Is there something amusing, Mr Foreman?

Defamatorium ... Outburst from barrister … Solicitor suing Financial Review loses injurious falsehood case, wins in defamation ... Juror looked chastened after being directly addressed by counsel during summing-up … How to handle an outburst from the bar table  

McClintock: "I'm sorry ... I apologise"Solicitor Bryan McMahon's defamation trial against the Financial Review and two of its journalists had dragged on for over a month, when suddenly Bruce McClintock injected a distracting burst into his closing address for the plaintiff. 

McClintock was firing up the jury over the fact that the two defendant journalists - Marcus Priest and Rachel Nickless - had not given evidence.

Let the transcript do the talking: 

McClintock: Members of the jury, I don't say that because I like abusing journalists or accusing them of cowardice and not having the guts to front up. I say it because there's actually an effect on your consideration of the evidence here that comes from their failure to give evidence. There is absolutely no question that they could have given relevant evidence. They could have told you what they knew at the time they published these articles, a matter that is significant, very significant, members of the jury. They haven't, members of the jury. Is there something amusing, Mr Foreman? They haven't. 

Mr Foreman was an Indian gentleman who smiled frequently at everyone and everything. Bruce must have felt he wasn't taking this crucial point about the absent journalists with the gravity it deserved. The man needed pulling into line. 

Justice Lucy McCallum then had to pull McClintock into line: 

More transcript please: 

In the absence of the jury 

Her Honour: Mr McClintock, I understand your reason for addressing the Foreman directly, but no question should ever be posed to a juror during the hearing of a trial by counsel.

McClintock: I'm sorry.

Her Honour: Their thoughts and deliberations are completely immune from the investigation except by me in defined circumstances.

McClintock: I apologise, your Honour.

Her Honour: Please don't let it happen again.

McClintock: I won't. I apologise, your Honour. 

How should the outburst be handled? 

In the absence of the jury

Her Honour:  Just before you say anything, Mr [Sandy] Dawson [for the defendants], Mr McClintock, I did want to clarify something. When I said before lunch that I understood why you had said what you said to the foreman, I wouldn't want to be taken to endorse any view you may hold as to the way in which he is performing his function. 

McClintock: I wasn't, I wouldn't.   

Her Honour: I know you're not suggesting that, but the way the transcript reads, it might be understood in that way. 

McClintock: I am going to apologise, your Honour.

Her Honour: That was the second thing I was going to raise. I am troubled by the impact. I can understand how these things come out. I don't think that anyone would take it as anything other than something said in the heat of the moment, but it does trouble me, because it was my observation that he appeared to look chastened. I don't think he should have been chastened. I think they have worked very hard and I think they are taking their job seriously. 

McClintock: I now understand what was actually going on, which I didn't know at the time.

Her Honour: Well, without giving any explanation of that kind, perhaps if you could just say, 'It's the kind of thing that people sometimes say and I didn't mean any offence' or something like that. I think you should have that opportunity. I gave consideration as to whether I should say anything and I don't think I should, but I think if you want to, you should feel free to do so. 

McClintock: I am certainly going to do that. 

Dawson: It was unfortunate on any view, but I'm not sure it is appropriate for my learned friend to engage in dialogue with one member of the jury in that way.

Her Honour: I certainly was not inviting that. It was not appropriate. It should be said, if he wants to say something to the jury suggesting that he regrets saying it, and just to move on. 

McClintock: Yes.

Her Honour: I think that should be permitted, Mr Dawson. 

Dawson: It is a matter for your Honour, but I'm concerned about it exacerbating the problem. It can only be --- 

Her Honour:  I'm concerned about not allowing Mr McClintock to ameliorate the problem. I think it should be allowed. Mr McClintock, it shouldn't be directed at the foreman. 

McClintock: No, no.

Her Honour: It should be something said about, that - 'The comment shouldn't have been made and I regret it', or something along those lines. 

Dawson: Your Honour, there are some matters I wanted to raise. I'm content to do it at the end of the day.

Her Honour: If you are happy to do it at the end of the day, let's do that. 

The note

Her Honour: Don't let it happen againIn the presence of the jury. 

A jury note was passed to her honour.  

Her Honour: Mr Foreman, I have your note and I think I probably should read it out. But can I tell you before I do that, that precisely the same observations have been made and acknowledged in your absence and what you record in your note, accords exactly with what I've said to counsel and what has been said in response to me.

Mr McClintock and Mr Dawson, the note from the jury says:

'Your Honour, earlier Mr McClintock addressed me directly' - and sets out the quote - 'We believe this to be inappropriate. Mr McClintock was about to step back over Mr Andronis [junior to McClintock] when he smiled at me and I reacted in turn. This is when Mr McClintock addressed me directly.'

And the jury requests that the concern be clarified. 

Bruce tells the jurors he doesn't know who they are 

McClintock: Members of the jury, I was going to do exactly that, unprompted by your note, but thank you for that. Can I say this, before I actually apologise - I'm going to - the beauty of the jury system in one sense is its anonymity, that you four, and I was going to say this later on, but I may as well say this now, have been brought here out of the community. 

