Chel v Fairfax Media Publications Pty Ltd (No 2)

HIS HONOUR: During the course of the cross‑examination of Ms Chel, Senior Counsel for the defendant sought to tender an answer that Ms Chel gave to an interrogatory which asked whether she observed any persons whom she knew to be, or understood to be, members of bikie gangs at her club during the period April 2003 to 25 December 2010. Ms Chel accepted that she was asked that question, and accepted that her answer was "not to my knowledge".

Ms Chel was further cross‑examined about that matter and accepted that certain persons had visited her club who she said were members of bikie clubs. However, she drew a distinction between “bikie clubs” and “bikie gangs”. On that basis she denies that the answer she gave to the interrogatory was either false or incorrect.

Senior Counsel for the defendants sought to tender the interrogatory and Ms Chel’s answer. The adducing of evidence from Ms Chel of what she said in the interrogatory, and whether it was false, was clearly allowed by s 103 of the Evidence Act 1995 (NSW) in that it was evidence “adduced in cross‑examination” as to her credibility. However, the tender of the interrogatory, and her answer, is governed by s 106 of the Evidence Act which deals with attempts to rebut denials by a witness on matters that solely affect their credit, as this document does.

Before any such positive evidence can be tendered the substance of the evidence must be put to the witness and the witness must have denied or not admitted or agreed to the substance of the evidence (Evidence Act, s 106(1)(a)). In this instance, the substance of the evidence is the fact that, on an earlier occasion, Ms Chel had answered that interrogatory "not to my knowledge". However, Ms Chel did not deny that fact, in fact, she accepted it.

It follows that the preconditions to rebutting some aspect of her evidence on a matter going to credit are not satisfied. Accordingly, I reject the tender.