El-Azzi v Nationwide News Pty Ltd

[2004] NSWSC 1056

CITATION:

EL-AZZI v NATIONWIDE NEWS PTY LTD [2004] NSWSC 1056

HEARING DATE(S):

19 October 2004

JUDGMENT DATE:

19 October 2004

JUDGMENT OF:

Levine J

DECISION:

Cross-examination permitted as the subject matter has the substantial probative value as to the plaintiff's credit

CATCHWORDS:

On cross-examination relating to credit

LEGISLATION CITED:

Crimes Act 1900 s 186
Evidence Act 1995 ss 102, 103

CASES CITED:

Regina v RPS (Court of Criminal Appeal, 13 August 1997)

PARTIES :

WILLIAM EL-AZZI
(Plaintiff)

v

NATIONWIDE NEWS PTY LTD
(Defendant)

FILE NUMBER(S):

SC 10930 OF 1993

COUNSEL:

R Rasmussen
(Plaintiff)

T Blackburn SC / J Hmelnitsky
(Defendant)

SOLICITORS:

Kings Lawyers
(Plaintiff)

Blake Dawson Waldron
(Defendant)

DLJ:7
Ex tempore: revised
[2004] NSWSC 1056

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

TUESDAY 19 OCTOBER 2004

10930 OF 1993

WILLIAM EL-AZZI
(Plaintiff)

v

Nationwide news pty ltd
(Defendant)
JUDGMENT (On cross-examination relating to credit)

1 The plaintiff has sued the defendant in respect of that series of causes of action being the imputations referred to in earlier judgments and in the opening address to the jury by Mr Rasmussen.

2 Thus far the jury has heard evidence from the plaintiff, inter alia, as to his career as a police officer, matters both favourable and potentially viewable as unfavourable, for example see exhibit 1. If not expressly, then certainly implicitly, the plaintiff has asserted the falsity of what was written about him and the “terrible meanings” of the article. An overview of his evidence-in-chief seems to indicate a time frame for the purposes of damages from the date of publication to the end of 1991 when he returned from Lebanon.

3 Presently I am concerned only with whether or not it is open to the defendant to cross-examine the plaintiff on two matters. The principal basis being that the cross-examination will be to credit, with the subsidiary submission, that, being in effect tied up with the principal basis, they could go to affect the question of damages, in particular to hurt to feelings.

4 The first of the matters is, as I understand it, the conviction on 29 October 1997, unsuccessfully appealed in 1999, and in relation to an offence said to have been committed on 7 April 1994 being an offence contrary to s186 of the Crimes Act as it was then in force, an offence briefly described in the legislation as taking a reward for helping to recover stolen property. As far as I know, I do not believe I have been told what the penalty imposed in relation to that matter was.

5 The second matter, which is said to have occurred in 1996, resulted in conviction in 2002 for what I understand to be the offence of conspiring to manufacture a commercial quantity of prohibited drugs, namely amphetamines. Against that conviction the plaintiff has appealed. The appeal has been heard and the Court of Criminal Appeal has reserved its decision from about two Fridays ago, I believe.

6 S102 of the Evidence Act constitutes what is known as the credibility rule. It is an exclusionary rule to the effect that evidence that is relevant to a witness's credit only is not admissible. The dictionary definition of probative value is as follows:

“Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.

S103 states:

s103 (1) The credibility rule does not apply to evidence
adduced in cross-examination of a witness if the evidence has substantial probative value.
(2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:
(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and
(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

7 It is interesting to observe in relation to s103 that it expressly provides for the admissibility of evidence adduced in cross-examination if the evidence has substantive substantial probative value. In sub-s (2), whilst not limiting the matters to which the Court may have regard in deciding whether the evidence has substantive probative value, the Court is to have regard to the two matters set out in sub-s (2): in shorthand, the first being the making of a false representation and the second being the period of time that has elapsed since the acts to which the evidence relates were done.

8 In Regina v RPS (Court of Criminal Appeal, 13 August 1997) Hunt CJ at CL said as follows:

" S103 of the Evidence Act limits cross-examination as to credit to adducing evidence which is "substantial probative value". The “probative value” of evidence is defined in the s3 dictionary as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”, but both the context in which that phrase appears and the subject matter of s103 indicate that the definition does not apply. That is made clear by the terms of subs(2), which demonstrate that the evidence must have probative value in relation to the credit of the witness. Evidence adduced in cross-examination must therefore have substantial probative value in the sense that it could rationally affect the assessment of the credit of the witness. Such an interpretation accords with the intent of the Law Reform Commission. The addition of the word “substantial” nevertheless imposes a limitation upon the common law, when almost anything was allowed upon the issue of credit unless it clearly had no material weight whatsoever upon that issue that limitation is an important one.” (footnotes omitted)

9 The learned editors of the Butterworths Criminal Practice and Procedure, after referring on page 52,402, to the matter I have cited from the decision in RPS, have this to say:

"At common law evidence as to the criminal record of the witness or other discreditable acts was generally admissible in that it could affect the witness's credit (see Aldridge (1990) 20 NSWLR 737) notwithstanding the minor nature of the criminal record in s56 in the previous Evidence Act which only limited the questions of a witness to that materially affecting credibility of the witness.”

10 The editors go on to remark however, that under the section, the witness's criminal record or otherwise bad character will only be admissible if it could substantially affect the witness's credit. S103(2) which requires the Court to consider whether the evidence tends to prove that the witness has, in effect, committed perjury or false swearing in the period which has elapsed since the acts occurred, tends to suggest, the learned editor's remark, that it will only be in very limited circumstances that evidence of bad character would be admissible as to credit, otherwise it was hardly necessary for the section to provide that the Court consider that the witness may have been false to his oath on a previous occasion, as on any view, such evidence must have substantial probative value.

11 In relation to sub-s(2)(a) and (b), in my view, difficulty is encountered in relation to both offences the subject of what is said to be the convictions going either to the false representation component or the lapse of time. In other words, I am not persuaded that sub-s (2)(a) and (b) certainly on the information I have, would have been met, will be met or are met. However the critical factor about s103 is that merely because the matters the Court must have regard to have not been made out, does not mean that the evidence is otherwise inadmissible if it is of substantive substantial probative value.

12 When one views the context of this case and the nature of the material the subject of cross-examination, in my view, no other conclusion can be reached that the two matters are of such inherent gravity that they do have the substantial probative value as to the plaintiff’s credit that permits cross-examination on them. I will so permit.

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Last Modified: 11/10/2004