Supreme Court New South Wales

• Medium Neutral Citation: Wood v Channel Seven Sydney Pty Ltd Wood v Nationwide News Pty Ltd [2014] NSWSC 1527
• Hearing dates: 19 September 2014
• Decision date: 19 September 2014
• Before: McCallum J

Decision

Order that the proceedings be heard by a jury of twelve.

• Catchwords: PRACTICE AND PROCEDURE - application to have defamation proceedings tried with a jury of 12 rather than 4 - where plaintiff suing on an imputation that he murdered his girlfriend - defendants pleading defence of truth - plaintiff previously convicted of murder in a high profile trial and subsequently acquitted by Court of Criminal Appeal - desirability of larger jury to determine that issue in the civil proceedings
• Legislation Cited: Jury Act 1977
• Cases Cited: Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148; Waterhouse v The Age Company [2012] NSWSC 1349; Wood v R [2012] NSWCCA 21
• Category: Interlocutory applications
• Parties: 2013/133130: Gordon Wood (plaintiff); Channel Seven Sydney Pty Ltd (1st defendant); Seven Network (Operations) Ltd (2nd defendant); Yahoo!7Pty Ltd (3rd defendant); 2013/133167; Gordon Wood (plaintiff); Nationwide News Pty Ltd (1st defendant); News Digital Media Pty Ltd (2nd defendant); Janet Fife-Yeomans (3rd defendant)
• Representation: Counsel: S Chrysanthou (plaintiff); K Lynch (defendants); Solicitors: 2013/133130: Kalantzis Lawyers (plaintiff); Johnson Winter & Slattery (defendants); 2013/133167; Kalantzis Lawyers (plaintiff); Ashurst Lawyers (defendants)
• File Number(s): 2013/133130; 2013/133167
• Publication restriction: None

Judgment

1 HER HONOUR: These are proceedings for defamation commenced by Mr Gordon Wood. Four sets of proceedings have been commenced by Mr Wood but I am informed that two of those have been settled. In the remaining proceedings the defendants are Channel Seven and Nationwide News.

2 The application of the parties today, by consent, is that the proceedings be heard with a jury of twelve rather than a jury of four as is ordinarily the case in a civil proceeding.

3 In each action, the defamatory meanings relied upon by Mr Wood include an imputation that he murdered his girlfriend, Caroline Byrne. The defendants have pleaded the defence of truth to that imputation. Accordingly, the trial will involve the determination, to the civil standard of proof, of the issue of whether Mr Wood murdered Caroline Byrne.

4 Mr Wood has previously been tried for that offence. He was convicted by a jury and sentenced to a term of imprisonment. However, the Court of Criminal Appeal set aside the verdict of the jury, quashed the conviction and ordered the entry of a verdict of acquittal: Wood v R [2012] NSWCCA 21.

5 Having been acquitted of the offence, Mr Wood now seeks to pursue his claims in defamation. The action will involve a retrial of the issue whether he murdered his girlfriend, the difference being that the standard of proof that applies in civil proceedings will apply. The onus of proof will of course be on the defendants to establish the truth of the imputation of murder.

6 Section 20 of the Jury Act 1977 relevantly provides:

(1) Except as provided by section 22 and subject to subsection (2), where civil proceedings in the Supreme Court or the District Court are to be tried with a jury, the jury shall consist of 4 persons returned and selected in accordance with this Act.

(2) The Supreme Court may, upon application by any party to civil proceedings to be tried in the Supreme Court with a jury made at any time after the pleadings in those proceedings are closed, order that the jury shall, except as provided by section 22, consist of 12 persons.

7 In the present case all of the parties join in seeking an order under subsection (2). It remains necessary, however, for the Court to determine whether it is appropriate to make such an order. I am satisfied that it is.

