Judgment
Title: | Leech -v- Independent Newspapers (Ireland) Limited |
Neutral Citation: | [2014] IESC 78 |
Supreme Court Record Number: | 260/07 |
High Court Record Number: | 2005 513 P |
Date of Delivery: | 12/19/2014 |
Court: | Supreme Court |
Composition of Court: | Murray J., McKechnie J., Dunne J. |
Judgment by: | Dunne J. |
Status: | Approved |
Result: | Allow And Set Aside |
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| Judgments by | Link to Judgment | Concurring | Dunne J. | | Murray J. | McKechnie J. | | | |
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THE SUPREME COURT[Appeal No. 260/2007]
Murray J.
McKechnie J.
Dunne J.
BETWEEN
MONICA LEECH
PLAINTIFF/APPELLANT
AND
INDEPENDENT NEWSPAPERS (IRELAND) LIMITED
DEFENDANT/RESPONDENT
Judgment of Ms. Justice Dunne delivered on the 19th day of December 2014.
The plaintiff/appellant (Ms. Leech) is a married woman with two sons. For a period of time prior to the commencement of these proceedings, she worked as a communications consultant advising the OPW and subsequently, the Department of the Environment. The Minister for the Environment from 2002 until 2004 was Martin Cullen, TD. Ms. Leech became the subject of widespread media coverage around November and December 2004 concerning her work with the Department.
On the 16th December, 2004, RTE Radio 1 broadcast as usual the Liveline programme, a live phone-in programme which involves members of the public phoning in and speaking to its presenter live on radio. That day, a caller to the programme identifying himself as “Norman” made a number of comments on live radio suggesting that Ms. Leech was performing sexual favours for the Minister for the Environment as part of her job. The following day, an article bearing the headline “Gasps and Blushes as Norman turns Joe’s show into Vileline’” appeared in the Irish Independent newspaper published by the defendant/respondent. The article contained an account of the conversation between “Norman” and the presenter of the programme, Joe Duffy, save that in the article some of the words spoken by Norman were edited. It would be useful to refer to a short passage from the article which appeared in the edition of the Irish Independent for Friday, 17th December, 2004:
“During a discussion on the rights and wrongs of her appointment to the €127,775 – year – job, presenter Joe Duffy took a call from a person who called himself Norman and who said he was from Cork and a member of the Progressive Democrats.
Norman: ‘Well I think Martin Cullen has done a good job. And Monica Leech, for all we know, is not being overpaid at all.’
Joe interjected: ‘Keep defending.’
Norman: ‘We really don’t know what she’s been doing anyway. Maybe she’s been doing other things for him besides constituency work – maybe she’s ‘s.... his c….’.”
Joe Duffy, immediately cutting in: ‘We’ll cut the line’. An advertisement break followed.
Last night, RTE said it disassociated itself from ‘Comments made on today’s Liveline in relation to Martin Cullen and Monica Leech and to apologise for any offence caused’. …”
Ms. Leech issued proceedings claiming damages for defamation against the defendant/respondent (hereinafter referred to as “the Newspaper”) on the 10th February, 2005. Following an exchange of pleadings the proceedings ultimately came on for hearing before a judge and jury on the 26th June, 2007. The proceedings were dismissed on the 28th June, 2007 in accordance with the verdict of the jury which found that:
(a) The article did not bear the meaning that the plaintiff, a married woman, had had adulterous relations with Minister Martin Cullen.
(b) The article did not bear the meaning that the plaintiff, a married woman, had performed deeply intimate sexual favours, namely oral sex, for Minister Martin Cullen for the sake of a well paid and beneficial contract.
Grounds of appeal
Ms. Leech has appealed from the verdict of the jury and the order made on foot of the verdict on a number of grounds which can be summarised as follows:
(a) No reasonable person and in particular Ms. Leech, could believe that the verdict was properly reached in circumstances where it was arrived at on foot of a charge to the jury which the learned trial judge himself accepted was in error.
(b) The trial was, in any event, unsatisfactory as a result of erroneous rulings of the learned trial judge which prejudiced Ms. Leech.
