DAWSON: Quite, because some might be in the position of reciprocal duty and interest with the defendant, others might not be. So your Honour for those reasons everything that was said about prejudice yesterday still stands. One takes, in addition to that point, what my learned friend Ms Sibtain spent some time addressing your Honour about yesterday, namely that when this matter came up, albeit it starts from a specific question about the question of malice of the first defendant, the discussion did then range into a much more general topic about the use of the evidence generally and my friend Mr Molomby made it quite plain in that discussion that he was confining the evidence to the question of damages . That led to what may become a very problematic result and that is that neither Ms Sibtain nor I cross-examined about that evidence, the general rule of course being that you don't touch hurt to feelings evidence much because it just makes it worse unless there is a reason to go there. If it was going to be adduced on the question of identification, there was a very good reason to go there and neither of us did. Your Honour they are the additional matters I wanted to raise." (emphasis added)
9 The first defendant endorsed that submission and added the following:
"SIBTAIN: I adopt my friend's submissions only to add that the argument, when I raised the objection when it first arose did very particularly then address the topic as to what would go to damages, what would go to identification and at that point I think it was made very clear in my submission that I would not be required to object to each question but rather my objection was noted to the extent to which we strayed into evidence from what people said to the plaintiff having read the article and how she felt about that and that it would be sorted out at the end. Having thought that my position was protected of course I did nothing further by way of objection."
Consideration
10 In my opinion, the way in which the defendants have sought to characterise the debate does not withstand scrutiny in light of the discussion between pages 54 and 64 of the transcript as earlier set forth. In particular, it is not correct to say, as the first defendant submitted, that when Mr Molomby said, "[i]t's not admissible in the sense of, as I say, to prove anything asserted within it … [b]ut I'm not relying on it for that", that what he said could only have been a reference to identification evidence or that Mr Molomby was only relying on it with respect to damages. The whole context of the discussion is to a completely different effect. I also do not accept the first defendant's submission in this same respect that the discussion "had moved to a much broader category of evidence" or that "we were talking in general terms" or that such was "made clear by the earlier reference also as evidence that would go between identification on the one hand and damages on the other". It is also not correct to say, as the third defendant submitted, that "Mr Molomby made it quite plain in that discussion that he was confining the evidence to the question of damages". That is not what he did.
11 The earlier arguments did not address the question of what evidence would go only to damages, and what evidence would go only to identification, at all. No such distinction was in play at any time. Indeed, the only reference to identification that appears anywhere in the pages of the transcript in question was the short extract referred to by Ms Sibtain in which she quoted what Mr Molomby had said at transcript page 58 line 16. Mr Molomby's response, as appears above and which bears repeating, was to say:
"I wasn't representing any particular evidence at all into one category or other. I was saying there were these two general categories and that could complicate splitting the hearing. There is no representation about any particular evidence falling into any category."
12 I consider that Mr Molomby accurately characterised what he said and what the discussion was about. That involved the question of how best to proceed in circumstances where the jury did not need the benefit of some of the evidence that would be given. The fact that the debate became diverted to a consideration of the practical issues of how best to conduct the trial should not be permitted to mask the fact that the dispute then fomenting was one that arose from the need to consider the defendants' ultimately successful objection to evidence of what Mr Monaghan, or any others in the same category, may have said to the plaintiff with respect to their perceived or assumed understanding of Mr Brown's motivation for writing the article. No discussion of the prospect of that, or indeed any other, evidence going to the issue of identification arose and no foreshadowed objection to the possible giving of such evidence by the plaintiff was raised.
13 There may be good reasons for this. Mr Dawson referred to some of them in the passages quoted earlier. In particular, he referred to the common law rule concerning hearsay evidence of identification. That rule does not appear to have been affected by any provision of the Evidence Act 1995 and none that I was referred to during argument would appear to have limited or replaced it. In particular, I am not satisfied that the notice provisions of the Act, which apply to evidence that is sought to be introduced by the s 63 and s 67 pathways, have somehow by implication become engrafted upon evidence to which the common law rule relates. There are certainly no specific provisions that deal with it and none that supports any argument that has been suggested might apply by analogy.
14 In Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 656, Samuels JA considered the rule in these terms:
"There is authority for the admissibility of evidence of declarations made out of court for the purpose of identification. In Cook v Ward (1830) 6 Bing 409; 130 ER 1338, evidence was held admissible that the plaintiff had been publicly ridiculed after publication of the libel. Tindal CJ (at 415; 1340) said that the evidence was properly admitted 'as identifying the subject of the libel'; and Park J (at 416; 1341) observed that the evidence had been admitted 'to identify the Plaintiff as the person to whom the ridicule of the libel attached'. In the earlier case of Du Bost v Beresford (1810) 2 Camp 511; 170 ER 1235, the plaintiff sued the defendant for the value of a painting entitled 'Beauty & the Beast' which the defendant had cut in pieces on the ground that it was a scandalous libel upon his sister and her husband. In the course of the trial Lord Ellenborough held that the declarations of the spectators, while they looked at the picture in the exhibition room, were evidence to show that the figures portrayed were meant to represent the defendant's sister and brother-in-law. In J ozwiak v Sadek [1954] 1 WLR 275; [1954] 1 All ER 3, Ormerod J, relying upon Cook and Du Bost, admitted evidence of statements made out of court and of anonymous telephone calls to the plaintiff, to identify the plaintiff with the libel; and it appears that evidence of declarations out of court were admitted in aid of the innuendo in Hough v London Express Newspaper Ltd [1940] 2 KB 507.