Australian Consolidated Press Ltd v Ettinghausen

BC9302147

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(Judgment by: Kirby P)

Between: Australian Consolidated Press Ltd
And: Andrew Ettinghausen

Court:

Judges: Gleeson CJ
Kirby P
Clarke JA

Subject References:
DEFAMATION
photograph and text in popular magazine
photograph shows plaintiff naked in shower
text refers to 'gratuitous nudity'
no specific consent secured from plaintiff for publication
plaintiff alleges imputations of deliberate exposure of genitals for publication
gives evidence of embarrassment and humiliation
jury awards verdict of $350,000 for defamation
whether errors in conduct of trial
whether verdict appealably excessive
EVIDENCE
defamation trial
matter complained of is photograph and text in popular magazine
trial judge (Hunt CJ at CL) permits tender of (a) original dispositive slide; (b) enlarged photograph; (c) photographs taken in series; (d) also permits projection of enlargement of subject photograph
warns jury of limited use to be made of such material to aide perception of matter complained of
PRACTICE and PROCEDURE
jury trial for defamation
intervention of trial judge
limits of
appearance of neutrality in presence of jury
complaints by defendant of excessive interference and reasonable apprehension of bias
whether occasioned mistrial
whether waived by party

Legislative References:
Defamation Act 1974 - s46

Case References:
Ettingshausen v Australian Consolidated Press Ltd - (1991) 23 NSWLR 443 (SC)
Andrews and Anor v John Fairfax and Sons Ltd applied - [1980] 2 NSWLR 225 (CA)
Morgan v John Fairfax and Sons Ltd applied - (1988) 13 NSWLR 208 (CA)
Vakauta v Kelly applied - (1987) 167 CLR 568
Galea v Galea applied - (1990) 19 NSWLR 263 (CA)
Carson v John Fairfax and Sons Ltd discussed and applied - (1993) 113 ALR 577 (HC)
Butera v Director of Public Prosecutions for the State of Victoria considered - (1987) 164 CLR 180

Hearing date: 18-19 August 1993
Judgment date: 13 October 1993

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Judgment by:
Kirby P

This appeal concerns a challenge to a judgment entered following a jury verdict, after proceedings between the parties for an alleged defamation. The appellant contends that the verdict was so high as to warrant, and require, the intervention of this Court. Indeed, it suggests that the very size of the verdict shows that the jury did not perform their duties according to law. The appellant says that this result came about by reason of errors in, and the unfairness of, the conduct of the trial by the presiding judge (Hunt CJ at CL).

The matter complained of Mr Andrew Ettingshausen (the respondent) is a well known sportsman. He plays rugby league football. He was a member of the Australian team (the Kangaroos) which toured overseas countries in 1990.

Australian Consolidated Press Ltd (the appellant) is the publisher of a glossy magazine known as HQ. Typically it has about 150 pages. At the relevant time, the editor of HQ magazine was Ms Shona Martyn.

The matter complained of appeared in the April 1991 issue of the magazine. It comprised a photograph of Mr Ettingshausen having a shower in a dressing room during the Kangaroos' tour of England. The photograph appears on a two page spread showing Mr Ettingshausen and two of his team mates, one of whom was the captain of the touring team, Mr Mal Meninga. The photograph, which is in black and white, has a grainy quality. Mr Ettingshausen is shown apparently standing under the shower and looking forward but away from the camera. Although his body below the waist is partly obscured by the quality of the photograph and an overprinted storyline, the light falling on his body sufficiently reveals his outline. Specifically, it shows his penis. No express consent was ever obtained by the appellant to display Mr Ettingshausen in its magazine in this fashion.

I reproduce the photograph. Necessarily, the quality of the reproduction will prevent a repetition of the complaint. But it will be sufficient to indicate the general nature of the photograph and its context necessary to explain fully the strong complaint of Mr Ettingshausen.

HQ magazine appears to be aimed at a generally young market. Something of the flavour of the relevant issue can be derived from the titles of other sections in the offending issue. One is about the Queen of Jordan ("Her Royal Bossyboots"). Another on circus animals is titled "Unnatural Acts". An item on the musician Quincy Jones is titled "The Man Who Can't Say No". There are also serious articles, such as one on the well known writer John Updike. The overall impression of the magazine is substantially one of mild and harmless titillation.

The photograph of Mr Ettingshausen appears in an article titled "Hunks". In her evidence Ms Martyn originally contended that she could not see the contours of Mr Ettingshausen's penis in the photograph, as reproduced in the magazine. However, the publicity before, and the accompanying article indicate, clearly enough, the publisher's intention. On the cover of the offending issue the article in question is advertised with the catchy phrase "Some naked Kangaroos". In the contents page, the entry for this particular article is: "94 Hunks Gratuitous nudity, bad language and some fine pectorals... On tour with the Kangaroos (the footballers, not the marsupials)."

In the article itself, the writer (James Kerr) claims to have turned into a "fly on the dressing room wall" during the 1990 Kangaroo tour of England and to have enjoyed "a freedom enjoyed by no writer before". The text includes the following:

"Yet upon my return to Australia, I was asked two questions almost exclusively. 'How big is Big Mal?' and 'What does ET look like in the showers?' Well in the showers the soap ripples down washboard bellies, needle jets tease pert pectorals, delicate maps of veins pulse over clumped biceps, and the steam shrouded whiteness is dotted with dark pubic areas, soaped and scrubbed.... Big Mal is, indeed, big, the biggest, and ET is built like a Greek God, statuesque with fine muscles slung low about his hips."

"Big Mal" is Mr Meninga. "ET" is Mr Ettingshausen. It does not take too much imagination to know what the writer is getting at in describing Mr Meninga's attributes. The reference to "dark pubic areas" would invite the curious to take a sharper look at the photograph to discover what a casual glance might have overlooked - Mr Ettingshausen's pubic areas.

The evidence disclosed that about 30,000 copies of the relevant issue of HQ magazine were printed, with 8,000 returns. Accordingly, some 22,000 were circulated. The estimated readership was 154,000. For Mr Ettingshausen it was suggested that this might have been an underestimate. Photographs like this (it was said) would be offered to the "girls around the office" and be seen by many more than the ordinary readers of HQ.

Mr Ettingshausen contended that the matter complained of exposed him to ridicule and damaged his reputation. He gave evidence of requests to autograph the photograph and to expose his anatomy. He also pleaded certain imputations.

The imputations

The availability and form of the imputations were the subject of pre trial consideration by Hunt J (as his Honour then was). His decision upheld the availability of the following three imputations:

1.

That the plaintiff deliberately permitted a photograph to be taken of him with his genitals exposed for the purposes of reproduction in a publication with a widespread readership;

2.

That the plaintiff is a person whose genitals have been exposed to the readers of the defendant's magazine HQ, a publication with a widespread readership; and

3.

That the plaintiff is unfit to be a schools and junior development promotions officer for the NSW Rugby League in that he deliberately permitted a photograph to be taken of him with his genitals exposed for the purposes of reproduction in a publication with a widespread readership.

See Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 (SC).

The last mentioned imputation, a "true" innuendo, rested upon the extrinsic fact that Mr Ettingshausen was, at the relevant time, employed as a promotion officer. He was concerned that the publication, conveying the impression that he had voluntarily exposed "his genitals" for publication in the magazine, might lead those who make such decisions to consider him unfit to hold the position as a role model for young people. In the event, no such action was taken against Mr Ettingshausen and no special damages were alleged.

Although the appellant contested the determination of the imputations before Hunt J, it did not challenge the imputations as settled by him and as put to the jury. The only challenge in this regard was to his Honour's action in permitting Mr Ettingshausen to amend the imputations after the evidence had been concluded and before addresses, by permitting him to add, after the word "exposed" in each case, the words "that is, shown". It will be necessary to return to this ground. As there is no other challenge to the imputations, it is unnecessary for this Court to consider them or their form.

