Di Girolamo v Fairfax Media Publications Pty Ltd

Section 135 of the Evidence Act

1. There remains to be considered whether I should refuse to admit the ICAC Opening Transcript under s 135 of the Evidence Act on the grounds that its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff, be misleading or confusing or cause or result in undue waste of time.
2. One difficulty with Mr McClintock's submission that admission of the ICAC Opening Transcript would be unfairly prejudicial to the plaintiff is that it is part of the plaintiff's case that the mention of an association between the Obeids and another person implied corruption to readers of the Sydney Morning Herald. He said to the jury, in opening: You would have had to be living on a desert island or not in Sydney over the last ten years not to have heard the name Obeid and the name Obeid in the eyes of the Sydney Morning Herald has become synonymous with corruption. I'm not saying that's accurate, that's what the Sydney Morning Herald has portrayed. There's been hundreds of articles about Mr Obeid, mainly written by Ms McClymont, the journalist here. There were findings of corruption made against Mr Obeid by ICAC but he's never been convicted of anything and the principal purpose for his role here is to show just the mere mention of his name in conjunction with other people's names carries a flavour ultimately obviously assumed to you of corruption.
3. There is no mention in the ICAC Opening Transcript of the plaintiff himself. However, the transcript is redolent with references to members of the Obeid family. If the jury is satisfied, on the balance of probabilities, that the plaintiff read it, or otherwise became aware of its contents, then it seems to me to have relatively high probative value on the issue of the plaintiff's state of mind, on 12 December 2012, and thereafter. It would tend to provide a significant motive for the plaintiff to distance himself and his companies (Australian Water Pty Ltd and Australian Water Holdings Pty Ltd) because of the allegations that had been made in the ICAC Opening. Any incidental prejudicial effect of the jury's reading the transcript could be, in my view, ameliorated by a direction as the use to which it could be put. Neither the robustness of a jury nor its capacity to follow directions as to the use to which evidence can be put should be underestimated: see the summary of authorities in Kanaan v R [2006] NSWCCA 109 at [24]-[33] per Hunt AJA, Buddin and Hoeben JJ. I was not satisfied that the probative value of the ICAC Opening Transcript is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party.
4. I was not satisfied that the ICAC Opening Transcript would be misleading or confusing or that it would result in an undue waste of time (as it comprises a mere 61 pages).
5. Accordingly, I allowed the ICAC Opening Transcript but limit the use to which it can be put to the non-hearsay purpose. In other words, it is not admissible to prove the truth of the statements recorded in it.

(2) Documents relating to the issue whether coal deal was corrupt

1. The plaintiff objected to several documents (at pages 288-545 of the defendants' tender bundle) tendered by the defendants which were said to be relevant to the issue whether the Obeid family had been involved in a corrupt coal deal in the Bylong valley. Mr McClintock submitted that the documents were irrelevant because there was no suggestion that his client was involved in the coal deal (whether or not it be corrupt) and many documents pre-dated his involvement with Australian Water Pty Ltd or Australian Water Holdings Pty Ltd. He contended that what the defendants were seeking to do was to rerun the ICAC inquiry and that the Court ought not permit them to do so.
2. Mr Blackburn relied on the defence pleaded in answer to Imputation 1-2, B, which is that the imputation is substantially true. Mr Blackburn submitted that, in order to make out this defence, the defendants would have to prove that the coal deal in the Bylong valley was corrupt, since this was part of the sting of the defamation. He contended that the documents went squarely to that issue and had been set out in the particulars.
3. I allowed the documents to be admitted since they are relevant on the basis indicated by Mr Blackburn.

(3) Documents relating to the Public Private Partnership proposal involving Australian Water Holdings

1. The defendants sought to tender correspondence and other documents relating to a proposal that Australian Water Holdings Pty Ltd (or an associated company) engage in a PPP with Sydney Water. These documents were created in the period prior to the March 2011 election in which the Government changed hands from Labor to Liberal. The documents showed that the plaintiff approached the Government in 2009 with a view to engaging in a PPP for the provision of water to the north west area of Sydney. The proposal had been rejected by Mr Schur, the Secretary of the Treasury, and was not favourably entertained by the then Government, of which Ms Keneally was, ultimately, the Premier. However during this period Barry O'Farrell, the then Leader of the Opposition (whom the plaintiff admitted was expected to be Premier as a result of the election in March 2011), wrote to the plaintiff and gave him some expectation that his PPP would be met with a more favourable reception by a Liberal Government, if elected in March 2011. At that time, Katrina Hodgkinson was the Opposition spokesperson for water issues.
2. This material, according to Mr Blackburn, forms the background to, and provides context for the following imputation which the defendants admit was conveyed and which they contend was substantially true: The plaintiff caused a cash donation of $10,000 to be made to Nationals MP Katrina Hodgkinson in order to influence future decisions made by her as a Member of Parliament.
3. Mr McClintock argued that the precise wording of the imputation made the documents irrelevant because it was confined to Ms Hodgkinson's role "as a Member of Parliament" as opposed to her role as a future Minister with responsibility for a portfolio which was likely to include water infrastructure. I reject this argument as unduly pedantic. I am not satisfied that such a technical interpretation of the imputation is appropriate or that it has the effect of making the documents irrelevant. I allow the tender.
4. I am satisfied that the documents objected to are relevant to the jury's determination of the defence relied upon by the defendants in respect of this imputation and ought, accordingly, be allowed into evidence.

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