Habib v Nationwide News Pty Ltd [2007] HCATrans 802 (14 December 2007)

Last Updated: 18 December 2007

[2007] HCATrans 802

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S224 of 2007

B e t w e e n -

MAMDOUH HABIB

Applicant

and

NATIONWIDE NEWS PTY LTD

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2007, AT 2.01 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR C.A. EVATT, for the applicant. (instructed by Peter Erman Solicitor)

MR G.O’L REYNOLDS, SC: May it please the Court, I appear for the respondent with my learned friend, MR A. LEOPOLD, SC. (instructed by Blake Dawson Waldron)

GLEESON CJ: Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, in a defamation action under the law as it applied at the time of this trial and under the amendments which have been introduced, the role of a jury is important, if anything, more important now. In the importance of the role of the jury it is a single fact that there are certain questions being matters of fact which, unlike usual matters of fact, not only do not lend themselves to evidence but areas where evidence is prohibited. One of them is the extent of the general knowledge available to the ordinary reasonable reader being a decision which, subject to an important qualification, is committed to the jury. Certainly it is committed to the jury without the benefit of evidence.

This is a case where notwithstanding that clear-cut rule which was in no way purported to be tested by these proceedings, something worse than inadmissible evidence was given about the extent of general knowledge available to the ordinary reasonable reader. The something worse was the ipse dixit of counsel from the Bar table.

GLEESON CJ: How do the jurors deal with those issues without people making competing assertions to them about what they should decide?

MR WALKER: The jury may be invited to consider the question whether X, Y and Z be within general knowledge, but there may not be assertions by counsel for this reason in principle. Assertions by counsel, shorn of any evidentiary basis, are in the usual case beyond the capacity of counsel properly to convey to the court and, if there is a jury, may lead in an extreme case to a discharge application succeeding or, in other cases may lead to what might be called a judicial admonishment by special direction. Where there is no evidence capable of being given, but the issue is one which still falls to be argued so as to decide what is conveyed and whether that is defamatory, then because there cannot be evidentiary basis supplied by counsel’s own assertion, counsel cannot make assertions at all.

GLEESON CJ: How do they argue about it between themselves?

MR WALKER: What counsel can do is, in a case where there is a controversy, raise with the judge in the absence of the jury whether that controversy is such as to make it inappropriate for there to be assertion and counter-assertion from the Bar table. In our submission, the key to that which is not permitted under proper practice in the division of function between judge, jury and counsel, what is not permitted is for counsel to say himself or herself what the state of general knowledge is, as opposed to inviting the jury to consider for themselves using the resources they bring to the jury room and the court room but without any assistance from evidence, whether a certain proposition is part of the general knowledge available to the ordinary reasonable reader.

The vice, or, to put it less colourfully, the line which ought not to be crossed, is the line between informing the jury that it is a question for them whether fact X is part of that general knowledge, and counsel lending his or her voice to that as an assertion as if it were a fact, in other words, an assertion of a kind which in an issue amenable to evidence could be made by reference to the evidence. In an issue not amenable to evidence it cannot – indeed, we would submit a fortiori it must not – be done simply by the statement of counsel.

GLEESON CJ: This translates itself ultimately into a question of what directions or what the judge should do or what directions the judge should give a jury. Is that right?

MR WALKER: Yes, it does. It also translates itself into the matter raised by Justice Handley in dissent in the Court of Appeal at page 72 of the application book, paragraphs 72 and 73. During the exchange between judge and counsel over the overnight adjournment stretching over two days in relation to what to do about these statements by my learned friend before the jury, it became clear that the learned trial judge considered that there had arisen in this case an occasion for my learned friend to have raised what he intended to say in order to have it dealt with, particularly in the fashion that one sees contemplated by Justice Handley at paragraphs 72 and 73.

In paragraph 73 one sees that the division of function according to the authorities noted in paragraph 72 is for the judge to determine what is general knowledge, and then, as his Honour says:

Although this is normally left to the jury –

Properly understood, in our submission, that means that though it is a question for the jury and the composition and role of the jury is what makes it an issue appropriate to be decided without evidence, where there is what I will call a capacity issue, whether it is possible for the jury to consider a certain proposition to be within that general knowledge, it will be the judge who will rule on that.

