Publisher says trial ‘unfair’
Judge to decide amount awarded in defamation case as jury sides with Windies cricketer
The NSW Supreme Court judge who presided over West Indies cricketer Chris Gayle’s successful defamation case against Fairfax Media says she is “troubled” by a statement issued by the publisher which suggested it did not get a fair trial.
Justice Lucy McCallum said yesterday the statement appeared to be a clear criticism of the court and she would have to consider whether “any steps” should be taken about the statement.
Fairfax Media said they were “seriously considering” an appeal after Gayle won a defamation action against them over allegations he flashed his penis to a female masseuse, with the Fairfax saying they “did not get a fair trial”.
A jury determined it was not true that Gayle exposed his genitalia to Leanne Russell and indecently propositioned her in the West Indies’ team dressing room during a training session at the 2015 World Cup.
The jury also found Fairfax was motivated by malice when it published the allegations in a series of articles in the Sydney Morning Herald, the Age and the Canberra Times.
Gayle sued Fairfax over the claims, which were alleged to have occurred in the changing rooms at Drummoyne Oval on February 11, 2015.
Gayle expressed satisfaction the jury believed his story that he did not expose himself. “Yes, that was 100 per cent true, no, no, no,” he said.
He said he was very happy the jury found in his favour on all four questions that were put to them.
“I came this far, all the way from Jamaica to actually defend myself and, at the end of the day, I’m very, very happy.
Fairfax said it was looking at appealing. “Fairfax Media is concerned with the conduct of the trial to the extent that, on Friday, it sought an order that the jury be discharged and a new trial ordered,” a spokesman said. “The judge accepted that the jury had been misled in a way that prejudiced Fairfax, but declined to discharge the jury.
“Fairfax believes that it did not get a fair trial. It is seriously considering its appeal rights.”
Following the verdict, Fairfax lawyer Peter Bartlett from Minter Ellison said the verdict: “could cost the company a lot of money unless we can reverse it on appeal”.
During proceedings, Russell gave tearful evidence that she walked into the changing room looking for a sandwich and found Gayle wearing a towel.
She claimed he pulled the towel down, partially exposing his penis and said, “are you looking for this?”
“I saw the top half of his penis, apologies, and I therefore shielded my view and left the change room,” she told the court.
“I was crying uncontrollably, I was crying like a child,” she said. “I was upset because of what Chris had done because we had known each other for 10 years and jokes of that nature meant nothing to him but upset me greatly.”
But the jury found the plaintiff did not intentionally expose his genitalia or indecently proposition her.
The trial heard Russell went public with her allegations after seeing Gayle’s infamous sideline interview with sports journalist Mel McLaughlin when he told her, “don’t blush, baby”.
She was furious that, “women who work hard in this industry are made to feel that way both on camera and in the change room and that people like Chris get to decide whether we are successful or not”.
Justice McCallum will now assess how much money Gayle will be awarded in damages.
In Australia general damages in defamation cases are capped at $389,500.
However that figure could blow out if Gayle is awarded money for aggravated and special damages.