(c) The learned trial judge failed to discharge the jury when he ought to have done so on the request of Ms. Leech.
The pleadings
In order to understand the issues in the case, it is necessary to make some reference to the pleadings. Ms. Leech in the statement of claim pleaded that the article complained of in its natural and ordinary meaning bore the meanings, inter alia, that Ms. Leech had had an extramarital affair with the Minister, that she had had adulterous sexual relations with the Minister and that she had prostituted herself for the sake of a well paid and beneficial contract. The Newspaper in its defence as originally pleaded denied the meanings contended for by Ms. Leech and went on to plead justification as follows:
“5. Further or in the alternative, the defendant pleads that the said material, in its natural and ordinary meaning, but not in the meanings pleaded by the plaintiff, was true in substance and in fact.”
Particulars.
The conversation described in the article took place between the presenter and the caller to RTE’s Liveline show. RTE and the presenter reacted in the manner described, and made the statements described, in the article. The balance of the article is also true.”
There was also a plea of fair comment in which the matter of public interest was stated to be the failure by a national broadcaster to prevent the airing of inappropriate material. Finally there was a plea of qualified privilege to the effect that “The material was published on an occasion of qualified privilege pursuant to the Constitution and/or at common law”.
Arising out of a motion before the High Court (O’Donovan J.) on the 21st November, 2005, an amended defence was delivered containing the following plea of justification:
(a) That a caller to RTE’s Liveline had made offensive remarks about the plaintiff and Martin Cullen and that RTE and the programme’s presenter had immediately apologised for, and disassociated themselves from, those remarks.
In support of the above plea, the defendant relies on the fact that the conversation reported in the article took place and that RTE and the presenter reacted in the manner described and made the statements described in the article. The defendant also relies on the other matters of fact as set out in the article.”
Thus, when the case came on for trial, the Newspaper relied on defences of justification, fair comment, and qualified privilege.
RTE proceedings
Ms. Leech also brought proceedings against RTE arising out of the broadcast and those proceedings were compromised by Ms. Leech and RTE in terms that an apology to Ms. Leech was read out in court and a substantial sum by way of damages was paid to her. An order was also made for the payment of her costs of those proceedings, to be taxed in default of agreement.
The trial
At the commencement of the trial and before the case was opened to the jury, a number of legal issues were canvassed before the learned trial judge. In the course of legal argument it was indicated to the Court on behalf of the Newspaper that it no longer wished to rely on the defence of fair comment.
Secondly, it was made clear that the Newspaper did not wish to put forward the defence of justification as such, rather it was intended to rely on the particulars furnished under the heading of “Justification” in the amended defence to the effect that there had been a broadcast in the terms described and that it had been dealt with by RTE by way of an apology. The net effect was that the action proceeded on the basis that the Newspaper’s defence consisted of a dispute as to the meanings contended for by Ms. Leech together with a plea of qualified privilege.
Thirdly, the learned trial judge made the following ruling:
“We come to the second issue then which is: is the Plaintiff in opening this case to make reference to a large quantity of other material which is in many cases the subject of other litigation by way of saying that the true meaning that the defendant wished to put forward in relation to the article was not one of a report but one of deliberately attacking her character. At the moment I feel that the right thing to do is to simply rule that that matter should not be opened to the jury at this point.”
The case was then opened to the jury on behalf of Ms. Leech. On the following day, before going into evidence, an issue arose as to the status of the “Reynolds” defence of qualified privilege in Ireland (Reynolds v Times Newspaper Ltd. 1999 1 All ER 609) and submissions were heard on that subject. The learned trial judge concluded that there was a public interest or “Reynolds” defence of qualified privilege available in this jurisdiction but he did not wish to rule on the availability of the defence in this case before hearing evidence. It was observed that particulars of that defence ought to have been furnished with the defence but in circumstances where particulars had not been sought by Ms. Leech prior to the trial, he declined to require the Newspaper to formulate such particulars at that stage. During the course of the submissions before the learned trial judge on the issue of the “Reynolds” defence, the Newspaper declined to say whether it would go into evidence in support of that defence.
