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[2017] VSC 354
Supreme Court of Victoria
2017-05-30
JOHN DIXON J
Original judgment source is linked above.
EVIDENCE - Defamation trial - Admissibility and use of documents - Cross examination of plaintiff - Evidence Act 2008, ss 44, 69, 106, 136.
1 During the course of the plaintiff's cross-examination, stating that I would later provide my reasons, I ruled that:
(a) The Elle Magazine Article from the December 2013 edition is admitted into evidence on the defendants' tender in a redacted form revealing from the content of the article only the sentence identified in these reasons that deals with the plaintiff's name;
(b) Two clips from the Graham Norton show featuring an appearance by the plaintiff are not admissible and the defendant is refused leave to play the same in court; and
(c) The email chain that was returned in response to a subpoena to Guardian News and Media Limited is admissible and may be tendered by the defendants.
3 The cover story for the December 2013 edition of Elle Magazine in Australia was an article by journalist Carina Chocano purportedly based on an interview with the plaintiff. I earlier ruled that insofar as it was relevant to the matters raised in the defendants' schedule of particulars of justification, the plaintiff could be questioned about the article in accordance with s 44(3) of the Evidence Act 2008. In that context, the article was only relevant to the question of the plaintiff's true name.
4 The plaintiff, when cross-examined, could not recall that an interview had occurred and, if it had, she could not remember what she had said to Ms Chocano at the interview. She denied that she had made particular statements to Ms Chocano. She stood by that evidence when shown the article. Section 44(3)(d) was not complied with before the jury as the document was identified.
5 The defendants then submitted that the court ought to be satisfied that the article was admissible as a business record of the plaintiff, thereby permitting the cross-examiner to use the document under s 44(2). The proposed use of the article was as evidence of the plaintiff's representations to Ms Chocano. The plaintiff objected to the tender and use of the article.
6 The defendants submitted that the article recorded the journalist's account of the interview and it may reasonably be supposed that the journalist had personal knowledge of the facts stated in her article from the interview. Acknowledging that the article at its highest could only be evidence that the journalist heard her interviewee assert a particular representation of fact made to her in an interview, the basis of the defendants' tender must have been to prove the truth of the journalist's representation that the plaintiff made certain statements. Relevance was established because it was in issue whether the plaintiff made statements to journalists that were not true. The defendants did not propose to call the journalist or otherwise prove the source of the representation but submitted that the failure to call the journalist went only to weight.
7 The witness was being questioned about a previous representation alleged to have been made by a journalist. Section 44(1) restricts the circumstances in which such cross-examination may be permitted. As the witness did not admit the representation or its contents, the defendants needed to satisfy the court that the article would be admitted before the witness could be properly confronted with an identified document.
8 A copy of the Elle Magazine article was attached to an email sent by the plaintiff's publicist to her company and the defendants contended that it formed part of a business records of that company, which managed the plaintiff in the conduct of her profession as an actress. They contended it was admissible as a business record, under the exception to the hearsay rule found in s 69 of the Evidence Act 2008. That section relevantly provides as follows:
69 Exception - business records
(1) This section applies to a document that -
(a) either -
(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or
(ii) at any time was or formed part of such a record; and
(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made -
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
9 The plaintiff opposed the tender on three grounds. First, the article was not relevant to a matter in issue in the proceeding. The defendants conceded that the only purpose for tender of the article was to establish that the plaintiff told Ms Chocano a lie about aspects of her life that the journalist then faithfully recorded in the magazine article. As already noted, I am satisfied that the article could indirectly affect the assessment of the probability of the existence of a fact in issue - whether, in the context of the defendants' truth defence, it was true that the plaintiff had lied to others about her real name.
10 Secondly, the plaintiff submitted that the magazine did not record a representation made in the course of or for the purposes of the business of the plaintiff. The defendants accepted that the relevant business for the purposes of sub-sections (a) and (b) of s 69 must be the same business. The plaintiff submitted that the representation relied on was made or recorded in the course of or for the purposes of the business of the publisher of Elle, not the plaintiff and this was not the same business. The plaintiff submitted that the copy of the article could only form part of the records of her business because of the manner in which it had been retained, attached to an email from the plaintiff's publicist that she had no recollection receiving. The article itself could not otherwise be a business record and the representations in it were made by the journalist who is engaged in a different business altogether. The article was a product of the business operated by the magazine publisher and not a business record of the plaintiff.
