Credibility on trial in MacInnes v Wilson

Following extensive, and at times tense, cross-examination of the parties and their various witnesses, the proceedings are due to finish up with the closing submissions to be heard later this week.

At the centre of the dispute is whether Perth-born actress and singer Charlotte MacInnes felt sexually harassed by British producer Amanda Ghost while they shared a bath together, whether she complained of that to Rebel Wilson, and whether that complaint was later withdrawn.

MacInnes has strenuously denied feeling uncomfortable, explaining that the two women remained in their swimsuits and were only in the bath at the same time due to a medical emergency. Wilson, on the other hand, alleged the young star “flip-flopped” to advance her career.

In an interview with Lawyers Weekly, Gadens intellectual property partner and defamation litigation specialist Marina Olsen explained that the judge will be “required to decide which version of events she prefers, looking at all the evidence from both parties and assessing it in terms of credibility and reliability”.

Given the case hinges on Wilson’s truth defence, Olsen said it will come down to credibility: what actually happened in the bathroom of the Bondi Beach penthouse, whether MacInnes and Wilson had a conversation about it, and the discussions among witnesses.

“Often when we speak to people considering litigation, and particularly defamation litigation involving a truth defence, we emphasise that it’s all about which witnesses you can get in the box, whether those witnesses are going to be believed, and whether their evidence is supported by contemporaneous documents,” Olsen said.

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“There is an important distinction between something being true and being able to prove that it’s true.”

“Here, we had the applicant and the respondent both give evidence, and both be subjected to quite extensive (and often intense) cross-examination, in particular Wilson.”

MacInnes is specifically suing Wilson over Instagram posts shared with the more famous actress’s millions of followers, but the defamation trial barely touched on them. Instead, Justice Elizabeth Raper was taken through issues like film financing, writer disputes, super yacht performances, and flight plans in almost minute detail.

For example, MacInnes’ barrister, Sue Chrysanthou SC, questioned Wilson on her alleged involvement with public relations firm, The Agency Group (TAG), and whether she was aware of plans to publish two websites that made harsh claims against Ghost.

Olsen said these matters were raised in the context of trustworthiness: “Some of the questions put to the witnesses sought to show ulterior motives, why people said certain things, and that is again tied to credibility.”

Evidence that strayed into things like Wilson’s interview with 60 Minutes and Instagram posts she made just prior to the trial would be relevant to MacInnes’ claim for aggravated damages, Olsen added.

As for the cross-examination itself, much was said about the tense questioning put by Chrysanthou to Wilson. At one point, Wilson’s barrister, Dauid Sibtain SC, said it had been put to his client on many occasions “that what she’s telling is a pack of lies”.

Olsen clarified that an effective cross-examination is the way a barrister tests the evidence of a person and “seeks to convince the court that a witness’s evidence is to be believed (if it is helpful to their case) or disregard[ed] (if it is not)”.

“They will test it against documents, but they will also seek to test whether the evidence given by a witness is internally consistent and compelling or whether they have contradicted themselves in their different answers,” Olsen said.

This can also have an effect on credibility versus reliability.

“Credibility is really about whether you believe someone is telling the truth, and reliability is whether you can place weight on the evidence given by a witness, but that might not necessarily be untruthful. So, reliability might be affected by the fact that the relevant incidents happened a long time ago or that a witness was drunk at the time of an incident or otherwise [has] an impaired memory,” Olsen said.

Looking at the proceedings as a whole, Olsen said, if it gets to that point, it would be interesting to see how the court will determine the “interplay between reputation as a concept and fame as a concept”. While MacInnes may arguably be more famous in Australia because of the defamation proceedings, Olsen said that is not the same question as to the state of her current reputation.

“The case is about MacInnes’ reputation, not Wilson’s.

“Wilson’s reputation is relevant here mainly in the sense that MacInnes team would say she has an extensive social media presence. She’s got millions of followers, and so anything she says will be widely distributed and read, whereas someone with a very small following [have] less people who are likely to receive the relevant publication,” she said.

Another interesting factor to look into is how the judge determines applicable law under the Defamation Act 2005. Although uniform law across most states and territories, Western Australia has not implemented some critical reforms, such as the serious harm test.

The act says the jurisdiction that applies is the one within which the harm occasioned by the publication as a whole has its closest connection. This is determined by a few things, including the location of publication and where the plaintiff is ordinarily resident.

If West Australian law is applicable, MacInnes will not have to prove her reputation has suffered or likely suffered serious harm. If NSW law is applicable, she will have to prove that, and it will be an extra hurdle.

“MacInnes is originally from Western Australia, but Wilson’s team have put questions to her about where she has resided in the last few years, because I understand it is alleged she’s also resided in London and Sydney, and there was a lot of evidence about travel,” Olsen said.

“That’s why MacInnes’ side will be wanting to say she’s an ordinary resident in Western Australia and will want to emphasise that significant harm has been suffered there because that’s where her main reputation is.”