Following the ruling of the learned trial judge, Ms. Leech commenced her evidence. She described her personal circumstances, her work experience in marketing and communications and how, ultimately, she became self-employed. She explained how she had become acquainted with Mr. Cullen in various capacities, when she worked in local radio and when she was involved in the Waterford Chamber of Commerce particularly in her position as President of the Waterford Chamber of Commerce.
Ms. Leech described how she did a number of jobs for the Office of Public Works when Mr. Cullen was Junior Minister with responsibility for the Office of Public Works. Following the 2002 election, Mr. Cullen became Minister for the Environment. Initially Ms. Leech was offered a short-term contract in relation to the communications needs of the Department. Thereafter, she participated in a full tender process and was successful in obtaining a further contract to work for the Department. She described the nature of her work for the Department.
Ms. Leech explained how she heard the broadcast on Liveline and her reaction to it. The following day she found out about the article in the Irish Independent the subject matter of these proceedings and she told the jury about her reaction to that article.
Ms. Leech was then cross-examined extensively. During the course of the cross-examination, her counsel objected to the breadth of the cross-examination on the basis that it sought to go outside the parameters permissible having regard to the plea of qualified privilege based on the public interest that had been flagged in the course of earlier submissions. Complaint was made that the Newspaper was “pleading justification through the back door”. The learned trial judge permitted the cross-examination of Ms. Leech to continue stating as follows:
“The issue as to a public interest defence is objected to on the basis that if Mr. McCullough (counsel for the Newspaper) suggests there is some substance to a controversy, that in those circumstances he is in fact pleading justification through the back door. I think the reality in relation to a public interest defence is that it can be wrong, but a matter can be fairly ventilated in the public interest and I think he is entitled to explore that. I therefore do not see that there is anything wrong with the question.”
Thus the cross-examination continued and in the course of cross-examination a number of points were put to her:
It was suggested to Ms. Leech that there was a concern that the tender process was irregular;
suggested to Ms. Leech that there was a concern that the tender process was contrary to European procedures;
suggested to Ms. Leech that there was a concern that her presence on foreign trips had been irrelevant;
suggested to Ms. Leech that, as the articles stated, a senior civil servant had been appointed to investigate all of these matters.
Ms. Leech was then cross-examined as to the proceedings brought by her against RTE arising out of the comments made by “Norman” on Liveline. Following the cross-examination on that issue, the cross-examination concluded. The following day, an issue was raised by counsel on behalf of Ms. Leech as to her cross-examination on the subject of the settlement of her proceedings against RTE. Section 26 of the Defamation Act 1961 was referred to in this context. An issue arose as to whether in circumstances where reliance was placed on the fact that Ms. Leech had obtained damages from RTE that in order to lead that evidence it was necessary for counsel on behalf of the Newspaper to concede liability. Section 26 provides:
“In any action for libel or slander the defendant may give evidence in mitigation of damages that the plaintiff has recovered damages, or has brought actions for damages, for libel or slander in respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to receive compensation in respect of any such publication.”
Counsel for Ms. Leech sought that the Newspaper either admit that the words complained of were to the same effect as the meanings pleaded by Ms. Leech against RTE or if it was contended otherwise, that the jury be discharged. The learned trial judge declined to discharge the jury and said that he would seek the assistance of counsel in relation to the appropriate direction to be given to the jury in relation to the question of damages.
As a result of that ruling, Ms. Leech was re-examined in relation to the settlement of her proceedings with RTE.
The rulings in relation to the breadth of cross examination and as to the refusal of the trial judge to discharge the jury in respect of the s.26 issue are amongst the issues raised in this appeal on behalf of Ms.Leech.