An apology is "tucked away"

Following Hunt J's ruling that there were available to Mr Ettingshausen imputations that he had deliberately permitted his "genitals" to be exposed, the appellant published an apology. It did so at 8 of its issue for Summer 1991. According to Mr Ettingshausen's counsel, the apology was "tucked away" on an obscure page, taking second place to an item on condoms ("Discrete Objects of Desire"). The apology, appearing under a caption showing Mr Ettingshausen's name, read: "In the April 1991 issue of HQ a photograph appeared in the article "Hunks" which showed Mr Andrew Ettingshausen naked in a shower. Mr Ettingshausen commenced a defamation action, claiming the article suggested 'that he deliberately permitted a photograph to be taken of him with his genitals exposed for the purposes of reproduction in a publication with a wide readership'. HQ did not intend to convey that suggestion and has defended the action on the basis that the article did not convey that suggestion. In the New South Wales Supreme Court on 25 June 1991, Mr Justice Hunt ruled that, on the construction of the article, the suggestion arose in law. He directed that the question whether the suggestion arose in fact should be determined by the jury at the trial. HQ accepts this ruling on law. If any reader understood that the photograph conveyed the suggestion, HQ withdraws the suggestion without reservation, states that it did not intend to convey the suggestion, acknowledges that there is no basis for the suggestion and apologises to Mr Ettingshausen for it."

A complaint was made of the context in which the apology appeared (condoms). However, I regard that complaint as having no substance in today's society and no merit. On the other hand, the apology is, in its terms, qualified and seemingly reluctant. Furthermore, it attracts nothing like the space devoted to the full page photograph of Mr Ettingshausen, as I have shown. Nor is it clearly headed "Apology".

Verdict, judgment and appeal

As has been stated, the proceedings were tried before a jury. The jury comprised four persons. The trial lasted six days. The jury were out for little more than an hour. They returned, finding for Mr Ettingshausen upon each of the imputations numbered 1 and 3 left to them pursuant to the trial judge's ruling. Imputation 2 was alternative to 1. The jury also found that Mr Ettingshausen had established that each of the imputations so conveyed was understood by the ordinary reasonable reader to be defamatory of him. They rejected the appellant~s contention that the imputations had been conveyed in circumstances in which Mr Ettingshausen was not likely to suffer harm. "By way of compensation", they found that the amount to be awarded to Mr Ettingshausen for the publication was $350,000. Judgment was entered in that sum. Having regard to an offer of compromise, to the ordinary order for costs, a special order for indemnity costs was added as from the date of the offer. By necessary inference, this must have been lower than the jury's verdict.

The appellant has appealed to this Court. It claims a number of errors in the conduct of the trial and that the verdict returned by the jury was so high as to authorise this Court's intervention to set it aside. Upon both categories of complaint, the appellant contended that it had suffered a miscarriage of justice to remedy which a new trial was sought. Some twenty two grounds of appeal were filed, supplemented by additional grounds. In the conduct of the appeal, however, the appellant confined itself to seven basic arguments. Mr Ettingshausen confined himself to resisting these arguments and to suggesting, by way of contention, that even if they, or some of them, were made out, the Court would, in the exercise of its discretion, refuse to order a retrial because of the way the first trial had been conducted and the hurt occasioned by that conduct which could never be fully recaptured in a retrial.

Issues in the appeal

The resulting issues in the appeal are therefore:

1.

Did the trial judge err in acceding to an application, after the close of evidence, to permit Mr Ettingshausen to amend the imputations pleaded to include a definition to be given of the word "exposed" by the word "shown"?;

2.(a)

Did the trial judge err in instructing the jury that, by pleading and persisting in a defence of consent to the photograph, the appellant exposed itself to a verdict for aggravated (compensatory) damages?;

2.(b)

Did the trial judge err in taking the issue of consent to the publication from the jury?

3.

Did the trial judge err in failing to discharge the jury, as requested, following the opening address by senior counsel for Mr Ettingshausen?;

4.

Did the trial judge exhibit such a lack of impartiality that a reasonable person would have had an apprehension that he was biased in favour of Mr Ettingshausen and did such a perception of bias affect the jury and occasion a mistrial?;

5.

Did the trial judge wrongly admit into evidence an enlarged photograph of the photograph complained of and certain extraneous photographs, not contained in the matter complained of, showing Mr Ettingshausen in the shower? Did he also err in permitting the projection of the dispositive slide so that it was shown to the jury in a greatly enlarged form?;

6.

If error is shown in any of the foregoing, was it waived for the appellant, or was it, in any case, sufficiently significant to occasion a miscarriage of justice in the circumstances of this trial?;

7.

Were the damages awarded to Mr Ettingshausen by the jury appealably excessive?; and

8.

Should the Court, in the exercise of its discretion, set aside the judgment entered in Mr Ettingshausen's favour following the jury's verdict, having regard (amongst other things) to the way in which the trial was conducted on behalf of the appellant?

Matters of approach

It is useful to start with a number of general observations:

1.

There is no doubt, as in part the appellant's case at the trial suggested, that community attitudes to nudity and sexuality have changed in recent years. Senior counsel for Mr Ettingshausen described the photograph complained of as "pornographic". By no conceivable stretch of the imagination could it be so described. On the other hand, although somewhat obscure, it is possible (as Ms Martyn was led ultimately and reluctantly to admit) to see the contours of Mr Ettingshausen's lower body and penis. Common experience demonstrates that male nudity is now much more frequently seen in books, magazines, television, video and film than was formerly the case.

But it is for the jury, where summoned, to determine whether, in particular circumstances, the publication complained of reaches the wrong of defamation sued for. The fact that a judge on appeal, reviewing the verdict, would not consider the photograph defamatory as such (as distinct from an invasion or privacy) is irrelevant. The matter having gone to the jury upon the imputations stated, the jury is the constitutional tribunal accepted by the law as determining the community's standards. They accepted Mr Ettingshausen's asserted imputations proved. They found that he was defamed. Subject to complaints about the lawfulness and fairness of the trial, the community has therefore spoken through the jury;

2.

The lawfulness and fairness of the trial is largely dependent upon the conduct of the presiding judge. It is trite to say that the presence of the jury renders it imperative for a judge to show more caution and restraint than he or she would do if conducting the trial sitting alone. Jurors sometimes feel that they should look to the judge, as an experienced participant in the procedure which to them is generally novel, to give an indication of how they should find. Unless the judge is scrupulously neutral and painstakingly fair, indications of irritation or hints of a point of view may unfairly influence the jury and thereby affect the integrity of their verdict. Where a judge is sitting alone, interventions both to signal preliminary opinions and to manage the case efficiently are entirely appropriate. See Galea v Galea (1990) 19 NSWLR 263 (CA), 277f.

In Galea, Meagher JA stated that the disinterested bystander, viewing the judge's interventions, would "only have noted that an exceptionally irritating witness had eventually succeeded in irritating the judge" (ibid) 284. But there are special reasons to control even understandable judicial irritation in the presence of a jury. Instruction, even repeated instruction, to disregard judicial indications of opinions on the facts may not compensate for an apparent attitude critical of one party and favourable or sympathetic towards another. In the present case, where community standards to nudity were raised, neutrality and dispassion were especially important to procure a true verdict from the jury. Otherwise, the risk was run that the jury would feel obliged to uphold a standard which the judge seemed to expect of them rather than one which expressed their own opinions as a microcosm of the contemporary Australian community;

3.

Although at common law, in defamation proceedings, a jury might award a successful plaintiff punitive damages to mark their disapprobation of arrogant or high handed conduct on the part of the publisher (both in the publisher's original publication and in the conduct of its defence) such damages have been abolished by Parliament in this State. See Defamation Act 1974, s46. This Court should not attempt to circumvent the clear instruction of Parliament. It should faithfully give effect to the policy which lies behind the statutory abolition of punitive damages. That policy safeguards publishers against verdicts which, in truth, contain a punitive element although presented, in the attempt to hold them, as "aggravated compensatory" damages. See Carson v John Fairfax and Sons Ltd (1993) 113 ALR 577 , 593. Any other attitude on the part of the courts amounts to defiance of the clear intention of Parliament. I will not be guilty of such defiance. I am duty bound to subordinate my own opinions to the law made by Parliament;

4.