11 Sperling J made that distinction in Roach v Page (No 15),[1] about the composite term 'the records of a business':
The records of a business are the documents (or other means of holding information) by which activities of the business are recorded. Business activities so recorded will typically include business operations so recorded, internal communications, and communications between the business and third parties. On the other hand, where it is a function of a business to publish books, newspapers, magazines, journals (including specialised professional, trade or industry journals), such publications are not records of the business. They are the product of the business, not a record of its business activities. Similarly, publications kept by a business such as journals or manuals (say, for reference purposes) are not records of the business.
12 Thus, the plaintiff submitted that she had simply maintained a copy of a journal, in this case a magazine, for reference purposes. It is not, in that sense, a record of the plaintiff's business.
13 Thirdly, the plaintiff submitted that s 69(2)(a) cannot apply because the journalist could not, and would not reasonably be supposed to have had personal knowledge of the matters in the relevant sentence of the article. The defendants must persuade the court that s 69(2)(b) applied, but the representation, as presented in the article, did not purport to be a quote. It was the journalist's assertion that could have come from anywhere. The defendants did not establish who was the person who supplied the relevant information. To do so would require the journalist to give an account of what occurred during the course of the interview. The jury could not safely infer that the article was a faithful recording of a representation made by the plaintiff to a journalist. It could have been edited and sub-edited, with things added or removed after the journalist who conducted the actual interview wrote it.
14 I am satisfied that the article in question, having been sent to the plaintiff by her publicist and kept in her records, is not a product of the business of Elle as opposed to a business record of the plaintiff. The passage from Roach extracted above is distinguishable. Self-promotion or promotion of films in which she appears is properly construed as a business activity of the plaintiff. Although the plaintiff could not recall the interview, she did not deny that it had taken place. The plaintiff participates in such interviews, clearly, for the purpose of conducting and promoting her business as a professional actor. Such press profiles are at the heart of the plaintiff's business, as further evidenced by emails from her publicist Mr Daniel Weiner at the time congratulating her on outstanding press opportunities including the Elle Magazine issue. It does not matter that the email appears to have been unsolicited as it was sent from the plaintiff's publicist. The conduct of the interview and the recording of the matters in the interview by the journalist, and the retention of a copy of the article, occurred in the course of the plaintiff's business of promoting herself as an actress and giving interviews from time to time. It is the same 'business' for the purposes of s 69(1)(a) and (b).
15 The article may contain hearsay representations about what Ms Wilson had said to the journalist during the course of that interview. The absence of evidence from the journalist about where information in the article was sourced does not exclude the possibility of an inference for the purposes of s 69(2)(b), that that the journalist made a representation on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, the interviewee. Given that the plaintiff does not deny the interview occurred, and there was some evidence of follow up emails being sent by others, it 'might reasonably supposed' that the journalist had personal knowledge from the interview of the content of the representation. While I accept the plaintiff's submission that the article appeared to be made up of a compilation of information from a number of places, an interview was conducted, and one would expect that there was information supplied directly during the course of the interview. The information is a biographical detail that one might reasonably suppose came from the plaintiff. Possible reasonable supposition is not a high bar.
16 I am persuaded that the journalist's representation about the plaintiff's statement concerning her name contained within the article was made on the basis of information directly supplied by the journalist, who by reason of the interview was a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
17 The plaintiff also sought to exclude the article under s 136 of the Evidence Act 2008, which provides as follows:
136 General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might -
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
18 The plaintiff contended that the whole article was potentially prejudicial and apt to mislead if the defendants' only purpose for tender was to establish that the plaintiff told a particular specific lie to a journalist in circumstances where they did not propose to call the journalist. Being clearly prejudicial the article should be excluded by exercise of the s 136 discretion.