We know nothing about you. We don't even know your names. There is obviously a reason, there is actually very good reason for that. The reasons are obvious, because if your names - there is always a risk, especially in criminal trials, of juries being interfered with. As I say, I know absolutely nothing about you, except what I can actually observe of you sitting in the jury box. 

A consequence of me knowing nothing about you is, in a sense, I'm entitled to know nothing about you and I'm not entitled to ask questions. Obviously this is a case about which there is a degree of emotion and there is no question that one can feel passionate about it. I shouldn't have asked the question of the foreman, members of the jury, that I did and I apologise for asking that question. I also, it is obvious from the note that I found out what was actually going on and that was confirmed to me after court and it was a misunderstanding and I am sorry. But it is not right to ask you questions. I can ask you rhetorical questions and I will, but I won't ask you any direct questions and I apologise.

Her Honour: I think that the note should be marked. 

McClintock: Does that clarify? 

Her Honour: I believe so. 

Phew.

*   *   *

As it turned out McMahon went down in his injurious falsehood case against the Fin Review, Priest and Nickless, but succeeded with four of the six defamation imputations he pleaded for two articles. 

It was a more than respectable loss for the paper, particularly as the journalists and an anonymous source didn't give evidence. 

From the first article, Drought and tax sink mid-tier firm, two imputations were pleaded: 

(a) The plaintiff so failed to meet his tax obligations that he was a major scalp in a crackdown on unpaid tax by the Australian Taxation Office.

(b) That the plaintiff behaved in a dishonourable way by permitting his old firm to go into administration and, on the same day opening a new firm

Imputation (a) got up because the truth defence was withdrawn by the judge. The jury found imputation (b) to be substantially true. 

Four imputations arose from the second article, McMahon's managing partner faces investigation: 

(a) The plaintiff was being investigated by the Legal Services Commissioner to determine whether he should be prosecuted for offences.

(b) The plaintiff was being investigated by the Legal Services Commissioner to determine whether he should lose his practising certificate and be fined for breaches of the Legal Profession Act.

(d) The plaintiff deliberately set up a complicated structure for his firm so as to avoid paying employee benefits. 

(e) The plaintiff had conducted his firm’s affairs dishonourably and so as to permit it to avoid payment of the debts which it owed. 

The judge withdrew the truth defence for (a) and (b). The jury found (e) substantially true and (d) was not true. 

Because the jury found no malice, the plaintiff's injurious falsehood case collapsed.

As is inevitably the case with contextual imputations pleaded by defendants, these went nowhere. Even though conveyed and true for the first article they did not "swamp" the plaintiff's imputation that was remained standing. 

The contextuals for the second article were conveyed but the jury did not think they were substantially true.

Justinian's sister organ, the Gazette of Law & Journalism, reported from the courtroom that the former bankrupt solicitor stuck to his guns under cross-examination by Sandy Dawson, but agreed that he spent $10,000 on wines during his honeymoon in Margaret River in 2006 and over $100,000 on overseas travel, but insisted that McMahon National Lawyers was "in good shape" at the time. 

McMahon said it was "a sad fact of a solicitor's life" that he had to entertain clients regularly by taking them to dinner.

Dawson said that McMahon led a "lavish lifestyle" at a time when his firm was failing to meet obligations to the ATO and its staff. 

A bemused McClintock remarked: 

"A lavish house in Rosebery! I wonder where my learned friend lives?" 

In particular, McMahon blamed the Financial Review for the loss of of a large piece of business from Lumley General Insurance. 

The decision on damages is yet to come. 

Update on Wednesday, March 21, 2012 by Justinian

Correction & Retraction

We've had a couple of attempts to get the imputations correct for the first AFR article.  

Solicitors for Bryan McMahon point out that in the original version of this story we had said: 

"(a) The plaintiff so conducted himself as a solicitor as to warrant the Legal Services Commissioner of NSW South Wales, Steve Mark, to investigate whether to prosecute the plaintiff. 

(b) The plaintiff so conducted himself as a solicitor to warrant the Legal Services Commissioner, Steve Mark, undertaking an investigation in the affairs of the plaintiff. 

Imputation (a) got up because the truth defence was withdrawn by the judge. The jury found imputation (b) to be substantially true."

We corrected imputation (b) within three hours of it being posted so that it correctly read: 

"That the plaintiff behaved in a dishonourable way by permitting his old firm to go into administration and, on the same day opening a new firm." 

This was the imputation the jury found to be substantially true. 

However, we failed to correct imputation (a), which should have read and now does read: 

"The plaintiff so failed to meet his tax obligations that he was a major scalp in a crackdown on unpaid tax by the Australian Taxation Office."

The truth defence for that imputation was withdrawn by the judge. 

Justinian retracts the imputation that McMahon "conducted himself as a solicitor to warrant the Legal Services Commissioner, Steve Mark, undertaking an investigation in his affairs".