the wording of the imputation and not where or how it appears, from about line 50.

The court traces a history in the change of the imputation because there had been a previous trial. In our submission, for the purposes of that trial, the matter in the Court of Appeal and this appeal, that previous trial is completely irrelevant. What the jury was confronted with was an article and an imputation and the question, “Does that imputation arise and is it defamatory?”, and that is entirely unaffected by whatever ideas anybody might have had about how the matter might have been pleaded previously or in the future and in whatever guise it had been through in whatever court. All those matters are irrelevant, but the court referred to them.

As I say, the point I make of that here is that the court referred to them to the exclusion of what ought to have been referred to, and that is the context. The court, in that whole paragraph 40, which is the whole of the reasoning on this matter, nowhere refers to the context. It only refers to the words of the imputation and considerations about what they might mean or not mean.

The court does, earlier in the judgment, mention the principle that the context should be taken account of and that appears at the bottom of page 64 of the application book into the top of page 65, but it nowhere actually identifies, for the purpose of this case, what that context was. It recites the principle that the context should be taken account of. It then gets to the consideration of the imputation, directs that entirely to the words of the imputation with no reference to anything else and nowhere in the judgment is the actual rest of it referred to as the context, as the identifying context in which the imputation deserves to be considered.

Your Honours, if that proposition is correct and the finding that the imputation was not defamatory was what is sometimes called “perverse”, it does not really matter to go into any analysis as to why the Court of Appeal arrived at the wrong decision. If the decision is perverse, that is the end of it. The court appears, for what it is worth, to have been distracted by irrelevant considerations as to the history of the pleading of the matter.

What accounts for the jury’s decision, however, is quite a different question because that gets into the area of prejudice. The jury was confronted with some highly novel, highly prejudicial and, indeed, mischievous submissions on the part of the defendant: first, that the plaintiff’s case was a “try-on”. That was the opening of the defendant’s address, it was the closing note of the defendant’s address and it was referred five times otherwise during it. The plaintiff’s case was a “try-on”. As the Court of Appeal said, that means an attempt to hoodwink or deceive.

GLEESON CJ: Would it be wrong for an advocate to say, “The plaintiff’s case is rubbish”?

MR MOLOMBY: No, it would not, although, depending on the circumstances, it might perhaps create a problem, but it does not trigger the problem I am talking about here, your Honour. To say a case is a “try-on” is to impute – and I hope I am not being overly personally sensitive about this – to impute to the plaintiff and his representatives an attempt to deceive. Now, that is a very different thing from saying the case is wrong, obviously wrong, stupid or anything like that. It is imputing motives. It is impugning not just the party – it is often enough in a case one has to make a submission, “The principal witness on the other side told a pack of lies”, and if the principal witness is the party, that is impugning the party. This is - - -

GLEESON CJ: I think you must be being a bit sensitive there, Mr Molomby. When I read it, I did not treat it as a criticism of the plaintiff’s lawyer.

MR MOLOMBY: May I take your Honours to a short analysis of the judgment to show how this consideration was quite carefully interrelated to the second novel proposition, which is that on an appeal succeeding, everything said or done by the trial judge is automatically set aside. Now, in an appeal which succeeded, really, because of the jury verdict – it succeeded on the grounds of what used to be called “unsafe and unsatisfactory” – that is even more extraordinary. It flies right in the face of authorities in this Court such as Rogers v DPP, for example, that everything done by the trial judge is automatically wiped when we go up to appeal. But that was relied on very strongly by the defendant.

I might take the Court to page 56 of the application book. Your Honours will see around line 30 – and this is very much from the start of his address – the concept is introduced - this case is not just a try-on, “the biggest try-on there has ever been”. Goodness, and then - - -

GLEESON CJ: That is saying something.

MR MOLOMBY: Well, I would almost feel flattered if I was accused of that, your Honours, because it would be against some stern competition.

GUMMOW J: It would be a risible statement.

MR MOLOMBY: But then it goes on, and this is where the representatives come in and again I am trying to avoid any sensitivities - line 35:

the only way that Mr Molomby can run the case and can put it to you is by picking out the sentence –

in other words, by being very selective –

that appears next to . . . the photograph -

and so on, then the try-on comes in at the end of that paragraph again and then he says at about line 58:

Mr Molomby also said to you that it didn’t matter that the words he was focusing on, ignoring all the rest -

and these are the source of the imputation –

were a quote. Of course it matters that they are a quote. They are a quote from a judge, the judge at the trial, in circumstances where the Court of Appeal [sic] has allowed an appeal from this judge. So the reader will know, will see it in the context, that is the reader will know that there has been a successful appeal and the findings of things said by the judge lower down no longer stand.

Now, if the reader should know it, the plaintiff’s lawyers should know it. It is being put as a matter of notorious common knowledge that the plaintiff’s lawyers are putting this proposition in circumstances where everybody knows that it has to be rubbish because, with the authority of counsel for the defendant, the jury is being told the principle is the appeal removes, overturns everything done by the trial judge. Then, the end of the next paragraph we have the personal endorsement of counsel to which I have alluded already:

That is why I say it is a try-on. I don’t hesitate to say that because it clearly is.

In other words, it has my personal guarantee with it. Then this theme is picked up again, the association of these two erroneous propositions, at the
bottom of page 57 where the section giving rise to the imputation is quoted and it then says:

Now that, of course, is a quote. It is a quotation from the trial judge -

and then develops what it is and at the end of it, at about line 17 on 58:

But it is clear, members of the jury, as I said, the article is setting out what the trial judge said. The reader knows . . . that what the trial judge did did not stand in the Court of Appeal.

So this theme is again reiterated.

Now it is there as background. What the trial judge said will be seen in that context -

that is, that everything he has done has been reversed in the appeal. He finishes by saying that is why it is a try-on. In other words, it is a try-on because it is contrary to this proposition of law that I am telling you is correct, that is, everything done by the trial judge is reversed by a successful appeal. The defendant’s lawyers by implication would jolly well know that and they are trying it on in running this case selectively, this way, in front of you.

The Court of Appeal found that that was prejudicial and irrelevant and should not have been said. In our submission, the prejudice caused by that was – I am sorry, I see the light - - -

GLEESON CJ: It is a warning light. It is not the guillotine. That is the guillotine. Thank you, Mr Molomby.

MR MOLOMBY: Your Honour, that was the most impeccable timing.

GLEESON CJ: Thank you, Mr Molomby. We do not need to hear you, Mr McClintock.

The decision of the Court of Appeal in this matter turned on the application of well-established principles to the particular facts and circumstances of the case and we are not persuaded that the interests of justice require a grant of special leave. The application is dismissed with costs.

The Court will adjourn to reconstitute.

AT 2.36 PM THE MATTER WAS CONCLUDED