New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1119 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 15 November 1999 JUDGMENT DATE : 15 November 1999 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J P Donohoe Q.C. M Hall COUNSEL : (Plaintiff) W H Nicholas Q.C. (Defendant) Marsdens (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Admissibility of evidence - good reputation - "relevant sector" Anderson v Mirror Newspapers Limited (1986) 5 NSWLR 735 Bickel v John Fairfax & Sons Limited (1981) 2 NSWLR 474 Hobbs v C.T. Tingling & Co Limited (1929) 2 KB 1 CASES CITED : Morosi v Mirror Newspapers Limited (1977) 2 NSWLR 749 Plato Films v Speidel Limited & Ors (1961) AC 1090 Television NZ v Prebble (1993) 3 NZLR 513 Uren v John Fairfax & Sons Limited (1965-1966) 117 CLR 118 DECISION : See paragraph 33 DLJT: 53 (Ex Tempore - Revised) THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE MONDAY 15 NOVEMBER 1999 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Admissibility of evidence - good reputation - " relevant sector" ) 1 HIS HONOUR: In respect of the first program, "Today Tonight" (which founds the case in the 1995 action), the jury nearly nine months ago found it to have conveyed two imputations defamatory of the plaintiff. Those imputations are: (a) that the plaintiff has had sexual intercourse with boys who were under the age of 18 knowing them to be under the age of 18, and (b) that the plaintiff has had sexual intercourse with a 15 year old boy who was then under the influence of drugs which had been given to him by the plaintiff. 2 In respect of the second program, "Witness", telecast in 1996, the jury found the following defamatory imputations to have been carried: (a) that the plaintiff has had sexual intercourse with 15 year old boys having deliberately refrained from asking those boys how old they were. (b) that the plaintiff has had sexual intercourse with 15 year old male prostitutes having deliberately refrained from asking them how old they were. 3 Those imputations were found by the jury to have been carried by the respective programs in each of which there was reference to the plaintiff having been President of the Law Society of New South Wales, in one of which there is reference to him having held office on the Police Board and the Council of Civil Liberties, three organisations, one would think, which could be characterised as being concerned with the rule of law. 4 After the recommencement of the part-heard trial this morning, objection was taken to the following evidence given by Mr Lyall, himself a former President of the Law Society of New South Wales. He was asked by Mr Donohoe Q.C.: "Q. You are aware that these proceedings refer to broadcasts in March 1995 and in the following year 1996, in May 1996, you were aware of that? A. Yes I am. Q. Prior to March 1995 what was Mr Marsden's reputation in the circles in which you moved? A. I thought he had a high reputation in the position as a President and-- OBJECTION" 5 The question was read to the witness again and the following answer given: "He had a high reputation in the legal profession not only as a practitioner but also having served as a President and his reputation I think developed." 6 The objection was renewed. The structure of this trial being without a jury lends itself to the exploration of objections to evidence in a way that might not be otherwise available if a jury was present. It is desirable wherever possible to have clarified the nature of the evidence sought to be tendered and thus expose a basis or bases for objections to it. 7 The defendant objects to the witness giving evidence of the kind encompassed by both his answers. A starting point for the exploration of principle said to underlie the objection is paragraph 32.52 in the 9th ed of Gatley, Libel and Slander at page 827: " Whether such evidence necessary or relevant: It has been stated that evidence of the plaintiff's good character or reputation is, as a rule, neither relevant nor necessary in an action of defamation, for the law presumes that his character is good until the contrary is proved, and he can safely rest on that assumption. However, this statement has attracted comments that the authorities cited in support are 'old and unsatisfactory', and that the presumption is on analysis not as to good character or reputation, but as to injury to reputation resulting from defamation. Even if there is a presumption that the plaintiff is of good character, it has been pointed out that it must be a rebuttable presumption, and 'a party is never prevented from leading evidence to establish an issue upon which he has a rebuttable presumption in his favour'. It is submitted that an accurate statement of the law is that evidence of the plaintiff's good character or reputation is generally unnecessary, but no irrelevant. However, unless rebutting a plea of justification, its relevance would relate to damages, and the evidence should be directed at the plaintiff's good character or reputation, and should not include particular instances of good conduct. In the absence of a plea of justification the plaintiff cannot lead evidence as to his enhanced or undiminished reputation at the time of trial". 8 By reference first to the decision of the Court of Appeal Morosi v Mirror Newspapers Limited (1977) 2 NSWLR 749 and particularly at pages 800 and 801C, the groundwork was laid for a submission to the effect that evidence called by the plaintiff as to his reputation is limited to the sector encompassed by the defamatory imputations found by the jury to have been conveyed. For present purposes I will remark that their Honours in the judgment of the Court in Morosi in those pages, as was acknowledged by Mr Nicholas, were dealing with the then understanding of the operation of s 13 of the Defamation Act. The Court in Morosi said (at 801): "In the context of the present case, the respondent's bad reputation was a bad reputation for dishonesty. This is the reputation which the appellant's evidence supported, and no evidence was tendered to support a reputation for promiscuity. Under the general law, although only evidence of the plaintiff's general bad reputation can be tendered by a defendant: Scott v Sampson; Hobbs v C. T. Tingling & Co. Limited, 'evidence of general bad reputation must be confined to the sector of the plaintiff's character relevant to the libel. If the libel charges the plaintiff with treachery, evidence that he has a reputation for loose morals would be inadmissible in mitigation of damages': Gatley on Libel and Slander, 7th ed., p. 542, par. 1318; Plato Films Ltd. V Speidel . Assuming the relevance of the respondent's reputation, the distinction between different kinds of reputation would have been a relevant matter for the jury to consider". 