The policy of Parliament in abolishing punitive damages must be seen in the context of the function of the law of defamation. That body of law operates in a society which enjoys a high measure of freedom of expression. In part, such free expression is inherent in the very nature of our polity. Some attributes of the basic right to freedom of expression are guaranteed by the Australian Constitution itself. See Australian Capital Television Pty Ltd and Ors v The Commonwealth [No 2] (1992) 66 ALJR 695 (HC); Nationwide News Pty Ltd v Wills (1992) 66 ALJR 658 (HC). These implied rights to free expression have been held to exist despite the absence from the Australian Constitution of an express guarantee of free expression, equivalent to the First Amendment to the Constitution of the United States of America or the Canadian Charter of Rights and Freedoms, 2. The constitutional protection of free speech was not invoked in the instant case. Nor is it relevant.

5.

It is also pertinent to recall to mind the way in which the law of defamation works as an inhibition upon free expression in our society. The relationship between the law of defamation, and its equivalents in civil law countries and the basic human right affording freedom of expression has been considered in a number of judgments of the European Court of Human Rights. See eg Handyside v The United Kingdom (7 December 1976, series A, number 24); Lingens v Austria (Judgment 8 July 1986, series A, number 103); Castells v Spain (Judgment 23 April 1992, series A, number 236). See also S Coliver, "Defamation Jurisprudence at the European Court of Human Rights" (1992) 13 Media Law and Practice 250; Dirk Voorhoff "Defamation and libel laws in Europe - The framework of Article 10 of the European Convention on Human Rights (ECHR)" (1992) 13 Media Law and Practice, 254. Australia is not a party to the European Convention. Unlike the United Kingdom, it is therefore not directly influenced by the jurisprudence which has developed around the Convention. See eg Derbyshire County Council v Times Newspapers Ltd and Ors [1992] 3 WLR 28 (CA) 43, 60.

However, Australia is a party to the International Covenant on Civil and Political Rights. That Covenant is contained in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) for the purposes of that Act. Article 19 of the Covenant provides, relevantly: "19.2 Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds,... in writing or in print, in the form of art, or through any other media of his choice..3 The exercise of the rights provided for in para2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) for respect of the rights or reputations of others; (b) for the protection of national security or of public order... or of public health or morals." Although the Covenant is not part of the domestic law of Australia, as such, the ratification by Australia of the First Optional Protocol to that Covenant inevitably brings its influence to bear upon the exposition and development of the common law of this country. See, eg Mabo and Ors v The State of Queensland (1992) 175 CLR 1 , 32. The foregoing says nothing more than that, as Australian courts approach their common law duties, they will keep in mind the value of free expression which is important to our society. They will also keep in mind that international human rights law recognises, and local law permits, inhibitions upon freedom of expression for the protection of reputations, although only to the extent necessary for that purpose and as a derogation from the basic right hereby diminished;

6.

Also contained in the International Covenant (above) is a recognition of the fundamental value of human privacy. Article 17 provides: "17.1 No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation..2 Everyone has the right to the protection of the law against such interference or attacks." So far, the common law of Australia has not developed an enforceable right to privacy, as such. See eg Victoria Park Racing and Recreation Grounds Co Ltd v Taylor and Ors (1937) 58 CLR 479 , 495. Calls have been made for judicial innovation in this respect. See eg G Dworkin "The Common Law Protection of Privacy" (1967) 2 Univ Tas LR 418. Law Reform Commissions and committees have produced reports calling for such remedies. See eg Australian Law Reform Commission, Unfair Publication, Defamation and Privacy, AGPS, Canberra, 1979 ALRC 11, 123.

So far, those proposals have not been enacted. In the last mentioned report, the problem of the reproduction of photographs taken in private places and in circumstances intruding into a person's personal, home life or into private behaviour and family relationships was noted. See ibid, 125. The result of legislative inaction is that no tort of privacy invasion exists. Thus, whilst the value of privacy protection may generally inform common law developments, it would not be proper to award Mr Ettingshausen compensation for the invasion of his privacy, as such. Nor was this claimed. The jury were reminded of this fact by counsel appearing for the appellant at the trial. Their verdict must be seen purely as compensation for the damage found for the 1088 of Mr Ettingshausen's reputation and for the humiliation and embarrassment, of which he gave evidence.

7.

Nor has our common law recognised a right of action for appropriation of a person's name, reputation or likeness. See Clark v Freeman (1848) 11 Beav 112; 50 ER 759. This rule has been followed with respect to the appropriation of the name, reputation or photograph of many well known people, including writers (Corelli v Wall (1906) 22 TLR 532 ); actors (McCulloch v Lewis A May (Produce Distributors) Ltd [1947] 2 All ER 845 ; Sim v HJ Heinz Co Ltd and Anor [1959] 1 WLR 313); and sportsmen (Tolley v JS Fry and Sons Ltd [1931] AC 333 ). Mr Ettingshausen complained that the appellant had used his photograph without consent for the purpose of promoting and selling its magazine for its own profit. In the United States of America, this would almost certainly, without more, have afforded him a cause of action against the appellant upon that ground. See eg Haelan Laboratories Inc v Topps Chewing Gum Inc 202 F Rep 2d 866 (1953). See also ALRC 11, 133ff. However, such a cause of action is not available in this jurisdiction. It was not alleged. Care must be taken to confine any damages for Mr Ettingshausen by way of compensation, strictly to the wrong claimed and upheld by the jury; viz defamation. Other notions, which arguably should or might in other places, or from a general sense of fairness ought to give rise to an entitlement to damages, must be ignored. They are irrelevant to our law; and

8.

Mr Ettingshausen was entitled to rely, in his case, upon the way in which the appellant conducted its case. See eg Guise v Kouvelis (1946) 46 (SR) (NSW) 419, 423. According to his counsel, the appellant conducted this trial with "elephantine feet". Certainly, there were a number of serious inconsistencies in the successive ways by which the appellant sought, at the trial, to meet Mr Ettingshausen's complaints. Clearly this course of conduct irritated the judge. Seemingly, they also annoyed the jury. But it is important that the appellant should not be punished for the way in which the case was conducted, however offensive and hurtful. From first to last, compensation is the purpose of the remedy sued upon. Punishment must, by Parliament's clear enactment, have no part.

The curious conduct of the trial

What seems to have upset Hunt CJ at CL, and to have aggravated the jury, leading to an award which by any account is of an extremely large verdict to Mr Ettingshausen, was the apparently inconsistent way in which the case for the appellant was presented at the trial. It was clear that the appellant had published the photograph of Mr Ettingshausen whilst naked. It was equally clear, from the interrogatories, that no specific consent had ever been secured from him before the photograph was published. It is true that the granular nature of the photograph, the superimposed printing and perhaps the fact that it was "flipped" and deliberately presented in this way, obscured Mr Ettingshausen's pubic area somewhat. Certainly, in some lights his hips and pubic area are difficult to see. An uninterested reader could well pass the photograph without noticing the appearance of the penis. On the other hand, if one looks the penis can certainly be seen. Ms Martyn at first prevaricated and suggested that it could not be seen. Ultimately, she was pushed by determined cross examination to agree that it could. There was an inherent contradiction in the assertion that the penis was invisible. It was hard to reconcile with the various textual items which ostensibly drew attention to its visibility.

Then there was a suggestion in the appellant's defence that Mr Ettingshausen had actually consented to the photograph being taken. This will be explored below. It is sufficient for present purposes to make it plain that not only was express consent missing but implied consent to the presentation of a naked photograph in a popular magazine was really unarguable.

Then the appellant sought, through the somewhat argumentative testimony of Ms Martyn, to downplay the seriousness of the photograph. It was suggested that it was an "artistic" production; that it presented Mr Ettingshausen as an attractive man; and that it did no harm with regard to his schools because all the boys likely to play football "would have penises too". Such responses, if the jury accepted Mr Ettingshausen's evidence of a feeling of humiliation and embarrassment (as they clearly did) would have appeared facetious and inappropriate. Plainly, they would have contributed to Mr Ettingshausen's entitlement to aggravated compensatory damages.

