Vivian Bennett v The Gleaner Company Ltd
| Jurisdiction | Jamaica |
| Judge | Thomas, J. |
| Judgment Date | 01 May 2020 |
| Date | 01 May 2020 |
| Docket Number | CLAIM NO. 2011 HCV 05115 |
| Court | Supreme Court (Jamaica) |
[2020] JMSC Civ72
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
CLAIM NO. 2011 HCV 05115
and
and
Raymond Samuels instructed by Samuels & Samuels for the Applicant/Claimant.
Trudy-Ann Dixon Frith and Danielle Reid, instructed by DunnCox for the Defendants/Respondents
Defamation Claim — Libel — Application to be tried by Jury — Whether the application is made out of time — Whether the Claimant has a right to trial by jury — Whether the matter falls within the exercise of the judge's discretion (Defamation Act (1963), S.9; Judicature Supreme Court Act S.45; Rules 26.1; 27.9; 69.4.
This is an application by the Claimant for trial by Jury which is being opposed by the Defendants. The Application is brought on the following grounds:
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(i) the Claim is one for libel;
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(ii) the trial does not require any prolonged examination of documents or account or any scientific or local investigation;
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(iii) the matter can be conveniently tried by a jury.
The basis on which the Defendants are objecting to the application are:
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(i) The court has no jurisdiction to hear the application as it was filed out of time; and
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(ii) The matter is not one that is suitable for jury trial.
The substantive claim in this matter is brought by the Claimant, Vivian Bennett, in damages for libel against the Defendants. The Claimant alleges that the 1 st Defendant is the publisher and proprietor of the 2 nd Defendant. The 3 rd Defendant is the Editor in Chief of the 1 st and 2 nd Defendant.
Further allegations of the Claimant are that:
On the 1 st of December 2005, the 2 nd Defendant on the front page of its edition in bold headlines falsely and maliciously published the following words “ Goat Rape, St. Mary man charged with beastiality”. This was in addition to a cartoon depicting a naked caricature behind a goat with hearts around his head. The said words appeared in bold again on page three of the said edition with the following content:
“Residents of Cook Street, Port Maria responded with shock and disgust when they learned that a man from their community was accused of having sex with a goat. The accused Vivian “Blacka” Bennett, 52, popular fruit vendor, has since been remanded at the Richmond lock-up on charges of Beastiality, stemming from the incident.
The police report that about 1:30 am on November 28, 2005, a farmer was in his field near Cook Street, when he heard one of his goats (a doe) crying excessively. Upon investigation the farmer saw Bennett in a crouching position behind the struggling goat, engaging in a throbbing movement while holding down the animal”
The Claimant also complains that the words were repeated several times in different sections of the same issue of the said edition. He avers that the words, which were false and defamatory, were published carelessly and recklessly, without caring whether they were true. He further avers that the words and the caricature taken together meant and were understood to mean that the Claimant had engaged in sexual intercourse with a goat which is an offence punishable with imprisonment.
The Defendants admit that the headline was published on the front page of The Star. They deny that the caricature was naked. They further admit that the words as alleged by the Claimant were in fact published on page 3. They however denied that they were repeated several times in different sections of the newspaper. Further, the substance of the defence is that the publication was not false and malicious but was the end result of research, and that the Claimant was arrested and charged for the act. They acted on the Police report and did not treat the report as a fact. They do not admit that the words or drawings and innuendos when taken in their natural and ordinary meaning are defamatory. They aver that they merely reported the allegations and did not adopt them. They also rely on Section 9 of the Defamation Act (1963), and have accordingly pleaded the Defence of qualified privilege in that:
“The Claimant was in fact arrested and charged by the St. Mary Police for the offence of bestiality. They [the Defendants] interviewed the arresting officer. The crime for which the Claimant was charged was of public concern and in the interest of the residents of Cook Street, Port Maria, St. Mary and to Jamaicans generally.”
