Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 422

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 422 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 18 May 2000 JUDGMENT DATE : 18 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 : On admissibility of evidence of conversation - Evidence Act 1995 (NSW) ss 55, 59, 60, 62, 64, 72, 135 & 136 - T6191 DECISION : See paragraph 24

DLJT: 151 (Ex Tempore - Revised) [2000] NSWSC 422

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

JUSTICE DAVID LEVINE

THURSDAY 18 MAY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On admissibility of evidence of conversation - Evidence Act 1995 (NSW) ss55, 59, 60, 62, 64, 72, 135 & 136 - T6191)

1 HIS HONOUR: The defendant seeks to lead from the present witness, Mr Bryan Pearce, the terms of a conversation between him and his brother, which is said to have taken place at the Bottoms Up Bar at the Rex Hotel at Kings Cross on the occasion referred to in the evidence outlined in my judgment yesterday (NSWSC 413: DLJT 150) on the application made by the defendant for leave under s 38 of the Evidence Act. The conversation is said to have taken place between Mr Bryan Pearce and his brother John. 2 John Pearce has given lengthy evidence as an unfavourable witness called by the defendant. It was not suggested in the course of submissions that that lengthy evidence encompassed, in terms, the conversation now sought to be the subject of testimony by Mr Bryan Pearce. 3 It is submitted that the evidence of the conversation is admissible, not as hearsay, which I take to mean not as evidence of the truth of the facts made in the representation, but of the fact that the words were spoken. 4 What was described as the context in submissions is this: John Pearce swore statutory declarations and gave interviews pointing to underage sex with the plaintiff. He gave oral evidence that his relationship with the plaintiff was when he was in his twenties. In that respect John Pearce, it is said, was knowingly lying. 5 It was further submitted that the evidence is admissible to establish (a) that John Pearce was at the time of the conversation a prostitute, (that is when he was about 14); (b) that he was leaving the Bottoms Up Bar for the purposes of prostitution with the man I referred to in my judgment of yesterday as "the other guy"; (c) that the "other guy" was identified as the plaintiff; and (d) that at the time of the conversation John Pearce believed each of (a), (b) and (c). 6 The fact in issue, to which the material is said to go, is the knowledge or state of mind of John Pearce at the particular time when he was aged about 14; knowledge of the identity of the person whom he followed out of the Bottoms Up Bar; and the purpose of following that person out. 7 It was submitted also that it goes to establish that at all relevant times thereafter John Pearce knew who it was and has known that, as well as the purpose, in which context he was lying. Thus, as it was summarised at T6188, it establishes, or goes to establishing, knowledge, state of mind and, critically, the fact that it occurred, and the fact that John Pearce is lying. 8 A consideration of those propositions can lead only to the conclusion that the evidence is sought to be led, not merely to establish the fact that the words were spoken but also the truth of the facts represented. 9 I am unable to accept the proposition that the proposed evidence can be characterised as primary evidence, in the sense other than evidence incorporating hearsay. It is hearsay and it is, therefore, excluded by s 59 of the Evidence Act. 10 Taking it to be otherwise relevant for the purposes of the application, the evidence would only be admissible as hearsay if it falls within an exception to that exclusionary rule in s 59. 11 Two propositions have been advanced for the plaintiff: that section 64 does not operate to admit the hearsay as proof of the facts, or does not operate to prevent the operation of the exclusion in s 59. First, as I understood it, no evidence from John Pearce was led, or nothing was put to him, as to the occurrence of the asserted facts, in terms of reference to freshness in his memory, an element that founds the non application of the hearsay rule in respect of the person referred to in s 64(3)(a), that is John Pearce, or in respect of the person referred to in sub-section 3(b), that is the present witness, Bryan Pearce. 12 I accept that the submission that s 64(3) by its opening words contemplates not only that the person who has made the representation has or will be called, but that evidence from that person, as to laying the foundation of freshness in the memory of the fact represented, should be the subject of questioning. 