Following the conclusion of the evidence of Ms. Leech on the third day of the trial, it was indicated that the Newspaper would not be going into evidence. There were submissions from counsel as to the effect of not calling evidence on the “Reynolds” defence. The test required to be met before that defence could be relied on, particularly the requirement to establish that the defendant in publishing the article met the standard of responsible journalism, was canvassed. The learned trial judge ruled that in order to establish the “Reynolds” defence, there should have been evidence to establish the steps taken prior to publication which would have amounted to responsible journalism. He ruled that the defence of qualified privilege arising from the public interest could not go to the jury. Accordingly, given that the Newspaper had abandoned its plea of fair comment and justification at the commencement of the trial and was no longer permitted to rely on the “Reynolds” defence, the case went to the jury on the issue of the meaning of the article and damages on the basis of the following questions:
“Did the article of Friday, 17th December, 2004 published by the defendant bear the following meanings or either of them?
(a) That the plaintiff, a married woman, had had adulterous sexual relations with Minister Martin Cullen . . ..
(b) That the plaintiff, a married woman, had performed deeply intimate sexual favours, namely oral sex, for Minister Martin Cullen for the sake of a well paid and beneficial contract . . ..”
The jury were then asked to assess damages if the answer to No. 1(a) or (b) was yes.
The jury’s deliberations
Counsel’s speeches to the jury and the judge’s charge having been concluded, the jury retired at 4.19pm to consider their verdict. Following the learned trial judge’s charge to the jury, counsel for both Ms. Leech and the Newspaper made requisitions in relation to the charge. The Newspaper made a requisition in relation to that part of the charge as to the evidence of meaning. In turn, counsel on behalf of Ms. Leech had a requisition as to the law in relation to a repetition of a libel and the fact that it was not sufficient in repeating a libel to then repeat a disassociation from the libel. The learned trial judge agreed to recall the jury and at 4.28pm the learned trial judge re-charged the jury briefly on the matters that had been raised by way of requisition. The jury went out again at 4.31pm to continue their deliberations.
As pointed out above, complaint has been made in this appeal as to a number of rulings made in the course of the trial but what occurred next gives rise to the main ground of appeal. Some time after the jury had retired to consider their verdict following the re-charge, the Court sat again in the absence of the jury. Apparently the jury had indicated that they had a question and they were also concerned as to how long they were going to be kept deliberating on their verdict. It is not precisely clear at what time the Court sat but it appears from the transcript that the learned trial judge commented “We are close enough to 5.30 now” and he indicated to counsel that he was going to direct the jury at that stage as to a majority verdict.
When the jury returned there was a brief discussion between the learned trial judge and the foreman of the jury as to how much longer the jury would continue on its deliberations that evening. The foreman then asked the question which was troubling the jury – “What does ‘bear the meaning’ mean?” The learned trial judge responded as follows:
“Bear the meaning simply means ‘means’. That is all it means.”
The exchange between the learned trial judge and the jury continued with a further question asked this time by another member of the jury:
“It is not could it bear the meaning to carry an inference?”
Mr. Justice Charleton then responded:
“Inference has not been mentioned in this case, but inference is a fact in the same way, it is within the scope of your duty to find facts and I do not think you should get hung up as to the difference between inference and facts. A fact is that something happened. An inference that you draw from a fact is that by reason of the existence of one fact, you conclude another fact happened. The example that I gave you is that if you see your child in the kitchen and he or she comes in crying at three or four years of age and they have skinned knees, you are entitled to infer from that, that this child has fallen and skinned its knees. You do not have to look for weird explanations in relation to matters. In other words, an inference is a fact from which you can deduce or conclude that another fact exists. Now both facts and inferences from facts are within your province. By ‘bear the meaning’, it means ‘does it mean’? That is all.
Foreman of jury: That is ok.
Mr. Justice Charleton: Does that cause you a difficulty?
Foreman of jury: No, alright, thank you.”
The jury then withdrew. Counsel for the plaintiff took issue with the response given and submitted that the word “inference” as explained by the trial judge had a difference use and that the jury were asking if they could draw an inference from the article as a whole or as it was put by counsel:
“That if they believe that the message of the article, taking it as a whole between the lines, is to either of the effects pleaded, then they are entitled to act on that and that is wholly different from drawing inferences of the kind which the court has mentioned.”
