New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 530 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 13 June 2000 JUDGMENT DATE : 13 June 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 : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On defendant's Notice of Motion - SCR Pt 31 r 2 - in relation to "the Elomari tapaes" - proceedings pending in Court of Appeal DECISION : See paragraph 15 DLJT: 172 (Ex Tempore - Revised) [2000] NSWSC 530 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE TUESDAY 13 JUNE 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On defendant's Notice of Motion - SCR Pt 31 r 2 - in relation to " the Elomari tapes " - proceedings pending in Court of Appeal) 1 HIS HONOUR: Leave was granted this morning to the defendant to file in court a Notice of Motion applying for orders under SCR Pt 31 r 2, for the separate trial of the eight issues set out in the Notice of Motion. 2 Also handed up this morning was a document prepared for the plaintiff, setting out three questions proposed on his behalf. 3 The issues raised in the defendant's Notice of Motion are as follows: "1. Whether the document MFI 191 should be admitted into evidence as probative of the fact that warrant no 308 of 1995 was granted pursuant to section 16, Listening Devices Act ("the Act"). 2. Whether the document MFI 197 should be admitted into evidence as probative of the fact that warrant numbers 314 of 1995 and 315 of 1995 were granted pursuant to section 16 of the Act. 3. Whether the document MFI 193 should be admitted into evidence as probative of the fact that warrant numbers 345 of 1995 and 346 of 1995 were granted pursuant to section 16 of the Act. 4. Whether the document MFI 199 should be admitted into evidence as probative of the fact that warrant numbers 89 of 1996 and 90 of 1996 were granted pursuant to section 16 of the Act. 5. Whether the tapes (MFI nos 189, 195, 196, 198, 200 and 201) should be admitted into evidence as being made by the use of a listening device pursuant to section 5 (2) (a) of the Act. 6. Whether the tapes (MFI nos 189, 195, 196, 198, 200 and 201) should be admitted into evidence on the ground that the defendant has established that the recording of the conversations on those tapes was reasonably necessary for the protection of the lawful interests of Mr Elomari within the meaning of section 5 (3) (b) (i) of the Act. 7. Whether counsel for the defendant appearing at the trial is permitted to cross-examine the plaintiff by: (a) Using material derived from the transcript of the tapes being documents MFI nos 189, 195, 196, 198, 200 and 201; (b) Putting to the plaintiff material derived from the transcript of the tapes being documents MFI nos 189, 195, 196, 198, 200 and 201. 8. Whether in circumstances and on the proper construction of sections 5 (1) and 13 (2) (b) of the Act, it is open to the defendant to cross-examine the plaintiff on the subject matter or contents of the conversations being the product of the tapes, namely the documents MFI nos 189, 195, 196, 198, 200 and 201 by reference to or use of either the tapes or any transcript thereof." 4 The issues raised in the plaintiff's document are as follows: "1. Whether the conversations recorded on tapes MFI numbers 189, 195, 198, 200 and 201 were lawfully recorded. 2. Whether evidence of the conversations may be given in these proceedings, having regard to: (1) Listening Devices Act sections 5, 6, 8, 10, 11 and 13. (2) The evidence of Steven Elomari. (3) The evidence of the plaintiff at T 7018-7019. (4) The evidence of French at T 6482-6485, Da Re at T 6495-6496 and 6513-6522, and McGinlay at T 6522-6524. (5) MFI numbers 191, 197, 193 and 199 (if admissible). (6) The decision in R v Karageorge (1998) 103 A Crim R 157. (7) The decision in Butera v DPP (1987) 164 CLR 180 (as to proof of provenance). (8) The failure to comply with the obligation to report (s 19). 3. Whether MFI numbers 191, 197, 193 and 199 are admissible in evidence." 5 A context for raising the matters under SCR Pt 31 r 2 was articulated by myself on Friday 9 June as follows (T7043 lines 9 to 53): "The remarks I would like to make on a preliminary basis are these: I think a context must be recognised. Three rulings have, in effect, been given, the result of which is to preclude the admissibility of evidence in relation to the Elomari tapes. As I understand it, that evidence is sought to be relied upon by the defendant in very general terms in this way: It is relevant to the defence of justification; it is relevant to the component of the defence of justification which, in shorthand has been described as admissions by conduct and I will assume the evidence will go to conduct constituted by certain statements made. I cannot put it any further than that. That is a summary of the context of the rulings I have given within the trial. Another matter of context is the fact that rulings on 25 and 26 May, as I understand