Then, the appellant's case suggested that, by contemporary values, the presentation of such a photograph, even without specific consent, was not such as to damage the subject's reputation. Clearly, this ran headlong into the assertions by Mr Ettingshausen and his witnesses concerning the embarrassment and hurt which was felt. To try to counter this, the appellant at the trial secured Mr Ettingshausen's acknowledgment that he had worked as a male model, including in what might be thought of as sexually provocative poses. Modelling jeans, he had been told to "tease" the pose. It was urged that such a person, also used to the physical world of sport and the raw conditions of showers and dressing rooms, was unlikely to be harmed at all, or at least greatly harmed, by such an obscure public presentation of his penis. As senior counsel for Mr Ettingshausen commented, this was a "high risk" strategy. Clearly it did not work. To the contrary, the jury obviously reacted most unfavourably to it.

The question, then, is whether the jury's unfavourable response to the shifting case presented for the appellant at the trial was materially influenced by errors during the conduct of the trial or resulted in such a verdict which, in any case, cannot stand. The Court was informed that, on the stay application, the primary judge expressed his opinion about the jury's verdict. That opinion must be disregarded for the purposes of this appeal. If the judge's conduct at the trial was unfair, as claimed, his view of the verdict would equally be suspect. This Court must reach its own conclusion on the appeal without the assistance of the opinion of the learned trial judge.

Explanation of "exposure" in the imputations

The first substantive ground of complaint argued was that Hunt CJ at CL had erred in permitting Mr Ettingshausen, after the close of evidence, to provide the jury with a modified explanation of the sense in which "exposure" was to be understood for the purpose of the imputations (above). His Honour agreed to add the explanation that the "exposure" said to be imputed was the mere "showing" of the penis.

The complaint is not entirely meritless. There is no doubt that when senior counsel for Mr Ettingshausen opened to the jury he put it very clearly that he was asking them to consider "exposure" in the sense that exposure of the penis can sometimes be taken in popular speech. This is the deliberate flaunting, or unwelcomed presentation of, the penis by persons deriving sexual or other satisfaction from such an act. Counsel said that such people were deserving of "pity and contempt":

"I mentioned to you earlier the analogy, the comparison of the flasher, a man who exposes himself in a way which any decent person would regard as not only distasteful, but horrible. Even in this day and age there are ordinary rules about decency and modesty having been written within the rule book so far as the ordinary reasonable reader is concerned..."

The trial having been conducted upon the footing that this was the "exposure" alleged by Mr Ettingshausen, it was argued that the late amendment permitted by Hunt CJ at CL was unwarranted. It deprived the appellant of the opportunity of putting to the jury the submission that Mr Ettingshausen s case was being pitched far too high when he asserted "exposure" in the sense that was opened. On the contrary, the amendment took the wind out of the appellant's sails. It made it look as if it had been running a false case before the jury.

I acknowledge the force of the complaint. However, in the end I do not believe that it is one which should attract the intervention of this Court. Imputations must be expressed with precision in the attempt to eliminate ambiguities. See Singleton and Anor v Ffrench and Ors (1986) 5 NSWLR 425 (CA), 435. The ambiguity having been identified, it was within the judge's province to endeavour to remove the uncertainty by making plain the sense in which Mr Ettingshausen was alleging the defamatory imputation contended for. I see no error requiring intervention on this point. In any case, I cannot accept that it occasioned a relevant miscarriage of justice.

Defence of consent

At the conclusion of the evidence, and before final addresses Hunt CJ at CL ruled that qualified privilege had not been made out and that there was no evidence upon which the jury could properly find for the appellant on its defence of consent. He allowed the unlikelihood of harm defence to go to the jury. He also held that aggravated damages would be left to the jury.

Following the jury's verdict and his judgment, his Honour published reasons for those rulings. The appellant has challenged in this appeal the ruling that the jury were entitled to award aggravated damages for the filing and persistence in the defence of consent. In his reasons, Hunt CJ at CL said: "In this case, after having expressly and publicly conceded in the apology that there was no basis for the suggestion that the plaintiff had consented to the publication of this photograph showing his penis (and in the absence of any belief at the time of the publication that the plaintiff had consented), the defendant persisted in the defence of consent yet failed to establish a case to go to the jury upon that issue."

His Honour also pointed out that the appellant had failed to call the publisher (Mr Richard Walsh) to give evidence and to explain its conduct. He therefore inferred that nothing Mr Walsh could have said would have assisted the appellant's case. I see absolutely no mistake in Hunt CJ at CL's decision to withdraw the defence of consent from the jury. There was no evidence to support it. On the contrary, the uncontradicted evidence denied consent by Mr Ettingshausen to the publication complained of.

There is equally no doubt that Mr Ettingshausen was entitled to claim aggravated damages for the repeated assertion, unproved, that he had given consent to the publication of the photograph which he clearly had not. His case was constructed thus. A naked photograph showing the penis of a well known figure would not normally be carried in an Australian publication without the consent of that person. Therefore, ordinary reasonable readers of the appellant's publication would infer, contrary to the fact, that Mr Ettingshausen had given his consent. From that, they would infer that he was a person given to exposing (ie showing) his penis in public. The evidence of Mr Ettingshausen (which was clearly accepted by the jury) disclosed him to be a rather modest and private man with a discreet family life which he wished to keep to himself. As it was put during evidence, his penis was something between him and his wife. A photograph showing it was not to be published without his consent (although with his apparent consent) in a popular magazine. Such a publication might titillate readers. It might promote the appellant's profits. But it humiliated and embarrassed Mr Ettingshausen and damaged his reputation.

I consider that Hunt CJ at CL was perfectly correct in his rulings on this point. In fact, the way in which the appellant conducted the trial disclosed a dangerous prevarication. It was not clear that Mr Ettingshausen knew that a photograph of him in the shower was being taken at all. In the photograph he was displayed looking away from the camera. The photograph was apparently taken after a game. Mr Ettingshausen mind would likely be on things, other than a "fly on the wall" photographer. In any case, even an awareness that the photographer was present would not necessarily bring home to Mr Ettingshausen that the lower part of his body would be photographed. He would generally be entitled to assume that a person, trusted into the milieu of the players, would respect their privacy. Least of all would the knowledge that a photographer was present entitle the publisher to infer that consent was given by the subject of such a photograph to its use in a popular magazine with promotional text emphasising what was claimed to be "gratuitous nudity" and which contained sexual references.

It was proved that the Australian Rugby Football League Ltd had, by its Executive Chairman, (Mr KR Arthurson) given consent at a board meeting to the preparation of a book titled 28 Heroes. The benefit of the book was to be for the League's sponsors and the Children's Leukaemia and Cancer Foundation. It was on that footing that Mr Cochrane was appointed as "official tour photographer" on the relevant Kangaroo tour. Presuming that Mr Ettingshausen knew of the precise basis upon which the photographer was present, and joined in the League's consent, it would have been upon the basis of the use of photographs in the proposed book. The likelihood of the inclusion, unchecked, of a naked photograph in such a book would have been extremely remote if the players had reflected upon it. In these circumstances, it was clearly open to Hunt CJ at CL to leave it to the jury to decide whether the persistence in the completely meritless defence of consent was so unjustifiable as to warrant an award of aggravated damages for the additional hurt and annoyance caused by such conduct.

The appellant complained that Hunt CJ at CL had misunderstood the apology which had been published. This was, so it was argued, to the imputation of "expose" in its original form, ie wilful flaunting of the penis. It was not an apology to "expose" in the watered down version of "shown". No application was made to Hunt CJ at CL to redirect the jury by specific reference to this nuance of meaning of the amended imputation. I do not believe that the difference was significant. In any case it caused no miscarriage of justice. Nothing therefore turns on the point.