9 More recent authority is a ruling of Hunt J in Bickel v John Fairfax and Sons Limited (1981) 2 NSWLR 474 at 481 being the ruling of 12 October on evidence of reputation. 10 In effect, and quite properly so, the whole of his Honour's ruling was relied upon in submissions, but it is interesting and important to note that His Honour commences his ruling by referring to: "The plaintiff seeks in his case in chief to lead evidence as to his reputation as an author or as a writer and as a person " (emphasis added). 11 His Honour referred to the evidence sought to be lead as follows (at 482D): "The evidence which the plaintiff now seeks to lead is, of course, distinct from that which has already been led to establish that the plaintiff is and was well-known throughout Australia as an author and as a writer on a wide variety of subjects, but with a special interest in scientific matters. There is no dispute between the parties that a plaintiff is always entitled to lead evidence as to his position and standing in the community in order to show that very many people who read the matter complained of would actually know him or know of him, such evidence being relevant to the measure of ordinary compensatory damages". 12 The defendant had argued that such evidence, given the presumption in favour of the plaintiff, was inadmissible until evidence of bad reputation had been given. 13 It was in that context that His Honour at 482F refers to an earlier statement in the 7th Edition of Gatley about evidence of the plaintiff's good "character" being unnecessary. 14 His Honour concluded (at 483E) that a party is never prevented from leading evidence to establish an issue upon which he has a rebuttable presumption in his favour. He goes on in paragraph commencing at F: "Moreover in defamation litigation the question must arise in many cases as to the quality of the reputation which is presumed. A necessary consequence of the defendant's argument and one from which the defendant in that case did not shrink, is that a jury is obliged to treat a plaintiff with the highest reputation in the relevant sector on exactly the same basis as a plaintiff with an indifferent reputation. To take an example: a bishop in charge of the church finances who is accused of embezzlement, (who may not be widely known in the community) must, if the defendants are correct, be treated upon the same basis as a mere clerk who is similarly accused, so far as ordinary compensatory damages are concerned. In my view this cannot conflict with the law and I propose to admit the evidence of good reputation." 15 In Anderson v Mirror Newspapers Limited (1986) 5 NSWLR 735 his Honour cited Bickel and his ruling therein when dealing with objection taken to the admissibility of certain evidence in relation to reputation. The relevant extract is at 737G where His Honour says: "The second basis suggested for the admissibility of this proposed evidence was that it went to good reputation. Evidence of good reputation can of course now be led in the plaintiff's case in chief. The decision to that effect in Bickel is now to be generally accepted but the law has not been altered that the plaintiff may lead evidence upon this issue only of good reputation in the relevant sector. He is not entitled to give evidence of particular facts in support of his claim to have such a reputation. Such particularity is permissible only in cross-examination. That is the rule by which the defendant is bound in relation to evidence of bad reputation." 16 The same rule binds the plaintiff in relation to evidence of good reputation and his Honour cites Hobbs v C.T. Tingling & Co Limited (1929) 2 KB 1 at 39. There Greer LJ said: "It seems to me convenient at this stage to state certain rules of law that have been established by the decisions. (1) it is not permissible for the plaintiff to give evidence of particular facts in support of his claim to have a good character, nor is it open to a defendant to give evidence or to cross-examine as to particular instances with the object of diminishing the damages." His Lordship cited Scott v Samson (1882) 8 QBD 491. 17 The two decisions of Mr Justice Hunt point to important concepts, "relevant sector" and "particular facts". The authorities to which His Honour referred and to which I have made reference having recently received consideration in the Court of Appeal in New Zealand, Television NZ v Prebble (1993) 3 NZLR 513 at 524 to 530 and following. 18 This notion of "relevant sector" was articulated earlier of course in Plato Films v Speidel Limited & Ors (1961) AC 1090 by Viscount Simmons at 1124 and 1125 and by Denning LJ at 1139-40. Lord Denning at 1140 said: "When evidence of good or bad character is given it should be directed to that sector of a man's character which is relevant, thus if the libel imputes theft the relevant sector is his character for honesty not his character as a motorist. And so forth. It is for the judge to rule what is the relevant sector." 19 The relevant sector has been identified in submissions for the defendant as "sexual propensity" or "behaviour" of the plaintiff. It is submitted that any reputation witness must be limited in chief to giving evidence as to the plaintiff's reputation in that sector. The more so, as I understand the submissions, by reason of that which was found by the jury constituting the plaintiff's causes of action (the imputations) under our legislation, in contrast to that which existed prior to it and at common law generally. 