McGAW v Channel Seven [2005] NSWSC 1191

New South Wales Supreme Court

McGAW v Channel Seven [2005] NSWSC 1191 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 15 November 2005

JUDGMENT DATE : 15 November 2005

Supreme Court of New South Wales JURISDICTION : Common Law

JUDGMENT OF : Rothman J at 1

DECISION : The proposed Evidence that is subject to Notice is to be admitted.

CATCHWORDS : Defamation - Admissibility of evidence - Tendency evidence - Imputations - Truth/Falsehood of Allegation - Signficiant probative value

LEGISLATION CITED : Evidence Act 1995 (NSW) ss 55, 56, 97 and 135

Lockyer (1996) 89 A Crim R 457 Tillmanns Butcheries v AMIEU (1979) 42 FLR 331 R v Lock (1997) 91 A Crim R 356 CASES CITED : R v AH (1997) 42 NSWLR 702 R v Fordham (1997) 98 A Crim R 359 R v Ellis (2003) 144 A Crim R 1

Plaintiff - Mark McGaw PARTIES : Defendant - Channel Seven Sydney Pty Ltd

FILE NUMBER(S) : SC 20340/2003

Plaintiff - Mr T Molomby SC and Mr A Gemmel COUNSEL : Defendant - Mr T E F Hughes QC and Mr K Smark

Plaintiff - Colin W Love & Co SOLICITORS : Defendant - Mallesons Stephen Jacques

LOWER COURT JURISDICTION :

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Rothman J

15 November 2005

MARK McGAW v CHANNEL SEVEN SYDNEY PTY LTD 20340/2003

JUDGMENT 1 ROTHMAN J: During the course of these defamation proceedings an issue has arisen as to the admissibility of certain evidence sought to be adduced by the Plaintiff, Mr McGaw, as tendency evidence in the proceedings. On 15 November 2005 I allowed the evidence as tendency evidence and I now publish short reasons for that ruling. 2 The defamation proceedings concern, amongst other things, imputations that the plaintiff was "a man of dangerous domestic violence" and that the plaintiff "bashed his lover so severely that she was hospitalised with horrific injuries". Each of these two imputations have been found by a jury, in proceedings under s.7A of the Defamation Act, to arise from a publication by the defendant, Channel 7, on Today Tonight on 11 June 2003 and those imputations are, by finding of that jury, defamatory. This case concerns, amongst other things, the consequences, including any defences, of those findings. 3 The publication by Channel 7 concerned an alleged incident or incidents, described in the television broadcast, the truth of which incidents is in issue in these proceedings. 4 The truth of the allegation turns on whether the Plaintiff perpetrated violent attacks on a Ms Boucheron who was the interviewee in the broadcast. The truth of these allegations involve accusations against the Plaintiff and counter-allegations against Ms Boucheron. 5 The case of the Plaintiff on the falsehood of the imputation depends, in part at least, on a version of events in which Ms Boucheron is displayed as irrationally violent and as having acted in a manner which caused damage to property and injury to herself. 6 In support of the probability or likelihood of Ms Boucheron having acted violently and caused unprovoked property damage and injury to herself, evidence is sought to be tendered going to previous outbursts displaying, it is said, a tendency to conduct of the kind in issue in these proceedings. 7 Notice of the intention to adduce tendency evidence was given by the Plaintiff and no issue is taken with the adequacy of notice. I, therefore, do not deal with that notice. 8 Objection is taken by the Defendant on the basis that the evidence is not relevant and, alternatively, if relevant, that it does not have significant probative value. 9 These objections raise the provisions of s.55, s.56, s.97 of the Evidence Act. 10 The structure of the Evidence Act 1995 (NSW) (the Act), is to make all relevant evidence admissible (s.56 of the Act) and thereafter to provide exceptions. Section 55 of the Act provides that evidence is relevant if it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". Section 97 takes the form of excluding evidence that does not meet certain criteria. In other words, the effect of s.97, read together with s.55 and s.56 of the Act, is to render eligible relevant evidence except tendency evidence that has not been the subject of notice or does not otherwise fit the criteria established in s.97 of the Act. 11 The above analysis is necessary because of the manner in which the issues come before the Court. If, as seems to have been suggested, evidence has no probative value, it is not relevant and is not admissible pursuant to s.56 of the Act. 12 Moreover, it is relevant, as already stated, only if it rationally affects the probability of the existence of a fact in issue. If a fact is not in issue in proceedings, evidence going to that fact is not relevant pursuant to the terms of s.55 of the Act and the tendency evidence provisions do not affect the question.