13 The second basis on which it is contended that s 64 does not operate is that set out in the written submissions delivered last night, the essence of which is that s 64(3)(b) contemplates representations as to the past, not statements of future intention, hence the requirement that the occurrence of the asserted fact must be fresh in the memory of the person who made the representation. It is submitted that the section is concerned with representations deriving from occurrences fresh in the memory of the person making the representation, not the statements of future intention which cannot be in the memory. 14 The notion of fresh in the memory, of course, was dealt with in the High Court in Graham v Regina (1998) 195 CLR 606, but in the context of the operation of s 66 of the Evidence Act, an important decision of that Court but one which, in my view, does not assist that component of the plaintiff's submissions. 15 There are two bases for my not acceding to it. First, one would have thought in relation to the definition in s 62 of first hand hearsay, when it speaks of personal knowledge of an asserted fact, that the words "asserted fact" would, as a matter of commonsense, include a statement of intention. 16 Even if I be incorrect in that regard, s 62 of the Evidence Act, on its face, excludes the operation of the hearsay rule to evidence, inter alia, of a representation made by a person, that is a contemporaneous representation about the person's intention. 17 If it be the case that the views to which I have come as to the non operation of s 64 are incorrect, then the structure of the submissions for the defendant would point to the operation of s 60 of the Evidence Act, which permits the admission of evidence for a non hearsay purpose, but with consequences as to the evidence going to proof of the facts asserted in the representation, unless a direction is given under s 136 to limit the evidence admitted under s 60 as evidence only that the words were spoken. 18 To the extent that it may be seen that s 60 is relied upon, I would have no difficulty in giving a direction that the evidence could not be relied upon as evidence of the truth of the matters represented, but would be limited only to evidence of the fact that the words were spoken. The reasons for so limiting the evidence under s 136 would incorporate those matters to which I referred in relation to s 64, especially the absence of any testimony from, or any attempt to question, Mr John Pearce in relation to these matters. 19 Assuming, therefore, that the point is reached where the body of evidence constituted by the material is going to prove only that the words were spoken, in a circular way, I concede that it might be argued that a question arises as to whether evidence so confined could satisfy the test of relevance under s 55. I would conclude that, given the broad terms of s 55 (1) (a), and the factors referred to especially in s 55 (2) (a) and (c), it could hardly be argued otherwise than that such restricted evidence is relevant. 20 Thus, the point is reached where evidence as to the fact the of conversation is admissible, but not as to the truth of its contents. It is in this context, or, if the correct view of the operation of s 64 is otherwise than I have stated it, that I can and do turn to the question of the exercise of a discretion to exclude it. 21 In the light of submissions made by the defendant yesterday, the first observation to make is that it is not correct to assert that there is no discretion. There unarguably is. It is a discretion, or there are discretions, provided by the Evidence Act to exclude admissible evidence. The mere fact that evidence is held to be admissible does not, and cannot, preclude the exercise of the discretions provided by the statute. 22 I will exercise my discretion to exclude the proposed evidence. It is clear that the evidence given now, realistically, can be seen to be founded in material created in 1995, the record of interview, itself at least 15 years after the alleged events. The critical component of that material, namely identification, in my view, was infected by the interviewing officer's approach, reflected, for example, in questions 101, 107 and 115. 23 The evidence the witness has given thus far includes testimony that he has had the transcript of that record of interview, and, indeed, reference has been made to it. To expect otherwise than that the witness would be giving testimony without having had recourse to that document would be unrealistic. That factor, together with the issue not having been squarely raised with John Pearce, must, and does, adversely affect the probative value of anything this witness, Bryan Pearce, may be able to say on the subject, to the point that it is outweighed, that is the probative value, such as it is, by the danger of unfair prejudice, a fortiori when John Pearce has been and gone, to the plaintiff. 24 The evidence will not be allowed. ***********