Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 414

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 414 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 17 May 2000 JUDGMENT DATE : 17 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. R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On objection to repitition of line of questioning of witness B L Pearce - T6178 DECISION : See paragraph 15

DLJT: 149 (Ex Tempore - Revised) [2000] NSWSC 414

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

JUSTICE DAVID LEVINE

WEDNESDAY 17 MAY 2000

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (On objection to repetition of line of questioning of witness B L Pearce - T6178)

1 HIS HONOUR: The course that the examination of this witness is taking, as evidenced in the last series of questions, does not reflect, insofar as it purported to summarise the evidence the witness has thus far given in-chief, what he in fact said in-chief. 2 The witness has given evidence of his recollection of being interviewed by Detective Sergeant Rudolph on 26 April 1995 and, indeed, as I understand it, the witness has a transcript of that electronically recorded interview. 3 To my recollection, his evidence before me, of not afterwards seeing on the media the person described by the witness as being 5 foot 9 with greyish sort of hair, in respect of whom he did not take a lot of notice, and who is said to be the same as the person in the back seat of the car. 4 The witness has acknowledged that he told the police officer, during the course of the record of interview, as I understand it, that he had seen that person in the media. 5 The witness has said that his memory at the time of the interview with the police five years ago was probably better than it was now, and has said that the answer he gave to the police officer was correct. 6 Several things flow from that. First, the witness appears to have acknowledged that, on a prior occasion, he made a statement inconsistent with the evidence he has given here today, which, in respect of the inconsistency, does not give rise to a question of whether he has made it because he has acknowledged it. I say that in terms of s 38(1)(c) of the Evidence Act. 7 The second matter that arises is whether, in the light of the evidence to which I have just referred, the witness could be asked who that person was. To put it more precisely, he has been asked who the person was with whom the witness said his brother had gone from the Bottoms Up Bar.