There was a discussion between counsel for the plaintiff and the learned trial judge on the subject. Counsel for the defendant submitted that the answer to the question was correct and was opposed to any re-charge being given to the jury. Counsel for the plaintiff then referred the trial judge to a passage from Gatley on Libel and Slander, 10th Ed. at para. 3.12 to 3.16 on the subject of the meaning of words.
Having considered the submissions, the learned trial judge indicated that he would re-address the jury to point out that “The natural and ordinary meaning also include implications or inferences as set out in paragraph 3.15 of Gatley”.
The jury was recalled by the learned trial judge and when they re-appeared in court, they were wearing their coats. The trial judge began to address them and explain that what he was going to do was “to try and do is tell them what does the question, does the article mean mean?” (sic). At that stage, the foreman intervened and said: “We actually have made a decision.” The learned trial judge asked the jury to listen and go back and consider their decision. He added that he was taking it that there was no decision. He then addressed the jury in the following terms:
“Sometimes the meaning can be absolutely clear as where the article says, so and so is a murderer and sometimes where an ordinary person reading the article as a whole would take from it or would infer that the plaintiff is a murderer. That is the allegation. Those things constitute the meaning of the article. What is specifically stated and what an ordinary person reading it as a whole will take from it. Now that is the best I can do in relation to that. Would you like to go back briefly please. I am asking you to go back and then come back, if necessary, in five minutes and give us your decision.”
The jury retired again. Counsel on behalf of the plaintiff at that stage requested that the jury be discharged given that the jury had said they had arrived at a decision on the basis of the original charge in response to their question. After some brief discussion, the trial judge refused to discharge the jury. The jury returned almost immediately and brought in a verdict for the defendant. The question that now arises is whether the verdict reached by the jury in answering “No” to both questions on the issue paper is unsafe in the circumstances described above.
The verdict of the Jury
A number of issues have been raised on this appeal in relation to the conduct of the trial and a number of rulings given in the course of the trial but as I have already said the main issue surrounds the arguments on behalf of Ms. Leech to the effect that the verdict of the jury was unsafe. The difficulty arose from the question asked by the jury seeking assistance as to the meaning of the phrase “bear the meaning”. On being asked that question the trial judge gave a definition of the word “inference”. The explanation given by the trial judge was not correct in the context of the meaning of words used in an article. Following submissions on the point, he accepted that the response he gave was not appropriate and on that basis he decided to re-charge the jury. As can be seen from the sequence of events described previously, by the time the submissions had concluded and when the jury came back for the purpose of being re-charged, the jury had actually made a decision as indicated by the foreman. In those circumstances the learned trial judge requested the jury to go back and consider their decision and continued his re-charge. Apart from any issue with the manner in which the learned trial judge then re-charged the jury, it is contended on behalf of Ms. Leech that there was bias on the part of the jury in the sense that the jury had clearly reached their decision prior to the final re-charge and thus the verdict of the jury could not be regarded as being unbiased. Reference was made to the decision in the case of The People (DPP) v. Tobin [2001] 3 I.R. 469, a decision of the Court of Criminal Appeal in respect of an appeal from a conviction for rape and sexual assault. During the course of the trial the foreman of the jury in that case disclosed to the Court that as the jury were deliberating, a member of the jury related a personal experience of sexual abuse. The foreman of the jury assured the Court that it was not affecting the impartiality of that person in any way but explained that the jury believed they should report the matter to the Court. The trial judge in that case declined to discharge the jury. The case was certified for appeal by the trial judge on the ground “That the Court failed to discharge the jury when it was brought to the attention of the Court by the foreman of the jury that a member of the jury had disclosed during the course of their deliberations that a particular member of the jury had a prior experience of sexual abuse”. In his judgment, Fennelly J. considered the appropriate test to be applied and it was concluded by the Court of Criminal Appeal in allowing the appeal that the test to be applied was an objective one, namely, whether there