Chris Gayle raises bat with triple-century damages [2018] NSWSC 1838

Chris Gayle, a West Indian cricketer and international T20 star, has hit more centuries than anyone in the game’s shortest format, but rarely has he had a better result than in his recent $300,000 defamation win in the NSW Supreme Court.

The plaintiff

In 2016, while playing T20 in the Big Bash League for the Melbourne Renegades, Gayle was interviewed live by Channel Ten sports journalist, Mel McLaughlin. In that interview, Gayle controversially and inappropriately told McLaughlin that she had beautiful eyes, she shouldn’t blush and hopefully they could have a drink after the game.  The interview brought about a furore. Gayle was fined $10,000 and did not play with the Melbourne Renegades beyond that season.

During that furore, The Age published an article about something that had allegedly happened a year earlier in 2015, in the period leading up to the Cricket World Cup. Essentially, the article from The Age accused Gayle of exposing his genitals to a woman in a change room at a practice session at Drummoyne Oval. The allegations were repeated by two other media organisations and in all, Gayle sued them over 28 articles (they included a lot of repetition), published online over the ensuing 5 days.

For instance, The Sydney Morning Herald ran with the headline: “Exposed” and a subheading “as besieged West Indian cricketer Chris Gayle faces a backlash over his comments to a TV reporter, allegations have surfaced of indecent exposure during the World Cup. Herald exclusive.”

The article stated:

Cricketer Chris Gayle, already facing a barrage of criticism over inappropriate remarks to a television reporter, allegedly indecently exposed himself to a woman during a Sydney training session at last year’s World Cup.

The Australian woman, who was working around the West Indies team in Sydney, has detailed the incident to Fairfax Media. In the course of her work she entered the team dressing room to get a sandwich as she hadn’t eaten all day, thinking the players were on the field training.

Instead, she found Gayle in the room with one other player. Gayle was wrapped in a towel, which she says he pulled down to partly expose his genitals to her while saying to her ‘Are you looking for this?’

The new revelations follow his controversial live interview with Channel Ten’s Mel McLaughlin on Monday night.

The newspapers admitted that the articles meant:

  • That the plaintiff intentionally exposed his genitals to a woman in the West Indies team dressing room during a training session at the 2015 World Cup.
  • That the plaintiff indecently propositioned a woman in the West Indies team dressing room during a training session at the 2015 World Cup.
  • That the plaintiff indecently exposed himself to a woman in the West Indies team dressing room during the 2015 World Cup.

The trial came before a jury in late October 2017. The witnesses to the incident in question who

The main defendant

gave evidence at the trial were Chris Gayle, another player Dwayne Smith and Leanne Russell, the woman who made the complaint. Essentially, Gayle and Smith denied Ms Russell’s account as per the newspaper articles, and said that no such thing had ever happened.

The jury found that the defences of truth and qualified privilege failed. It was then a matter for Her Honour Justice McCallum to assess the damages.

In publishing reasons for the assessment, Her Honour also published reasons as to why the defendant’s application to have the jury discharged (which was made after Gayle’s Senior Counsel had finished closing submissions), was dismissed.

Firstly in assessing damages, Her Honour found that Gayle’s evidence on his hurt feelings was “surprisingly compelling”, and while the imputations were not at the most serious end of the spectrum, they went to the heart of his professional life as a respected batsman.

Her Honour was satisfied that the articles were read very widely and would have reached probably more than a million readers having regard to Gayle’s high profile and popularity as an international cricketer.

Her Honour then found that although there were three separate proceedings and three separate media defendants, the award of damages should be made in one single sum, so as to ensure that there was no double or triple compensation for the same article. While Her Honour concluded the assessment at $300,000, Her Honour found that if there were separate amounts for each of the media defendants, then The Age would have been liable for $250,000, Fairfax for $200,000 and the Federal Capital Press of Australia Pty Ltd in the amount of $100,000.

Her Honour was not persuaded that there were any circumstances that justified an award of aggravated damages, despite Fairfax’s press release after the jury verdict that “it did not get a fair trial”. This was after the defendants’ application to have the jury discharged, based largely on the content of the plaintiff’s closing submissions, and arguing that those submissions prejudiced the jury. Her Honour disagreed and in this judgment, set out the basis for dismissing that application.

The heart of the complaint about the closing submission seemed to be that Counsel for Gayle had put a number of points to the jury about the credibility of Leanne Russell. These related to inconsistencies between her evidence at trial on the one hand, and a question raised by Counsel for the defendants during the cross-examination, as well as a written statement that was produced, on the other hand. Counsel for Gayle submitted that these inconsistencies meant that Ms Russell was a liar.

One inconsistency was that Counsel for the defendants had put a question to Smith that Smith had observed the incident and then he and Gayle “laughed about what had occurred”. Ms Russell did not give any evidence that they had laughed, and had also given evidence that Smith was actually looking elsewhere when it happened.

After the cross-examination, Counsel for Gayle then called for any document that Ms Russell had looked at to assist her to give evidence. The written statement was produced, which stated that Gayle and Smith were looking at her when it all happened (which was contrary to her evidence), but said nothing about whether they had laughed afterwards.

Counsel for Gayle submitted in closing that Ms Russell must have told the defendants’ barristers that Gayle and Smith had laughed afterwards, which was ultimately inconsistent with her evidence. The other inconsistency was whether Smith was looking at her at the time or not. Counsel for Gayle then submitted that on the basis of these matters, Ms Russell was a liar and that she had fabricated both versions. Undoubtedly, this was a high-stakes submission. Did it mislead the jury?

Counsel for the media defendants submitted that it did mislead the jury and applied to have the jury discharged. Put at the end of a trial, this was another high-stakes submission. This was the basis for the media’s press release that “it did not get a fair trial”.

Her Honour dismissed the application. The laughter allegation was based on a document produced under subpoena, a text message from another person (it was not based on anything alleged by Ms Russell, so how could she have lied about it?). Ultimately though, Her Honour found that the text message did not form a clear basis for the laughter allegation. That might be contentious.

Her Honour found that the defendants’ cross-examination might have inadvertently mislead Gayle’s barrister to believe that the source of the laughing allegation was from Ms Russell (when in fact, it was not).

The defendants might appeal and call for the video review

Her Honour ultimately formed the view that it would be unfair on Gayle to discharge the jury. Her Honour also rejected other criticisms that the defendants’ Counsel made of the closing submissions and the matter went on to verdict.

So Gayle wins $300,000 and almost undoubtedly a hefty costs order will follow. However, this is a cricket case and the defendants have the right to appeal and go upstairs for a review. The video replay in the NSW Court of Appeal could well make for interesting viewing…