Last Friday for Saturday’s paper I wrote (yet another) article about the shortcoming of the legal system, with a short reference to juries.
Unbeknown to me an AAP reporter was writing and article for wider publication that illustrated the point. Jury in Sydney had just awarded an entertainment promoter a record $2.5 million in damages for defamation. There will be probably another $500,000 in costs and interest.
The award was made because The Sydney Morning Herald ran an article in 1992 asserting that the promoter had threatened to send someone out to kill a business rival.
The amount is utterly idiotic. People made quadriplegics in car accidents don’t get as much.
I hereby invite The Sydney Morning Herald to devote an whole issue saying whatever they like about me for $2.5 million. But you cannot have my little finger for $2.5 million.
Because of this jury’s stupidity, the price of The Sydney Morning Herald will have to go up by 4c over the next year to recoup, or put up the price of classified ads for people selling cars and houses. The jury is dreaming if they think it will come out of shareholders’ profits.
Though it was record it was not a one-off. A jury awarded a solicitor $1.3 million because The Sydney Morning Herald said he had spun out and engineered cases. And there have been other foolishly high verdicts. These articles were not splashed across Page 1, moreover.
However, sloppy, foolish or even malicious the journalism, it does not warrant these sums of money. The damages should be limited to the cost of three full page advertisements: one to tell the world the paper got it wrong and two for embarrassment and hurt.
Fortunately, the assessment of damages in defamation actions has been taken out of the hands of juries in future cases. This was an old case.
If the NSW Parliament thinks juries are unfit to assess defamation damages, one wonders how they can be thought fit to assess guilt or innocence in complex criminal trials.
Divorce yourself, for the moment, from the centuries of propaganda about juries being the bastion of freedom for the common man against the oppression of the state etc etc. Think about way we seek the truth of a matter in ordinary life. Would you seriously pick 12 people on the electoral roll from a hat sit them before a passive judge and ask two lawyers to present the case for clients and after several days let them just say guilty or not guilty, or in a civil case decide for one side or the other and decide how much should be paid, without ever having to give reasons for their decision.
A school-teacher in the schoolyard would not be so dumb. If he wanted the truth he would seek out his own witnesses and ask them questions, including the accused.
The propagandists of the jury have stitched it up so well that under present law the jury system cannot be put to an objective test. In the limited allowable jurors may be asked about what they did, and of course they will all say they and their fellows worked diligently. But we should put video cameras on the wall to see the quality of decision-making.
It is absurd to pick jurors out of a hat and empower them to give unlimited damages ($2.5 million in the case cited) without giving reasons. Judgment without reasons is an offensive tyranny.
The civil case on defamation damages is an instructive example. In a criminal case the mere citation of guilty of not guilty can disguise a multitude of sins. However, the great possible variation in a quantum assessment of damages is more revealing. The $2.5 million awarded for the mere expresion of words, reveals on its face a departure of reason. Unless you are looking for a result that defies reason (a guilty man wanting to get off in a criminal trial or someone playing on popular anti-press feeling), who would put their fate in the hands of people chosen from ahat who can walk away afte the event anonymously, without giving reasons and without ever having to be accountable?