was a “reasonable apprehension” of bias, which was the test which applied to the judiciary and a fortiori applied to the case of a challenge alleging bias in a jury. The Court further held that, in the special circumstances of the case, a reasonable and fair-minded observer would consider that there was a danger in the sense of a possibility that a juror might have been unconsciously influenced by his or her personal experience and for that reason the appellant might not receive a fair trial. Fennelly J. in the course of his judgment reviewed a number of authorities including Webb v. The Queen (1993 -1994) 181 C.L.R. 41, Sander v. United Kingdom [2000] Crim. L.R. 767 and Reg. v. Gough [1993] A.C. 646. For example in the case of Sander, the issue that arose was the fact that a note had been sent to the judge expressing concern at the expression of racist sentiments by a member of the jury in respect of a case involving a British citizen of Asian origin. Having reviewed those authorities, Fennelly J. (at p. 477) observed:
“The rich and growing body of case law in this jurisdiction regarding complaints of bias in decision-making bodies (including the courts themselves) contains very few instances of alleged juror bias and none of the type which arises in this case. It seems, however, that our courts have, in other cases of alleged bias, preferred the second of the two formulations of the objective test set out in Reg. v. Gough [1993] A.C. 646. . . . On this basis Denham J. in her judgment in Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412, stated at p. 439:
‘Thus, there is well settled Irish law that the test is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not receive a fair trial of the issues.’
She went on to compare Reg. v. Gough [1993] A.C. 646 and Webb v. The Queen (1993-1994) 181 C.L.R. 41. She quoted in extenso from the judgment of Mason C.J. in the latter and she adopted his reasoning.
Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412 of course, was concerned with allegations of bias at the highest levels of the judiciary. It is notable, therefore, that the ‘reasonable apprehension’ test applies even there. A fortiori, therefore it applies to the case of a challenge alleging bias in a jury. The additional admonition recalled in nearly all of the cases and cited by counsel for the appellant in the present case is Lord Hewart C.J.'s celebrated dictum from R. v. Sussex JJ., ex p. McCarthy [1924] 1 K.B. 256 at p. 259, ‘. . . that justice must not only be done, but should manifestly and undoubtedly be seen to be done’. In the end, of course, the application of the test is a matter for decision of the court on the facts of the individual case.”
It was contended on behalf of Ms. Leech that in the circumstances that had occurred and despite the direction of the learned trial judge that the jury should go back and consider the decision which they had already reached, no reasonable person could have had anything other than a reasonable apprehension that the subsequent decision of the jury, minutes later, might have been affected by pre-judgment in circumstances where the foreman of the jury had interrupted the learned trial judge in his re-charge to indicate that the jury had reached a decision.
By contrast, counsel on behalf of the Newspaper submitted that on an objective assessment of the facts there was no basis for any case of real or perceived bias on the part of the jury. It was pointed out that following the re-charge by the trial judge he stated to them that they were “to listen to this and go back and consider your decision. You have not been asked as yet for your decision, I am taking it that there is no decision”. It is the Newspaper’s case that that is precisely what the jury did. Reliance was placed on the decision in Dawson v. Irish Brokers Association [1998] IESC 39 at page 6 where it was stated:
“Once again, it is necessary to reiterate, as this Court is doing with increasing frequency, that the question of having a jury discharged because something is said in opening a case or some inadmissible evidence gets in should be a remedy of the very last resort and only to be accomplished in the most extreme circumstances. Juries are much more robust and conscientious than is often thought. They are quite capable of accepting a trial judge’s ruling that something is irrelevant, or should not have been given before them, as well as in the face of adverse pre-trial publicity. See D. v. Director of Public Prosecutions [1994] 2 IR 465; Z .v. Director of Public Prosecutions [1994] 2 1R476 and Irish Times Limited.v. Murphy [199812 ILRM 161.”
Relying on that authority, it was submitted that it must be assumed that the jury did what it was asked to do, namely to go back and consider its decision in the light of the further re-charge by the learned trial judge.
It was further submitted that the jury spent further time deliberating following the final re-charge by the learned trial judge. On that basis it was submitted that there was no case to suggest that there was actual or perceived bias on the facts or as a matter of law.
