New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 193 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 20 March 2000 JUDGMENT DATE : 20 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 : Evidence - relevance - circumstances of the making of an earlier statement - inconsistent with witness' position on "recanting" - T4843 DECISION : See paragraph 10 DLJT: 120 (Ex Tempore - Revised) [2000] NSWSC 193 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE MONDAY 20 MARCH 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Evidence - relevance - circumstances of the making of an earlier statement - inconsistent with witness' position on " recanting " - T4843) 1 HIS HONOUR: The defendant's case on justification in relation to the witness Pearce is that the witness was aged about fifteen when the alleged misconduct between the plaintiff and him took place. 2 The progress of the presentation of the defendant's case in relation to Mr Pearce was affected by two things which were interconnected. First, the delivery of particulars, now well-known in the record of these proceedings, of conduct which, if established, is capable of proving an admission by the plaintiff contrary to his interests and, put in general terms, reflecting a consciousness in the plaintiff that that which is in fact asserted against him is true. 3 Secondly, in relation to Mr Pearce, the position, as it evolved, is that Mr Pearce was ruled to be an unfavourable witness and was cross-examined by Mr Stitt as such in the light of a recanting by Mr Pearce by a statutory declaration (part of exhibit 47) sworn on 16 August 1998. 4 It is the defendant's case that the plaintiff procured the execution by the witness of that statutory declaration and did so in circumstances and for reasons that conform with the nub of the defendant's case as to admissions by conduct. 5 To put it non technically: the witness first said five years ago: I was fifteen. He now says: by reason of information I have obtained, I was wrong; I was twenty-three or twenty-four. 6 The statutory declaration in exhibit 47, amongst other things, refers to the Grusovin statutory declaration (Exhibit 57) as one of the earliest statements from which the witness intended to recant. 7 The basis for the recanting or changing of the story, first, rests on information the witness said he subsequently received and, secondly, certainly at the time of his release from custody upon payment of outstanding fines by the defendant, he was under pressure constituted, at the very least, by an obligation. There is evidence that at the time of the execution of the Grusovin declaration there had been mention to him of money (T4507.30) which shortly follows evidence elicited from Mr Pearce by Mr Stitt that the Grusovin declaration, according to the witness, had been made by reason of greed(T4507.10). 8 Notwithstanding that there must be said to be some temporal distance now between an allegation that "I was fifteen" and "by reason of events that happened, I now am under the correct apprehension that I was twenty-three or twenty-four," in the context of the ultimate proof of whether or not the witness was fifteen, the evidence sought to be led, in my view, is relevant to the fact of the change and to the circumstances in respect of which that which has been changed (the Grusovin declaration) came into existence. 9 The particular focus at this stage of Mrs Ferry's evidence is the circumstances in which Mr Pearce executed the statutory declaration made in Mrs Grusovin's office. That must be examined as part and parcel of the examination of the circumstances of the recantation when, inter alia, that which was recanted was this very statutory declaration. The more so, in my view, is this the case where there is some evidence that suggests money played a part, or greed might have been a motivating factor. This evidence relevantly can be further explored with this witness; the outcome of which might work to the advantage of one side or the other. 10 I will allow the examination to continue. *********** 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.