Now, your Honours, that means that it boils down first to the role of the judge and then second to what, in a case that does not call for discharge, needs to be said thereafter. The way in which this case fell out was as follows. We know that the matter complained of lent itself, according to the defendant, to two possibilities.

One is entitled, with respect, to raise eyebrows at the second possibility, because the second possibility is that the matter complained of, extracted relevantly on pages 50 and 51 of the application book, would have been read by ordinary reasonable readers as some kind of commendation, a “Good on you” being expressed by the newspaper to Mr Habib for having, as it were, travelled from Guantanamo Bay, acquired clinical depression on the way and still being able to finish in the top 20 per cent of the City to Surf.

The second way, which was one of the only two possible ways that the argument was run, reading this, depended, therefore, upon the proposition that an ordinary reasonable reader would regard it as within general knowledge and would take it as a fact that suffering from clinical depression a person could still, without rising eyebrows, but simply exciting commendation for their efforts, finish in the top 20 per cent of the City to Surf.

Now, the other way of reading the article was, in our submission, the obvious one as appealed to Justice Handley, but if you rejected the notion that as a matter of general knowledge the suffering of clinical depression need have no effect whatever on your capacity to finish in the top 20 per cent of the City to Surf, if that was not a matter of general knowledge, then the obvious smear - and the imputations are set out conveniently at the top of page 50 - the sting of those imputations would surely have been found by a jury.

So that this was a matter at the very heart of what was, with respect to my learned friend, a difficult task successfully carried out to persuade the jury that by reason of this component of general knowledge - that is, the role of clinical depression and athletic achievement – the possible way of reading this was no smear at all but rather something in the nature of praise and commendation.

Your Honours, Justice Handley has set out conveniently on pages 71, 72, 73, 74 and 75, with highlights so as to give point to his Honour’s reasoning, the selected passages upon which we would wish to lay emphasis in what my learned friend said to the jury. In particular, in our submission, when one looks to the passage at the foot of 73, then, in our submission, it is clear – that, by the way, is from page 40 of the transcript folder. I do not know whether it has been made available to your Honours, but it might be made available to your Honours. In our submission, when counsel says of a particular proposition of fact that it is ridiculous, that is a particularly forceful assertion of something in the nature of an opinion or position by counsel.

GLEESON CJ: Mr Walker, was that imputation in paragraph (a) on the top of 50 one of the two that went to the jury?

MR WALKER: Yes.

GLEESON CJ: Was it argued in this case that running in the City to Surf race is a fairly public kind of activity and if you were embarked upon a plan of deception, it would be a strange way to go about it?

MR WALKER: Yes, the publicity of the matter, yes, your Honour. Just as giving a public lecture, which was another thing - - -

GLEESON CJ: For a well-known figure to run in the City to Surf race is hardly compatible with trying to deceive a public authority.

MR WALKER: Yes, is the answer to your Honour. However, in our submission, bearing in mind the obvious plausibility of reading this as a smear at Mr Habib, the passage where counsel says:

The point is that Mr Habib obviously could be clinically depressed to quite a serious degree and still be able to run in the City to Surf, otherwise you would have to say anybody who is a good runner could not be clinically depressed. Members of the jury, that is just complete nonsense – it has to be. It’s absurd.

That accumulation of persuasive language has well and truly crossed the line that we would respectfully submit this Court should draw where there are these critical matters of fact committed to a jury subject to what I will call a filter through the judge not amenable to evidence.

HEYDON J: You have to read it in context, do you not - 10 lines before what you quoted, lines 30 to 33, does that not mean that these facts are, as it were, within the mentality of the reasonable reader rather than objectively asserted to be true?

MR WALKER: Yes, and I am bound to point out that that is surely what Justice Ipp was referring to on page 56 at paragraph 22:

when regard is had to Mr Reynolds’ submissions as a whole, all the submissions of which the appellant complains would have been understood by the jury –

et cetera. I think, with respect, that is in line with what Justice Heydon has just raised with me. Our point is this, that where in the course of a powerful jury address there are ample – and there were – numerous peppering of the language with the appropriate proposition raising for the jury’s consideration whether they regarded this as within the general knowledge possessed by an ordinary reasonable reader, all the more damage is done to the fairness of the trial when in the course of it there is the slip or elision from focusing on ordinary reasonable readers general knowledge matter for the jury to supplying material upon which the jury might answer that question by counsel’s own statement of it as a fact. That is how Justice Handley, with respect, put it.

