Court upholds Witness X decision
The Daily Telegraph also appealed against the original judge’s decision to exclude the evidence of actor Yael Stone – who alleged Rush had harassed her during a different play.
In the original trial, Justice Wigney had rejected the Telegraph’s application to add Stone’s evidence. He ruled that though the evidence was important to the Telegraph’s case, the lateness of the application to add her and the “delay to the completion of the trial” would unfairly disadvantage Rush.
Stone was given the pseudonym “Witness X”, her evidence was not allowed, and her identity was suppressed.
The Telegraph argued that Wigney had erred in this decision. They said Stone had agreed to give evidence by video link, which would have shortened any potential delay.
But the appeal judges have upheld his decision to exclude Stone.
They said the issue wasn’t Stone’s availability to give evidence, it was the judge’s own availability.
The judge’s own availability was the more significant ... the appellants’ present submission proceeds on a false premise because, whether or not the appellants were granted leave to adduce Ms Stone’s evidence by video link, the length of the adjournment necessitated by the grant of leave to make the amendments would have been the same.
The judge’s reasons show careful attention to all the matters, pro and con ... Having reviewed the material, we consider that the judge’s decision on the amendment application was, in the circumstances, hardly surprising.”
Rush has denied harassing Stone, saying in 2018 that the allegations were “incorrect and in some instances have been taken completely out of context”.
“However, clearly Yael has been upset on occasion by the spirited enthusiasm I generally bring to my work,” he said. “I sincerely and deeply regret if I have caused her any distress. This, most certainly, has never been my intention.”
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The appeal judges also upheld the trial judge’s ruling that Norvill’s social interactions with Rush contradicted some of her testimony.
The original judgment listed three things: one was that Norvill went to a play with Rush and had dinner with him, one was that Norvill invited Rush to a Christmas party at her parents’ home, and one was that she sent an “affectionate” email to him two days before the last performance of King Lear.
In court, Norvill said she was “not proud” of the email, but sent it because she was “in survival mode”. “I wanted to get to the end of the show,” she said. “I had two shows to go. I was very frightened. I didn’t want to risk the performance. I guess I chose to put Geoffrey’s comfortability above my own.”
The appeal judges have today agreed with the trial judge that these interactions cast doubt on her reliability.
“Like the judge, we have difficulty understanding why Ms Norvill responded to Mr Rush’s email of 7 January 2016 using the term of endearment which she did if he had been behaving towards her in the manner she described,” they wrote.
“We accept that there was a power imbalance in the relationship between Mr Rush and Ms Norvill. It is also appropriate to take into account the difficulties commonly experienced by those who have suffered sexual harassment in reporting the conduct.
“However, even having regard to those matters, it is difficult to understand that they may explain the very affectionate (if not effusive) terms of Ms Norvill’s response to the email.”
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So what was that other evidence?
The appeal court has agreed with the original judge that the testimony of other veteran actors on set, and director Neil Armfield, contradicted Eryn Jean Norvill.
The appeal judges said there was evidence that “there was a positive relationship” between Norvill and Rush. Most of that, as written in this judgment, is via the testimony of Armfield, and actors Robyn Nevin and Helen Buday.
Mr Armfield said that, based on his observations of Ms Norvill and Mr Rush during the rehearsals and the performances, he had thought that they were getting on “wonderfully” and that they had “a deep friendship”.
Ms Buday said that she had not noticed any indications of discomfort by Ms Norvill; Ms Nevin described Mr Rush’s relationship with Ms Norvill as the same as with her and everyone else (“jovial, friendly, enthusiastic, cheerful”) and said that she had not noticed anything “out of the ordinary”; and Mr Rush said that he thought that he had “a very sparky, congenial rapport” with Ms Norvill. None of that evidence was challenged.
The judges acknowledged that Norvill argued she was pressured to maintain “good relationships”. But:
One may accept that Ms Norvill may have endeavoured at relevant times, in the interests of the performance of King Lear as a whole, to maintain good relationships with all cast members ...
However, we consider, as counsel for Mr Rush submitted, that Ms Norvill’s relationship with Mr Rush, as described by these witnesses did not sit well with her claims that she had felt “compromised”, “pressured”, “extremely intimidated”, “frightened”, “threatened” and “panicked”. That is to say, there was other evidence suggesting that Ms Norvill’s contemporaneous behaviour was not consistent with the claims she made at trial concerning Mr Rush’s conduct.
For these reasons, we do not consider that the erroneous significance which the judge attached to Ms Norvill’s contemporaneous statements to the journalists should be regarded as material.
Other contemporaneous conduct of Ms Norvill, occurring when she was not subject to the same constraints as those applying in the promotional interviews, was also seemingly inconsistent with the conduct of Mr Rush about which she gave evidence, and justified the judge’s assessment.
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Court agrees Eryn Jean Norvill's positive statements about Rush given too much "significance"
Though the appeal was dismissed, the appeal court has agreed with one part of the Daily Telegraph’s submissions, which is that the trial judge put too much weight on promotional press interviews where Eryn Jean Norvill praised Rush.
The trial judge, Michael Wigney, had said that Norvill had undermined her reliability as a witness by giving a positive press interview about Rush to the Telegraph in 2015, as she promoted King Lear.
Norvill had said Rush was “just forever playful” and “very cheeky”. Wigney wrote that these “contemporaneous statements to the media about her positive experience working with Mr Rush ... count against the reliability and credibility of Ms Norvill’s evidence concerning the rehearsals.”
Norvill testified that she had been pressured into making these positive comments so as not to ruin the promotions for the show.
The appeal court has today agreed with the argument that Wigney put too much significance on these comments.
There is some force in the appellants’ submission that the judge attached greater significance to Ms Norvill’s statements in the promotional interviews than the circumstances warranted.
The purpose of the interviews was obvious, namely, the promotion of the STC’s production of King Lear. The actors sought to present a positive image of the production so as to encourage audiences to attend. In such interviews, it is almost de rigueur for the participants to speak about the complexity of the play, the delight which they are experiencing in performing it and about the good “chemistry” which exists between the actors.
[Rush] was at the time a (if not the) pre-eminent actor in Australia and was an obvious drawcard for the STC production. In that context it would have been natural for Ms Norvill to make positive statements about performing with him, whatever her private feelings.
We consider respectfully that the judge should not have attached the significance which he did to the positive terms in which Ms Norvill spoke of Mr Rush in the promotional interviews.”
The judges said that Norvill’s press comments were in fact “consistent” with her other testimony, that she felt uncomfortable, but had to suppress this for the “corporate” interest in promoting the play.
But, they concluded that there was “a good deal of other evidence”, apart from the press interviews, which “indicated that there was a positive relationship between Ms Norvill and Mr Rush”.
This ultimately meant they dismissed the appeal.
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