Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 670

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 670 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 11 July 2000 JUDGMENT DATE : 11 July 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1

M R Hall (Plaintiff) COUNSEL : W H Nicholas Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Admissibility - collateral facts - Evidence Act 1995 (NSW) s 106(a) and (c) - T8210 DECISION : See paragraph 16

DLJT: 191 (Ex Tempore - Revised) [2000] NSWSC 670

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

JUSTICE DAVID LEVINE

TUESDAY 11 JULY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Admissibility - collateral facts - Evidence Act 1995 (NSW) s 106(a) and (c) - T8210)

1 HIS HONOUR: In accordance with the useful practice that appears to have developed during the course of the plaintiff's case in reply, an opportunity has arisen for the consideration of the admissibility of a proposed reply witness. Notice of that witness' identity, and the substance of her testimony has been provided by the plaintiff to the defendant, as I understand it. The proposed witness is Miss Earl. 2 Miss Earl has been mentioned in evidence before: on 22 February, during the cross-examination of Mr Elomari at 4190.37 her name was introduced. 3 The relevant part of the cross-examination of Mr Elomari is: "Q. Going back to 1996, did you tell her that you were going to blackmail John Marsden and make a lot of money out of it? A. No, I did not say that at all. Q. Did you tell her you were going to say that John Marsden raped you when you were 14? A. No. Q. Through until you were 17? A. No. Q. But you would withdraw the allegations when he paid you some money? A. Who paid me money? Q. Did you tell her that you would withdraw the allegations if he paid you money? A. I haven't told her nothing" (T4191.6-4191.25). 4 There the witness was being cross-examined as to his having spoken to Miss Earl in terms of expressing an intention to blackmail the plaintiff. What was put to Mr Elomari during the course of cross-examination expressly was denied by him. As I understand it, Miss Earl's proposed testimony will be to the effect that that which Mr Elomari denied as having been said, was said. 5 Objection has been taken in advance, to this proposed testimony on the basis of "collateral facts" and the application of the rules in relation to that kind of evidence, to which I referred in my judgment of 4 July 2000 (NSWSC 631: DLJT 184) in relation to Miss Jones' evidence: see particularly paragraph 3. 6 The subject matter of the collateral facts rule arose also in relation to the evidence of Mr Avzarradel: see my judgment of 7 July 2000 (NSWSC 659: DLJT 188). 7 The former judgment dealt with the operation of s 106(c) of the Evidence Act 1995 (NSW) as an exception to the credibility rule, to permit the giving of evidence as provided by that section in relation to prior inconsistent statements. The latter judgment related to s 106(a), the admissibility of evidence under that section in connection with the area of bias or motive for being untruthful. 8 The first subsection, 106(c), has no application. The submissions in favour of admission of the evidence are directed towards s 106(a). As I remarked in the Avzarradel ruling, one would have little difficulty in coming to the view that but for the operation of s 106, the proposed testimony would be excluded by the operation of what is known as the collateral facts rule. 9 The Avzarradel judgment in favour of admission of evidence, arose in circumstances where there was express evidence as to the agreement between Mr Elomari and the defendant in evidence as Exhibit 42; that is express reference in the events and conversations to which Mr Avzarradel deposed. 10 In this case, there is none at all. 11 The events the subject of cross-examination occurred at least three years prior to the agreement between Mr Elomari and Channel 7. This is an important distinguishing feature, and therefore does not permit the admission of the proposed testimony on a basis the same as or akin to that which applied to Mr Avzarradel. 12 There is absent, in my view, the requisite link between bias or motive to be untruthful, and the agreement with Channel 7 that existed in the case of Mr Avzarradel. 13 However, it is argued for the plaintiff, as I understand it, that the suggestion and intention to blackmail - which suggestion is expressly denied - lends itself to positive evidence being admitted as to that expressed intention, as being evidence tending to prove a motive for being untruthful. 14 That, in my view, is insufficient. If evidence was admitted on that basis, it would bring about the employment of s 106 as a mechanism for defeating entirely the operation of the collateral facts rule. Whenever matter put to a witness in cross-examination on credit is denied, it would be open for the cross-examining party to rely upon the denial, whatever the subject matter, as being amenable to the calling of evidence to gainsay the denial on the basis of tendency to prove motive for being untruthful. That, without s 106, is the very type of thing the collateral facts rule exists to prevent. I do not construe s 106(a) in the circumstances to which I have referred, and particularly the circumstances here sought to be relied upon, so to defeat the operation of the collateral facts rule. For those reasons, I would exclude the evidence. 15 One other matter was raised, and that is the discretion that would be available to me under s 135(c). That is a discretion to exclude admissible evidence. Assuming, contrary to what I have ruled, the evidence would be admissible, it was argued for the defendant that in the exercise of the discretion under that section, I would exclude it by reason of the evidence causing, or resulting in undue waste of time in its presentation, and by reason of it having been otherwise admitted, it would involve the making of submissions by the parties as to its effect in the whole evidentiary scheme of things, and would require again a finding by me upon the evidentiary effect. 16 I am not presently persuaded that in the hypothetical situation that the evidence is admitted, that s 135(c) would necessarily, for the reasons advanced, operate to exclude it. I have ruled that it is inadmissible in any event. ***********