Yosef Yitzchak Feldman v Nationwide News Pty Limited & Ors (No 3)

The defendant has tendered excerpts of the audio-visual recording of evidence of Rabbi Feldman at the Royal Commission into Institutional Responses to Child Sexual Abuse. I have already received in evidence a full transcript of the Rabbi's evidence. Mr Cohen has objected to the tender on two bases: first, he says given the receipt of the transcript, it is not relevant; and secondly, he says if it is relevant then I should exclude the evidence in the exercise of my powers under s 135 of the Evidence Act 1995 (NSW) (“Evidence Act”). I understand the particular ground upon which he relied was that I should exclude the evidence because its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to his client. As I understand that part of his argument, learned counsel submitted that if I am going to see some of the recording evidence, I ought to see it all. He cautioned me against the dangers of relying upon what might be conveyed of Rabbi Feldman's demeanour in the recording including the unreliability of demeanour as an aid to assessing the quality of a witness's evidence.

So far as relevance is concerned, I am satisfied that although I have the transcript, that seeing the audio visual recording or part of it is relevant to the questions I have to decide. In particular, following my ruling in relation to s 6DD of the Royal Commissions Act 1902 (Cth) on Wednesday morning, Mr Cohen was given leave to amend the Statement of Claim ‑ in what we have referred to as the News 1 proceedings ‑ to add an alternative imputation in various places. But for present purposes, it is sufficient that I refer to paragraph 6C of what is now styled the Fourth Amended Statement of Claim. That paragraph is in the following terms:

The second important consideration is that that is a specific single topic upon which he was cross‑examined. From this I think it is obvious that given that there is a recording available, it is relevant evidence over and above what appears from the written word of the transcript to have regard to the recording of the evidence under s 55 of the Evidence Act, which may tend to prove a fact in issue. That is to say, given the justification defence, whether he did display, in the sense of “looked like”, he was reprehensibly ignorant in the sense described in the imputation pleaded. Moreover, given that the topic is very specific, I am satisfied that it is appropriate to show excerpts of the audio visual recording dealing with that topic in perhaps a wider context to prove, if the defendant can, the truth of that matter. I believe it is unnecessary to see the whole two days to assess the defence in relation to that imputation.

To my mind that consideration also disposes of the s 135 objection. However, having said that, I fully acknowledge that a possible vice, whenever part of any document is tendered, is that other portions of the same document might explain or clarify the contents of the tendered portion, and I accept that that gives rise to some potential for some unfairness or for the capacity for the tendered evidence to mislead. For this reason, as I discussed with counsel in the course of argument, I am prepared to permit Mr Cohen to show other excerpts from the audio visual recording that he says or submits contextualises what I am about to be shown by the defendant.

In order to facilitate his ability to do that, I have been informed by Mr Dawson of Senior Counsel that Mr Lockwood, solicitor, who appeared in answer to the subpoena to the Commonwealth, has said that he is able, with notice, to provide additional excerpts, notwithstanding the fact that I have excused him from further attendance. I will allow Mr Cohen the weekend, if he wishes, to nominate portions that he would wish to show in evidence to guard against that risk of unfairness. I should add, I have said a number of times in the course of discussions with counsel that I think it is unnecessary that I should see the whole of the evidence, nor may it be necessary for me to read the whole of the transcript, although it may be.

I will listen to counsel's submissions about that. In a case like this, where the processes of civil procedure have focused the issues, it is only necessary to look at these documents so far as the issues in the case demand. Manifestly, my purpose is far removed from the purpose of the Royal Commission before whom this evidence was originally taken.

I admit the portions of the recording to be shown as Ex 25 and I grant Mr Cohen liberty to apply in respect of the tender of additional portions of the audio visual recording.