Like Hunt CJ at CL, I consider that it was open to the jury to be satisfied that the appellant had acted "in a flagrantly unjustifiable manner in relation to" the defence of consent. In the absence of a specific request for the subject's consent to the publication in its magazine of the offending photograph, it is unacceptable to assert that the possible consent to the presence of a photographer extended to the use of this photograph in such a publication and in such a context.

The Standards of the community

The appellant complained about Hunt CJ at CL's instruction to the jury concerning the standard of reasonableness which they should apply.

Clearly enough (and understandably) counsel for the appellant opened this point to the jury in his address:

"You see you come here as members of the community, ordinary decent members of the community, and you bring to the case, you should bring to the case, no extreme views. You should not bring to the case any 19th century notions. You bring to the case notions which accord with the views of ordinary decent members of the community in 1991/93 because that is the period with which we are concerned. You put the case in perspective and I submit to you that there has been quite a lot of perspective lost in this case, that there has been to use the words of one of the witnesses, 'A great farce over something which really is not very much at all'."

Hunt CJ at CL directed the jury thus:

"It is important to emphasise that the community standards or attitudes which you must take into account are those which are common to the community generally. You are not concerned with the standards or attitudes of small sections of the community or with those of particular members of the community. You are concerned only with those social or moral standards and attitudes which are common to the community generally. The defendant does not appear to dispute that the particular attitude upon which the plaintiff relies in this case is one which is held generally through the community. The particular community attitude upon which the plaintiff relies strongly in this case is that no apparently responsible and reputable magazine such as the defendant's magazine "HQ" would have acted so irresponsibly and in such bad taste as to have published a photograph of someone such as a footballer whom they describe as one of the stars of the Australian Rugby League Team, showing his penis, unless it first had that person s full consent to do so.... I am seeking only to direct you that the defendant's publication was not evaluated or interpreted by the ordinary reasonable reader in a vacuum. It was evaluated by the ordinary reasonable reader in the light of those standards or attitudes which are common to the community generally."

The appellant complained that in this passage Hunt CJ at CL unfairly put into the jury's mind issues of bad taste and irresponsibility. I do not agree. I see no error in his Honour's direction. It was appropriate that some assistance be given to the jury on the approach to be taken. In a way, the manner in which the appellant conducted the trial called for such assistance. Was it conceding that the penis was shown in the photograph or was it not? Was it really suggesting that Mr Ettingshausen consented or was it not? Was it asserting that this was a deliberate "sexy" pose, just as he had performed as a fashion model, or was it not? Was its real case that the photograph was not very important? Or was artistic? Or that, although express consent was never obtained and hurt was occasioned, it was entitled to act as it did because the Rugby League had agreed to promotional photographs, including for a children's charity? The appellant spoke to the jury with inconsistent messages. That was its perfect right. But, it is little wonder that the jury saw through the inconsistencies and responded sympathetically to Mr Ettingshausen whose simplicity and modesty seemed much more straight forward and admirable by comparison.

Refusal to discharge the jury after the opening

The appellant was certainly entitled to have the case tried fairly without the intrusion of extraneous matters calculated to inflame the jury to perform their functions otherwise than in accordance with law. See Croll and Anor v McRae (1930) 30 SR (NSW) 137 (FC), 143; Morgan v John Fairfax and Sons Ltd (1988) 13 NSWLR 208 (CA), 211. The appellant complained that, in his opening address to the jury, senior counsel for Mr Ettingshausen introduced highly prejudicial matters. These, it was said, rendered a fair trial impossible. They were of a kind which could not be adequately repaired by judicial directions.

Three statements were complained about:

"(1)

"As representatives of the community you would no doubt view with disgust and strong disapproval a publisher who published such a photograph unless he consented to it";

(2)

"People in the community... view with a mixture of contempt, perhaps associated with pity, those unfortunate males who wilfully expose their genitals to public view and quite rightly so - contempt and pity"; and

(3)

"Just ponder on those words, "How big is big Mal?. Blind Freddie could see what they're getting it.""

The principles to be applied, in reviewing Hunt CJ at CL's decision to refuse the discharge of the jury, are as stated in Morgan at 214f. The authorities are full of expressions of restraint and reluctance in acceding to such requests. See eg Wellington v Lake George Mines Pty Ltd (1962) 62 SR (NSW) 326, 328; 79 WN (NSW) 74, 75; (1962) NSWR 627, 629. A trial at common law must be judged for what it is: a contest in which evidence and addresses are largely spontaneous. It would be wrong to analyse over attentively the remarks of counsel who, on behalf of their clients, are necessarily allowed a fair degree of latitude. Exceptions may exist where counsel positively invites legal error. See eg John Fairfax and Sons Ltd v Carson (1991) 24 NSWLR 259 (CA), 278. None of the passages complained of in counsel's address in this trial come close to the passage which was criticised in Carson. All of them seem to me to be within the class of permissible advocacy.A measure of indignation was probably inevitable from the inconsistent ways in which the appellant appeared to be approaching its defence (and later did so).

At the end of the address and following the rejection of the application for discharge of the jury, Hunt CJ at CL reminded the jury that "disgust" was not an attitude which they should bring to bear upon their judgment of the case. The statements in para(1) and para(2) were explained as nothing more than an invocation to them, as representatives of the community, to reflect upon what an ordinary reader would have expected upon seeing a photograph of Mr Ettingshausen's naked form in such a publication. It posed the question whether the reader would assume that the photograph would not have been published "unless that newspaper had the consent of the plaintiff". It was this assumption, false as it proved, that Mr Ettingshausen relied upon to establish the "permitted" element in the imputations sued upon.

As to statement (3) I cannot really see how the appellant can complain about counsel s remarks. What he said to the jury was obviously what the writer of the text meant, particularly as that text was to be understood in the context of the accompanying photograph.

I regard Hunt CJ at CL's direction to the jury in this respect as perfectly adequate. So apparently did counsel then appearing for the appellant. The trial proceeded without further application for the discharge of the jury. The trial having proceeded on its merits to its conclusion, this Court would not be justified in the circumstances in overturning his Honour's decision, ignoring the careful directions which he gave the jury and treating the trial as a wasted exercise. Even as an element of the appellant's complaint that Hunt CJ at CL conducted the trial unfairly, I do not see any substance in this point.

The suggested lack of impartiality and bias

The Court was then taken through a very large number of passages in the transcript where the appellant suggested that Hunt CJ at CL had demonstrated a want of impartiality and the appearance of bias against the appellant.

It goes without saying that a party is entitled to have its case determined by an independent and impartial tribunal. In the criminal context this is guaranteed as a fundamental human right by the International Covenant (above), Art 14.1. The same is clearly true of a serious civil claim such as the present. The common law guarantees the achievement of this fundamental right. It upholds the entitlement of every party, who comes to a court in Australia, to have both the reality and the appearance of a dispassionate, neutral and independent decision maker. Cf Vakauta v Kelly (1989) 167 CLR 568 , 571; Galea (above), 281. If a judicial officer, by words or other conduct, departs from these very high standards, so that a lay person observing the conduct might have a reasonable apprehension that the judicial officer might lack impartiality then, subject to arguments of waiver or the like, an appellate court will be duty bound to set aside the result of the trial. Subject, then, to any residual discretionary arguments, a new trial would be ordered. This would be done because, in the eyes of the law, neither the public nor the parties to the case have had the reality and appearance of a trial conducted according to law.

All of this is well established. It was not really in dispute in the appeal. What was contested was whether Hunt CJ at CL's conduct of the trial gave rise to a reasonable apprehension of bias.

The schedule of his Honour's interventions, rulings and comments is contained in the appellant~s submissions. I do not propose to deal with each of the complaints, although I have considered all of them individually, as they relate to each other and as they aggregate together.

Some of his Honour's actions are the subject of separate heads of challenge already dealt with (such as his refusal to discharge the jury at the end of the opening address) or to be dealt with (such as his decision to permit the tender of an enlargement photograph and other photographs in the locker room series).