The appropriate test to be applied in this case is the test identified in the decision of the Court of Criminal Appeal in The People (DPP) v. Tobin referred to above, namely an objective one as to whether there was a “reasonable apprehension” of bias. The question to be asked is whether a reasonable and fair-minded observer would consider that there was a danger in the sense of a possibility that the jury, having already indicated that they had a decision made did not in fact re-consider their verdict in the light of the further re-charge by the learned trial judge.
The circumstances of this case are unusual. When the jury was re-called for the purpose of the final re-charge, the jury were already wearing their coats and when the Judge began to address them by way of the re-charge, the foreman of the jury interrupted to say that they had in fact reached a decision. The jury were then further re-charged and asked to go back and consider their decision. The precise length of time that they re-considered the verdict is not clear from the transcript which only makes reference to a short adjournment. It appears to have been a matter of minutes. What is clear is that the jury did not spend any lengthy period of time reconsidering their verdict following the re-charge.
This is not a case in which there is a suggestion that there was some form of bias in the sense of prejudice towards an accused person or undue sympathy for a victim of a crime as in the cases of Sander v. United Kingdom or Webb v. The Queen. It is a case in which the issue is as to whether or not there was pre-judgment on the part of the jury in reaching a decision. The jury had reached a decision by the time the trial judge sought to re-charge them following further submissions from counsel. Reference was made in the course of the submissions to “the robust commonsense of juries” (see D. v. Director of Public Prosecutions [1994] 2 I.R. 465 and Kelly v. O’Neill [2000] 1 I.R. 354). I agree with the general proposition that juries have robust commonsense. It is for that very reason that we have trial by jury in criminal matters and in a limited number of civil actions. The system of trial by jury has stood the test of time. I accept that as a general rule, a jury is capable of following a judge’s directions to ignore a piece of irrelevant evidence or adverse pre-trial publicity, for example. Nevertheless, the most unusual circumstances of this case must give rise to a real concern as to the safety of the verdict where the jury had told the learned trial judge that they had made a decision, were re-charged and told to go back and consider their decision and proceeded to deliver their verdict minutes later. Applying the test identified by Fennelly J. in Tobin, I am driven to the conclusion that a reasonable and fair-minded observer would consider that there was a danger, in the sense of a possibility, that by the time of the final re-charge by the learned trial judge, the jury had already made up their minds. On that basis, I am satisfied that the verdict of the jury in this case is unsafe.
Other issues
Even if I were not satisfied that the verdict of the jury in this case was unsafe for the reasons set out above, I would have come to the same conclusion having regard to the direction given to the jury as to the meaning of the phrase “bear the meaning”. When the jury asked the question . . . “could it bear the meaning to carry an inference?”, the learned trial judge gave an explanation as to inference which was subsequently accepted by him not to be correct in the light of further submissions. In the course of those submissions, the learned trial judge accepted that when one is considering the natural and ordinary meaning of words complained of, the natural and ordinary meaning includes implications or inferences as described in Gatley on Libel (10th Ed.) at paragraphs 312 to 316. The matter is set out succinctly at paragraph 315 where it is stated:
“The natural and ordinary may also include implications or inferences.”
The learned trial judge did not use that phrase but told the jury the following during the re-charge:
“Sometimes the meaning can be absolutely clear as where the article says so and so is a murderer and sometimes where an ordinary person reading the article as a whole would take from it or would infer that the plaintiff is a murderer. That is the allegation. Those things constitute the meaning of the article. What is specifically stated and what an ordinary person reading it as a whole will take from it.”
The jury were looking for an explanation as to whether they could draw an inference from the words used in the article complained of as to the natural and ordinary meaning of those words. The subsequent re-charge seems to me to have fallen short of providing the jury with a clear explanation as to whether or not the natural and ordinary meaning of the words could also include implications or inferences such as those contended for by Ms. Leech. The purpose of the judge’s charge to the jury is to give directions on the issues of law that arise in the case with a view to assisting the jury to reach a verdict. In Walsh on Criminal Procedure, the author said at p. 934:
“…the judge should aim to translate the relevant rules and principles into workable standards which could be applied by a layman and avoid broad disquisitions on the law which are aimed at an academic or professional audience.” This applies with equal force to the judge’s charge in a civil action.
