Depp II v News Group Newspapers Ltd & Anor

Factual and Procedural Background

The Plaintiff brought a libel claim against Company A and one of its journalists arising from an article published in a newspaper alleging that the Plaintiff was a wife-beater. The defence was that the allegation was true, supported by fourteen pleaded incidents of physical assault against the Plaintiff's then spouse over a three-year period. The trial before Judge Nicol lasted over three weeks and involved extensive witness testimony, including from the Plaintiff and the Plaintiff's former spouse, as well as contemporaneous evidence such as texts, emails, photographs, and audio recordings. The trial judge delivered a detailed judgment dismissing the claim, finding that the Plaintiff had assaulted the former spouse on all but two occasions. The former spouse was the principal witness for the defence, and the judge largely accepted her evidence. The current proceedings concern an application for permission to appeal the judgment and an application to admit further evidence not before the trial judge, which allegedly undermines the credibility of the former spouse.

Legal Issues Presented

1. Whether permission to appeal the trial judge's findings on the pleaded incidents of assault should be granted.
2. Whether permission should be granted to admit further evidence post-judgment that challenges the credibility of the former spouse, specifically regarding alleged misleading statements about charitable donations.
3. The proper approach to appellate review of factual findings based on witness credibility and contemporaneous evidence.

Arguments of the Parties

Appellant's Arguments

• The trial judge failed in reasoned decision-making, did not adequately test evidence, and failed to properly assess the credibility of witnesses, particularly the former spouse.
• Admissions made by the former spouse in taped conversations that she was sometimes the aggressor were improperly discounted by the trial judge.
• There were inconsistencies and discrepancies in the former spouse's evidence, including on dates and the number of assaults, which the trial judge failed to properly address.
• The trial judge gave undue weight to the status of witness evidence over contemporaneous materials such as recordings, leading to flawed fact-finding.
• The further evidence regarding the former spouse’s alleged failure to fully donate a $7 million divorce settlement to charity should be admitted as it impacts her credibility and the overall assessment of the case.

Respondent's Arguments

• The trial judge conducted a detailed and scrupulous review of the evidence for each incident, relying heavily on contemporaneous documents and admissions, and his findings should not be disturbed on appeal.
• The taped conversations were given appropriate limited weight due to their informal and unstructured nature, and the trial judge's approach was consistent with established legal principles.
• Discrepancies in evidence about dates and details of incidents are common in long-past events and were adequately explained and accounted for by the trial judge.
• The further evidence about charitable donations is irrelevant to the core issue of whether the Plaintiff assaulted the former spouse and would not have influenced the trial judge’s findings.
• The application to admit further evidence fails the established criteria for admission of fresh evidence on appeal and was not pursued fairly, given the absence of cross-examination on the issue at trial.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reiterating the well-established principle that appellate courts are highly reluctant to disturb trial judges' findings on disputed facts, particularly those involving witness credibility, given the trial judge's advantage in seeing and hearing witnesses firsthand. The court carefully reviewed the grounds of appeal, focusing on the appellant’s key complaints about the trial judge’s assessment of the former spouse’s taped admissions, discrepancies in evidence, and the overall approach to fact-finding.

Regarding the taped conversations, the court found that the trial judge's limited weight to these was justified by their informal, acrimonious, and unstructured nature, lacking the safeguards of sworn courtroom testimony and judicial control over questioning. The court rejected the appellant’s contention that the trial judge applied an inconsistent approach to contemporaneous evidence, noting the judge gave significant weight to contemporaneous texts and documents where appropriate but was entitled to treat these particular tapes differently.

The court also addressed alleged discrepancies in the former spouse's evidence about the timing and number of assaults, accepting the trial judge’s explanations that such inconsistencies are common in recalling events from years prior and did not undermine the overall findings. The court emphasized that the judge made detailed findings incident-by-incident, relying on specific evidence rather than a general assessment of credibility.

On the issue of fresh evidence relating to the charitable donations, the court held that this evidence was peripheral to the core factual issues and would not have materially influenced the trial judge’s conclusions about the assaults. The court further noted that the appellant had not pursued cross-examination on this topic at trial, undermining the fairness and diligence of seeking to admit this evidence post-judgment. Applying the Ladd v Marshall criteria, the court concluded the evidence did not satisfy the requirement of probably influencing the case outcome.

In sum, the court found no arguable error in the trial judge’s approach or conclusions and no real prospect of success on appeal.

Holding and Implications

The court REFUSED PERMISSION TO APPEAL and DISMISSED THE APPLICATION TO ADMIT FURTHER EVIDENCE. The decision confirms the high threshold for overturning factual findings based on witness credibility and contemporaneous evidence, reinforcing the principle that appellate courts will not lightly interfere with trial judges’ assessments. The refusal to admit fresh evidence underscores the strict application of criteria for post-trial evidence, particularly where the evidence is collateral and was not tested at trial. No new legal precedent was established; the ruling primarily affects the parties by concluding the litigation at this appellate stage.