Sheales v The Age (Ruling No 3)

[2017] VSC 152

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2015 06477

DAMIAN SHEALES	Plaintiff
v
THE AGE COMPANY PTY LTD & ORS	Defendants

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 March 2017
DATE OF RULING:	23 March 2017 (Reasons published 29 March 2017)
CASE MAY BE CITED AS:	Sheales v The Age (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2017] VSC 152

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EVIDENCE – Defamation – Jury trial – In final address, plaintiff invited Jones v Dunkel inferences on basis of defendants’ failure to call expert evidence – Defence of substantial truth involved questions of science – Expert evidence not relevant – Plaintiff elected not to call his expert evidence – Absence of expert evidence explained – Inference not open that defendants feared expert evidence might harm the defence – Plaintiff’s submission that inferences be drawn in his favour misconceived – Corrective jury direction given.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D P Gilbertson QC, with Mr T Greenway	Lander and Rogers
For the Defendants	Dr M J Collins QC, with Mr J C Hooper	Minter Ellison

HIS HONOUR:

1. In final address to the jury, the plaintiff invited inferences in his favour, pursuant to the principles in Jones v Dunkel,[1] from the defendants’ failure to call expert evidence. The defendants objected to the submission on the basis that it was misconceived, wrong in law and should not have been made. The defendants sought an appropriate direction to the jury in clear terms that it was not entitled to draw inferences against the defendants by reason of the fact that no expert evidence was called by them.

   [1](1959) 101 CLR 298.

1. I accepted the defendants’ submission and gave an appropriate warning to the jury to the effect that the principles in Jones v Dunkel had not been engaged and it was not permitted to reason inferentially from the defendants’ failure to call expert evidence as the plaintiff had submitted. What follows are my reasons.

1. Counsel submitted to the jury that the defendants' substantial truth defence raised issues about the science of cobalt usage and he suggested that a tribunal of fact inexperienced in science, such the jury, would be assisted in forming a correct judgment by expert evidence. He submitted that although the plaintiff did not give evidence in the role of an expert, he was knowledgeable about cobalt and racehorses and the defendants had failed to call any expert evidence such as, for example, an expert veterinarian or pharmacologist. Counsel continued that one would have expected the defendants to call evidence from such an expert, particularly where they bear the burden of proving the substantial truth defence, and there was no explanation as to why they had not called expert evidence with regard to the related science.

1. Counsel submitted that the jury would be entitled to infer two things from the defendants' unexplained failure to call an expert witness.  First, if they had called an expert witness such a person would not have assisted their case. Secondly, the jury would be more readily entitled to accept Mr Sheales' evidence about the effects of cobalt on racehorses which was not challenged by any other witness.  He had given evidence from his own knowledge and belief only, partly based upon a number of documents and articles that had been provided to him, by the stewards, in the material before the hearing.

1. Neither the court nor the defendants were on notice that the plaintiff intended to make this submission. In part that arose because of forensic tactics. The defendants elected, perhaps surprisingly for the plaintiff, not to call evidence.

1. The plaintiff served an expert report from a Dr Robert Kinobe under Order 44 on 14 February 2017. I was not asked to read this statement on the application and have not done so. When it was served well before the trial, the defendants reviewed the Order 44 Statement, but did not file an answering expert report. Dr Kinobe was announced as a potential witness at the jury selection stage, but after Mr Sheales' evidence the plaintiff informed the defendants that he no longer intended to call Dr Kinobe. The defendants submitted that they could not have called expert evidence since their noncompliance with Order 44 would draw an objection from the plaintiff to any attempt to rely on undisclosed expert opinion. In any event, there was no undisclosed expert opinion on the point because of the forensic decision taken on the basis of what was contained in Dr Kinobe's report.

1. The defendants submitted that, in those circumstances, there was no room for any inference on the basis that the defendants feared what an expert on the state of the science concerning cobalt use in horses might say if called to give evidence.

1. Further, the issue for the jury in respect of which the plaintiff was inviting inferences was whether the statement was substantially true that the plaintiff negligently misstated facts concerning the effects of cobalt on horse performance and horse health in his capacity as a lawyer. The opinion of a scientist on the sufficiency of the plaintiff’s statement of the facts, or more generally, about the state of the science was unlikely to be relevant. The issue was to be assessed by the jury on the basis of the material available to the trainers and to the Stewards at the time.

