Supreme Court New South Wales Medium Neutral Citation: Yosef Yitzchak Feldman v Nationwide News Pty Limited & Ors (No 3) [2018] NSWSC 717 Hearing dates: 8; 9; 10; 11 May 2018 Date of orders: 11 May 2018 Decision date: 11 May 2018 Jurisdiction: Common Law Before: Campbell J Decision: I admit the portions of the recording to be shown as Ex 25 and I grant Mr Cohen liberty to apply in respect of the tender of additional portions of the audio visual recording. Catchwords: DEFAMATION – Practice and procedure - tender of audio visual recording of Royal Commission into Institutional Responses to Child Sexual Abuse - objected on basis of relevance and probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial - dangers of relying upon demeanour and unreliability of demeanour as an aid in assessing the quality of evidence - imputation drawn with specificity - satisfied of relevance - Counsel for the plaintiff granted liberty to nominate portions of the recording to guard against the risk of unfairness Legislation Cited: Evidence Act 1995 (NSW) ss 55, 135; Royal Commissions Act 1902 (Cth) s 6DD Cases Cited: Nil Texts Cited: Nil Category: Procedural and other rulings Parties: Yosef Yitzhak Feldman (Plaintiff) Nationwide News Pty Ltd (First Defendant) Special Broadcasting Service Corporation (Second Defendant) Representation: Counsel: Mr J Cohen (Plaintiff) Mr A T S Dawson SC with Ms L Barnett (Plaintiff) Mr Bennett for The Australian Broadcasting Corporation Mr T Lockwood for the Commonwealth of Australia Solicitors: Jacobs Legal (Plaintiff) File Number(s): 2016/00038344; 2016/00038360; 2016/00277467;2016/00277467; 2017/00244766 ex tempore Judgment (Revised) 1. The defendant has tendered excerpts of the audio-visual recording of evidence of Rabbi Feldman at the Royal Commission into Institutional Responses to Child Sexual Abuse. I have already received in evidence a full transcript of the Rabbi's evidence. Mr Cohen has objected to the tender on two bases: first, he says given the receipt of the transcript, it is not relevant; and secondly, he says if it is relevant then I should exclude the evidence in the exercise of my powers under s 135 of the Evidence Act 1995 (NSW) ("Evidence Act"). I understand the particular ground upon which he relied was that I should exclude the evidence because its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to his client. As I understand that part of his argument, learned counsel submitted that if I am going to see some of the recording evidence, I ought to see it all. He cautioned me against the dangers of relying upon what might be conveyed of Rabbi Feldman's demeanour in the recording including the unreliability of demeanour as an aid to assessing the quality of a witness's evidence. 2. So far as relevance is concerned, I am satisfied that although I have the transcript, that seeing the audio visual recording or part of it is relevant to the questions I have to decide. In particular, following my ruling in relation to s 6DD of the Royal Commissions Act 1902 (Cth) on Wednesday morning, Mr Cohen was given leave to amend the Statement of Claim ‑ in what we have referred to as the News 1 proceedings ‑ to add an alternative imputation in various places. But for present purposes, it is sufficient that I refer to paragraph 6C of what is now styled the Fourth Amended Statement of Claim. That paragraph is in the following terms: "In the alternative to the above, the plaintiff, in giving evidence, displayed reprehensible ignorance of the fact that it is against the law for an adult to sexually touch the genitals of a child." Obviously that imputation is drawn with appropriate specificity. Two things follow I think from that. The first is that I understand the deployment of the verb "to display" in ordinary language to mean the plaintiff looked like he was reprehensibly ignorant of that fact. 1. The second important consideration is that that is a specific single topic upon which he was cross‑examined. From this I think it is obvious that given that there is a recording available, it is relevant evidence over and above what appears from the written word of the transcript to have regard to the recording of the evidence under s 55 of the Evidence Act, which may tend to prove a fact in issue. That is to say, given the justification defence, whether he did display, in the sense of "looked like", he was reprehensibly ignorant in the sense described in the imputation pleaded. Moreover, given that the topic is very specific, I am satisfied that it is appropriate to show excerpts of the audio visual recording dealing with that topic in perhaps a wider context to prove, if the defendant can, the truth of that matter. I believe it is unnecessary to see the whole two days to assess the defence in relation to that imputation. 2. To my mind that consideration also disposes of the s 135 objection. However, having said that, I fully acknowledge that a possible vice, whenever part of any document is tendered, is that other portions of the same document might explain or clarify the contents of the tendered portion, and I accept that that gives rise to some potential for some unfairness or for the capacity for the tendered evidence to mislead. For this reason, as I discussed with counsel in the course of argument, I am prepared to permit Mr Cohen to show other excerpts from the audio visual recording that he says or submits contextualises what I am about to be shown by the defendant. 3. In order to facilitate his ability to do that, I have been informed by Mr Dawson of Senior Counsel that Mr Lockwood, solicitor, who appeared in answer to the subpoena to the Commonwealth, has said that he is able, with notice, to provide additional excerpts, notwithstanding the fact that I have excused him from further attendance. I will allow Mr Cohen the weekend, if he wishes, to nominate portions that he would wish to show in evidence to guard against that risk of unfairness. I should add, I have said a number of times in the course of discussions with counsel that I think it is unnecessary that I should see the whole of the evidence, nor may it be necessary for me to read the whole of the transcript, although it may be. 4. I will listen to counsel's submissions about that. In a case like this, where the processes of civil procedure have focused the issues, it is only necessary to look at these documents so far as the issues in the case demand. Manifestly, my purpose is far removed from the purpose of the Royal Commission before whom this evidence was originally taken. 5. I admit the portions of the recording to be shown as Ex 25 and I grant Mr Cohen liberty to apply in respect of the tender of additional portions of the audio visual recording. ********** 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. Decision last updated: 18 May 2018