With great respect to Hunt CJ at CL (who is most experienced in the conduct of defamation trials) I have been left with a sense of unease about some of his interventions and about their cumulative effect upon the jury. Many of them would have been perfectly understandable if his Honour had been sitting alone. Many were perhaps understandable in human terms, given the inconsistencies and transparencies in the appellant' s arguments at trial. The appellant's conduct of its case was, as I have said, irritating and even perhaps provocative. However, it cannot be said too clearly that, in the presence of a jury, much greater caution and self restraint are called for by judges of trial. That was especially so in this case because of the nature of Mr Ettingshausen's complaint and the importance of securing the focus upon it of the jury s application of contemporary standards. The danger of sending too many signals of judicial disapprobation of the appellant, its witnesses and counsel was that the jury might, even unconsciously, become a reflection of the same feelings and give effect to them in the verdict. Were this to happen, the jury, in the presence of a strong judge of firm opinions, frequently disclosed, would be surrendering their opinions to those of the judge. They would be not the microcosm of the community they were intended to be but a pale reflection of judicial wrath, frequently and effectively brought to bear upon the appellant.

That Hunt CJ at CL expressed himself in no uncertain terms can be seen from the following samples:

1.

During Mr Ettingshausen's cross examination, on the receipt of money for posing in an advertisement for jeans without a shirt, counsel for the appellant indicated his intention to raise a matter in the absence of the jury. At the next adjournment the transcript records that, after the jury had retired, counsel indicated his objection to his Honour's intrusion as being "unfair and damaging". It was suggested that the judge had stated that the cross examination had "little connection with reality". Although this has not been formally proved, it does appear from the exchanges with his Honour that something to that effect must have been said in the presence of the jury. The learned judge asserted an entitlement to expose a cross examination "as having very little connection with reality". I acknowledge that a judge has the duty to conduct and control the trial. But in a case such as this, it would have been wise to have refrained from such comments and to have permitted the cross examination to proceed, uninterrupted. Judges, like counsel, must show restraint. But more is expected of judges. And particularly where the respect due to their office may influence the jury's attitudes to a party's cause in a case likely to stir emotions;

2.

Later in the cross examination of Mr Ettingshausen, his Honour interrupted counsel to read out the meaning of "genital" and "genitals" from a dictionary. With respect, this appears to have been a gratuitous intervention. It appeared to have the effect of interrupting the flow of the questioner's interrogation;

3.

Later, whilst counsel was still cross examining Mr Ettingshausen, his Honour, in the presence of the jury, asked counsel whether "if somebody came along and snapped you under the shower does that mean you say 'You must not publish that' or you will rely upon them to use decency in relation to it". Counsel, doubtless conscious of the watching jury, was driven to indicate that he would develop the point later. The appellant complaints that the intervention was yet another indication to the jury of the judge's wholehearted acceptance of Mr Ettingshausen and his rejection of the appellant's case. Again, and with respect, I believe it would have been preferable to have allowed the cross examination relevant to the scope of any consent given by Mr Ettingshausen to continue without judicial assistance until the ruling was made that there was no evidence to support it;

4.

In response to counsel's question in cross examination of Mr Ettingshausen s witness, Mr Wayne Pearce, his Honour interrupted with an expostulation "Really!", when the question was asked of the witness whether he thought it "repulsive to see a number of players having a shower?" Counsel protested, asking: "May I approach it in my own way, with the greatest of respect, and not your Honour's way?" His Honour responded: "Off you go". Unsurprisingly, within a few questions, the witness was perfectly able to answer the question: "I wouldn't want my pecker in the paper". In my respectful view it would have been preferable to have allowed the cross examination to continue without interruption;

5.

During the cross examination of the appellant's witness, Ms Martyn, his Honour, over counsel's objection and in the presence of the jury, observed that the witness was intent to answer more than the question... She is obliged to answer the question and not to comment about the effects of it. She is here as a witness, not as an advocate". Whilst some of Ms Martyn's answers were sententious and whilst it was proper for the judge to call her attention to the obligation to answer only the question asked and not to engage in argument, the very way in which she proceeded to give her answers rendered it even more essential that his Honour should not intervene too much or too critically. Otherwise, the responses, which were themselves relevant to the issues before the jury, could be lost in the drama of the engagement between the judge, the witness and her counsel. That engagement could only ever be damaging to the appellant;

6.

During the final address of counsel for the appellant, Hunt CJ at CL interrupted when he referred to Ms Martyn's belief concerning the use of the subject photograph in the book on the Rugby League tour which had been authorised by the League. He ruled that Ms Martyn's belief was "totally irrelevant to any issue in this case unless punitive damages were being awarded". The appellant asks this Court to note that the interruption was to be contrasted with the apologetic way in which his Honour later intruded gently into counsel's address for Mr Ettingshausen;

7.

At the close of the address for the appellant and in the presence of the jury, Hunt CJ at CL informed the jury that he had changed his ruling concerning Ms Martyn's beliefs and would permit counsel to address on that issue. But he went on to inform the jury that counsel was to correct another matter which he had asked him to identify;

8.

In his Honour's final charge, he told the jury that they might think that "the standard of ordinary decency" held generally throughout the community would have required that the appellant's magazine not act "so irresponsibly and in such bad taste" as to publish a photograph of a person such as Mr Ettingshausen showing his penis "unless it first had his full consent to do so". Although expressed in terms of what the jury might think, this passage, and several others, would have left little doubt in the jury's mind as to what his Honour thought.

For Mr Ettingshausen, the response to these many complaints (and the others relied upon which I have not repeated) was threefold:

(1)

That the interventions were perfectly justified on each occasion; represented no more than the robust control of the trial by an experienced judge; and where criticism was voiced simply indicated the provocation to which the judge and the jury were exposed by the appellant. It is true that a defamation trial is not a game for the faint hearted. Legal authority supports the strong control of proceedings by the judge. Recent authority, in criminal and civil trials, suggests that the judge's duty to the efficient disposal of proceedings may extend to the termination of time wasting or humbug. Cf State Pollution Control Commission v Australian Iron and Steel Pty Ltd [No 2] (1992) 75 LGRA 327 (NSWCCA); R v Champion (1992) 64 ACrimR 244 (NSWCCA), 256;

(2)

That his Honour put several points during the course of the trial, and later during his final charge, repeatedly reminded - the jury of their entitlement to differ from him on factual judgments and that they were the "sole judges" of the facts; and

(3)

That, in any case, no application having been made, except after the opening address, either to discharge the jury or that his Honour should disqualify himself, the appellant must be taken to have waived any complaint about the contamination of the jury or the appearance of bias on the part of his Honour. See Vakauta v Kelly (1989) 167 CLR 568 , 572, 577.

The appellant, in turn, sought to answer these arguments. It said that Hunt CJ at CL had crossed the invisible, but very real, boundary which divides firm conduct and good management of a trial from partisanship and an unfair lack of neutrality in the presence of the jury. It reminded the Court that the ultimate test was whether it considered that a miscarriage of justice had occurred. See Reg v Martin (1960) 60 SR (NSW) 286 (CCA), 290. It pointed out that incantation of the formula reserving facts to the jury was not a substitute for quiet and manifest neutrality during the course of the trial and a conscientious endeavour to be, and to appear, impartial. See Roger v Ellas (1962) 80 WN (NSW) 869 (FC), 873; cf Byfield Mears v The Queen [1993] 1 WLR 818 (PC), 822.

My own view is that care must be taken extending the principle of waiver too far. There is a public interest in the manifestly impartial conduct of a trial which goes beyond even the intense interests of the parties themselves. Cf S and M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 (CA), 373; United States of America v Jack A Lustman 258 F 2d 475 (1958) at 478. In the light of Vakauta, I must accept that in this country parties, by their conduct, can waive the public's right to a manifestly impartial trial of contested issues. This principle may be founded upon the generally safe assumption that the parties, with an interest to protect themselves, will normally adequately also protect the public's confidence in impartial justice.