it, are presently the subject of a summons for leave to appeal listed before the Court of Appeal on 16 June. It is not for me in any way at all to anticipate, let alone in any way suggest, how the Court of Appeal will attend to it business. The decision of the Court of Appeal in Witness v Amalgamated Television Services I fell I fairly can remark indicated that a great deal of time was taken in that Court before coming to the substance of the appeal on matters as to whether there was anything to be appealed from or questions of competence and the like. Assuming, as one must, in my view, that the Elomari tapes is an issue of importance, all I can say is it would be desirable given the fact that an appeal mechanism is already in place, that, if I have the jurisdiction and power, I do not do anything that would or could interfere with the appeal mechanism or it is desirable that I do what I have the power to do that might ensure the smoother operation of the appeal mechanism. The recognition of the importance of the issue of the Elomari tapes, of course, is not conclusive as to whether I have the power, and if I do, whether I should exercise it in that strict technical sense but, in the end, it seems to me when one confronts the reality of that context, if something can be done it should be." 6 The notice of motion concerns what is now settled in terms of description, "the Elomari tapes". 7 The admissibility of the tapes and matters in connection with them have been dealt with by me in the following rulings and judgments: 28 February [2000] NSWSC 98: DLJT: 103, which was the occasion when the tapes were first tendered; 1 May [2000] NSWSC 367: DLJT: 138 concerning inter alia s 19, reports under the Listening Devices Act 1984; 23 May [2000] NSWSC 436: DLJT: 159, the admissibility of the certificate under the Police Integrity Commission Act 1996; 25 May [2000] NSWSC 450: DLJT: 161 concerning the admissibility of an amended notice under s 19 of the Listening Devices Act; 25 May NSWSC 405: DLJT: 162 dealing with objections to questions asked of the then witness Detective French; further on 25 May [2000] NSWSC 480: DLJT: 163 dealing with the rejection of the purported warrant; 26 May [2000] NSWSC 465DLJT164 dealing with s 5(3)(b)(i) of the Listening Devices Act; and 8 June [2000] NSWSC 519: DLJT: 171 dealing with the defendant's entitlement to cross-examine the plaintiff as to the content of "the Elomari tapes". 8 A further matter of context is the fact that on 31 May 2000 a Summons for leave to appeal was filed in the registry of the Court of Appeal, seeking leave to appeal from orders made by me on 25 May and 26 May. In this regard I have been provided with a copy of that summons for leave to appeal. I understand that the subject matter of that summons is listed before the Court of Appeal on 16 June. 9 With respect to the notice of motion and the plaintiff's list of issues, assuming for the moment I answer the questions in the notice of motion in the negative, the matters raised in the plaintiff's questions can be dealt with, in my view, by way of submission to the Court of Appeal on the question of leave or substance. 10 In relation to the first issue raised set out above, insofar as it indicates an attempt to go behind the issue of the warrant, or discretely to challenge the validity of it, that, as I have stated before, was not raised as a matter before me. 11 The matters referred to in the second question on the plaintiff's list could be, in my view, matters of submission relating both to leave and substance. 12 The third question on the plaintiff's list seems to coincide in substance with questions one to four raised in the defendant's Notice of Motion. 13 As to the issues raised in questions one to four and six to eight in the defendant's Notice of Motion, these, I am persuaded for reasons set out in the various judgments and rulings I have catalogued above, should be answered in the negative. Time has not permitted the strict correlation of those questions to each of those rulings, and I leave to one side of course at present structure of the summons for leave application to the Court of Appeal. 14 As to question five, that will be answered in the negative. The reason for that is this: the negative response must flow from my earlier rulings on the tender of the tapes, the warrants, the s 19 notices, and the further tender during the course of examination of the police officers. The situation has been brought about that no foundation has hitherto been laid at all for concluding that the tapes were made by use of a listening device pursuant to s 5(2)(a) of the Listening Devices Act 1984 and thus no foundation for the admissibility of the tapes as having been so made has been established. 15 I answer each of questions one to eight in the defendant's Notice of Motion in the negative. *********** Last Modified: 09/26/2000 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.