Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 284

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 284 revised - 01/04/99 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 26 March 1999 JUDGMENT DATE : 1 April 1999

JOHN MARSDEN (Plaintiff)

v PARTIES : AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant)

NEW SOUTH WALES POLICE SERVICE (On Subpoena) JUDGMENT OF : Levine J

I Barker Q.C. G Reynolds S.C. R G McHugh (Plaintiff)

COUNSEL : W H Nicholas Q.C. J S Wheelhouse (Defendant)

P Singleton (New South Wales Police Service) Phillips Fox (Plaintiff)

SOLICITORS : Mallesons Stephen Jacques (Defendant)

Crown Solicitors Office (New South Wales Police Service) CATCHWORDS : Claim for public interest immunity by New South Wales Police Service in respect of subpoena issued by defendant re interview of plaintiff on 19 January 1999 ACTS CITED : Evidence Act 1995 (NSW) DECISION : See paragraphs 35-38

DLJT: 31 (Corrected) THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

THURSDAY 1 APRIL 1999

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant)

NEW SOUTH WALES POLICE SERVICE (On Subpoena) JUDGMENT (Claim for public interest immunity by New South Wales Police Service in respect of subpoena issued by defendant - re interview of plaintiff on 29 January 1999) 1 On 19 March 1999 ([1999] NSWC 213: DLJT: 25) I ruled in favour of the Commissioner in respect of claim for public interest immunity founded upon effective policing in circumstances where an undertaking as to confidentiality had been given. 2 The defendant whilst preserving its position (as I understood it), as to the application of common law principles to such ancillary questions, tendered material to found submissions based upon s 130 of the Evidence Act, 1995 (NSW). 3 That evidence was constituted by: Exhibit 1, being a Table of Contents of volumes of documents hitherto produced by Police in answer to the defendant's subpoena issued on 18 January 1999. Exhibit 2 "Running Sheets" and "Records of Interview" conducted with the plaintiff in 1995; Exhibit 3 is the first page of a subpoena issued by the plaintiff's solicitors to the New South Wales Police Service accompanied by running sheets, a letter dated 23 December 1998 from the New South Wales Police Service, Child Protection Enforcement Agency from Woodhouse to Mr Howard Bell, a solicitor with the Legal Services section of the New South Wales Police Service; and Mr Woodhouse's running sheets, produced in answer to it (being part of MFI 28 in the defendant's application to amend). 4 The 4th exhibit is made up of two bundles of documents concerning D18. The contentious area in the Amendment Application concerns D 17 to D25. 5 On 18 January 1999 the defendant issued its subpoena to the Commissioner for Police to produce, among other things (according to the Schedule), the following: "B. All records, (ie, files, documents, correspondence, memoranda, statements, statutory declarations, affidavits, records of interview, transcripts of interview, file notes, computer print-outs, audio tapes, and video tapes) relating to investigations carried out under the supervision of Detective Inspector Inkster into allegations that Marsden had committed criminal offences by engaging in sexual intercourse with young male prostitutes who were under the age of eighteen. C. Investigations carried out under the supervision of Superintendent Michael Woodhouse of the Child Protection Enforcement Agency into allegations that Marsden had committed criminal offences by engaging in sexual intercourse with young male prostitutes who were under the age of 18" (sic). 6 This subpoena is the subject of an independent application by the plaintiff to have it set aside. 7 On 29 January 1999 the plaintiff, accompanied by the plaintiff's legal advisers had a meeting with Woodhouse. Subsequent to that event, in terms of point of time, the Police Service in compliance with the defendant's subpoena commenced production of material: I understand the dates of production of about seventeen volumes of material were 4, 8 and 11 February 1999. I gather that before the Registrar both parties were given access, but, as Mr Wheelhouse described it, "as a result of faster footwork" the plaintiff gained access to the material first and a claim for privilege was made. That claim for privilege was dealt with by me in my ruling of 19 March 1999 ([1999] NSWSC 212: DLJT: 24 - and is subject to an application for leave to appeal listed in the Court of Appeal on 6 April 1999). 8 Amongst the material in fact produced, but not subject to the claim for privilege, is what is described as Document 142 in Exhibit 1 (the Index), being documents relating to D18. Those documents are the two bundles that constitute Exhibit 4 in the current application for public interest immunity by the Commissioner for Police. 9 Exhibit 4 is a very thick bundle of documents and D18, of course, is one of the persons in respect of whom the defendant seeks to amend its case on justification. 10 On 25 February a subpoena was issued by the plaintiff to the Police to produce certain documents and the first page of that subpoena and the documents produced in answer to it constitute Exhibit 3. This exhibit includes the Woodhouse running sheets that relate to steps taken by the Commissioner for Police after the interview with the plaintiff on 29 January 1999. 