This case illustrates the limits of that principle. Objection was taken to the opening by counsel for Mr Ettingshausen. It was rejected. Various particular objections followed Hunt CJ at CL's numerous interventions and interruptions. In the forensic setting, there is a limit, which all understand, upon the extent to which a party, or its legal representatives, can be expected repeatedly to challenge the judge presiding at the trial. Consistent with deference to the judge's rulings, and the psychological checks on excessive protestations, I consider that counsel for the appellant sufficiently made plain, on a sufficient number of occasions, his objections to the interruptions, comments, rulings and observations of the learned trial judge.

Standing alone, I would not have been prepared to conclude that the suggested unfairness and alleged appearance of partiality on the part of Hunt CJ at CL amounted to such a miscarriage of justice as to require a retrial. I allow that styles in the conduct of court proceedings differ between judges. The concept of neutrality - which is such a mainstay of our judiciary - varies from one judge to another. Respect for judicial independence must include respect for the right of individual trial judges to conduct trials in "robust" ways that may seem excessive to the remote appellate observer. I also allow for the very great experience of this trial judge in conducting trials in this kind of litigation. However, I am reluctantly forced to accept that there is weight in the appellant's suggestion that the explanation for the extremely large verdict in this case may, in some part at least, be explained by the jury's response to the judge's repeated and plain indications of his impatience, both with the case of the appellant and with the way it was being presented by its counsel. In human terms as I have said, the judge's reactions were understandable. But in court, judges must control and discipline their human feelings to assure manifest fairness to the myriad of people who come before them - not all of them admirable and attractive.

This conclusion requires me to consider this complaint with the two other remaining complaints of substance: the admission and projection of the photographic evidence and the size of the verdict itself.

Admission and projection of photographic evidence

Hunt CJ at CL originally admitted as an exhibit the dispositive slide from which the photograph in the matter complained of was reproduced. He did so for its suggested relevance to the defence of qualified privilege, which was then still before the jury but which was later ruled to be unavailable. That ruling has not been appealed. When the ruling was made, there was no other possible basis upon which the slide was admissible. In my view it should have been excluded at that time from the evidence.

Necessarily, as with any slide, the dispositive admitted into evidence appears much sharper in detail than the enlarged, and partly obscured, photograph reproduced in the appellant's magazine. The only matter upon which Mr Ettingshausen sued was the contents of that magazine, as seen by its readers. They did not see the dispositive slide. It should not have been before the jury.

Nor did the readers see three other items which Hunt CJ at CL permitted to be placed before the jury. The first was a photographic enlargement magnifying to nearly a square metre the photograph shown in the matter complained of. The actual dimensions were given by the old measurement as 2 feet by 3 feet. The admission of this enlargement was justified by his Honour, as an aid to the jury's understanding and by reference to Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180 . In my view, the principles of that case forbade the admission of the enlargement. It was objected to. It should have been rejected. It was unfair on several bases. These related to its size, its clarity, the absence of over printing and the lack of "cloud" which is a feature of the photograph reproduced in the matter complained of.

Equally objectionable was his Honour's ruling permitting the use of a projector to show the jury an enlargement of the diapositive slide from which the photograph in the matter complained of was taken. There was no suggestion that this enlargement was ever before, or even available to, ordinary members of the public reading the magazine. It seems that the lights of the courtroom were turned down when the enlarged projection was shown to the jury. When this course was repeated in this Court the projected image showed much more clearly, than in the magazine, Mr Ettingshausen's pubic area. In my view this action was highly prejudicial to the appellant. Counsel for the appellant urged before his Honour that this course should not be allowed.

Then, inexplicably, his Honour admitted into evidence prints from other photographs and transparencies which were taken in the shower series. These clearly showed naked football players including Mr Ettingshausen. As he was suing only upon the photograph in the appellant's magazine, this was also highly prejudicial. It occasioned the risk of confusion in the mind of the jury between the admitted photographs (with their very clear rear and frontal nudity) and the matter complained of (where the exposure was much less clear).

For Mr Ettingshausen it was said:

(a)

That no objection was taken to the tender of the last mentioned exhibits; and

(b)

That the tender did not cause a miscarriage of justice.

Because no redirection was sought, once the basis of the tender (qualified privilege) was removed.

I find neither of these answers convincing. The objections were clearly and properly noted when the first tender or projection was offered. I regard the photographs as highly prejudicial and distracting, given that a major issue in the trial was the clarity (or lack of clarity) of the representation of Mr Ettingshausen's pubic area and penis. The matter complained of presented one image. The transparency, poster, projected enlargement and associated photographs all cumulated to divert the jury's attention from the only photograph which mattered. This material (with the possible exception of the transparency) was wholly irrelevant and prejudicial. When put with the cumulative effect of the learned trial judge's interventions in the conduct of the trial, they have led me to a reluctant conclusion that a mistrial occurred. A miscarriage of justice has been established. Subject to the discretionary argument raised for Mr Ettingshausen, the appellant is entitled to a fresh trial. In the eye of the law, the first trial was not a proper trial of the issues.

Size of the verdict

This opinion is further reinforced by the size of the verdict of $350,000. Of course, that verdict must be approached upon the basis that the jury determined all matters on contest in a way favourable to Mr Ettingshausen. See Triggell v Pheeney (1951) 82 CLR 497 , 516. Thus, it must be assumed, for the purpose of testing the verdict, that the jury responded most adversely to the appellant's conduct of the trial and awarded Mr Ettingshausen a full measure of aggravated compensatory damages. By reason of a s46(2) of the Defamation Act 1974, aggravated damages may be awarded in defamation actions in this State. Exemplary or punitive damages may not be awarded. See s46(3)(a). They must therefore bear some rational relationship to the wrong done to Mr Ettingshausen. See Carson (above) 592f.

Senior counsel for Mr Ettingshausen conceded that the verdict was very high - at one stage he said "massive". In my view it is so high as to indicate that the jury must have been influenced by a wrong principle or have taken into account irrelevant considerations, so out of proportion was the verdict to that which might reasonably be expected by reference to the Court's general knowledge and comparison with other judgments for compensatory general damages - given both by judges and by juries.

It has long been permissible, in a very general way, for courts performing the function of reviewing jury verdicts to take into account their general experience as to the measure of other damages verdicts. Windeyer J did so in Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 , 213. I referred to the matter in this Court in Carson (above) 273 (para15). See also the cases there cited. The High Court, in Carson (at 591), specifically took into account two recent awards for general damages for quadriplegia, being $275,000 and $250,000 respectively. Using the same criteria, and approaching the matter in the same necessarily general way, I reach the identical conclusion in this case. It is simply impossible to suggest that compensation for the harm done to the reputation of Mr Ettingshausen required or permitted general damages greater in magnitude than those awarded to persons suffering profound quadriplegia.

By chance, this Court recently considered the case of a claim for damages for medical negligence suffered by an infant who lost the head of his penis during a neonatal circumcision operation. The first jury returned a verdict for $500,000. This was set aside by the Court as excessive. A second jury returned a verdict of $275,000. Mahoney JA considered that this too was excessive. By majority, the Court (McHugh, JA, Priestley JA concurring; Mahoney JA dissenting) sustained the second jury's verdict. See St Margaret's Hospital for Women (Sydney) v McKibbin, Court of Appeal, unreported, 14 May 1987; (1987) NSWJB 90. McHugh JA concluded that the verdict of $275,000 was high. It represented perhaps "the extreme view of the evidence". But it was open to the jury.

Against this background, the measure of compensation due to Mr Ettingshausen for this defamation (even allowing for the entitlement to aggravated damages and the passage of time) cannot bear the relationship to the physical loss of part of the penis suffered in McKibbin which the comparison of the two verdicts suggests. It cannot be the case that publication of an obscure photograph of a penis of a popular sportsman sounds in greater damages than permanent loss of part of a penis in a young boy.

For Mr Ettingshausen, it was urged that the Court should hesitate before substituting its opinion for that of the constitutional tribunal which saw the witnesses and heard the evidence. Of course it should. It does. But having reached its view, it is duty bound to give effect to it.

