Supreme Court New South Wales Medium Neutral Citation: Benhayon v Rockett (No 6) [2018] NSWSC 1403 Hearing dates: 10-11 September 2018 Date of orders: 11 September 2018 Decision date: 17 September 2018 Jurisdiction: Common Law Before: Lonergan J Decision: Objection upheld Catchwords: EVIDENCE – relevance Legislation Cited: Evidence Act 1995 (NSW) s 55 Cases Cited: IMM v The Queen (2016) 257 CLR 300 at 311; [2016] HCA 14 Papakosmas v The Queen (1999) 196 CLR 297 at 302; [1999] HCA 37 R (Cth) v Petroulias (No 7) [2007] NSWSC 16 Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 Texts Cited: N Williams et al, The New Law of Evidence (2nd ed, 2009, LexisNexis) Category: Procedural and other rulings Parties: Serge Benhayon (Plaintiff) Esther Rockett (Defendant) Representation: Counsel: K Smark SC; N Olson (Plaintiff) T Molomby SC; L Goodchild (Defendant) Solicitors: Universal Law (Plaintiff) O'Brien Solicitors (Defendant) File Number(s): 2015/329298 Judgment 1. This is a defamation trial before a jury of four. The plaintiff, Serge Benhayon, is described in his statement of claim as a teacher and author who conducts public presentations and training workshops on religious and philosophical principles and a way of living known as "Universal Medicine" and the "Way of the Livingness". 2. The plaintiff also conducts public training workshops in Esoteric Healing described in his statement of claim as a "hands on" complementary healing technique. 3. He has sued the defendant seeking damages and permanent restraining orders in respect of matters she has published in the form of a weblog and a series of comment and "tweets" that he alleges are defamatory. 4. The defendant relies on a number of defences including truth and honest opinion. 5. Particulars of the truth defence filed as an annexure to the Defence include that the plaintiff engages in misleading conduct in promoting the healing services, knowingly makes false claims about healing that cause harm to others, is delusional, exploits followers through false and harmful teachings, engages in bizarre sexual manipulation to make money, denigrates life and glorifies death, engages in dishonest healing practices, makes bogus healing claims, is dishonest and is guilty of exploitative behaviours. 6. An issue has arisen as to the relevance of the evidence to be led from a witness called for the plaintiff, Dr Anne Malatt, who happens to be a medically qualified ophthalmologist. 7. After some biographical details, objection was taken during the following: Q: Did you go and see Serge? A: I did, yes. Q: What sort of services or interaction did you have with him? OBJECTION: Relevance Submissions of the defendant 1. The relevance objection taken by senior counsel for the defendant, Mr Molomby, was articulated along the following lines. Whilst reputation evidence could be given by a witness, the authorities state that evidence of the incidents that support the reputation evidence is not allowed to be given. There is therefore no issue in the case to which the evidence could rationally go, because this witness giving evidence that she had a positive experience with the plaintiff in an attempt to "give a favourable colour to the plaintiff or his operations" is not rationally probative on any issue in the case. 2. Mr Molomby said that whilst acknowledging that one of the imputations in issue in the proceedings is that the plaintiff is the "leader of a socially harmful cult", one doesn't need to show that every member or every follower or attender engaged in any particular behaviour – one only has to show that some did. Nothing can be proved about the effect of the conduct and/or publications and teachings of the plaintiff (or their potential effect) on other people by producing one person who says, "well, that wasn't the effect on me". Such evidence could not be rationally probative of any fact in issue. Submissions of the plaintiff 1. The relevance of the evidence was argued by senior counsel for the plaintiff, Mr Smark, in this way. The purpose of calling the witness was to do something which the plaintiff had done in part in cross-examination and that is to raise matters in anticipation of the truth defence, particularly because the honest opinion case being made by the defence or, terming it broadly, the justification case, requires a plaintiff to call their evidence on these issues up front because case splitting is not permitted. 2. The imputations identified as the relevant facts in issue are very wide. It was noted (without criticism) that there is a wide scope for a justification defence in terms of issues arising, because there are 62 imputations identified from the various matters. Whilst there is some overlap, and some are cast in slightly different terms, the Defence raises a large body of particulars that run to more than 100 pages. The justification defence is "extensive and multi-faceted". In particular, the allegation that the plaintiff is the "leader of a socially harmful cult", and other imputations that have similar notions about a "cult" contained in them, are expected to be addressed by the defendant by the calling of evidence. The jury may think that if the plaintiff does not call any evidence, that the jury is entitled to assume that people who attend these events slavishly follow the plaintiff's prescriptions on the various matters identified. 3. In further support of the argument, attention was drawn to annexure A to the Defence which set out the particulars of justification. In respect of para 21 of the FASOC, the imputation that "the plaintiff is the leader of a socially harmful cult", amongst other things, was followed by an attributed definition of "harmful cult" as follows: "A group or movement exhibiting a great or excessive devotion or dedication to some person, idea or thing and employing unethically manipulative or coercive teachings or persuasion and control (e.g. isolation from former friends and family, debilitation, use of special methods to heighten suggestibility and subservience, powerful group pressures, information management, suspension of individuality or critical judgment, promotion of total dependency on the group and fear of leaving it), designed to advance the goals of the group's leaders, to the actual or possible detriment of members, their families or the community". The Annexure then particularised a series of behaviours termed "common pattern of behaviour having been observed among members of the UM community in general" which included things such as developing a new social circle and cutting ties with the old social circle and family, repeatedly listening to or reading the teachings of the plaintiff, regular and repeated attendance at workshops, events, courses and meetings of the group, seeking email advice of the plaintiff regarding relationships, diet, etc. becoming defensive of the plaintiff's teachings, family and Universal Medicine associates and increased characterisation of any question, criticism or disagreement as "abuse". 