11 It is contended for the defendant that that which was produced on or about 11 February 1999 constitutes material that was put, by way of allegations, before the plaintiff at the meeting of 29 January 1999. It indicates that the Commissioner had taken a certain view as to a potential claim for public interest immunity, but that after the meeting with the plaintiff on 29 January 1999, compliance with the subpoena was embarked upon. It is acknowledged by the defendant that the further particulars provided by it to the plaintiff of its proposed amended case on justification in relation to D17 to D25 arises from the material produced by the Police Commissioner, in point of time, after 29 January 1999 when the meeting with the plaintiff took place. 12 The material in support of the case the defendant has particularised, it is said, was not available until the Police had "published" the new allegations to the plaintiff in the course of the meeting of 29 January and until the Police had made its decision to waive any claim for public interest immunity (and not otherwise seek to stay the civil proceedings in relation to continuing investigations or potential prosecutions) after that meeting. It is to be inferred therefore, that the reason why the D18 material (Exhibit 4), for example, has been produced pursuant to the subpoena, was that the allegations were "irrelevant" having been put to the plaintiff in the course of the interview on 29 January. 13 It is argued that the material in respect of which the claim for public interest immunity has been made namely, the record by both audio tape and transcript, of the meeting with the plaintiff on 29 January is critical to the defendant not only with respect to its case generally in the trial, but more acutely with respect to its application to amend and, within that ambit, for the determination of whether or not the plaintiff is prejudiced by the "new" allegations made by the defendant in its proposed amended case. 14 Inferring from the production of material that it was produced by reason of it having been dealt with by the plaintiff at the meeting of 29 January 1999, the only thing that is being withheld (subject to three matters referred to in Exhibit 3, in paragraph 81 of the Woodhouse running sheet), is the plaintiff's response to what are said to have been the new allegations put to him by Woodhouse during the course of that meeting. Those responses are critical, it is said, to the determination of the issue of whether or not the plaintiff would be prejudiced in terms of requiring further time for preparation by the grant of leave to amend to incorporate the case in respect of D17 to D25. 15 One of the matters which the defendant wishes to contend is that any adjournment sought by the plaintiff will not be necessary by reason of the plaintiff's responses to the allegations put to him on 29 January, with the result that no such extensive investigation will be required by reason of such answers. Inevitably this involves speculation as to the content of the meeting as recorded as taking place on 29 January 1999. However, it is reasonable to deduce from the material produced, it is argued, that what was put to the plaintiff were the allegations that were investigated by Detective Superintendent Woodhouse which "included" the matters now particularised by the defendant in its case in respect of D17 to D25. The defendant wishes to be in a position to be able to identify precisely what the plaintiff's response is to those allegations so that it can make submissions contrary to any proposition advanced for the plaintiff that a lengthy period of adjournment will be required upon any grant of leave to amend. 16 Shortly stated, as I understand it, the defendant's position is: the Police have released the material except the Marsden component, the Marsden component constitutes his response to the allegations that found the particularised amendments sought, and there is no reason in principle, given the weighing exercise to be carried out upon a finding of public interest immunity, why this one component (the "thin sliver of the investigation") of all this material should be withheld. 17 A fortiori, it is submitted, in this particular litigation between Mr Marsden and Channel 7. A defamation action constitutes the mechanism whereby the law, as best as it can, seeks to accommodate a conflict between the right of free speech and the right of a citizen to carry on life without that citizen's reputation indefensibly being injured. In this particular case, one itself said to be a matter of general public interest, the defendant is relying upon the defence provided by s 15 (and s 16) of the Defamation Act, 1974, namely justification which involves the component of "public interest". This litigation is elevated above what might otherwise be described as "ordinary litigation" (for example, personal injury litigation), and constitutes, by the fact of it and by the component of justification of criminal charges, a case where the "getting to the truth" is of transcendent importance. 18 In this context, reliance was placed upon some observations of McClelland J in Spargos Mining NL & Anor v Standard Chartered Australia Limited & Ors (No. 1) (1990) 8 ACLC 87 at 88: "In a proper case the Court is required to perform what has been called a 'balancing exercise' in which it considers the nature of the injury to the public interest which would be involved in disclosure as against the forensic importance of the documents in the circumstances of the particular litigation, and the nature of that litigation (see Sankey v Whitlam & Ors (1978) 142 CLR 1 and Alister & Ors v The Queen (1983-1984) 154 CLR 404)". 