New South Wales Supreme Court CITATION : Blomfield v Nationwide News Pty Ltd (No 2) [2009] NSWSC 978 HEARING DATE(S) : 7 - 16 September 2009 JUDGMENT DATE : 15 September 2009 JUDGMENT OF : Harrison J DECISION : Documents admitted CATCHWORDS : EVIDENCE - defamation - admissibility and relevance - facts relevant to facts in issue - facts showing state of mind - credit and credibility - objection to the tender of evidence on the contention that it is irrelevant, unfairly prejudicial, previous representation and does not qualify as business record - Evidence Act 1995 ss 44, 69 and 135 LEGISLATION CITED : Evidence Act 1995 CATEGORY : Procedural and other rulings CASES CITED : R v Burns [2003] NSWCCA 30; 137 A Crim R 557 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 15 September 2009 20218 / 2009 Michael Blomfield v Nationwide News Pty Ltd & News Digital Media Pty Ltd JUDGMENT 1 HARRISON J: The plaintiff sought to tender a series of documents that were produced by Ms Dye in response to a subpoena directed to her. They became collectively MFI 21. The defendants objected to the tender of the documents on a number of bases. These were that they are either irrelevant, that their probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendants and fall to be excluded in accordance with the general discretion in s 135 of the Evidence Act 1995 ("the Act"), that their tender is precluded by s 44(1) of the Act or that, where applicable, they do not qualify as business records in accordance with s 69 of the Act. 2 The plaintiff submitted that the documents were relevant to the issue of Ms Dye's state of mind at the time that she went to New York, and her reasons for having done so, having regard to her evidence that she went there to recover from the adverse effects of her treatment at the hands of the plaintiff in the ways that she earlier described. That treatment is in part the subject matter of the publications in respect of which the plaintiff sues. Ms Dye's evidence on this topic was as follows: "Q. Did you travel somewhere in early 2008? A. Yes. Q. About when was that? A. Late March 2008. Q. What country did you go to? A. To the United States of America. Q. Leaving aside visits to other countries, how long did you stay in the USA for? A. For the remainder of 2008. Q. Why did you leave Australia? A. Because my experience with the Commonwealth Bank was probably, I think, the second most traumatic experience of my life and the Commonwealth Bank's conduct in covering up the conduct of that man left me feeling trapped and helpless, to the extent that it broke me, and when my employment was terminated in November 2007 I made a decision to employ legal advisers to assist me. I spent three months briefing them and then in order to regain my strength I needed to remove myself completely from this environment and surround myself with people who live by similar principles to me, such as a belief in justice. So I spent the rest of 2008 in the United States in New York and I met new people and I made new friends and I regained my strength while my supporters and advisers back in Australia helped me to build my confidence back so that I could come here and give evidence to this court. Q. And when you said "the conduct of that man", I just have to formally ask you what you meant when you said "that man"? A. Michael Blomfield." 3 The plaintiff also contends that the documents are admissible on the issue of Ms Dye's credibility. The significant defence that is raised to the plaintiff's claim is that the publications are true. Ms Dye is patently the progenitor of the material that the publications contain so that her version of the events that the publications report is critical to an assessment of the defence. Ms Dye has given evidence that she had very strong views about the propriety of certain relationships and went to some considerable, but not unreasonable, extent to describe the boundaries that she imposed, and the limitations that she placed, upon them and the degrees of intimacy that she maintained and expected. She did this in part by reference to the following analogy, which she described in her evidence: "Q. Then what happened after that? A. Then I sent him a text message. Q. What did the text message say? A. I said, "My respect for you is at an all time low." Q. Why did you send that text message? A. Because at that point my respect for him was at an all time low. Q. Why? A. Because when he had approached me in the way that he did on 15 June and 8 August he took the relationship from a somewhat superficial business relationship to a very intimate and personal place, and when I think about it I like to use the analogy of an onion ring whereby when I describe relationships and the people, how people interact with each other, if you can imagine at the centre of the onion ring is yourself and then the first ring is the person that you are perhaps married to, perhaps your spouse or your partner, and that's the person that you're most intimate with. And then around the second ring you have your other immediate family, perhaps your children, perhaps your parents, and then your extended family would be the third ring and then you might have sort of close personal friends and then some acquaintances and