'Overwhelming' grounds for discharging jury in Chris Gayle case, court told
There were "overwhelming" grounds for discharging the jury and ordering a new trial in Chris Gayle's defamation case against The Sydney Morning Herald and The Age and the failure to do so meant the publisher did not receive a fair trial, an appeal court has been told.
Mr Gayle successfully sued the publisher of the Herald, The Age and The Canberra Times in the NSW Supreme Court in 2017 over a series of articles published in January 2016 alleging he exposed himself to a female massage therapist during the 2015 Cricket World Cup in Sydney.
The publisher of the mastheads launched an appeal against the decision, while Mr Gayle cross-appealed in a bid to increase what his lawyers termed his "manifestly inadequate" damages payout of $300,000. The NSW Court of Appeal heard the appeal on Thursday.
Matthew Collins, QC, for the media outlets, told the court that Mr Gayle's barrister, Bruce McClintock, SC, had launched a "pretty full-throttled attack" on the credibility of their key witness, massage therapist Leanne Russell, during his closing address to the four-person jury.
"Her credibility was, at the end of the day, the central issue in these proceedings," Dr Collins said.
Dr Collins said the attack included calling Ms Russell a liar and suggesting Ms Russell had fabricated her evidence in a bid to get back at Mr Gayle's teammate Dwayne Smith, who was also in the dressing room at the time of the alleged incident.
Dr Collins said Mr McClintock had not asked Ms Russell during cross-examination to respond to those allegations and "those propositions had to be put if there was to be a proper basis for the submissions put in closing". It was a question of "fair play", he said.
Mr Smith admitted during the trial that he sent Ms Russell a text message which simply said "sexy" on the day before the alleged incident. On the evidence before the court, the text was sent during or shortly after Ms Russell had given him a massage.
The court heard Ms Russell told a friend in Facebook messages that she had "told them all to f--- off with their late-night texts".
The publications sought to have the jury discharged after Mr McClintock's closing address to the jury, arguing his comments jeopardised a fair trial. Supreme Court Justice Lucy McCallum – who has since been elevated to the Court of Appeal – declined to do so.
Dr Collins told the court that "cumulatively the case for discharge was an overwhelming one".
The publisher had objected to Mr McClintock's closing address to the jury on other issues, including the technical issue of malice and his suggestion that Ms Russell, who had a history of anorexia, was "mentally fragile", "neurotic" and "vengeful".
"It wasn't put to Ms Russell ...that she had made up the entire incident because of her anorexia," Dr Collins said. "As a matter of elementary fairness ... it ought to have been put [to Ms Russell in the witness box so she could respond, and so the jury could hear her answer]".
In October 2017 a four-person jury found that Fairfax Media, since acquired by Nine, failed to establish a truth defence to the allegations at the centre of the case. In a judgment on damages in December last year, Justice McCallum awarded the 39-year-old cricketer $325,112, including interest.
The figure was at the lower end of the scale compared with recent defamation payouts to high-profile plaintiffs, and is within the statutory cap of $389,500 on general damages for non-economic loss. Aggravated damages were not awarded.