19 The significance of the material produced is highlighted further by the fact that it includes records of interview with Mr Marsden from 1995. It is acknowledged, however, that it is simply not known whether those interviews were given under the circumstances of confidentiality that applied to the meeting of 29 January 1999. It is highly probable, it is submitted, (and it can be put no higher than that), that what was put to Mr Marsden at the 29 January meeting were the very allegations that are now sought to be included in the Defence because it was those documents, it is said, which were released after that meeting and produced by the Police in answer to the subpoena. 20 There would be no harm done to the relevant "public interest" sought to be protected by the claim for immunity from production by what is in effect, as is implicit in the defendant's submissions, "left", namely Mr Marsden's response to the allegations put to him at the meeting. Reliance is placed upon the following well known passage from the speech of Lord Reid in Conway v Rimmer [1968] AC 910 at 940: "It is universally recognised that here there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. There are many cases where the nature of the injury would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it. With regard to such cases it would be proper to say, as Lord Simon did, that to order production of the document in question would put the interest of the state in jeopardy. But there are many other cases where the possible injury to the public service is much less and there one would think that it would be proper to balance the public interests involved, I do not believe that Lord Simon really meant that the smallest probability of injury to the public service must always outweigh the gravest frustration of the administration of justice". 21 Further, of course, the mere assertion of "confidentiality" is not sufficient to sustain in general terms a claim for public interest immunity (Alfred Crompton Amusement Machines Limited v Customs & Excise Commissioners (No. 2) [1974] AC 405). 22 In the areas of general principle I was also referred to Goldberg & Ors v Ng & Ors (1994) 33 NSWLR 639 and particularly the following passage from the judgment of Mahoney JA (at 663): "… there are means by which the effects of unrestricted public disclosure of facts can be qualified without requiring Courts to decide the rights of the parties before them on evidence known to be incomplete. The powers of the Courts to direct that evidence place before it be not disclosed, be given in private, or be treated as confidential, have not infrequently been exercised. For myself, I would see the grant of public interest immunity in respect of certain facts as being appropriate only if and to the extent that, by the use of such means, the public interest is compelling and the damage to it cannot, by other means, be reduced to acceptable dimensions". 23 Bearing in mind the matters of general principle referred to above and which were forcibly developed during the course of submissions, it was argued that s 130(4)(c) of the Evidence Act, 1995 (NSW) will operate in favour of the defendant's position on a narrow construction thereof limiting it to the investigation of "an" offence. I am of the view that s 130(4) is part and parcel of the first part of the exercise in determining whether or not the claim for immunity is made. I acknowledge that it is arguable that the whole of s 130 seems to incorporate both processes: step one, to determine the existence of the claim; and step two, the balancing exercising to determine whether the immunity can be waived in relation to a particular document or communication. The limitation of s 130(4)(c) to a "single" offence is artificial. 24 Particular reliance was placed on the provisions of subsection (5). Subsection (5)(a) refers: "the importance of the information or the document in the proceeding … (c) the nature of the … cause of action or defence to which the information or document relates and the nature of the subject matter of the proceeding. (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication; (e) whether the substance of the information or document has already been published". 25 As to (a) the importance relates to the trial generally, it is said, more particularly the defendant's application to amend and more acutely the plaintiff's "prejudice" by any grant of leave. 26 As to (c), it relates to the cause of action in defamation and the defence of justification and the "public interest" component of the subject matter of the proceedings to which I have referred above. 27 As to (d), it is suggested that the disclosure of all the other information in response to the subpoena points, at the very highest, to the most narrow focus in terms of any "continuing investigation" and there are means available to limit its publication in the sense that pseudonym orders are already in place (and the defendant will contend that they should be maintained) and an order has already been made limiting the publication of the particulars of the proposed Amended Defences. It could be ordered that the subject matter of the material subject to the claim for public interest immunity be made available only to the defendant's legal advisers and a nominated person from the defendant corporation. 