20 If that is right, it adds force, in my view, to considerations as to the artificiality of the structure of post 1974 defamation actions in this State and adds force to the observations of Viscount Simmons at 1125 in Speidel where his Lordship said: "… a libel action is an imperfect instrument for doing justice in every case." 21 The imperfection to which his Lordship was referring is at risk of being elevated, by acceptance of the submissions by the defendant, to rendering the instrument non-existent. 22 In the course of submissions, and in an endeavour to ensure I clearly understood them, extreme examples were given which can be of some utility. One was a reference to the well known litigation involving Mr Andrews, an architect of national and international prominence ([1980] 2 NSWLR 225). If it was said of him in a properly "structured" way, that is by an imputation, that he assaulted his wife, evidence from here and abroad as to his good reputation as an architect would be irrelevant and thus inadmissible. That proposition, I am of the view arguably could be correct, on the assumption that "relevant sector" is confined to "relationship with his wife". 23 Another extreme example was that if it was said of a person that that person murdered someone, the only evidence of reputation that could be led for that plaintiff would be in the sector identified of that plaintiff's respect for human life. 24 The statement of Lord Denning as to "honesty" and the "motorist" is perhaps the one that captures the reality of the distinction sought to be drawn. One could be inclined to the view that in this litigation, arguably, it would be irrelevant to Mr Marsden's reputation as a motorist that imputations of these kinds were published of him. 25 Lord Denning's example, as I have said, articulates the principle best because of its starkness. It does not, however, nor do the dicta of Justice Hunt in Bickel and Anderson, preclude evidence of the kind that has already been given, (1) because thus far the evidence is not of particular facts in support of the claim for reputation and (2) it must be relevant on any view of what that word means, particularly under the Evidence Act on the issue of damages (see Bickel at 482D). This was the thrust of Mr Donohoe's submissions. 26 It might well be that the artificial construct we now know as an imputation, by its very terms, is confining in the sense of sector. But it does not follow as a matter of principle or as a matter of logic that being so confining, evidence is not relevant to other components of a person's general settled reputation. A plaintiff is awarded damages because he was injured in his reputation, because he was publicly defamed (Uren v John Fairfax & Sons Pty Limited (1965-1966) 117 CLR 118 at 150 per Windeyer J). 27 As I have intimated it might not be relevant to Mr Marsden's reputation as a motorist, but given the nature of the imputations it could hardly be said that it is not relevant to those sectors of the plaintiff's reputation which the defendant itself in its broadcasts giving rise to the causes of action publicly identified. 28 The distinction sought to be made for the defendant between a person's private life and public life was curious in the context of an action based on two telecasts of this kind which a jury has already found to have defamed the plaintiff in the way they did. 29 Mr Lyall's evidence that the plaintiff had a high reputation in the position of President of the Law Society in my view is relevant and admissible on the question of damages, as is his evidence as to the reputation he said the plaintiff had in the legal profession as a practitioner. 30 It may well be that further consideration will have to be given to what precisely is meant in the cases by "relevant sector" and particularly "relevant". An unduly restrictive construction of what Hunt J said at 737G in Anderson could well lead to that extreme example which I identified above, something which I do not understand His Honour to have had in contemplation particularly in the light of the example His Honour gave in relation to church finances in Bickel at 483. 31 It would be an extraordinary state of affairs if the principle sought to be relied upon by the defendant could operate to this effect: that a person who is in a position to prove that over a certain number of years that person has developed and enjoyed a settled reputation in various sectors of life, indeed "as a person", could not lead evidence as to that on the issue of damages by reason of some artificial constraint imposed by the imputation found by the jury confining the sector to a discrete or particular one. 32 It may well be argued in due course that the effect of the evidence may go one way or the other but to say that it is irrelevant is not persuasive. I have formed of course no views on the merits of this litigation on the few minutes of evidence received before the objection was taken. It seems to me that it must be arguable, to take this case as an example, that because a person has held three public offices to which I have referred, the reputation he has established and enjoyed was that in which he was amenable to being injured by reason of the publication of an imputation in another or additional sector altogether. To put it another way, how can it be argued that a person who has established a reputation publicly in public office could not present a case that in that reputation in those "sectors" he was injured by reason of the publication of imputations in another "sector", a fortiori if the imputations, are of gravity and impute serious personal misconduct. 33 I will allow the evidence given by Mr Lyall. As Hunt J ruled in Bickel, it can be noted that the evidence will be given over the defendant's objection. It will be unnecessary for further objection to be taken unless some additional ground for objection is to be relied upon. *********** Last Modified: 11/22/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.