19 Finally, and if I was against her regarding the business record and relevance arguments, the plaintiff submitted that as the defendants had acknowledged that only one point in the article - a representation about what the plaintiff's mother named her - was raised as an issue on the pleadings, that is the only part that ought go into evidence.
20 The relevance of the article was limited by the defendant's particulars of justification. I am not satisfied, that the appropriate course was, as the defendants suggested, to admit the entire article into evidence and deal with the difficulties with relevance by way of jury directions. It was expressly conceded that it would only be relevant to one particular point - a representation about what the plaintiff said to the journalist about what she was named by her mother. The relevant representation identified consisted of one sentence. If the article was redacted to place before the jury only the relevant part, the plaintiff's s 136 prejudice submission would also be met.
21 Accordingly, I ordered that the Chocano article in Elle magazine be admitted into evidence as a business record, but with the remainder of the article, apart from the one sentence about the plaintiff's name, redacted. The record was admitted to enable the cross-examiner to question the plaintiff about it pursuant to s 44(2) of the Act.
22 The plaintiff objected to the defendants' proposal to play to her in the presence of the jury two clips of her appearance on the Graham Norton talk show on UK television in 2015, filmed while she was promoting Pitch Perfect 2 in the UK. The defendants sought to play the videos to the jury and the plaintiff prior to questioning the plaintiff. The plaintiff objected that the videos were irrelevant, not having been referred to in the particulars of the justification defences.
23 The defendants stated that the two clips from the Graham Norton talk show were first, an account given by the plaintiff of her relationship with the Walt Disney family (Walt Disney story), and second, a story the plaintiff told of being bitten by a spider that laid eggs under her skin that later hatched (spider story).
24 The defendants submitted that the Walt Disney story was relevant as a prior inconsistent statement going to credit, admissible under the following exception to the credibility rule:
106 Exception - rebutting denials by other evidence
(1) The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if -
(a) in cross-examination of the witness -
(i) the substance of the evidence was put to the witness; and
(ii) the witness denied, or did not admit or agree to, the substance of the evidence; and
(b) the court gives leave to adduce the evidence.
(2) Leave under subsection (1)(b) is not required if the evidence tends to prove that the witness -
...
(c) has made a prior inconsistent statement; ...
25 In cross-examination, it was put to the plaintiff that she didn't know for a fact that she was distantly related to Lillian Bounds, Walt Disney's wife. The plaintiff believed that this was the case based on conversations with her grandmother. She recounted the relationship as an honest belief dating from her childhood. The defendants contended that on the Graham Norton show she had stated this relationship as a fact, not as a belief, an inconsistency that that defendants wished to put to her. The defendants asserted this evidence would show how the plaintiff conducts herself on talk shows going not only to credit, but being, as well, a clear example of the plaintiff telling fantastic stories about herself, a relevant issue in the proceeding.
26 The proposed submission was put by the defendants in the following way:
...[W]e do say that when you say, "I'm related to Walt Disney" and Graham Norton says, "Really?", you say, "Well, my nanna used to tell me", you don't say, "No, really I am related to Walt Disney" and we just want to use that to demonstrate to the jury how the plaintiff spins these stories and we do say it is relevant to be able to do that, to be able to put to her that when she appears on these shows, yes she is joking, we don't deny or seek to criticise her evidence that it's a joke, but at the same time it's an exaggeration, it's fantastic stories she is telling about her upbringing and life, and if the jury see Graham Norton and they see the sorts of stories she's prepared to tell, then they're more likely to find that that is the way she conducts herself, and that she told [the Elle Magazine journalist] Chocano the things that we say she told Chocano.
27 The Walt Disney story is not made relevant by the pleadings except in a particular, limited way that was the subject of Rebel Wilson v Bauer Media (Ruling No 1).[2] What the defendant effectively seeks to achieve is the reinstatement of previously disallowed particulars regarding the Graham Norton interview.