28 As to (e), it is argued that the material has been "published" to the plaintiff in the course of the meeting on 29 January. I reject this component immediately. That which has been published to the plaintiff might have been (and it can only be a matter of inference or indeed speculation), some of the information contained in the material already produced by the Police. What the claim for public interest immunity is directed to is the confidentiality of the plaintiff's participation in the interview itself. That is the very thing, of course, as Mr Singleton quite rightly pointed out, to which the plaintiff is at forensic pains to avoid the defendant having access, unless required by law, and it is that which is the substance of the information to which the immunity attaches. The production by the Police of the documents that may (or may not) have been the subject of the meeting on 29 January to the Court in answer to the subpoena I cannot find to be a "publication" in terms of s 130(5)(e) in the sense of publication of what the plaintiff said; nor can I find that the publication of that material if it took place by the Police to Mr Marsden during the course of that meeting is a "publication". It is not, of course, a question of whether the material is in the "public domain". I take a similar view of the submissions that there has been "publication" by "production" of the documents in response to the subpoena. 29 As to (d), given the nature of the claim and its subject matter namely, the communications in confidence given by Mr Marsden during the course of the investigation of offences, the effect of adducing the evidence would be to damage the very interest in respect of which the undertaking was given. As Mr Singleton argued, whilst I might limit "access", that to which I would be limiting access is the publication which is sought to be stopped namely, publication by the Police of material in respect of which the undertaking as to confidentiality had been given, and access especially to the defendant. 30 As to (c), everything discussed above as to the nature of a case in defamation is accurate. By itself, the mere fact that the defendant is justifying in this present action brought against by Mr Marsden, I am not prepared to find, elevates the case to that level of "public interest" where the "quest for truth" in the litigation of it could outweigh the interest in the retention under the blanket of the class of public interest immunity as I have found it. 31 It is subsection (5)(a) in the context of such a proceedings however that is critical for the determination of the Commissioner's claim. 32 It is clear that the defendant has the information that inferentially could be found to have been the subject matter, amongst other things about which one could only speculate, of the meeting on 29 January. The defendant has relied upon that information to particularise its case which it proposes to prove (if granted leave) against Mr Marsden in relation to D17 to D25. The allegations founding that case already hitherto particularised by the defendant will no doubt, in the event of the grant of leave, be the subject of evidence in any event. What it really boils down to is that the defendant does not presently know the plaintiff's position in relation to those allegations. In the event of the grant of leave, the plaintiff's position as a matter of evidence will no doubt come out in the trial. What is here sought is the plaintiff's responses to allegations made by the Police and the subject of the very case for amendment already particularised by the defendant. The real purpose in the context of the defendant's application is to find out what the plaintiff's position in relation to "prejudice" would be. The principles applicable to an application for a defendant to amend its plea of justification have yet to be the subject of submissions, but it can hardly be gainsaid that it is no doubt part of the defendant's case to show that the plaintiff would not be prejudiced, and part of the plaintiff's opposition to the defendant's Motion to show that he would be. It is, in my view, a matter of forensic advantage rather than forensic necessity that underlines the defendant's quest for the material in respect of which the claim for public interest immunity is advanced. 33 In the context of the "building block" exercise and the inferential steps taken by the defendant to come to a conclusion as to what, on the probabilities, was the content of Mr Marsden's participation in the interview of 29 January, I am not persuaded - despite the well structured and forceful submissions by the defendant - of the forensic importance when weighed against the public interest identified in the claim for immunity in respect of which I made by earlier ruling. 34 That ruling having been made, I am in reality confronted with the situation where the defendant has particularised its case, has obtained a lot of information from the Police but would simply rather like to have (as opposed to there being a compelling forensic need that outweighs the public interest), what Mr Marsden said. 35 In coming to this conclusion, I have not considered the material itself as I am not persuaded that inspection could satisfy me in the context of the defendant's submissions that an order for production should be made: Alister v The Queen (1983-1984) 154 CLR 404 at 414. 36 Accordingly, I uphold the claim for public interest immunity in relation to confidential exhibit LAS1 to the affidavit of Lola Ann Scott sworn 3 March 1999. 37 That confidential exhibit will be MFI 1 in the Commissioner's claim for public interest immunity and is to be returned to him. 38 Exhibits 1 to 4 are to be returned to the defendant. 39 The defendant is to pay the costs of the Commissioner in respect of his application for public interest immunity relating to confidential exhibit LAS1. **********