The sum total of the Claimant's affidavit evidence in support of this application is as follows:
He is a farmer and a vendor. He has worked long and hard to establish himself in and about various townships to include Port Maria, Port Antonio and Ocho Rios. The publication has affected him personally and his livelihood as a vendor and a farmer. He is now unable to function as a vendor and farmer as no one wants to buy anything from him anymore and they constantly curse him about what they read in the Star Newspaper.
He asserts that Libel is in issue in the claim. As such, the court will have to deal with the meaning of the caricature and the article and how they “have been put towards the public”. Further he states that in determining the representations conveyed to the public, the court will have to identify the effect of the publication including what it represents to the ordinary reasonable member of the public. He contends that members of the public are better placed to decide whether the publications “are legitimate” and what they understand the representations to mean.
He further states that a jury would represent the very audience to whom the publication was made. In the circumstances, a direction that the case be heard by a Judge and jury would be best.
The issues which arise in this application are:
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(i) Whether the Application was filed out of time;
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(ii) Whether the Claim is of such a nature that it should be tried by a Jury.
Section 45 of The Judicature Supreme Court Act (the Act) makes provision for the Court to make an order for trial by Jury in certain instances. The Section reads:
“(1) Subject as hereinafter provided, if, in relation to a civil cause or matter to be tried in the Supreme Court, an application is made by a party thereto before the mode of trial is first determined, for the cause or matter to be tried with a jury, and the Court or a Judge is satisfied that—
(a) an allegation of fraud against that party; or
(b) a claim in respect of slander, libel, false imprisonment, malicious prosecution, seduction or breach of promise of marriage is in issue, the cause or matter shall be ordered to be tried with a jury, unless the Court or Judge is of opinion that the trial thereof requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury, but, save as aforesaid, any civil cause or matter to be tried in the Supreme Court, may, in the discretion of the Court or a Judge, be ordered to be tried either with or without a jury
(2) The provisions of subsection (1) shall be without prejudice to the power of the Court or a Judge to order that different questions of fact arising in any civil cause or matter be tried by different modes of trial, and where any such order is made the provisions of subsection (1) requiring trial with a jury in certain cases shall have effect only as respects questions relating to any such allegation or claim as is mentioned in that subsection”.
Mr. Samuels submits that where Parliament gives a prima facie right to trial by a jury, the public interest is best served by the trial of these issues by a jury. (He relies on the case of Rothomere and Others v Times Newspaper Limited and Others [1973] 1 All ER 1013).
He further submits that:
The instant case falls within the ambit of the Act and that the Claimant is entitled to have his claim tried by a jury as his reputation has been tarnished. The test to be applied in determining the meaning of words in a libel action is what the words would convey to the ordinary man. A jury is better placed than judicial officers to assess how ordinary reasonable people understand mass media publication. It is a matter for the jury to give effect to a standard which they consider to accord with the attitude of society generally.
He takes the point that the court must identify the effect of the publication including what representation it made on the ordinary or reasonable members of the public. He takes the position that the issues involve giving effect to moral and social values of the community, and as such the jury will be better able to make such assessment in a way that is likely to arrive at a reflection of the society generally than a judge. He points out that a jury looks at a case more broadly giving weight to the factors which impress the lay mind more strongly than the legal. (He relies on cases of R. v Nation Wide News Pty Ltd [2009] FCA 1308).
He also submits that the case does not fall in the exception as the case will not involve the prolonged examination of documents and the medical evidence is straightforward.
The submission and supplemental submissions on behalf of the Defendants are summarized as follows:
The statute requires that any application for trial by Jury must be made before the mode of trial is determined. The mode of trial would be first determined at the Case Management Conference (CMC). The CMC was held on the 27 th of January 2017. The application ought to have been made before then and not on the 26 th of April 2019. The application is made out of the time prescribed by the statute (She relies on Section 45 of the Act, and...
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