then further removed would be your workmates, perhaps your team, and then further removed from that you would have other people in your company, and then on the very outer rim you would have complete strangers, and the conversations that he initiated on 15 June and on 8 August were conversations which should be reserved for people at the centre of that onion ring and he took his relationship with me to the centre of that onion ring, and when I rejected his sexual advances he took it right to the outer rim and he pretended to me in front of other people that he didn't even know me, and to me that is the most disrespectful thing a man can do. So at that Christmas party I extended an olive branch to him when I approached him and engaged him in conversation and he turned his back on me. He went into the other room, he got up, he spoke, he whipped up that crowd and he fed his ego. And I just wanted to let him know that there was someone there that saw the real Michael, so I sent him that text message for that reason." 4 Some of the material in the documents under consideration promotes on one view a series of interactions between Ms Dye and others that is in tension with the views expressed by Ms Dye in the evidence just quoted. The plaintiff contends that this gives rise to a substantial issue of credit in the circumstances, particularly having regard to the subject matter of Ms Dye's complaints about the plaintiff to several bodies or organisations and to their republication in the offending articles. 5 All parties drew my attention to the decision of the New South Wales Court of Criminal Appeal in Regina v Bradley Scott Burns 137 A Crim R 557; [2003] NSWCCA 30 at [98] to [101] as follows: " [98] In R v RPS (CCA unreported 13 August 1997) this Court said: S 103 of the Evidence Act limits cross-examination as to credit to adducing evidence which has "substantial probative value." The "probative value" of evidence is defined in the s3 Dictionary as meaning "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue", but both the context in which that phrase appears and the subject matter of s103 indicate that that definition does not apply. That is made clear by the terms of subs (2), which demonstrate that the evidence must have probative value in relation to the credit of the witness. Evidence adduced in cross-examination must therefore have substantial probative value in the sense that it could rationally affect the assessment of the credit of the witness. Such an interpretation accords with the intention of the Law Reform Commission. The addition of the word "substantial" nevertheless imposes a limitation upon the common law, when almost anything was allowed upon the issue of credit unless it clearly had no material weight whatsoever upon that issue. That limitation is an important one (at 29) (emphasis added). [99] To similar effect the High Court in Stanoevski v The Queen (2001) 202 CLR 115 said that "[i]t is not necessary in this case to attempt to distinguish between probative value and substantial probative value, the expression used in s 103, although presumably the adjective "substantial" calls for something more than mere probative value." (at 124) [100] Before departing from a consideration of the relevant authorities, it is instructive to recall what McHugh J said in Palmer v The Queen (1998) 193 CLR 1. His Honour said: The line between evidence relevant to credit and evidence relevant to a fact-in-issue is often indistinct and unhelpful. The probability of testimonial evidence being true cannot be isolated from the credibility of the witness who gives that evidence except in those cases where other evidence confirms its truth either wholly or partly. Furthermore, the conclusions drawn from that evidence are necessarily dependent on the credibility of the deponent. Zuckerman has correctly described the distinction between evidence as to the credibility of witnesses and evidence as to facts-in-issue as productive of absurdity. Indeed, in some cases, the credibility of a witness may be of such crucial importance that it is decisive of the facts-in-issue, particularly where, as in the present case, the witness is a participant in the very facts-in-issue or the only eyewitness to them. ***** If evidence going to credibility has real probative value with respect to the facts-in-issue, however, it ought not to be excluded unless the time, convenience and cost of litigating the issue that it raises is disproportionate to the light that it throws on the facts-in-issue. The rigid distinction between credit and facts-in-issue and the rules predicated on that distinction should therefore be minimised by the adoption of a more flexible view as to when matters going to the credibility of a witness should be admitted as evidence probative of the facts-in-issue. Evidence concerning the credibility of a witness is as relevant to proof of an issue as are the facts deposed to by that witness. There is no distinction, so far as relevance is concerned, between the credibility of the witness and the facts to which he or she deposes. The credibility of evidence is locked to the credibility of its deponent. The truth of the proposition is in reality recognised by the rule that a witness can be cross-examined