28 The defendants submitted that the spider story demonstrated the plaintiff's propensity to exaggerate and tell fanciful stories about herself and was relied on as relevant to the justification defences. In paragraph 5A of the amended defence, a Hore-Lacy imputation was said to be that the Woman's Day Print Article meant that 'the plaintiff had told lies by adding a touch of fantasy to stories about her name, age, upbringing and background in order to make it in Hollywood'. The spider story itself was not particularised and was not referred to in any of the articles sued upon, but the defendants submitted it was nevertheless evidence relevant to the plaintiff's propensity to tell fanciful stories.
29 I accepted the plaintiff's submissions that the defendants should be held to their pleading. The Graham Norton episode dates from 2 May 2015. There was at no time any application to amend the particulars of justification to include the spider story. There was no explanation for not having particularised the spider story long before the issue arose mid-trial, if it was thought to be relevant. Any such application to amend, were it made, would have been opposed.
31 The plaintiff also submitted that the defendants' proposed Hore-Lacy defence appeared untenable in light of their submissions. A Hore-Lacy imputation is only permissible if it is not substantially different from, and not more serious than, the corresponding imputation pleaded by the plaintiff. If the imputation pleaded in paragraph 5A of the further amended defence is to be read as a propensity to tell fanciful stories in the nature of comedic performances and jokes, it would be perverse for the jury to come back with a verdict that that imputation was a permissible variant of the plaintiff's imputation that the plaintiff is a serial liar. That defence ought now be struck out. In any event, the Graham Norton show was plainly a comedic show, and would fall in the same category of other evidence in the trial that could not be relevant to establishing the substantial truth of the plaintiff's pleaded imputation - that she had lied about that aspect of her background.
32 I refused the defendants' tender of the two clips from the Graham Norton show into evidence.
33 By its defence, the defence of justification was properly particularised by reference to a substantial number of publications, but the particulars on which the defendants went to trial did not include the Graham Norton show. The purpose of the particulars was to identify the occasions upon which the plaintiff told fantastical stories to frame the content of the evidence. As Gleeson CJ succinctly explained in Goldsmith v Sandilands:[3]
The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but "to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial". The function of evidence is to advance, or cut down, the case of a party in accordance with the rules of statute or common law that determine the nature of the information a court will receive.
34 In the context of the particulars of the justification defences in this case, a generalised particular going to the plaintiff's alleged embellishment of aspects of her upbringing and background[4] was not sufficient to make either clip relevant. The plaintiff's appearance on the Graham Norton show had not been pleaded when many other particular publications were particularised. This evidence strayed too far from that generalised particular.
35 The defendants sought to tender a document, being an email chain that was produced by Guardian News and Media Limited in response to a subpoena.[5] The plaintiff objected to the tender on the ground of relevance and on the basis that it had not been properly proved as a business record. The email chain in question consisted of emails between a Guardian journalist who had written an article about the plaintiff, Ms Stephanie Rafanelli, another Guardian employee, Ms Abigail Radnoe, the plaintiff's agent, Ms Jodi Gottlieb, and another employee from the same agency, Ms Lindsay Shane. Each of these women was included in each email in the chain.
36 The email chain commences with an email from Ms Rafanelli asking for a clarification regarding one of the plaintiff's movie roles. Ms Shane replied that it would be best to reach out to the studio for clarification. Following that, another email was sent from Ms Radnoe, directed to Ms Shane, as follows:
My editor has asked me to check in with you on Rebel's age. We have her at 29 but there seem to be conflicting reports, including her IMDB profile and other interviews Rebel has given in the past. Obviously, we have to be super diligent with our fact checking, so just wanted to check with you again.
The final email in the chain is a reply from Ms Gottlieb to Ms Radnoe's request, simply stating: '29'.
37 The defendants sought to tender the document as a business record of the Guardian relevant because they had identified the Rafanelli interview in the particulars of justification including specifically identifying the email response of Ms Gottlieb as a representation made on behalf of the plaintiff that she was then 29 years old.
