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. Tendency Provisions 13 I turn then to the provisions in s.97 of the Act. As already explained, s.97 provides to the effect that evidence, relevantly, of a tendency that a person has or had, is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, if notice has not been given or if the Court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. 14 Probative value is defined in the Dictionary to the Act as meaning "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." There is an obvious correlation between the definition of "probative value" and that of "relevant evidence" pursuant to the terms of s.55 of the Act. The definition of "probative value", however, seeks to attribute to relevant evidence a "value" by the use of the words "the extent to which" and in so doing makes the probative value of relevant evidence the degree to which it is relevant (see Lockyer (1996) 89 A Crim R 457 at 459). 15 Section 97 of the Act therefore requires a degree of rational effect on the assessment of the probability of the existence of a fact, which effect is significant. Some attention has been paid, in the cases, on the use of the term "significant" in the expression "significant probative value". Most of the cases examine the phrase "significant probative value" by a comparison with the original ALRC recommendation which was that it have a "substantial probative value" (ALRC 26, Volume 1, paragraph 810). Some of the analysis sees the alteration from use of the word "substantial" to the word "significant" as, itself, significant. It may be, however, that the alteration was made solely for the reason that the word "substantial" is said to be ambiguous. "The word 'substantial' is not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision … [I]t can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in the relative sense or can indicate an absolute significance, quantity or size." (per Deane J in Tillmanns Butcheries v AMIEU (1979) 42 FLR 331 at 348). 16 Little, in my respectful opinion, is gained from examining the reason for the change from "substantial" to "significant". It is sufficient, rather, to deal with the term "significant" as it is expressed. "One of the primary meanings of the adjective 'significant' is 'important', or 'of consequence'. In my opinion that is the sense in which it is used in s.97. To some extent, it seems to me, the significance of the probative value of the tendency evidence … must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact." (Hunt CJ at CL in Lockyer (1996) 89 A Crim R 457 at 459) 17 I agree with Hunt CJ at CL in the meaning to be given to the word "significant" and I also agree, to the extent that it adds to the above, with his Honour when, in the passage from Lockyer immediately preceding the above cited passage, his Honour said that "significant probative value must mean more than mere relevance but something less than a 'substantial' degree of relevance." (See also R v Lock (1997) 91 A Crim R 356 at 361; R v AH (1997) 42 NSWLR 702 at 709; R v Fordham (1997) 98 A Crim R 359 at [15]). 18 In other words, the question must first be asked: does the existence (assuming it is accepted) of the character, reputation or conduct (the tendency evidence) render more probable that which is in issue in the proceedings? General human experience would have to make the existence of the facts, which are subject to the evidence in dispute, such that the facts in issue are rationally affected before the evidence has any probative value. This means that the degree to which there is a greater likelihood that the facts in issue occurred, because of the tendency evidence, would have to be more than nominal or ephemeral before the inference could even be drawn. If the inference were available then it would need to overcome the further hurdle that it is of significant probative value, i.e. important in the determination of the existence of the facts in issue, before the test in s.97 has been met. 19 If, and only if, the tendency evidence has passed the requirement that it renders more probable the facts in issue, does s.97 have any work to do. At that point the Court must determine whether the tendency evidence has an important role to play in the determination of the occurrence of the facts in dispute in the proceedings. 20 This Court in R v Ellis (2003) 144 A Crim R 1 discussed the previous common law principles referrable to tendency evidence (previously referred to as propensity reasoning) and the applicability of the common law in circumstances where the Evidence Act now applies. The reasoning of this Court expressed by Spigelman CJ, with which reasoning the High Court agreed ([2004] HCA Trans 488, page 40-41), makes clear that it is the Act which determines the admissibility in this area and not the prior common law principles. Section 97 deals with both civil and criminal proceedings and the tests there prescribed are of general application. The section excludes admissibility of material although relevant. I also take the view that, in civil proceedings, particularly because s.101(2) of the Evidence Act does not apply, s.135 of the Act may need to be considered and I assume that, if I were of the view that certain tendency evidence is admissible, I need to consider whether it is unfairly prejudicial and, if so, whether such prejudice substantially outweighs the probative value of the evidence. 21 The truth of the events that were subject to publication concern which of two persons, Mr McGaw or Ms Boucheron, acted violently toward the other. In these proceedings, truth is an issue and not simply an issue going only to the credit of a witness and/or party. 22 In those circumstances, a tendency, if it were to be proved, of one of those persons to act violently and irrationally would be relevant in determining the probability of that same person committing a similar act of violence in similar circumstances. 23 The allegations published relate to three incidents in which it is said the Plaintiff "snapped" and assaulted Ms Boucheron, causing actual bodily harm, and for which lack of control he received treatment. The response by the Plaintiff is that, with one technical exception, none of it happened. In fact, Ms Boucheron acted irrationally, assaulted the Plaintiff and caused herself damage, as well as significant property damage, in each of the three incidents. 24 The tendency evidence concerns, at least, irrational behaviour by Ms Boucheron during which she caused property damage and was uncontrollable in a manner, it is said, similar to the conduct alleged by the plaintiff in the relevant incidents. 25 The allegations of prior conduct, if proven, are of similar but not identical conduct in similar, but not identical, circumstances. There is in s.97 no requirement for similarity of conduct or circumstances (cf. s.98 of the Act) but such matters do go to the probative value of the prior conduct. 26 Those similarities also go to the significance of the probative value as does the importance of the facts that the evidence is adduced to prove. 27 In all the circumstances including the principles that, I say, apply, I found that the allegation of prior conduct sought to be tendered as tendency evidence, if proven, would have a rational effect on the probability (directly or indirectly) of Ms Boucheron having conducted herself in the manner alleged by the Plaintiff; and, also, has a rational effect on the probability of the Plaintiff having conducted himself in the manner alleged in the broadcast of the defendant which broadcast is said by the defendant to be true. 28 Further I find that the evidence sought to be adduced, if proven, has a significant probative value and is, therefore, admissible. 29 Further I have considered the operation of s.135 of the Act and, given the notice to the defendant and their capacity to obtain instructions, do not consider that any prejudicial effect is unduly unfair and does not outweigh its probative value. 30 For these reasons, I allowed the tendency evidence to be adduced. ********** 25/11/2005 - - Paragraph(s) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.