New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 122 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 6 March 2000 JUDGMENT DATE : 6 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 : W H Nicholas Q.C. R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On tender of tapes and transcript comprised in MFI 115 in the "Inkster" interview - T4480 DECISION : See paragraph 9 DLJT: 108 (Ex Tempore - Revised) [2000] NSWSC 122 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE MONDAY 6 MARCH 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On tender of tapes and transcript comprised in MFI 115 in the " Inkster " interview - T4480) 1 HIS HONOUR: Mr Pearce is a witness called by the defendant on what fairly can be described as two major issues. First, the defence of privilege; Mr Pearce was interviewed by the defendant and, as far as I understand it on the material generally thus far, segments of his interview with the defendant were used in the programs sued upon. Secondly, Mr Pearce is called by the defendant on the defence of justification in its two essential components: (1) the direct conduct, as it were, between the plaintiff and the witness, and (2) what is said to be conduct by the plaintiff amounting to admissions against his interest. 2 On 1 March I granted leave to the defendant in judgment NSWSC 108: DLJT: 104) under s 38 of the Evidence Act to cross-examine this witness on terms. The subject matter of cross-examination in respect of which leave was granted is set out in para 6 on p 3 of that ruling by reference to "The issue of age and year of meeting the plaintiff and the occasion of the alleged first sexual conduct". 3 It has to be now acknowledged in my view - and I have not heard submissions on this - that to the extent that I granted leave in relation to first sexual conduct it was probably per incuriam, because there was no evidence given by the witness as to that conduct on whatever the first occasion was, at whatever age it occurred and in whatever year it occurred. 4 Leaving that to one side, as was mentioned in the earlier ruling the inconsistency as to age and inevitably the year, was identified at least as having been the subject matter of what I will describe as the Inkster interview, now MFI 115 which has been tendered. 5 As a result of what I would describe as questioning by Mr Stitt, other areas in respect of which Mr Pearce has given evidence are: first, the reason he came forward, for example at T4423.35, money or greed as opposed to, for the sake of this ruling what we must assume to be the case, that he came forward in aid of Ms Grusovin; secondly by reference to pages 4442.40 and preceding that 4440.15, that he has made statements, recanting; thirdly by reference, by way of example, to pages 4434, and in particular 4450.25, he did not have underage sex with the plaintiff. 6 The giving of that testimony occurred in circumstances where, to distinguish between examination-in-chief in the strict sense and cross-examination pursuant to any leave granted, was more often than not, difficult. It is clear to me that the witness has given evidence, as follows, indicative of his position. He was 23 years of age when he first met the plaintiff; that he has never had underage sex with the plaintiff; that he came forward to get money, that is the motive in question; and that he has recanted. 7 That being so, it seems clear that that evidentiary material, given before me, arguably - and I say that advisedly because no application has been made generally under s 38 - points to the witness being unfavourable; and further, is inconsistent with prior statements made by him. 8 That would be sufficient, in my view, to admit MFI 15 subject to any matter irrelevant in it to age, never having had underage sex, coming forward to get money and recanting. 9 I add also, because I am of the firm view that in the interests of the conduct of this trial and fairness to the witness and the efficient conclusion of his being present in court, that that evidence would permit cross-examination on the four areas, in a general sense, to which I have referred; age and year, whether there was underage sex, reasons for coming forward and circumstances of recanting pursuant to a grant of leave under s 38. The effect, however, of my present ruling is only to admit MFI 115 as Exhibit 70. *********** 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.