New South Wales Supreme Court CITATION : Blomfield v Nationwide News Pty Ltd [2009] NSWSC 977 HEARING DATE(S) : 7 - 16 September 2009 JUDGMENT DATE : 14 September 2009 JUDGMENT OF : Harrison J DECISION : Question allowed CATCHWORDS : EVIDENCE - defamation - admissibility - objection to question asked in cross-examination on contention that it attempted to adduce tendency evidence without giving reasonable notice - credit and credibility - Evidence Act 1995 ss 97, 103 and 135 LEGISLATION CITED : Evidence Act 1995 CATEGORY : Procedural and other rulings CASES CITED : Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579 R v Harker [2004] NSWCCA 427 Michael Blomfield (Plaintiff) PARTIES : Nationwide News Pty Ltd (First Defendant) News Digital Media Pty Ltd (Second Defendant) FILE NUMBER(S) : SC 20218 / 2008 COUNSEL : P W J Gray SC with M F Richardson (Plaintiff) A Leopold SC with D R Sibtain (Defendants) SOLICITORS : Clayton Utz (Plaintiff) Blake Dawson (Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST HARRISON J 14 September 2009 20218 / 2009 Michael Blomfield v Nationwide News Pty Ltd & News Digital Media Pty Ltd JUDGMENT 1 HARRISON J: During cross-examination of Vivienne Dye, the first witness called by the defendant, Mr Gray, senior counsel for the plaintiff, asked the following question: "Q. It's not the first time that you had presumed a senior male in your work place was in love with you, was it?" I allowed that question following an objection and after hearing argument. I indicated that I would deliver my reasons today. I took that approach so as not unnecessarily to interrupt the proceedings or disrupt the continuity of the case from the jury's point of view. 2 The question was objected to upon the basis that it was an attempt to adduce tendency evidence and that no reasonable notice to adduce the evidence had been given in accordance with s 97 of the Evidence Act 1995 ("the Act"). That section is in the following relevant terms: " 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, 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." 3 The plaintiff contended that the evidence was not tendency evidence at all but that it was being adduced as evidence going to the credit and credibility of the witness and was admissible in accordance with s 103 of the Act. The defendants' response was that if the evidence were not tendency evidence, contrary to their principal submission, it ought to be excluded in accordance with the Court's discretion to do so under s 135 of the Act, upon the basis that its probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant or might be misleading or confusing. Background 4 The plaintiff sues for defamation upon the basis of newspaper articles and internet publications of and concerning him that allegedly give rise to a series of imputations that he sexually harassed Ms Dye, a female employee junior to him at the Commonwealth Bank, by forcing his unwelcome sexual advances upon her and that he bullied her to such an extent that she lost her employment at the bank. It is also alleged that the publications give rise to imputations that the plaintiff abused his position as Ms Dye's supervisor and that he is unfit to carry out a senior executive role at a major Australian bank by reason of his sexual harassment and bullying of her. The plaintiff relies upon proof of other similar or related imputations in cognate terms. 5 The form of the publications has been in substance to report the complaints made by Ms Dye to the bank and to the Human Rights and Equal Opportunity Commission and others in words in or to the effect of the words that Ms Dye has used in those contexts. It is apparent that Ms Dye's statements had been provided to the defendants and some of the publications repeated what she had said in the statements in the first person. The statements were quite long: there is evidence that one of the statements from which the published material is derived exceeds 180 pages. 6 The defendants rely upon the truth of what they published as their significant defence to the plaintiff's claim. In such circumstances the version given by Ms Dye both in the original statements that she made and in her evidence in chief became the understandable subject of scrutiny in cross-examination. Consideration 7 The question to which objection is taken followed a series of questions that dealt with an incident during an evening that commenced at The Chifley restaurant and wine bar where members of the bank staff had gathered for the celebration of the plaintiff's promotion within the bank. Ms Dye described the events of that evening in some detail. She gave evidence that the plaintiff walked her home to the vicinity of her Kent Street apartment later that evening. The following questions and answers immediately preceded the offending question and drew in terms upon what Ms Dye had said in one of her statements and in her evidence in chief: "Q. And at the end of your description of the events at the Chifley, right up to the time when you parted company outside your apartment block, you said this: "It was inconceivable to me at the time that a married man with two children who had just been promoted to Executive General Manager could be so reckless as to risk everything for a one night stand." You said that? A. Correct. Q. Then you said, "I therefore concluded that Michael Blomfield was in love with me." A. Correct. Q. Ten or less contacts ever before this night; right? A. Correct. Q. Drunk, rude, vulgar, sleazy behaviour on the night? A. Some of it was. It wasn't between the event and my apartment. Q. I thought at your apartment you have told about him leaning in to kiss you and you rejecting him and so on? A. I said between. Q. At the apartment it was vulgar and sleazy again? A. I think it was, yes. Q. And your conclusion from those facts is that he was in love with you? A. Correct. Q. It's not a very likely conclusion, would you think? A. It's the only conclusion that I could draw. Q. Is it wishful thinking, perhaps? A. No. Q. The high achieving senior man was in love with you? A. No." 8 The basis of the defendants' objection was captured in the following submission: "LEOPOLD: If the answer to that question happened to be yes then there would be an undeniable capacity of that answer to suggest tendency, whereas we have not received a notice under section 99 in