Actress Eryn Jean Norvill – one of the central figures in the allegations of sexual harassment levelled against Geoffrey Rush – was described by a judge as “A witness prone to exaggeration and embellishment”. Hannah Marshall from Marque Lawyers unpacks the findings in the Geoffrey Rush defamation appeal, and some gaping flaws in our judicial system.
Compromised. Pressured. Extremely intimidated. Frightened. Threatened. Panicked.
These are words used by Eryn Jean Norvill to describe her internal response to Geoffrey Rush’s alleged sexual harassment in Rush’s defamation trial. The trial judge, and now the Court of Appeal, have refused to accept Norvill’s version of events.
The courts rejected her evidence based on:
• inconsistency between her outward, friendly behaviour towards Rush at the time; and
• inconsistency between her testimony in court and two documents: an earlier statement of her own, and an email written by the STC manager describing a conversation with Norvill.
In cases about sexual harassment or sexual offences, the evidence often does not present a complete picture of what took place. And its interpretation, such as Norvill’s outward behaviour, can be nuanced and open to differing conclusions. This case, although it was Rush’s defamation case and not a sexual harassment claim, suffered the same challenge.
One example is the STC manager’s email used as a basis for discrediting Norvill’s evidence. Norvill gave evidence that she arranged to meet the STC manager for drinks during the period when Rush allegedly targeted her, to disclose Rush’s behaviour. The next day the STC manager emailed her summary of Norvill’s account to senior executives at the STC.
The judge found that differences between the content of that email and Norvill’s evidence weighed against her credibility.
The circumstances of this evidence were sub-optimal. Rush did not call the STC manager as a witness at the trial to give evidence about her meeting with Norvill or the email.
Norvill told the court that they drank a lot at the meeting, which occurred over a number of hours one evening at a hotel. She was not asked to quantify that amount, or how much the STC manager drank specifically, or at what point during the meeting she made the disclosure.
Without that information the judge would not infer that the consumption of alcohol rendered the email unreliable or inaccurate. He was entitled to proceed this way.
This illustrates the shortcomings of an adversarial trial system in these cases. Where the parties control what evidence is presented to the court, gaps arise. Tactical decisions as to whether to call witnesses, and lines of questioning in cross examination, dictate what is known or unknown to the judge.
An inquisitorial system allows the judge to pursue their own lines of inquiry, which may avoid some of these gaps arising. It is better suited to truth-finding in cases like this.
The Rush decision, including its appeal, reveals two major shortcomings in our current legal framework. First, our defamation laws heavily favour the plaintiff, and a defamation claim is a poor forum for assessing sexual harassment claims.
More broadly, our judicial system is not well structured to deal with matters concerning sexual harassment or sexual offences. An inquisitorial process is just one of many options to redress this.
What’s clear is that a detailed review and reform is desperately needed.
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