On Thursday 28 August 2014 Ms Kathy Jackson was appearing as a witness before the Royal Commission Into Trade Union Governance and Corruption. During those proceedings Ms Jackson made an Application to preclude Mr Mark Irving, counsel for the Health Services Union, from cross-examining her. The following case note has been compiled predominantly using direct quotes from the transcript, with some editing on my part for emphasis.
Chronology
- Late 1992 or Early 1993 Ms Jackson and Mr Irving were in a sexual relationship
- That relationship lasted 6-8 weeks
- Monday 16 June 2014 It was obvious from this date onwards that the Health Services Union would be at issue with Ms Jackson on various factual matters and would wish to test her evidence by cross-examination.
- Wednesday 18 June 2014 Ms Jackson gave evidence to the hearing
- Thursday 19 June 2014. Ms Jackson gave evidence to the hearing
- Wednesday 30 July 2014 Kathy Jackson continued that evidence
- Wednesday 30 July 2014 The examination of Kathy Jackson by senior counsel assisting the Commission was interrupted when she made a successful application for an adjournment in order to procure some legal assistance.
- For some weeks Ms Jackson has had that legal assistance.
- Friday 22 August 2014 Solicitors for Kathy Jackson advised her that Mr Irving had applied to the Commission to cross-examine her
- Monday 25 August 2014 Kathy Jackson attended a conference with her solicitor and senior counsel and advised them that she had a concern about being cross-examined by Mr Irving
- Tuesday, 26 August 2014 The solicitors for Kathy Jackson wrote to the solicitors for the Health Services Union objecting to the application by Mr Irving to cross-examine Ms Jackson
- Wednesday 27 August 2014 The solicitors for the Health Services Union indicated that any application would be opposed
- Thursday 28 August 2014 Application by Kathy Jackson to preclude Mark Irving from cross-examining her
- Thursday 28 August 2014 Affidavit of Kathy Jackson
- Thursday 28 August 2014 Application Rejected
Evidence
The Prior Sexual Relationship Between Kathy Jackson and Mark Irving
Affidavit of Kathy Jackson (Affirmed Thursday 28 August 2014)
4 After about 8 months, in or about late 1992 or early 1993, Mr Irving and I had a few too many drinks and I went back to his place where we had a sexual relationship. I was at the time married to my first husband, which he knew. That marriage was unhappy and abusive.
4 After about 8 months, in or about late 1992 or early 1993, Mr Irving and I had a few too many drinks and I went back to his place where we had a sexual relationship. I was at the time married to my first husband, which he knew. That marriage was unhappy and abusive.
5 Over the course of the next 6-8 weeks I would go back to his place after Friday night drinks and we would have sex. I recall he lived near the cemetery and he had a barber’s chair in his lounge.
Argument
In Favour of Allowing The Cross-Examination by Mr Irving To Proceed
- It is conceded that Mark Irving has been representing the Health Services Union for some two (2) years in litigation against Ms Jackson.
- It is common ground that the relevant events took place more than 20 years ago.
- There is no evidence of any ill-feeling or poor behaviour or unhappy behaviour during the intervening 21 years.
- On Monday 16 June 2014 Mr Irving announced his appearance that he was counsel for the HSU
- It must inevitably follow that in all likelihood he would be cross-examining.
- Ms Jackson knew of that situation from Monday 16 June 2014
- There is no question and no suggestion that any information which may have been imparted during this relationship some 20 years ago could have any relevance on proceedings before the Commission today.
- No medical evidence has been obtained supportive of the proposition that an examination by this particular counsel would have any impact one way or the other upon this particular witness.
- Kathy Jackson gave evidence to the effect that she has suffered serious mental health issues and has been on stress leave for two (2) years.
- However, that evidence:
- • Emanated from the witness;
- • was not supported by any medical evidence; and
- • was not relied on in the application to prevent Mark Irving from cross-examining Kathy Jackson.
- The objection was not to Kathy Jackson being cross-examined, but that Mark Irving should not carry out that cross-examination.
- Cross-examination of Kathy Jackson by either the junior counsel colleague of Mark Irving or the senior solicitor running the matter would be acceptable
Against Allowing The Cross-Examination To Proceed
- The witness, Kathy Jackson, is being compelled to answer serious allegations against her and to do so under oath;
- Inevitably, those questions go to some extent into personal matters, including matters relating to the personal relationships of the witness.
Decision
- The application should be rejected
- The events which underlie Ms Jackson’s application took place more than 20 years ago.
- They took place quite a number of years before the events about which there is a controversy between Ms Jackson and the Health Services Union took place.
- It has not been argued that Ms Jackson imparted information to Mr Irving in the course of their relationship which could be relevant to those events or to the Commission’s consideration of them.
- Indeed, the contrary is accepted.
- It is not alleged that the cross-examination by Mr Irving would cause Kathy Jackson any greater stress than that of any other cross-examiner.
- The application is not based on the position of Ms Jackson but on the position of Mr Irving.
- There was no evidence that:
- • Mr Irving will not be objective in his cross-examination of Kathy Jackson; nor
- • He would be hostile to the point of furthering a personal vendetta
- The record does not suggest that Mr Irving’s role has been that of attacking Ms Jackson as distinct from carrying out the legitimate instructions of his client in defence of its position.
- I must confess that the chronology that I have set out earlier undermines the credibility of the application.
- If Ms Jackson really had the fears and beliefs about Mr Irving that she claims to have, she would have protested at the time when Mr Irving first announced his appearance, but this was not done.
- For those reasons, I see no impediment to Mr Irving conducting the cross-examination of Ms Jackson.
