Yosef Yitzchak Feldman v Nationwide News Pty Limited & Ors (No 3) [2018] NSWSC 717

Yosef Yitzchak Feldman v Nationwide News Pty Limited & Ors (No 3) [2018] NSWSC 717

The excerpts of the audio-visual recording were admissible because, despite the transcript being in evidence, the recording was relevant to the specific pleaded imputation that the plaintiff, in giving evidence, displayed reprehensible ignorance of the law concerning an adult sexually touching a child's genitals. The specific topic and the availability of the recording gave it probative value beyond the transcript, and the s 135 objection was not made out, although fairness required liberty for the plaintiff to nominate additional contextual excerpts.

Jurisdiction
Australia
Judgment Date
11 May 2018
Procedural Posture
Defamation Proceedings / Procedural Ruling on Tender of Excerpts of an Audio Visual Recording
Outcome
Excerpts of the audio-visual recording admitted, with liberty granted to the plaintiff to apply in respect of tendering additional portions.
Legal Topics
['relevance' 'unfair Prejudice' 'audio Visual Recording Evidence' 'royal Commission Evidence' 'justification Defence' 'demeanour Evidence']
['defamation' 'evidence' 'civil Procedure'] ['relevance' 'unfair Prejudice' 'audio Visual Recording Evidence' 'royal Commission Evidence' 'justification Defence' 'demeanour Evidence']

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Procedural Posture

Defamation Proceedings / Procedural Ruling on Tender of Excerpts of an Audio Visual Recording

Legal Issues

  1. 1 ["Whether excerpts of the audio-visual recording of Rabbi Feldman's evidence at the Royal Commission were relevant despite the full transcript already being in evidence." 'Whether the excerpts should be excluded under s 135 of the Evidence Act 1995 (NSW) because their probative value was substantially outweighed by the danger of unfair prejudice.' 'Whether fairness required the plaintiff to be permitted to tender additional excerpts to contextualise the portions tendered by the defendant.']

Ratio Decidendi

The excerpts of the audio-visual recording were admissible because, despite the transcript being in evidence, the recording was relevant to the specific pleaded imputation that the plaintiff, in giving evidence, displayed reprehensible ignorance of the law concerning an adult sexually touching a child's genitals. The specific topic and the availability of the recording gave it probative value beyond the transcript, and the s 135 objection was not made out, although fairness required liberty for the plaintiff to nominate additional contextual excerpts.

Court Disposition

Excerpts of the audio-visual recording admitted, with liberty granted to the plaintiff to apply in respect of tendering additional portions.

Orders

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