8 The relevant principles have been considered in a number of decisions of this Court. In Robert (Robbie) Waterhouse v The Age Company Limited [2012] NSWSC 1349 Nicholas J summarised the principles as follows (at [9] to [12]):

9 The normal procedure in this State for the trial by jury of a civil case is that it be tried by a jury of four before a judge. Whether an order for a 12 person jury should be made is discretionary. It is not a matter of right. It is necessary for the court to be satisfied that the case is a proper one to be tried by such a jury. In Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699, Hunt J said (p 703):

"The fundamental question to be considered in any application for a jury of twelve persons is whether the case is one more fitting to be tried with a jury of twelve than one of four persons and so warrants a departure from the normal procedure in civil actions in this State. That principle was extracted from a consideration of the cases by Nagle J, as he then was, in Lang v Australian Consolidated Press Ltd [1967] 1 NSWR 157, and applied by Taylor J, as he then was, in O'Shaughnessy v Mirror Newspapers Ltd (1968) 88 WN (Pt 1) (NSW) 366; [1969] 1 NSWR 421. On appeal, the Court of Appeal held that Taylor J had not misdirected himself in doing so: [1969] 1 NSWR 422 ..."

10 In Lang v Australian Consolidated Press Ltd [1967] 1 NSWR 157, Nagle J described the test to be employed in an application such as this as:

"... a quantitative one rather than a qualitative one in that a jury of 12 would seem to give a better 'spread' and be more representative of the views of the community as a whole."

11 The discretion is to be exercised with regard to the facts and circumstances of the particular case. As the variety of cases is infinite the authorities provide guidance as to the approach to be taken, but settle no code. Relevant factors include the nature of the libel or imputation sued on; the nature of the subject matter discussed in the alleged libel; the status in the community of the respective parties to the litigation; and what the issues of fact and law will be on the hearing of the action (Bowler v Pogonoski [1966] 1 NSWR 589, p 590). The public prominence of a person by itself may not be enough but, as Hunt J explained (Hawke p 706):

"... the public prominence of the plaintiff is one circumstance which, with others, may render it proper that a case should be heard by an expanded jury which, by its numbers, would more appropriately reflect varying shades of community thought. The additional circumstance which is usually considered together with the public prominence of the plaintiff is the need to ensure that a contentious figure is given a dispassionate and fair trial ..."

12 To similar effect, in Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148 Rares J said:

"37 Where a person is a contentious figure or one with a prominent public role, his or her position as a party to an action tried before a jury may cause concern about its potential effect on a jury of 4 persons. He or she is more likely to be given a dispassionate and fair trial by a jury of 12. This is because a larger jury is more likely to dilute the influence of any single juror whose passions or antipathies are aroused for or against one of the parties. Balanced against that concern, must be the Court's recognition that jurors obey the directions of trial judges to put aside their own personal prejudices and feelings. And members of a jury panel ordinarily can be expected to accept the invitation before being called to the box, to indicate whether they feel they could not bring an impartial and dispassionate mind to the resolution of the issues for trial or by reason of the matters disclosed to them as to what the proceedings are about and who the parties are.

9 Having regard to the principles stated in the authorities referred to by his Honour, relevant considerations in the present case include the fact that the imputation sued on is an imputation of murder (which as I have indicated the defendants seek to justify); the fact that the original murder trial received a great deal of media attention, attracting the principle stated by Rares J in Ra that a larger jury is more likely to dilute the influence of any single juror whose passions or antipathies may be aroused for or against one of the parties; and the principle stated by Nagle J in a further decision referred to by Rares J in Ra at [34] that a jury of twelve would in certain cases give a better "spread" and be more representative of the views of the community as a whole.

10 I would add to those considerations my own views, as follows. From my own experience, I have observed that the determination of an allegation of murder is one which weighs heavily on those who have to determine it. In my view, a group of twelve jurors rather than four is better equipped to bear that responsibility.

11 Further, while the length of the trial is estimated to be about eight weeks on a civil basis, it is even so long enough a trial that there is a risk of jurors becoming unavailable during the trial (due to illness, misadventure or reasons arising during the course of the trial why a juror may not be able to continue to serve as a juror). It would accordingly be preferable to start with a larger number. It is a trial in which, if it were being conducted as a criminal trial at this stage with the estimate of three months, which was the length of the original trial, a judge might give consideration to empanelling a jury of fifteen. In my view, four is simply too small a jury to embark upon a trial of the nature involved in this case.

12 For those reasons I would accede to the joint application of the parties to order under s 20(2) of the Jury Act that the proceedings be heard by a jury of twelve. On that basis I make orders 1 to 6 in the short minutes of order handed up by the parties in each proceeding.

**********

Decision last updated: 06 November 2014