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. It is somewhat confusing to know where the Court is in relation to the adducing of evidence from Mr Bryan Pearce, because the last series of questions in my view fairly could be characterised as cross-examining Mr Pearce, and the point has been reached where either the witness is to be led properly, in accordance with the usual way, as a witness in-chief, or an application is made under s 38. 8 Whatever course is adopted, the problem still exists, as submitted by Mr Barker, on the issue of identification. Identification of a person can be established following several courses, which may involve description, recollection, recognition and then identification. 9 The present state of the structure of the examination of the witness does not make clear to me whether the course being followed is in some way based upon the contents of the record of interview or whether it is sought to be led outside of that record of interview in the normal way as evidence-in-chief. 10 I propose to disallow and have struck out the last series of questions, (T6177.57 to T6178.20) which purported to summarise the evidence the witness gave in-chief. 11 I will hear Mr Stitt make any submission as to the basis upon which the witness can answer the question as to the identification of the person to whom reference has been made as being in the Bottoms Up Bar and in the back of a car. *********** 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. 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.