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? Q. A bribe? A. A bribe? Q. Yes? A. Who told you that? Q. Channel 7 has promised you money in exchange for your evidence. That is what it comes down to, doesn't it? A. That's what you are saying." 8 Mr Elomari, it must be recalled, was cross-examined otherwise at length as to the fact of an agreement between him and the defendant. The extract from his evidence does point in my view to a clear putting to the witness that he was biased by reason of that agreement, it being put clearly to him that it was a bribe. 9 Nonetheless, it was submitted for the defendant, accepting for the sake of submission, that what I have just said is appropriate, that it was clearly put to the witness that he was biased by reason of the bribe constituted by the agreement, but where in that scheme of things does Mr Quail come? 10 At page 4166, 4170 and 4171 there is in my view a sufficient and clear reference to a connection between Mr Quail and the "arrangements" made in respect of the witness to permit cross-examination of this witness on that subject in relation to Mr Elomari. 11 The groundwork has not been laid in respect to other witnesses, but it has in relation to Mr Elomari, by reference to: 1, the facts said to constitute what I've described as the benefit; 2, the clear putting to the witness of the allegation of bias arising from that benefit; and 3, the connection referred to with Mr Quail. 12 I, therefore, will permit cross-examination of Mr Quail in relation to Mr Elomari, but no other witness. *********** 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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