Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 108

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 108 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 1 March 2000 JUDGMENT DATE : 1 March 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

I Barker Q.C. M R Hall (Plaintiff) COUNSEL : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Unfavourable witness - prior inconsistent statement - Evidence Act 1995 (NSW) ss 38, 136 & 192 - T4392 LEGISLATION CITED : Evidence Act 1995 (NSW) Reg v Adam (1999) 47 NSWLR 267 CASES CITED : Reg v GAC (unreported, 1 April 1997) Reg v Lozarno, (unreported, 10 June 1997) Reg v Souleyman (1996) NSWLR 712 DECISION : See paragraph 10

DLJT: 104 (Ex Tempore - Revised) [2000] NSWSC 108

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

JUSTICE DAVID LEVINE

WEDNESDAY 1 MARCH 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Unfavourable witness - prior inconsistent statement - Evidence Act 1995 (NSW) ss 38, 136 & 192 - T4392) 1 HIS HONOUR: An application has been made by the defendant under section 38 of the Evidence Act 1995. 2 Shortly stated, the context is that evidence has just been given by the witness, Mr Pearce, that he was 23 years of age when he first met the plaintiff. The defendant, it must be taken, has statements made on earlier occasions that are inconsistent with that evidence. One such statement , it is to be assumed, is an interview with Mr Pearce conducted by Detective Inkster on 27 March 1995 which has been played in court. 3 It is clear that the evidence of the plaintiff of this witness on the issue of the age and year and the first time the alleged sexual contact with Mr Marsden took place, will be the subject of vigorous cross-examination. It will be based upon, for example, the material especially contained in Exhibits 2 and 3 on this application. 4 I am not persuaded by the mere fact that there is likely to be thorough cross-examination by the plaintiff on those subjects, as a factor to be taken into account under s 38(6)(b), should preclude the granting of an order under s 38. 5 It is appropriate to state that in terms of considering the grant of leave, I have had regard to the provision of s 192 of the Evidence Act. I have formed the view in relation to s 192(2)(a) that the grant of leave would not be likely to add unduly to the length of the hearing in the whole context of the dimensions of this trial; (b) that it would not be unfair to the plaintiff or indeed the witness. The plaintiff, if leave be granted, still has his right of cross-examination, any circumscribing of which might be viewed as a forensic disadvantage (the defendant will have "gone first") but not one that would forestall that party from appropriately exploring the evidence to get to the truth, if it can be got at, in this area. Mr Pearce has been confronted with several earlier statements; he gives me the clear impression of an anticipation of matters likely to be put to him; (c) the importance of the evidence in relation to which leave is sought need hardly be remarked upon, it is of great significance in terms of the plea of justification (the subject matter of age and year being of critical importance); (d) nature of proceedings as a defended libel action of great dimension in which the defence of truth is being vigorously prosecuted, is clear; ((e) relating to the Court being able to adjourn is not relevant). 6 I propose to grant leave under s 38(1)(c) but, pursuant to s 192(1) in the light of the evidence thus far, to limit any such cross-examination by the defendant to the issue of age and year of meeting the plaintiff and the occasion of the alleged first sexual conduct. 7 I have been invited to limit, pursuant to s 136, the use of any evidence tendered to exclude, for example, material within the prior inconsistent statement being available as evidence of the truth of that statement. That, I decline to do, as well. It is of course to be borne in mind that such evidence is not proof. It is evidence of the truth going to the question of whether in the end an issue of fact is proved. It is not unfairly prejudicial in the light of the right, particularly of cross-examination, available to the plaintiff and as far as the tribunal is concerned would not be either misleading or confusing. 8 I have dealt with this application on the basis that it is an application at this stage only under s 38(1)(c) in relation to that area of the posited inconsistency to which I have referred. I have granted the leave subject to the terms I have mentioned. 9 There has been foreshadowed an application in a wider sense under s 31(a) being that section which uses the word "unfavourable". The only observation I make in regard to that at this stage is that insofar as Exhibits 47 and 48 are said to point to a recanting by the witness of earlier statements, I am not persuaded they constitute evidence given by the witness, nor could they be, in terms of s 38(1)(a). I can go no further than that. As has been conceded by Mr Stitt, at this point, in the examination-in-chief of Mr Pearce those subject matters have not been mentioned. So leave is granted under s 38(1)(c) on the terms to which I have referred. 10 I will add this, in view of the brevity of the time available, that I have had particular regard to the decisions of Smart J and Reg v Souleyman (1996) 40 NSWLR 712, that of the Court of Criminal Appeal in Reg v Adam (1999) 47 NSWLR 267. Reg v GAC (unreported, 1 April 1997); the decision of the Court of Criminal Appeal in Reg v Lozarno, (unreported, 10 June 1997). Recent law has affirmed the important proposition that the operation of the Evidence Act is such as to permit, when leave has been granted, the placing before the Tribunal as evidence of the truth of relevant facts, the prior inconsistent statement; whereas before the Evidence Act that device to bring before the tribunal was misleading and was proscribed. ***********