New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 172 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 16 March 2000 JUDGMENT DATE : 16 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 : W H Nicholas Q.C. R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On plaintiff's application to have recalled the witness Mr Stals - T4835 CASES CITED : Attorney General v Hitchcock (1847) 1 Ex Ch 91 Bickel v John Fairfax & Sons Limited (1981) 2 NSWLR 474 DECISION : See paragraph 20 DLJT: 119 (Ex Tempore - Revised) [2000] NSWSC 172 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE THURSDAY 16 MARCH 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On plaintiff's application to have recalled the witness Mr Stals - T4835) 1 HIS HONOUR: Mr Edward Stals was called by the defendant as a witness on the issues of justification and qualified privilege. He gave evidence on 10 and 11 February. His evidence was led by Mr Nicholas Q.C. 2 Mr Stals was cross examined extensively by Mr Barker in relation to a segment of a taped interview for the defendant that dealt with a subject which the witness admitted to be a lie. That subject matter in general terms was a false assertion as to a massive drug deal, its financing and an asserted involvement of the plaintiff. That cross-examination was relevant to issues in the privilege case and, of course, of its very nature to the witness' credit. 3 At the conclusion of his testimony (T3901) Mr Stals was not excused from the obligations imposed upon him by that subpoena which brought him to the court and an application has now been made for the plaintiff to have him recalled for further cross-examination. 4 The basis for the application is made up of two components. The first is that the account about the drugs deal, acknowledged to be a lie when told to the defendant, was also given by the witness in the course of a taped recorded interview by the Royal Commission investigators on 25 September 1995, the transcript of which is exhibit C in this application. The subject matter is dealt with in that exhibit pages 22 to 30. 5 The second basis rests on certain documents produced on subpoena by McCabe Solicitors, (exhibit B on this application) constituted by a letter to that firm from the solicitors for the defendant, dated 12 January 2000 and a document headed "Loan Agreement Draft". 6 In relation to the loan agreement, which on its face deals with the provision of funds to be paid to the witness' solicitors for the specified purpose of filing fees for an appeal to the District Court from the Victim's Compensation Tribunal, the defendant's position is that the agreement was never entered into, it was never consummated by execution or by performance. An analysis of exhibit B discloses an arm's length commercial transaction that never reached fruition. 7 As to the first basis, the statement to the Royal Commission, Mr Stals as I have said was cross-examined at length, (T3868 to 3870 and 3875). It was argued for the defendant that the proposed further cross-examination would go merely to credit and regurgitate and reagitate matters dealt with hitherto. It was argued that whether Mr Stals lied to the Commission (or any number of people) would add nothing to the issue of credibility raised in general by the cross-examination that has already taken place; in particular nothing could be added by reference to the more focused areas on qualified privilege (and indeed credit affecting truth on the justification issue) in the context of an admitted lie in relation to the interview with Channel 7. In the course of submissions I was reminded of what Hunt J said in Bickel v John Fairfax & Sons Limited (1981) 2 NSWLR 474 at page 494 (being the report of a ruling on 23 October). His Honour made the statement: "The conduct or character of a witness cannot in my view be used to attack his credit unless that conduct or character is of such a nature as to tend logically and rationally to weaken confidence in his veracity or in his trustworthiness as a witness of truth". 8 His Honour having considered the particular matter giving rise to the ruling remarked at 494F to the effect, cross-examination for the purpose of showing that by reason of lack of veracity a witness should not be believed on oath is of course permissible. 9 There are two aspects to the first basis of the application that have persuaded me to grant the relief sought in the end. The first is what I describe as a coincidence in the connection between the admitted lie and its subject matter as took place in the Channel 7 interview and the asserted lie (as things presently stand) in the Royal Commission interview, being the connection of that with what the witness in each case says as to the nub of the truth case dealing with the plaintiff's conduct vis a vis him. 10 The cross-examination proposed in relation to what is asserted to have been a lie told by this witness to the Royal Commission in the context of inquiry into the conduct of the plaintiff in my view could be cross-examination, the outcome of which logically and rationally could affect the confidence the court could have in the veracity and trustworthiness of the witness. 11 The second component is, upon the admission of the whole of the transcript into evidence on this application it became apparent on the reading of page 4 that there had been some communication, and by that I mean it is apparent from the transcript that there could be evidence that there had been some communication, not merely between the witness and Mr Quail but between Mr Quail and the Royal Commission. 12 It would not be inappropriate to permit cross-examination of the witness as to anything he might say or evidence that he could give on that chain of communication between himself, the Commission and Mr Quail. 13 Whether that evidence in fact is given, and if it is, whether it establishes anything in connection with the case on qualified privilege, or in defeasance of it, I cannot of course conclude. But it has by reason of that reference in the transcript an apparent relevance at present. 14 As to the second matter, accepting the stated position of the defendant as to the non-execution or non-performance of the draft agreement, cross-examination of the witness on the fact of the draft coming into existence in the hands of his solicitors, on the fact of what any offer the coming into existence of the documents may reflect, is clearly relevant to matters capable of affecting the veracity of the witness in terms of the integrity of his testimony being affected or infected by the offer made or any inducement tendered. 15 I have given consideration to the well known principles in Attorney General v. Hitchcock (1847) 1 Ex Ch 91 as cited in and discussed by the learned editors of the Sixth Australian Edition of Cross on Evidence and as was referred to by Mr Nicholas in submissions. Those principles are not presently applicable. It may well be that in further cross-examination the identification of collateral issues which, in accordance with the principles, cannot be further pursued, will take place. 16 It is interesting to note in the present context that one factor that has prevented the identification of a collateral issue and its proscribed pursuit is the witness' answer "Yes" to the proposition that he has lied. 17 I propose to order the recall of Mr Stals, the mechanisms of which I will come to shortly. 18 By requiring Mr Stals to return to give further evidence I make it clear now that he will not thereby be amenable to be cross examined again "at large" unless an application therefor is made at an appropriate time. He is being recalled to be cross-examined on those two bases as I have discussed them in the ruling I have just given. The nature and extent of any further re-examination I will not limit at this stage until the ambit of the further cross-examination is known when it has concluded. 19 Mr Stals was called as I have said as a witness for the defendant. I accept that there has been no contact between the defendant's legal advisers and him since he left the witness box. It does appear however that the defendant is still in possession of information as to the address at which he was contacted on the last occasion the defendant needed to contact him. 20 I order Mr Stals to return to Court at 9.45am on Tuesday 21 March 2000, liberty to apply to vary that order. *********** 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. 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