New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 653 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 6 July 2000 JUDGMENT DATE : 6 July 2000 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1 M R Hall (Plaintiff) COUNSEL : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Evidence - admissibility - MFI 275 - Evidence Act 1995 (NSW) ss 102 & 108 - Credibility Rule - prior consistent statement - T8041 DECISION : See paragraph 7 DLJT: 186 (Ex Tempore - Revised) [2000] NSWSC 653 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE THURSDAY 6 JULY 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Evidence - admissibility - MFI 275 - Evidence Act 1995 (NSW) ss 102 & 108 - Credibility Rule - prior consistent statement - T8041) 1 HIS HONOUR: Section 108 of the Evidence Act is an exception to what is called the Credibility Rule in s 102. It terms are as follows: "(1) The credibility rule does not apply to evidence adduced in re-examination of a witness . (2) (Repealed) (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted, or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion, and the court gives leave to adduce the evidence of the prior consistent statement". 2 In examination-in-chief, the present witness, Mrs Searle, stated at page 8026, line 27, words she said she heard Mr John Maynard say, namely "… he said, 'That's fucking bullshit about John'. He said, 'John does not like boys, he likes men'". 3 Mrs Searle was cross-examined in relation to a statutory declaration made at Camden in 1998. The witness agreed that the words she gave evidence of in chief do not appear in that statutory declaration. That, to me, constitutes evidence having been admitted as to the inconsistency between what was said here and what is said to have been stated in the statutory declaration on a prior occasion. Mrs Searle does not agree that there was the inconsistency to which the cross-examination was directed. 4 In re-examination, Mr Hall sought at first to tender MFI 275, which is a clean copy of the whole statutory declaration made by the witness at Camden on 6 October 1998. The whole of that statutory declaration cannot be admissible. 5 The tender has become limited to paragraph 8 to establish that, contrary to the suggestion that the witness was not to be believed by reason of the asserted inconsistency, there was in fact a consistent prior statement. That is contained in the sentence: "John Maynard said to me, 'John is not someone that is into under aged persons'" in that paragraph. 6 The model to which all of this is directed could be described in this way: the concession by a witness that what was said here was not included in what was said on a prior occasion can constitute an acknowledgment of the inconsistency to the extent that the words said here were not included on a prior statement. That does not and cannot, in my view, exclude the availability of a prior consistent statement being proved when the consistency is to be found not, of course, in the identicality of words used (which the witness has agreed) but in the identicality of the meaning and substance of what was said on the prior occasion. 7 I grant leave to the plaintiff to tender that sentence in paragraph 8 of the statutory declaration and it will be plaintiff's exhibit FZ. *********** Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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.