conformity with section 97 that evidence which would have the effect of establishing tendency was to be relied upon. If it is said to go to credibility then it's capacity to demonstrate tendency, if the answer were yes, would be so prejudicial as to mean that the question would be rejected under section 135 and not be permitted, and it wouldn't have the significant probative value anyway, bearing in mind what I have said about the tendency point, to justify being asked on credibility only." 9 The plaintiff's response was as follows: "GRAY: It is not advanced under the rubric of tendency but it is certainly advanced under the rubrics of credit and credibility. As is probably already apparent, but it certainly will be in due course, I will be submitting in due course that Ms Dye is a fantasist, that she postulates states of affairs which just don't bear resemblance to reality, and that's where this question is going. It is relevant, because that is the case that I am entitled to make, given the truth issue, and it's admissible, and if it is prejudicial, well, then it is meant to be prejudicial. It is only meant to be excluded if it is so prejudicial that its probative value is outweighed, and in my submission that is not the case." 10 The defendants' reply can be summarised by reference to the following submission: "LEOPOLD: The reason it is prejudicial in the section 135 sense is because no direction could, in our submission, adequately be given to undo the improper, and I don't use that in a pejorative sense, but the unavailable tendency usage of the evidence. With a jury such a direction would be so unlikely to be effective, whatever the form of the direction, that the failure to give a tendency notice under section 99, which was at all times available, would be fatal, the prejudice in the section 135 sense likely to result and incapable of being improperly [sic] undone." 11 Section 97 prohibits the admission of evidence of "character, reputation or conduct" to prove that a person has a tendency to act or think in a particular way, unless the requirements of the section are satisfied. It has been described as a purpose or use rule. "Tendency evidence" is defined in the Dictionary as "evidence of a kind referred to in s 97(1) that a party seeks to have adduced for the purpose referred to in that subsection". Evidence of tendency is not caught by the provision if it is not used to prove the existence of some tendency to act or think in a particular way, but is adduced for some other purpose. According to the plaintiff, he seeks to adduce the evidence for the non-tendency purpose of attacking Ms Dye's credit or credibility. 12 The plaintiff contends that the defendants' submissions, if accepted, would mean in effect that any apparently or potentially legitimate attack upon the credit of a witness would be subject to the constraints and forensic limitations of the tendency rule if any proposed question had the effect of drawing upon the truthfulness or otherwise of the witness on an earlier occasion. Put another way, the defendants' submission is to the effect that the tendency rule should apply to any question that has, or may have, the effect of demonstrating or establishing a tendency to lie. The plaintiff says that the scheme of the legislation is against such a proposition and that specific provisions of the Act contradict it. 13 Section 103 of the Act provides as follows: " 103 Exception: cross-examination as to credibility (1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to: (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred." 14 That section was inserted in its present form in substitution for its predecessor that provided that the "credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value". The reasoning behind the change has been explained (ALRC 26, vol 1, par 819) in the following way: "A witness should no longer be open to cross-examination on any negative aspect of character or misconduct on the basis that it is relevant to credibility. The research of psychologists suggests that emphasis should be placed on evidence of conduct which is similar to testifying untruthfully (ie involves false statements) and which took place in circumstances similar to those of testifying (ie the witness was under a substantial obligation to tell the truth at the time). Consideration was given to including a proposal to that effect but it was thought to be too limiting for the exercise of cross-examination. At the same time, the present law, despite judicial powers of control does not adequately limit such cross-examination. It is proposed, therefore, to include a general rule having the effect of prohibiting cross-examination as to credibility unless it has substantial probative value on the question of credibility. To assist in the use of the clause, a further clause is included which refers to matters relevant to the probative value of such evidence. It will be permissible to cross-examine a witness with respect to bias, or motive to be untruthful, with respect to mental and physical capacity, about his ability to perceive the relevant events and about prior inconsistent statements." 15 In my opinion the evidence that the plaintiff seeks to adduce does not fall to be assessed under the rubric of tendency evidence at all. The question under consideration has been asked of Ms Dye in the context of proceedings where not only is her truthfulness an important consideration in the normal course of events, as with the evidence of any witness, but also where substantially the whole of the defendants' case is heavily, if not in fact exclusively, reliant upon her truthfulness in another context. At the point where the question was asked it appeared clearly to me to relate to evidence that could substantially affect Ms Dye's credibility. 