New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 204 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 21 March 2000 JUDGMENT DATE : 21 March 2000 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J I Barker Q.C. M R Hall (Plaintiff) COUNSEL : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On admissibility of part of MFI's 119 &125 DECISION : See paragraph 9 DLJT: 125 (Ex Tempore - Revised) [2000] NSWSC 204 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE TUESDAY 21 MARCH 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On admissibility of part of MFI's 119 & 125) 1 HIS HONOUR: The plaintiff has tendered part of MFI 125. Page 1 identifies the document as a Final Report dated 26 July 1995 relating to "a special investigation into criminal allegations against John Robert Marsden, a member of the New South Wales Police Board". Paragraphs 15, 16 and 17, earlier marked as MFI 119, constitute the substantive component of the tender and, in general terms, relate to the witness John Pearce and Chan's Canton Village, a Chinese restaurant at Liverpool. 2 Mr Pearce was questioned by Mr Stitt on this subject arising from paragraph 40 of exhibit 40, forming part of exhibit 47, which is a statutory declaration that has been referred to as the Denham Court statutory declaration. 3 Paragraph 40 of that statutory declaration reads: "This is the worst thing that has happened to me in my life. I was abused but I have named the wrong person. I have named a person that was a friend of mine, that befriended me. I know now from that the police have said that I would have been easily proved not to be telling the truth. The favourite Chinese restaurant I refer to in the Statutory Declaration wasn't opened until 1980. John Marsden's house, as I describe in the Statutory Declaration, were the renovations and I now know that they were renovations that were put in 1983/84 and the police found that out from the plans at Liverpool Council". 4 Mr Stitt's questions are set out at transcript pages 4416.15 to 4417.10: "Q. … What was the information that the police gave you which you had in order to write that in paragraph 40? A. Well, it's at home. I should have brought it with me. I'll show you what they said. They wrote to me and they told me. That's why. I thought about it and I said: That's correct. That is right, and I checked up on a lot of other things that Channel 7 didn't check up on, and I realised-- Q. What was the information from the police which you say you had and gave to Mr Adam on the day that you swore that affidavit? A. What do you mean what information? Q. What was the information that you had? A. Well, I can't remember now, but it's in the police report. I was reading through it, the Child Protection Enforcement Agency, and that's what they said. They said they have no doubt that I did grow up in Kings Cross and all that, but they said, through their checks and numerous other checks, that I was, in actual fact, a lot older than what I say I was. That is the police saying that, sir; not me. Q. What was the information about the favourite Chinese restaurant which you say you received prior to swearing this statutory declaration? A. What was the Chinese restaurant? Q. What was the information about the favourite Chinese restaurant? Please have paragraph 40 in front of you, if you would like to? A. Yeah. Q. What was the information about the favourite Chinese restaurant which you obtained before you swore that affidavit? A. Say that again? What was the name of the Chinese restaurant? I don't understand. Sorry. I just have a bad mind. I'm on medication. I just click off sometimes. People probably talk to me and I will be in Disneyland for a minute, and I will have to come back. I am sorry. If I ask you to repeat a few times, I am sorry, sir. Q. Could you turn please to paragraph 40? A. Yes, I have. Q. You have it in front of you? A. Yes, sir. Q. What was the information about the favourite Chinese restaurant which you obtained prior to swearing the statutory declaration on 16 August 1998? A. Well, I went to that Chinese restaurant myself, after we got filmed there with Greg Quail, and I asked them when they did open and they told me that they opened in 1980. That's the official invitation, they told me, was in 1980". 5 Mr Barker cross-examined Mr Pearce by reference to exhibit 63, a video tape which depicts the witness in the vicinity of Chan's Canton Village, the Chinese restaurant to which I have referred. 6 After showing the video to the witness, the following exchange took place between Mr Barker and Mr Pearce: "Q. That's Chan's Canton Village Restaurant? A. Yes. Q. Did Mr Quail go into the restaurant? A. No, sir. Q. Do you know whether he took the trouble to ask anyone while you were there when the restaurant was opened? A. No, nobody did. We just stood outside and that and then got in the car and went. Q. Do you agree it did not in fact open until June of 1980 and you must have been well over 18 when you first went there? A. Yes, sir. Q. Do you agree with that? A. Yes, sir. Q. You were asked about the reference to this restaurant in the statutory declaration made at Denham court on 16 August 1998. That is exhibit 47. You said in that, in paragraph 40, "This is the worst thing that has happened to me in my life. I was abused and I have named the wrong person. I have named a person that was a friend of mine, that befriended me. I know now from what the police said that I would have been easily proved not to be telling the truth and the take-away Chinese restaurant I referred to in the statutory declaration wasn't opened until 1980"? A. Yes, sir. Q. That was something in the police report which you looked at? A. Yes. The police told me as well. They said to me that my dates are right out by about three or four years. Q. I think you told us you read a report of the police about Mr Marsden which had information in it about the Chinese Canton Village Restaurant? A. I am not sure. I can't remember which one you are talking about. In the police statement? Q. No. I am talking about a report? A. Yes, sir. Q. Copy of which you said you had. Would you have a look at this document (Shown). I am only interested in the second page. Just read to yourself paragraphs 15, 16 and 17 if you would? A. Yes, sir. Q. Is that the report you speak about? A. Yes, sir". 7 Contrary to the submissions for the defendant, the last part of the evidence above does provide, in my view, a basis for admitting the tendered material, despite the earlier confusion attending Mr Pearce's responses to Mr Stitt's questions. 8 Mr Pearce, in the end, I am persuaded, on the last extracted part of the transcript, did say that that was the report which provided him with the information about Chan's Canton Village. 9 Page 1 will be admitted for identification of the document purposes only, and paragraphs 15, 16 and 17 will be admitted, as exhibit CC, as evidence only of that report said by the witness to have been seen by him and is limited as such. *********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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