Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 413

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 413 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 : Application for leave under s 38 of Evidence Act 1995 (NSW) - T6183 DECISION : See paragraph 15

DLJT: 150 (Ex Tempore - Revised) [2000] NSWSC 413

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)

1 JUDGMENT (Application for leave under s 38 Evidence Act 1995 (NSW) - T6183) 2 HIS HONOUR: The present witness has on several occasions given an account of events said to have taken place in the Bottoms Up Bar at the Rex Hotel at Kings Cross involving the witness, his brother John and another person. 3 Taking into account the evidence given before lunch, the position appears to me to be that on the occasion the witness and his brother were in the bar John walked around the bar and the witness was at a table at the back of the bar. The witness did say after lunch that John pointed out a person described as just "some guy", greyish colour hair, 5' 6" to 5' 9", the bar was pretty full and the witness was up at the other end of the bar. 4 John said something to him, the witness Brian. The other person, referred to as "the other guy" left, followed one minute later by John. Subsequently the person described was seen by the witness talking to a person known to the witness through the window of a car in Macleay Street out the front of Fitzroy Gardens. Earlier evidence puts that person, "that guy," in the back seat passenger side. 5 As I recall the evidence, on three occasions the witness has been asked whether he has seen that other guy, as I will call him, in the media. 6 On two occasions the answer was "Not that I remember" or "Not that I remember, no." The other occasion I have in mind is when it was brought to the witness attention that he had participated in an electronically recorded interview with Detective Sergeant Rudolph in April of 1995, giving a different answer which the witness said was true. 7 As I remarked before lunch, the course of and state of the evidence was unsatisfactory, and after lunch the witness again was led through the events said to have taken place involving the "other guy" in the Bottoms Up bar. Upon the witness answering "Not that I remember, no" to the questions as to whether he had seen that other person in the media since that time, it came about that an application was instituted under s 38 of the Evidence Act for leave to cross-examine the witness on the basis that the testimony here given was inconsistent with prior statements made in that record of interview. 8 In support of the application thus far, there has been tendered as exhibit A, a letter from Mr Gould, solicitor, dated 17 March this year which indicates to the defendant's solicitors a certain stand by the witness: he was not desirous of being involved, would not confer with the defendant, and that if he was to be involved, a subpoena and appropriate procedures would have to be adopted. That exhibit on the application, if it has any significance, might be concerned more with the question of notice. 9 On the application I have admitted as exhibit B a transcript of the record of interview. My attention has been directed in the first instance to the questions and answers 115 and 116. 10 The first observation I make is that on no fair reading of that document can question 116 be separated from question 115. 11 Second, that being so, questions 115 and 116 are predicated upon an identification already having taken place, one which the record of interview discloses, by reference to question 107 as being hearsay identification. When one considers the context of questions 101 leading up to question 114 on pages 17 to 20 no other reasonable conclusion can be arrived at than that the context was established by the interviewing officer rather than by the interviewee. 12 Ultimately the position was reached that as between the evidence given in this court today and the material in exhibit B on the application, the transcript of the record of interview, no inconsistency has been established because of the absence of any identification, in court. Nothing that has here been said can be said to be inconsistent with what was said to the police because of that which I have identified as informing the prior statements, namely that hearsay or interviewer's, suggestions as to identification. 13 In the light of the contents of exhibit A, the Gregory Gould letter, I would not be minded to decline an order under s.38 by reason of the want of notice. 14 No inconsistency, however has been established. For the reasons I have set out I decline the application. ***********