4. It is assumed from the pages of particulars in the Defence that somewhere amongst the witnesses, or in some further documentary tenders, something is going to be said about the way in which the workshops and teachings are conducted by the plaintiff said to found a conclusion that the plaintiff is leading a socially harmful cult. 5. The evidence that the plaintiff proposed to call from Dr Malatt was described by Mr Smark: This witness is a, as your Honour has heard so far, a qualified medical specialist. Her evidence will be that she has gone to - is a recipient of both, what I might call two aspects of the plaintiff's teachings, that is - or one as a practitioner, that is, she has had one on one sessions with him and she's been to some of the other workshops and the like for many years. Her evidence will be of her experience in those workshops and we anticipate that her evidence will be not that there was great pressure brought to bear in the workshops that she saw. (T427.23-29) and The jury would be in a position to say, "Well, having heard it" - and, for example, we've heard a lot said about the plaintiff's position in relation to what might be called matters of healing. She's a doctor. She can talk about her understanding and what she's heard said about conventional medicine, the extent to which her involvement in the group affects her capacity to operate as a doctor in conventional medicine and so on. (T428.03-10) 1. Mr Smark argued that calling this type of evidence would be "getting ahead of the bus" or, to put it another way, to lead a case in anticipation of the justification defence. 2. At my request, an outline of proposed topics of evidence was provided. This outline identified those topics as comprising the witness's personal experience of treatments conducted and workshops held by the plaintiff and the effect of these treatments and teachings on her life, her family and her relationships. Section 55 of the Evidence Act and legal principles 1. Part 3.1 of the Evidence Act 1995 (NSW) deals with relevance. Section 55 provides for what is relevant evidence, describing it as "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". 2. Section 56(1) provides: "Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding," and s 56(2) provides that "evidence that is not relevant in the proceeding is not admissible". 3. As stated in Papakosmas v The Queen (1999) 196 CLR 297 at 302; [1999] HCA 37 and re-stated in IMM v The Queen (2016) 257 CLR 300 at 311; [2016] HCA 14, the statute's language is the primary source, not the existing common law. It has been said that s 55 sets an undemanding definition of relevance: Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 per Lehane J. N Williams et al, The New Law of Evidence (2nd ed, 2009, LexisNexis) at p 163 commented that it really requires a court to ask whether the evidence could, if accepted, affect the probability, even indirectly, of the existence of a fact in issue in the proceedings. 4. It is clearly a liberal test. The expression "directly or indirectly" are words of wide import: R (Cth) v Petroulias (No 7) [2007] NSWSC 16 at [10] per Johnson J. 5. As stated by the majority (French CJ, Kiefel, Bell and Keane JJ) in IMM at [43]-[44], whilst analysing the distinction between s 55 relevance and what "probative value" means for the purposes of other provisions in the Act: "[43] The enquiry for the purposes of s 55 is whether the evidence is capable of the effect described at all. The enquiry for the purposes of determining the probative value of evidence is as to the extent of that possible effect. But the point is that in both cases the enquiry is essentially the same; it is as to how the evidence might affect findings of fact. An assessment of the extent of the probative value of the evidence takes that enquiry further, but it remains an enquiry as to the probative nature of the evidence. [44] The assessment of "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. …" (emphasis added) Decision 1. Mr Smark is correct in identifying the breadth of the justification defence as potentially very wide. The nature of the imputations in issue, taking as an illustration the imputation that the plaintiff is "the leader of a socially harmful cult", suggests at first blush some support for the legitimacy of calling evidence to attempt to rebut that imputation in advance of the justification evidence likely to be called by the defendant. 2. However the issues raised by Mr Molomby are critical in demonstrating that the evidence in issue is not capable of the effect described. To show that something is "cult-like" and that some people follow the leader, there is no requirement that every member or every follower or attendee follows or has their life affected. One only has to show that some did. Proof of one person not following, or even a number of people not following the teachings or writings or being affected by them, cannot be evidence that can, if accepted, rationally affect, directly or indirectly, the jury's assessment of the probability of the existence of a fact in issue, that being the assertion that others were so affected. 3. I accept Mr Molomby's submission that if the jury, upon hearing Dr Malatt's evidence use it as affecting the assessment of the probability of the existence of a fact in issue in the proceeding, such use would not be rational. Dr Malatt's evidence cannot be used to rebut, undermine or "affect" the assessment of the probability of the existence of a fact in issue, because it can have no bearing on what others did or accepted or followed or would potentially do, or follow or accept, in terms of the responses to the activities, writings or teachings of the plaintiff. 4. Nor can such evidence be used to affect the issue of whether the teachings and activities in issue are "dangerous" or "socially harmful" simply because this witness, and others like her, remained unharmed, happy, healthy and unaffected. 5. Further, the imputations to which Dr Malatt's evidence was to be directed and the corresponding "truth" and "honest opinion" defences carry with them the assertion of prospective harm. Evidence that Dr Malatt (and others) were not harmed or did not feel their free will imposed upon, is not capable of rationally affecting a jury's assessment as to whether the teachings or activities of the plaintiff are prospectively socially harmful. 6. In the circumstances, I uphold My Molomby's objection to the further evidence of Dr Malatt on the ground of relevance. ********** 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: 31 October 2018