38 What the defendants alleged was that a statement made by the plaintiff to Ms Rafanelli of her age was subsequently confirmed by her agent or publicist in the email. The schedule reads:[6]
The plaintiff's agent or publicist, Ms Gottlieb, and Lindsay Shane, on behalf of the plaintiff, confirmed in writing to the Guardian that the plaintiff was 29 years old.
39 The defendants submitted that the email was relevant under s 55 of the Evidence Act and as such ought be admitted into evidence as a misstatement of the plaintiff's age by the plaintiff's agent at that time, which could rationally affect the jury's assessment of whether the plaintiff was complicit in the provision of misinformation about her age to the Guardian. To omit the document from evidence would be apt to mislead the jury, because it was relevant to how the figure '29' came to be in the article and was part of a broader category of evidence that involved the plaintiff's communications to her publicist, Ms Gottleib, and others, such as Mr Hywood of Fairfax Media, to have correct information about her age removed from the internet.
40 The defendants submitted that, as the document had been produced on subpoena by the Guardian, it was clearly, on its face, a business record.
[26] SPI wants to tender the documents as business records of the three electricity distribution companies and use it as evidence of their policies and practices pre-Black Saturday. It is therefore necessary for SPI to establish that the documents are indeed authentic or genuine records of those companies. The debate on this point is what is necessary to establish authenticity so that the documents can be said to fall within the scope of s 69 of the Evidence Act.
[27] Given the terms of s 48 of the Evidence Act, there has been a surprising debate as to the need to prove the authenticity of a document when its contents, upon inspection, make it probable that the document is an authentic business record of the organisation producing it. I do not propose to enter into the fray. It is sufficient to say that I accept the following propositions of Perram J in Australian Competition & Consumer Commission v Air New Zealand Ltd (No 2) to the following effect:
1. There is no provision of the Act which requires that only authentic documents be admitted into evidence. The requirement for admissibility under the Act is that evidence be relevant, not that it be authentic. On some occasions, the fact that a document is not authentic will be what makes it relevant, ie, in a forgery prosecution. In other cases, there may be a debate as to whether a particular document is or is not authentic, for example, a contested grant of probate where it is said that the testator's signature is not genuine.
...
14. In deciding relevance (ie whether the tribunal of fact could reasonably infer that the document (otherwise relevant) was authentic), the tribunal of law is explicitly authorised by s 58(1) to ask what inferences as to authenticity are available from the document itself. That is what s 58(1) says.
It will follow that AirNZ's submission that "no inference as to authenticity can be drawn from the face of these documents" ought to be rejected. In determining a relevance objection, that is precisely what s 58(1) permits.
[28] In ASIC v Rich Austin J (following an earlier decision of National Australia Bank Ltd v Rusu) took a different position in not requiring evidence from the creator of a document to prove its authenticity, but requiring something in addition to the mere tender of the document itself to establish its provenance:
Although a simple way of authenticating a document is by evidence from its creator, or someone who superintends the maintenance of business records that include it, Rusu does not lay down that authentication by such means is necessary. On the other hand, Rusu establishes that there must be something more than the mere tender of the document itself, where the tender is contested. Thus, in the present case ASIC would not, apart from the effect of s 135(2), be able to tender the Carter exhibits or its merged tender bundle without any evidentiary support whatever. But ASIC does not purport to do so. It has provided an enormous quantity of provenance evidence, designed to trace the tendered documents back to a source such as the Ferriers I:/drive or documents acquired from liquidators or solicitors.
[29] Counsel for Mrs Matthews contended that for SPI to establish that the documents were authentic, notwithstanding their obvious provenance, the documents needed to be shown to have been authorised by an officer or employee of the company providing the records. In his submissions, counsel referred to Rich; "authenticity cannot be achieved solely by drawing inferences from the face of the document where there is no other evidence to indicate provenance." Counsel asserted that there is no evidence in the present case showing:
(a) the file source of the documents;
(b) their status within the subpoenaed organisations;
(c) whether they were the only iterations of the document; or
(d) whether they were accurately extracted.