I sympathise with the view of the learned trial judge that it would not be appropriate to read lengthy passages from a textbook to a jury in the course of a charge but sometimes a clear and straightforward text book explanation may be of assistance. I am of the view that what was stated by the learned trial judge in the course of the re-charge did not undo the confusion caused by the earlier explanation of an inference and did not go far enough in explaining to the jury, to use the words used by Mr. O’Higgins, “That if they believe that the message of the article, taking it as a whole between the lines, is to either of the effects pleaded, then they are entitled to act on that….” and accordingly for that reason also the verdict of the jury is unsafe.
This case was the first case in which the so-called “Reynolds” defence of qualified privilege was raised. At the end of the day that defence did not go to the jury in circumstances where one of the tests for relying on that defence, namely the test of demonstrating that there was fair and responsible journalism in the publication of the article complained of could not be met as the Newspaper chose not to go into evidence. Nevertheless there was much argument in the course of the case on this issue and one of the complaints made on behalf of Ms. Leech was that there was an error on the part of the learned trial judge in not ruling that the defence was unavailable before Ms. Leech commenced her evidence unless the Newspaper confirmed at that stage that it was going into evidence. Complaint was made that the Newspaper was allowed to cross-examine Ms. Leech relying on its defence of “Reynolds” qualified privilege even though subsequently, it did not go into evidence resulting in that defence not going to the jury. The provisions of s. 26 of the Defamation Act 2009 now incorporate a defence of “fair and reasonable publication on a matter of public interest”. Section 26(1) provides:
Sub-section (2) goes on to set out a number of matters to be taken into account when considering whether it was fair and reasonable to publish the statement concerned. In this case, counsel on behalf of Ms. Leech sought a ruling on the “Reynolds” defence prior to her going into evidence. It may well be that an application to rule out such a defence could be made at the outset of a case on the basis that the matters pleaded could not in any circumstances give rise to such a defence, be it, the “Reynolds” defence or the defence as now provided for in s. 26 of the 2009 Act. However, where such a defence is open on the pleadings, it would appear to be premature to rule out such a defence prior to evidence being given. Even if the defendant indicated clearly at the outset of the trial that he or she was not going into evidence, it may be possible for the evidence to come from the Plaintiff or the Plaintiff’s witnesses. The arguments in this case centred on the lack of particulars contained in the defence as to how the “Reynolds” defence might arise and the learned trial judge accepted that particulars ought to have been given in relation to the “Reynolds” defence. However where there were extensive notices for particulars and replies to particulars and no notice for particulars was raised in relation to the public interest defence, he took the view that it was not appropriate to shut out the “Reynolds” defence at that stage by reason of the absence of particulars. At the conclusion of the evidence, he ruled out that defence given that in the absence of evidence the test required to give rise to the defence in relation to responsible journalism had not been met. I am satisfied that the approach of the learned trial judge in not ruling out “Reynolds” defence at the commencement of the trial was more than appropriate.
Conclusion
The main ground of appeal in this case centred on the events that occurred towards the end of the jury’s deliberations. The fact that the jury returned to court wearing their coats, having been recalled by the court for a further re-charge, were told by the learned trial judge that he wished to say something else to them, that the foreman of the jury announced that the jury had made a decision, that the learned trail judge re-charged them, asked them to go back briefly and then come back and give a decision, coupled with the fact that the jury returned with a verdict within a matter of minutes, has led me to the conclusion that a reasonable and fair-minded observer would consider that there was a danger, in the sense of a possibility, that by the time of the final re-charge by the learned trial judge, the jury had already made up their minds and had done so on the basis of an erroneous charge. I am satisfied that the verdict of the jury was unsafe on this ground. Accordingly, I would allow the appeal.