Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 384

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 384 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 10 May 2000 JUDGMENT DATE : 10 May 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1

I Barker Q.C. M R Hall (Plaintiff) COUNSEL : W H Nicholas Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Cross-examination - bias of other witnesses - T6022 DECISION : See paragraph 12

DLJT: 145 (Ex Tempore - Revised) [2000] NSWSC 384

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

WEDNESDAY 10 MAY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Cross-examination - bias of other witnesses - T6022) 1 HIS HONOUR: Notice in effect has been given of the intention to cross-examine Mr Quail in relation to various of the defendant's witnesses on the subject of payments made, or benefits proffered to those witnesses by the defendant. 2 By using those expressions "payments made" or "benefits proffered" I am not to be understood as to having concluded anything at all on the subject to which those words might be understood to point. The kind of matter I have in mind by way of example is set out at T3629.10 in the cross-examination of Mr David Maynard where the witness was asked whether or not Quail visited him, took him out to lunch, took the witness and another person and children to Darling Harbour. In relation to the substance of those matters put to Mr Maynard the witness did not dispute those facts. 3 Another example is at 5075, cross-examination of Mr Homes in respect of payment of money into a bank account. A third example of course is Mr Elomari, to whom I will return shortly. 4 What it is sought to do, as I understand it, is to elicit from Mr Quail evidence as to these matters of the kind, the subject of cross-examination, as exemplified above with a view to providing material to enable me to come to a view as to whether or not the respective witnesses were biased, and thus ultimately come to a conclusion adverse to the acceptance of their testimony on that basis. 5 The problem, however, is that, leaving to one side Mr Elomari, it has not been shown that it was put to any of those witnesses in clear terms, or at all, that by reason of the benefits the witness admitted receiving, that witness' evidence was thereby rendered favourable to the defendant, and thus the witnesses biased in that party's favour at the expense of objective truthful testimony. Nor was it put to a witness who denied the receipt of any such benefits that notwithstanding the denial, the fact was that benefits were received, and that the witness' testimony was similarly infected for that reason by bias. 6 Whether or not a witness is biased need not necessarily be determined solely by the issue being put to the witness. In the absence, however, of the issue having been raised with the witness, I do not see for example s 106 of the Evidence Act rendering admissible other evidence on that subject. 7 Mr Elomari, however, falls into a different category. At 4321 line 10 it was put to the witness: "Q. Look Mr Elomari, you are here simply responding to a bribe, aren't you? A. A what?