[30] I reject this submission. In my opinion neither the decision in Rich nor Air New Zealand require such rigorous proof. I accept that in this case, where the documents are tendered as emanating from the business records of an organisation, it is necessary to establish that the documents are authentic or genuine records of that organisation to trigger the exception to the hearsay rule set out in s 69 of the Evidence Act.
[31] As will be seen in a moment, this is a case in which a document - on its face - can be inferred to be authentic and relevant. Section 58 does not mandate any additional requirement. In this case the additional factor (if it is necessary, which I doubt) is the terms of the subpoena addressed to each of the companies.
42 On that basis, the defendants submit that the email chain, produced by the Guardian in answer to a subpoena, is irrefutably a business record of which the court can be satisfied simply by the means of its production and by looking at the document on its face. In addition, in this case, there is other evidence already adduced of the surrounding email communications which confirm that Ms Gottleib and Ms Lindsay were in fact in communication with the Guardian over similar issues.
43 The plaintiff maintained objections on the grounds of relevance and potential prejudice. The plaintiff also objected to the tender of the document as a business record, because none of the parties to the email were being called and the plaintiff wished to cross-examine the deponent of an affidavit (an employee of The Guardian) who asserted that the document was a business record. To do otherwise would be to circumvent the ordinary principle of calling a party from one or other of the businesses that it might conceivably come from.
44 The plaintiff submitted that the fact in issue was related to whether the defendants could maintain a defence of substantial truth to an imputation that the plaintiff lied about her age. The defendant must establish either that the plaintiff herself lied or that she directed someone else to lie on her behalf, and this document could achieve neither purpose. A statement from a publicist was of no value unless it can be said to have emanated from some instruction from the plaintiff about which there was, and would be, no evidence. Even if they could prove the truth of the allegation in their particulars, the defendants could not, as a matter of probative logic, establish the substantial truth of the imputation.
45 The plaintiff also submitted pursuant to s 135 of the Act that the prejudicial nature of the document ought to enliven a discretion to exclude it. It would be highly prejudicial to allow into evidence a document which, on its face, did not support the proposition that the plaintiff lied to her agent or instructed her agent to lie to the Guardian. There was a substantial risk of that document, taken in isolation, being misused by the jury. The danger was that first, the document may be apt to mislead the jury that the gap identified in the defendants' case had been, in effect, filled, in circumstances where the defendant did not propose to call any of the parties to the email communication, who are all out of the jurisdiction and not amenable to subpoena.
46 Finally, the plaintiff contended that where neither the author nor the recipient of the email would give evidence and there was no evidence that the plaintiff authorised the email, its probative value was very low. Any probative value would be substantially outweighed by the danger that it might mislead or confuse the jury. The only purpose for admitting this document must be to make a submission for an inference that the plaintiff instructed her agent to send the response, '29', which is highly prejudicial in the circumstances.
47 I am satisfied that the email is a business record of the Guardian and is relevant to an issue in the proceedings and that it may be tendered under s 48 of the Evidence Act. I am satisfied that the document, on its face, and having consideration to how it was produced to the court on subpoena from the Guardian, is an authentic business record.
48 I am not persuaded by the plaintiff's submission that I ought exercise a general discretion to exclude this evidence under s 135 of the Act. There is a possibility, which may emerge from what occurs in further cross-examination, that the document may indirectly rationally affect the assessment of the probability that a particular of the defendants' substantial truth defence may be established. The email was centrally relevant to an issue in dispute and ought not to cause any difficulty for the jury who will be presented with a stark choice - the plaintiff was involved in sending this misinformation to the Guardian, or she was not.
49 Accordingly, I ruled that the defendants could tender the email exchange produced by the Guardian under subpoena.
[1] [2003] NSWSC 939, [5]-[6].
[3] [2002] HCA 31; (2002) 76 ALJR 1024, [2] (citation omitted).
[4] Defence Particulars Schedule Part F, [6].
[5] On 29 May 2017, I made an order allowing for short service of a subpoena on Guardian News and Media Limited. The document produced to the Court on 30 May 2017 that the defendants sought to tender was the only document returned by that subpoena.
# Wilson
Bauer Media
(2002) 76 ALJR 1024