1. In Jones v Dunkel,[2] Kitto J formulated the principle to be that evidence might be more readily accepted where it has been left uncontradicted, and that any inference favourable to the proponent, for which there was ground in the evidence, might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the opponent, and the evidence provides no sufficient explanation of the absence of that witness.

   [2]Ibid, 308; see also, ibid, 312 (Menzies J), 320-1 (Windeyer J).

1. The conditions for the application of the principle are:[3]

   [3]See the discussion in ASIC v Rich (2009) 236 FLR 1, 96 [449].

(a)   the witness not called would be expected to be called by one party rather than the other (This condition implies that the witness is available and able to give evidence);

(b)   the witness’s evidence would elucidate a particular matter (This condition implies that the evidence is relevant to an issue in the trial and admissible); and

(c)    the witness’s absence is unexplained.

1. There are a number of circumstances identified in the authorities where the principle in Jones v Dunkel does not apply.[4] In this case, the applicable exclusion is where, in the circumstances, it is not reasonable to infer that the party against whom the inference is sought to be raised did not call the witness because of fear of what a witness might say.[5]

   [4]Ibid, 97 [454] – [463].

   [5]Explained by Mahoney JA (Priestley and Sheller JJA concurring), in Fabre v Arenales (1992) 27 NSWLR 437, 449-50.

1. I am satisfied that the absence of an expert witness in the defendants’ case is explained, at least to me although not to the jury, by the disclosure of the forensic tactics of the parties that were in part visible to me during the trial and in part explained by the defendants’ counsel. Although commonly done, it is not necessary that the explanation be given to the jury when the only question is a legal one, namely whether the principle is engaged.

1. Further, I am unpersuaded by the plaintiff that any evidence from an unidentified expert would be admissible because I am not persuaded that such evidence would be relevant to elucidate a particular matter in issue in the proceeding.[6]

   [6]Evidence Act 2008, s 55.

1. Mr Sheales' knowledge of the literature about cobalt was explored in the context of whether it was substantially true that he acted negligently as a lawyer in misstating facts about whether cobalt is performance enhancing in horses, and whether it is harmful. Expert evidence, objectively assessed, cannot address Mr Sheales' knowledge about the content of what he said, whether such knowledge was acquired from his own research or from material that was sent to him by the stewards because they thought it was relevant. Mr Sheales' evidence was directed to  whether he misstated facts in relation to the performance enhancing effect of cobalt and whether it is harmful.  His evidence went to what he relied on, what he knew. The way a barrister presents on behalf of a client about a matter of science is not judged against some objective standard about the state of scientific knowledge on any particular issue.

1. Finally, I am not persuaded by the plaintiff that expert evidence about the state of the science of cobalt use in racehorses was a subject on which one would have naturally expected the defendants, rather than the plaintiff, to call expert evidence. The plaintiff submitted that it did not bear the onus of proof with regard to the substantial truth defence, but that did not strike me as a sufficient answer. There is no property in an independent expert adhering to the Expert Code of Conduct, who cannot be in the camp of either party until retained by that party. There was no expert in the camp of the defendants. The court assumes that there was no contest about the content of the expert evidence because the Order 44 statement filed on behalf of Dr Kinobe was not challenged, while accepting that it may have been further explained had he given evidence.

1. It is reasonable to infer that the Order 44 statement of an expert witness that is served to be relied on at trial and apparently to be called at trial until a late forensic decision was made was, at least, neutral and explanatory or favourable to the plaintiff. It is not reasonable to infer that the statement was not favourable to the defendants in respect of the substantial truth defence. It may be that the expert evidence would have been comparatively unimportant, irrelevant, or repetitive of the documents put to Mr Sheales or tendered, which included some scientific reports.

1. Expert opinion can be used in other ways than being called as evidence. It can inform the conduct of a defence and the manner of cross-examination of witnesses. The defendants invited me to infer from the nature of the cross-examination of the plaintiff that use had been made of expert material that had been prepared and a forensic decision had been made to deploy such material in both submissions and lines of inquiry with witnesses giving evidence.

1. In all of the circumstances, I was not satisfied that there was room for an inference that the defendants’ failure to call an expert was from fear of what the expert might have said.

1. For these reasons, I instructed the jury that the particular legal principles that can be engaged when a party fails to call a witness that the party might reasonably have been expected to call, and that failure is unexplained, had not been engaged. I directed the jury that it was not entitled to infer the two things that the plaintiff’s Counsel suggested simply because expert evidence, generically described, would not be relevant to any issue that the jury needed to decide. 

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