It was urged that juries were more likely to reflect proper verdicts in defamation cases. For that reason they had been exceptionally retained by Parliament. See Carson, 611; Supreme Court Act 1970, s88. Judges were bound to question their own assessments when these repeatedly came in lower than those of juries in defamation proceedings. There is some merit in this point. It has been made before. But it must also be remembered that juries have relatively little guidance (and until now no comparisons) concerning the limits of the general damages they can allow as compensation for an established defamation. In this case, as in most others, no special damages were proved. Mr Ettingshausen did not claim that he had lost his educational or modelling employment. With relatively few points of guidance, it is therefore easier in a defamation action for a mistake to occur than in other trial proceedings calling for compensation to be calculated by reference to numerous heads, each of which can be carefully explained.

For Mr Ettingshausen, Shakespeare was invoked with great power by his advocate. The Court was reminded that reputation was "the purest treasure. That the jury were entitled to assess the impact of the loss of it on Mr Ettingshausen as they evaluated him. Clearly, he made a good impression on the jury. This seems unsurprising from a reading of his evidence.

Nevertheless, a limit is ultimately reached when full allowance is made for all of the considerations favourable to Mr Ettingshausen which tend to magnify the verdict he might properly recover. In the end, the check is imposed by s46 of the Defamation Act. It prohibits the award of punitive damages. As in Carson, so here, I have formed the view that, impermissibly, the jury (despite the careful judicial warnings not to do so) went beyond compensating Mr Ettingshausen. They visited their extreme displeasure both at the publication of the appellant and (possibly) its defence of the trial. In doing so they returned a verdict which can only be explained as including a component for punishment and deterrence, as well as disapprobation. It was, indeed, massive. As compensation for the whole of the matter complained of, photograph and text, the verdict returned was appealably excessive. It must be set aside.

The foregoing conclusion relieves me of the obligation to consider two interesting points which, in a case closer to the margin might need to be determined. The first was whether it was permissible, in testing the acceptability of the verdict, to take into account the amounts fixed for this community by Parliament in legislation providing for maximum statutory compensation for motor vehicle accidents and workers' compensation claims. In the case of the former, the statute, at the time of this trial, fixed maximum general damages recoverable at $211,000. Under the Table of Disabilities found in the Workers Compensation Act 1987, complete loss of the sexual organs is valued by Parliament at $60,724. The appellant s submission was that these sums, provided by law, reinforced the impression that the jury's verdict for $350,000 for a rather obscure photograph in the midst of a trivial text was plainly excessive.

There are difficulties in the way of accepting this argument. A number of considerations might affect the caps fixed by legislation which would have nothing to do with considerations proper to the award of compensatory damages for defamation. As well, care must be exercised in deriving common law principles from statutory provisions. Cf Lamb v Cotogno (1987) 164 CLR 1 , 11. See G. Gunasekara, "Judicial reasoning by analogy with statutes: heresy or a new avenue for the development of the Common Law" in Papers of the Lawasia Conference, September 1993 611, 18. I refrain from resolving this point, as it is unnecessary to do so. My present inclination is adverse to it.

Secondly, the question arose as to the extent to which, in providing a solatium to Mr Ettingshausen, it was permissible, and appropriate, for the jury to take into account the size and profitability of the appellant and the verdict which would be needed to afford the "sting" necessary to relieve the hurt which the plaintiff had suffered. To some extent, considerations of this kind enter into the permissible calculations of the jury by way of evidence traditionally, and in this case, received, concerning the circulation of the journal and its estimated readership. In this case the estimated readership was something over 150,000. Clearly, such a consideration would boost the judgment recoverable from an organisation such as the appellant when compared to a suburban newspaper, a student journal or the broadsheet of a small community group. Mr Ettingshausen was certainly entitled to a solatium for his hurt. But only by way of compensatory damages enlarged with aggravated damages of the kind explained in Andrews and Anor v John Fairfax and Sons Ltd [1980] 2 NSWLR 225 (CA), 249. He was not entitled to recover punitive damages. If that was the price of relieving his sting, the law forbade the jury from imposing that price. Presumably, the law does so because of Parliament's conception of the proper limits of the civil law of defamation and the need to pay respect to the competing value of free expression in the exercise of which, inevitably, wrongs will occur and hurts will be occasioned.

McHugh J in Carson (at s25) recalled the observation of Windeyer J in Uren (at 151f) that "in truth a punitive or vindictive element does lurk in many cases in which the damages were aggravated by the defendant's conduct". I entirely agree. But, to the extent that it lurks, it must be extirpated under the plain instruction of Parliament in s46(3)(a) of the Defamation Act. A court has no authority to defy a clearly expressed statement of the law emanating from a legislature acting within its powers. For my own part, I will submit to the will of Parliament, being mindful of the considerations which may lie behind that instruction. If publications in this country are exposed to "massive" damages verdicts for defamation of the size found here, a result might be the shrinking of diversity of expression and the presentation of inconsequential and uncontroversial banalities which no one. Whilst defamation cannot be condoned and must, where proved, be compensated, a society valuing freedom of expression, as ours does, is well entitled to limit the recovery of damages, where defamation occurs, to compensation. Such limitation recognises that free expression has its own high value and carries some risks.

Miscarriage of justice and discretionary orders

For Mr Ettingshausen it was submitted that, if all other matters were determined adverse to his cause, the Court would still refrain from ordering a retrial in this case. It would do so for two essential reasons:

(1)

Because the appellant had, by its own conduct, widened the range of permissible verdicts and, in particular, by the manner in which it conducted its defence at the trial; and

(2)

Because of the disadvantage which a retrial would occasion to Mr Ettingshausen.

The appellant, it was said, would at a second trial exhibit the fastidious care of "goody two shoes." And Mr Ettingshausen would be left with the hurt suffered by the first trial. He relied on Wilkinson v Payne (1791) 4 TR 468; 100 ER 1123.

The answers to these contentions are plain. It would be inconceivable, having reached the opinion that a miscarriage of justice had occurred, that the verdict was indeed "massive" and beyond a rational relationship to the damage suffered, that the Court would leave the miscarriage unattended and the verdict in place to visit its punishment and disapprobation of the conduct at the first trial upon the appellant. The Act forbids that course. Justice, and the performance by this Court of its proper role, refutes such an approach. It is true that the Court has a discretion to order a retrial. But it should exercise that discretion in a principled and lawful way. In this case, that exercise yields only one result.

So far as the disadvantage thereby occasioned to Mr Ettingshausen by the suggested loss of the forensic advantages derived from the way the first trial was conducted, my present view is that to the extent that such hurt occurred, Mr Ettingshausen would be entitled to prove it in the second trial. I express no final view on the matter as the Court was informed that an appeal awaits hearing where the issue is clearly posed for decision. The point would not, in any case, stand as a reason to deny a retrial in this case to cure the miscarriage.

Because I have reached the opinion that the trial miscarried, it is my view that there should be a general order for retrial. I would not, as in Carson, limit the retrial to damages. True, the appellant's case is extremely weak. But it was entitled to have that case determined by the jury without excessive judicial interventions lacking manifest neutrality. It was also entitled to have the jury pass upon the matter complained of without extraneous slides, photographs and projections which were highly prejudicial to it. cf Balenzuela v De Gail and Anor (1959) 101 CLR 226 , 236. Every person, natural and corporate, big and small, popular or unpopular, is entitled to come to our courts for a trial which is, and appears to be, manifestly fair and lawful. In a sense, the weaker is the apparent case of the defendant, the more important is scrupulous fairness on the part of the judge in the presence of a jury.

Orders

The orders which I would favour are: 1. Appeal allowed; 2. Set aside the judgment entered by Hunt CJ at CL following the verdict of the jury; 3. Order that a retrial of the plaintiff's action against the defendant be had in the Common Law Division of the Supreme Court; 4. Order that the costs of the first trial abide the outcome of the second trial; and 5. Order that the respondent pay the appellant's costs of the appeal but have, in respect thereof, a certificate under the Suitors' Fund Act 1951.