16 As the evidence so far otherwise reveals or suggests, Ms Dye's assessment of what passed between her and the plaintiff on more than one occasion will arguably be significant in an assessment of the precise nature of the relationship between them. That evidence is not yet complete by any means and the plaintiff will undoubtedly be cross-examined at some length about it before these proceedings are concluded. The reasonableness and believability of views formed by Ms Dye about what occurred is central to the truth defence upon which the defendants rely. The issue for present purposes is not so much whether Ms Dye has, or had, a tendency to make accusations or assertions about feelings for her that older males in the workplace may have formed about the nature of their relationship on some other occasion, but rather about her mental and physical capacity and her ability to perceive the relevant events. It may confidently be predicted that the plaintiff will contend that Ms Dye did not perceive the relevant events accurately. It is clear from the way in which the case has been opened and conducted on both sides that Ms Dye's characterisation of the nature and extent of her relationship with the plaintiff will be the subject of considerable evidence and submissions that are diametrically opposed. The question asked goes directly to the assessment of Ms Dye's credibility in those circumstances. 17 Nor in the circumstances is this a case where, contrary to the defendants' submission, they will have suffered an irreparable prejudice if the question is allowed, or at least a prejudice that cannot be cured by an appropriate direction to the jury at the proper time. I will of course hear from the parties about the need for any such direction and the form it should take if the defendants ultimately seek it. However, in that context I note that the evidence that emerged following my allowance of the question also puts that issue into some instructive context. It was as follows: "Q. That was not the first time you had presumed that a senior male in your workplace was in love with you, was it? A. Yes, it was. Q. You took a BA in psychology, is that right, at university? A. Correct. Q. And then a masters in public relations? A. Correct. Q. And what was your first employment after university? A. Public relations company called Gotley Nix Evans. Q. Called? A. Gotley Nix Evans. Q. Was that a small PR company? A. Correct. Q. In Sydney? A. Yes. Q. How old were you when you started that job? A. 22. Q. 22. That was about 1999, is that right? A. Yes, the end of 99. Q. How long did you stay in that job? A. Just over two and a half years. Q. You told your psychiatrist that the 67-year-old manager fell in love with you, didn't you? A. Yes. Q. That was your belief? A. No, it wasn't my belief. He told me that. Q. You told your psychiatrist that the 67-year-old manager fell in love with you? A. Correct. Q. You told him further that you rejected him and he then went funny? A. Correct. Q. And you saw a psychologist for counselling? A. Correct. Q. Following that? A. Correct." 18 This evidence given by Ms Dye was responsive and empirical. It was given in a way that arguably if not persuasively suggests that Ms Dye clearly understood the question, the issues to which it was directed and the potential significance that it held for the case as a whole. Neither the evidence nor the way that it was elicited would appear to have painted her in a bad light. It emerged from a cross-examination upon what would seem to be a document to which all parties are likely if not certain to have had access. It might reasonably have been anticipated in the context of these proceedings. 19 Even if the question raised a question of tendency, which I have rejected, or was directed to such an issue, which the plaintiff has disavowed, it does not appear to me in the circumstances that the defendants would have been in any different position if a notice in accordance with s 97 had been given. The defendants have not suffered any prejudice of the sort that counsel for the defendants was cautious and assiduous to avoid. There may in any event be no prejudice if notice was given of the intention to adduce the evidence, even though formal notice under s 99 has not been given: see Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579 at [19]. I would be surprised if this evidence had not been long anticipated by the defendants, particularly as it derives from the contents of a medical examination and report by Ms Dye's one-time psychiatrist. It also goes without saying that prejudice to a party from the nature of the evidence itself, which is not caused by the failure to give reasonable notice, is not relevant: see R v Harker [2004] NSWCCA 427 at [44]. Although no application for dispensation with the s 97(1) notice requirements was made, the question is one that appears to me, without deciding the point, to be one that would have been susceptible to the making of a direction in accordance with s 100(1) in any event. 20 Finally, the defendants contended that the probative value of the evidence was substantially outweighed by the danger that it might be unfairly prejudicial. The defendants offered no formulation of this prejudice other than resort to the general principle that evidence may be unfairly prejudicial to a party if there is a real risk that the jury will misuse it in some unfair way. The contention advanced was that the jury might illegitimately journey to the unavailable conclusion that Ms Dye had a tendency to make statements about her perception of relationships with senior male colleagues and that such a conclusion could adversely affect the jury's view of Ms Dye's reliability on the question of the truth of the published material that became the matters complained of. For the reasons earlier expressed, I consider that this is not a prejudice of the type contemplated by the section but in fact a so-called prejudice that consists in a tendency to damage the defendants' case or to support the plaintiff's case. The defendants may not have wanted the jury to hear the evidence. However, that is a position some steps removed from the proposition that there is a real risk that the jury might misuse the evidence in some unfair way if they did. 21 Nor is there any obvious or readily identifiable procedural prejudice. As subsequent questions and answers have revealed, the question and the evidence that it elicited was patently drawn from materials that were either in the possession of the defendants or the witness or otherwise obtainable for the purposes of re-examination if not available earlier. I was not directed to any other procedural disadvantage that could sound in prejudice. I was unable to detect any. I also do not consider that there is any basis for excluding the evidence upon the basis that it might be misleading or confusing. ********** 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.