as to matters of credit. Because that is so, it is irrational to draw a rigid distinction between matters of credit and matters going to the facts-in-issue. (at 22-4) [101] Of course his Honour was not dealing with the provisions of the Evidence Act. However in V (1998) 100 A Crim R 448 Smart J, in the context of a consideration of the operation of ss 102 and 103 of the Evidence Act, said that he found his Honour's analysis to have been "very helpful and persuasive" (at 494). I also respectfully adopt the views of McHugh J in the passages to which reference has just been made." 6 Having regard to the subject matter of this litigation, and the significance of the evidence of Ms Dye to a consideration and understanding of the defence that is raised, I consider that the documents in many cases have substantial probative value in the sense that they could rationally affect the assessment of Ms Dye's credit. I am particularly mindful of the proposition that "[e]vidence concerning the credibility of a witness is as relevant to proof of an issue as are the facts deposed to by that witness". 7 All of the documents that the plaintiff seeks to tender are in the form of printed or hard copy versions of emails that have either been sent to Ms Dye or received by her. In total the documents consist in 15 pages numbered 2 to 16 inclusive and are marked with a bar code and a number that I take to be referable to the discovery process in these proceedings. In the nature of things, some of the documents repeat what is contained in another or others of them, for the reason that they are a chain of electronic correspondence which, when printed, contains in many cases a sequence of a number of emails either sent or received. To the extent that there are repetitions of particular emails, therefore, it will not be necessary to refer to every document in the sequence in these reasons. In other words, there are no circumstances that would generate the need for a different ruling in respect of the same email appearing in more than one of the documents. 8 I made rulings with respect to the documents on 14 September 2009 after hearing argument. I indicated that I would deliver my reasons later. I took that approach, as I had done previously, so as not unnecessarily to interrupt the proceedings or disrupt the continuity of the case from the jury's point of view. I set out in what follows the text of the individual emails that I consider are admissible and my reasons for forming that view. 9 The first document is at page three and is as follows: "----- Original Message ----- From: Vivienne Dye To: Penberthy, David Sent: Fri Jul 11 09:56:58 2008 Subject: Re: Hi! Okay so two things… I've now given Rob Todd and his solicitor Lyndelle Brown all the information relating to the case, including the two HREOC statements. So far there are two big statement sets: the Workers Comp statements and the HREOC statements. Unfortunately for Michael Blomfield, his Workers Comp statement contradicts his HREOC statement, but Rob Todd is yet to get "nerdie pleasure" out of this one and I've only just dropped the file into them this week. Okay the second thing, unfortunately my legals told me to tell your legals, in front of them, that you and I had exchanged the odd email and that we were going for a perfectly decent and agreeable lunch last Friday. I always tell my legals what I do before I do it, to make sure I don't put my foot in it, and I think they may have put their foot in it by telling me to tell your legals a few days before the lunch. Does that make sense Dave? I hope I haven't messed anything for you. If it's any consolation, Rob Todd seemed quite titillated by the prospect. I mentioned his reaction to you during our lunch… remember? I covered it off with you just after Entree. . Rob said with a wry smile "he's after a story you know…" and I responded with "so am I". Is it that we're not allowed to dine on this? VLD " 10 The plaintiff submitted that this document was relevant because it went to Ms Dye's state of mind concerning the matters complained of, or one of them, that were published in April 2008, some three months previously. It was said to tie in with exhibits Q, R, S and T, which the plaintiff indicated he would be submitting, together with other evidence yet to come, plainly established that Ms Dye, through what were described as "her operatives", had "fed this leak to the Telegraph". It was contended that this conduct was all part of what was described as a continuum. There was earlier evidence to suggest that Ms Dye had denied that she had been involved in any such information being given to the Daily Telegraph and that on one version of the evidence that she had been unhappy that any publication should refer to her by name. These matters were said in those circumstances to go to her credit. It also arguably showed Ms Dye to be in a state or frame of mind that was inconsistent with the description that she gave of herself following publication of the offending articles and at the time that she sought refuge in the United States where for which purpose she "spent the rest of 2008". 11 I consider that the evidence is relevant. There is no relevant prejudice for the purposes of s 135. Ms Dye is the author of the document so that neither s 44 nor s 69 is relevant. 