Justice Handley recognised that this was a speech in which counsel had been careful to refer to the issue as being what the jury would find was in the general knowledge of an ordinary reasonable reader, but that there were critical points all the more likely to be persuasive because they were supplied as ways of answering the question raised where counsel crossed the line which was appropriate.

GLEESON CJ: You said earlier that Mr Reynolds was discharging a difficult task. Now, I do not want to detract from Mr Reynolds’ achievement in this matter, but there is a fairly obvious way in which the jury could give a negative answer to paragraph (a), is there not? That is to say, for Mr Habib to have gone in the City to Surf race, it is very unlikely he was trying to deceive anybody. He was doing something very public.

MR WALKER: That would be a matter for the jury. Your Honour is presumably aware that if you do it in public in the company of so many other people looking in very similar states of distress that it could be a crowd to be lost in.

GLEESON CJ: Yes, if you are a low-profile person that might be right.

MR WALKER: This is a time of athletic achievement and the top 20 per cent do not all get filmed and broadcast, your Honour, I think, if I can make an assertion of fact from the Bar table. Your Honours, I do not wish to detract from my friend’s forensic achievement either, but my point is that a large weight of my friend’s address to the jury focused on what I repeat was a difficult task of persuading the jury that there was not a smear here involved by reason of the intended contrast, as we put it before the jury, between having clinical depression and being able to bounce back, as it were, and run that well.

Now, that being the central issue clearly perceived by all the parties and particularly by the defendant as judged by the way in which their senior counsel addressed, it became absolutely critical to determine whether this was a matter within general knowledge or not and, therefore, critical as to how that issue was presented before the jury. The trial judge importantly thought that it was not a matter of general knowledge and your Honours will have seen that in the passage collected by Justice Handley on pages 74 and 75 in paragraph 82 at the foot of the page:

I must say, I don’t know that –

Now, that, in our submission, means that there is a curious cross-over between trial and the Court of Appeal. The trial judge, we say with respect, got it right, this was not within general knowledge, but then got wrong the repair work by redirection. The Court of Appeal in the majority got wrong the proposition as to whether it was within general knowledge and also got wrong the nature of the repair work. In our submission, the trial judge was, with great respect to him, entirely correct at the top of page 75 where he is recorded as saying to my friend:

I think you purported to give expert evidence from the Bar Table –

Now, I should say this was a criticism that the learned trial judge made of both counsel. My learned junior was also taxed with having given evidence from the Bar table about another matter, but this is the one that comes to this Court. Then, paragraph 83 on page 75, again Justice Handley’s underlining:

“... I think the way in which you put it is really stating a medical, or what could be, a medical fact -

That is the language of it and it does not cure it to say, as was said in paragraph 22 in the Court of Appeal, all this is couched in terms of the issue understood by the jury by reason of the directions committed to them as to what an ordinary reasonable reader would possess by way of general knowledge. It does not cure it, because the answer to that all important question was going to be assisted by material from the Bar table which simply did not say “over to you”. It made the assertion and I, Reynolds of senior counsel, assert to you for what it may be worth that this is the fact. That, in our submission, is a clear example of the crossing of a line.

The question the Chief Justice asked me when my address started this afternoon, in our submission, rather points up the usefulness and the suitable vehicle this case presents of the point at hand. How do you, where persuasion is to be as robust as may be within limits, how do you address on
this question respecting the fact that evidence may not be called? In our submission, if there is obscurity in the answer to that, then this case presents an opportunity to dispel it. May it please the Court.

GLEESON CJ: We do not need to hear you, Mr Reynolds.

The point of departure between the majority and the minority in the Court of Appeal in this case concerned the adequacy of a trial judge’s directions to cover possible prejudice claimed to result from counsel’s address to the jury. The case is highly fact specific and does not raise an issue suitable to a grant of special leave and we are not persuaded the interests of justice require it. The application is dismissed with costs.

MR WALKER: If it please the Court.

MR REYNOLDS: If it please the Court.

GLEESON CJ: We will adjourn for a short time to reconstitute.

AT 2.20 PM THE MATTER WAS CONCLUDED