Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 78

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 78 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 21 February 2000 JUDGMENT DATE : 21 February 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 : On application by defendant for a closed court during the giving of Mr Elomari's evidence - Supreme Court Act 1970 s 80 - T4137 LEGISLATION CITED : Supreme Court Act 1970 DECISION : See paragraph 22

DLJT: 97 (Ex Tempore - Revised) THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

MONDAY 21 FEBRUARY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant)

JUDGMENT (On application by defendant for a closed court during the giving of Mr Elomari's evidence - Supreme Court Act 1970 s 80- T4137)

1 HIS HONOUR: In an earlier ruling (NSWSC 70: DLJT: 96) in the course of these proceedings in camera, I referred to the circumstances in which it had come about that the Court was closed. 2 The next witness the defendant presently intends to call is Mr Elomari. The particulars of the defendant's case involving this witness are set out in paragraph 5 of the Amended Second Consolidated Particulars of Truth. The nub of the case is that, in or about November 1982, when Mr Elomari was seventeen years of age, the plaintiff had anal intercourse with him at the plaintiff's home. 3 There presently is also on record particulars of truth relating to alleged admissions by conduct. Those particulars are set out in paragraph 4 of the relevant document, which was filed in Court on 25 January this year. That particular asserts that in or about 1996 the plaintiff instructed or directed the witness not to tell any police officer or any person connected with the Royal Commission conducted by Wood J that he had had sexual intercourse with the plaintiff before he was eighteen years of age. As I understand it, the defendant presently intends to add to these particulars. 4 To review, to some extent, historical matters, it is to be remembered that in response to a subpoena issued by the defendant to the Police Service of New South Wales, documents were produced to my Court. In respect of some of the documents Mr Muddle of counsel for the Police Service informed me that a claim for public interest immunity was to be made. Upon a cursory inspection of those documents, I concluded that it would be appropriate for Ireland J, who has had dealings with this matter before on such issues, to deal with the Commissioner's application. 5 On 15 February Ireland J was informed, so I am informed and I have no reason to doubt it, that the foreshadowed claim for public interest immunity was not to be pursued by the New South Wales Police Service. 6 Consequent upon orders for access being made by his Honour, what I understand to be a great deal of material has been produced by the Police Service over a period of time, at least up until Friday afternoon. That material includes transcripts and tapes consistent with the position, as it has been described in open Court, that Mr Elomari had been "wired" in conversations with the plaintiff and was an informer. As I understand it, both sides have had access to that material. 7 The present application with which I am concerned is one that can be described as arising under s 80 of the Supreme Court Act. That section provides that: "The business of the Court may be conducted in the absence of the public... (b) where the presence of the public will defeat the ends of justice." 8 The application by the defendant is that so much of Mr Elomari's evidence-in-chief as will disclose that he has been an informer be given in camera. It is not sought, otherwise, to have evidence from Mr Elomari heard in camera. It is acknowledged that Mr Barker will be free to cross-examine Mr Elomari on all matters that one would expect to be the subject of cross-examination in the light of his particularised allegation against the plaintiff. 9 There are, however, two matters that inevitably will be the subject of cross-examination. The first is that Mr Elomari was an informer. The second is the agreement with the defendant entered into by Mr Elomari, as evidenced by the material in exhibit 1 on the application before me. 10 That material is made up of an affidavit of Mr Stephen Corry, Solicitor, sworn 14 February 2000, and includes a written communication from the proposed witness to the Commissioner of Police, the Police Integrity Commission and the Crown Solicitor's Office of New South Wales, which notifies the recipients of the fact that he has entered into an agreement with the defendant under which his family and himself will be relocated away from Sydney. 11 In paragraph 2 of the document to which I have referred, it is stated: "As a result I no longer believe that my life or the lives of my family are at risk." 12 In paragraph 3: "I consent to the Police Integrity Commission informing the Attorney-General that I no longer want my identity to be protected by a claim for public interest immunity." 13 Importantly for the defendant, the witness has asserted that certain tapes contain a conversation in which, it is stated, that Mr Marsden said those matters to Mr Elomari set out in paragraph 8 of the letter of 14 February 2000. 14 On the material available to it, the Court is just confronted with the situation where a witness' status of having been an informer is no secret to the parties, of course and where the witness, the day before proceedings before Ireland J, wrote to the Commissioner of Police saying: "I no longer want my identity protected by a claim for public interest immunity by reason of the agreement that I have entered into with Channel 7." 15 Thus, the situation has arisen where a witness, otherwise appropriately described as an informer, appears to have waived any rights that flow from that status vis-a-vis the State instrumentalities who could advance the cause of his protection, and who has entered into an agreement with a party to this civil litigation to provide him with that security which clearly was a matter of concern to him. 16 For the defendant, it is contended that the ends of justice that will be defeated by the hearing in public of his evidence as to his being an informer, is that broad category of the ends of justice usually described, for very sound policy reasons, as the protection of the identity of informers to ensure the free flow of information in the investigation of and fight against crime. In other words, despite the witness' apparent disavowal of any protection the State might pursue on his behalf because of the private agreement entered into with the defendant, nonetheless that broad category of the ends of justice to which I have referred should prevail. It should prevail to the point where he gives evidence in secret that he is an informer, and that so much of what will, no doubt, be a complex cross-examination dealing with that subject matter, and the agreement, also be heard in camera. 17 One need hardly remark upon the practical difficulties that would be caused to the free flow of cross-examination and thus the presentation of evidence to this Court if, on the assumption it could be done, the cross-examiner had to artificially compartmentalise his questions. 18 In circumstances where the proposed witness has taken the step of indicating to the authorities his preparedness to have any suppression of his identity as an informer waived in the light of an agreement entered into with the defendant, it could hardly be argued that the ends of justice, as applicable to this individual, as opposed to the more general sense advanced for the defendant, would justify making the order sought. 19 I am of the view that it would not result in the defeat of the ends of justice in the general sense referred to as regards informers, in a case where a particular informer has waived his right to protection by any claim for public interest immunity and has entered into a private agreement with the party in whose interests he is to be called to give evidence in a civil case, by his being required to give the whole of his evidence in open court. 20 The view to which I have come is that the ends of justice will be defeated by the making of an order of the kind sought, in circumstances where an informer, having indicated that he no longer wants protection in the public sense because he has attained it privately, thereby ends up, if the order was made, in getting the best of both worlds. 21 The fact of the agreement entered into with the defendant I hasten to say is not the subject of judicial comment for or against that agreement for the purposes of this ruling. It will, no doubt, be the subject of scrutiny in cross-examination. In the peculiar, as I must say, circumstances attending this application, I am not persuaded that irrespective of what he wants, irrespective of what it might be hoped that he needs, the ends of justice in the general sense must nevertheless apply. 22 The application to lead evidence from this witness in closed court as to his being an informer is refused. 23 I will add this: Exhibit 1, the agreement, still has the benefit of the restrictions as to access and publication that has hitherto applied. If it is deployed in evidence, then other considerations will, no doubt, come into play. ***********