12 The second document is at page four and is as follows: "From: Penberthy, David Subject: Re: Re: Date: 10 July 2008 8:42:18 PM To: <******@gmail.com> Not paranoid at all. That is quality stuff though on the tatt. Determined to be different indeed. ----- Original Message ----- From: Vivienne Dye To: Penberthy, David Sent: Fri Jul 11 10:27:21 2008 Subject: Re: Re: You're not getting all paranoid on me again are you? There's no law against the two of us having lunch. I've check it out with my legals. Hey listen… I'm doing up the cross examination of Blomfield for 20 August Here's a snippet: … Ms Dye claims that you then indicated that you were telling her a secret by putting your index finger up to your mouth in a motion of silence, before pulling your shirt out of your trousers and lowering your belt enough to expose a large and unusual tattoo. Can you please show the Commissioner your backside Mr Blomfield… … to be continued." 13 Ms Dye was very extensively cross-examined concerning an incident in the course of which she contends that the plaintiff showed her a tattoo on his body at The Chifley function to which I have elsewhere referred. The plaintiff patently disputes the version given by Ms Dye and these emails are relevant to a consideration of all of the evidence on this topic. They are also relevant to Ms Dye's credit. 14 The third document is at page six and is as follows: "----- Original Message ----- From: Vivienne Dye To: Penberthy, David Sent: Wed Jul 09 10:08:05 2008 Subject: Re: RE: hahaha…. perhaps someone saw pussy fur poking out the top??? On Jul 8, 2008, at 5.46 AM, Penberthy, David wrote: Far out! That one on the right looks more like a barrister's wig. ----- Original Message ----- From: Vivienne Dye Sent: Wednesday, 9 July 2008 9:42 To: Penberthy, David Subject: Re: Oh you're a sweetie. This week, CBA has produced a statement claiming that I wore a "fur-highlighted gstring" showing above my jeans to a Christmas party in 2006. I took it upon myself to research the matter, and came up with the following samples…. Do you think I should order some online and get my barrister to fling them at the judge?????" 15 The bordered space above contains what I am told is an attached photograph of an item of female apparel, which corresponds to the description, given by Ms Dye, of a "fur-highlighted g-string". The reproduced picture is not clear in the hard copy attachment that has been provided to me. 16 It is unnecessary to elaborate further upon the potential relationship between that series of emails and Ms Dye's onion analogy referred to earlier. The emails in question passed between Ms Dye and the editor of the paper that published two of the articles of which the plaintiff complains. Once again, having regard to the seriousness of the allegations that the publications contain and their particular subject matter concerning sexual harassment, it seems to me to be beyond argument that the plaintiff should be entitled to test Ms Dye's credibility against correspondence of which she is the author or to which she was a party. 17 The fourth document is at page 10 and is as follows: "From: Vivienne Dye Subject: Penberthy Date: 12 August 2008 3:35:24 AM To: David Penberthy Hi Dave - are you able to arrange copies of those eight pictures taken of me in New York, preferably an electronic copy of each? I have a hearing on next week and then another one the following week and I need to be able to demonstrate that I dress normally. One of these guys is saying that don't dress appropriately. Those shots are all I have of the type of conservative corporate gear I used to wear to work every day (as opposed to fur-highlighted g-strings"). Vivienne L Dye" 18 The defendants conceded that this document was admissible. 19 The fifth document is at page 14. It is a photograph and was apparently an attachment to one of the emails sent by Ms Dye. It depicts a lower female torso in underwear. Beyond the context of the present proceedings it is in all respects benign, inoffensive and unexceptionable. It is however potentially relevant to the credit of Ms Dye having regard to the identity of the person to whom it was forwarded and Ms Dye's evidence concerning her views of the acceptable boundaries of conduct between parties beyond an intimate friendship. It is also of potential relevance to Ms Dye's credit with respect to her state of mind whilst in the United States at the time referred to by her earlier and the reasons for her having gone there. Without presently descending into the details, one of the imputations is to the effect that Ms Dye fled to New York because she had been sexually harassed and bullied by the plaintiff. Ms Dye gave evidence that as a result of the conduct of the plaintiff she was "broken". The material under consideration is capable in my opinion of rationally affecting the assessment of Ms Dye's credit. 20 I consider that the emails that have been sent to Ms Dye from the editor of the Daily Telegraph are business records within s 69 and are therefore documents that qualify as representations that I am satisfied will be admitted for the purposes of s 44(2)(b) of the Act. ********** 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.