Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 425

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 425 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 19 May 2000 JUDGMENT DATE : 19 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 : Admissibility of tender documents - Evidence Act 1995 (NSW) s 69(3)(b) - T6235 DECISION : See paragraphs 8-9

DLJT: 154 (Ex Tempore - Revised) [2000] NSWSC 425

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

JUSTICE DAVID LEVINE

FRIDAY 19 MAY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Admissibility of tender documents - Evidence Act 1995 (NSW) s 69(3)(b) - T6235)

1 HIS HONOUR: The defendant has tendered, during the evidence of W2 in chief, the bundle of documents constituted by extracts from police duty books and running sheets. W2 has given evidence of conversations with the plaintiff after which it appears he communicated by telephone with two police officers. The documents tendered purport to record the representations made by W2 as to his having had conversations with the plaintiff. 2 For the defendant, it is submitted that the material is relevant as corroboration and admissible as business records and admissible as such by reason of the non-application of s 69(3)(b) of the Evidence Act. 3 For the plaintiff, it is submitted that the recording in the documents of the representations of the witness cannot be relevant because they cannot corroborate anything. The plaintiff submitted that they are records of the statement to the same effect as the oral evidence of W2 and thus prior consistent statements. There is nothing about the representations recorded that could be corroborative of the fact that the witness spoke to the plaintiff, let alone be corroborative of the fact in issue in any independent way as to that which the plaintiff said or did. 4 With these submissions, I agree and hold the material to be irrelevant and thus inadmissible. 5 As to s 69(3) of the Evidence Act: it is an exception to the operation of s 69(2), which is an exception to the operation of s 59, which is an exclusionary provision, the exception to the exclusionary rule being business records. The exception to admissibility of business records, that is a mechanism for the exclusion, is as provided for in s 69(3)(b). That is, a document recording a representation will be excluded as inadmissible hearsay if the representation was made in connection with an investigation relating to or leading to a criminal proceeding. The term "criminal proceeding" is defined in the dictionary to the Evidence Act. 6 The narrow construction advanced for the defendant would require there in fact to be a prosecution or an identifiable or an identified criminal offence. The broader construction advanced for the plaintiff rests upon there being understood no requirement for any such criminal offence or prosecution. In aid of this submission reliance is placed upon the proposition that the word "relating" can refer to an existing criminal offence the subject of investigation, and the word "leading" to one that is reasonably probable or likely. 7 Further, the general approach in the High Court in Regina v Rogerson (1991-2) 174 CLR 268 (where their Honours' view differ: see pages 279-9 and 281-2) to the notion of "the course of justice" is also relied upon to support the broad approach. Reference also is made to the judgment of the Court of Appeal in The Attorney General for New South Wales v TCN Channel 9 1990 NSWLR 369. That case of course dealt with contempt and the time of the setting in motion of the criminal law (see page 378A). It does not, I presently consider, lend particular support to the plaintiff's position. 8 Be those matters as they may, I have ruled the evidence to be irrelevant and thus inadmissible. The language of section 69(3)(b) provides a basis arguably for the respective submissions made by the parties. I will indicate that at present I would be predisposed to accept the plaintiff's submissions. 9 The tendered documents will be marked for identification 170. ***********