New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 401 revised - 16/05/2000 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 15 May 2000 JUDGMENT DATE : 15 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 application for a pseudonym: T6069 DECISION : See paragraph 15 DLJT: 146 (Ex Tempore - Revised) [2000] NSWSC 401 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE MONDAY 15 MAY 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On application for a pseudonym: T6069) 1 HIS HONOUR: The applicant, who was identified by name as the defendant's next witness on Wednesday, 10 May 2000, seeks to give his evidence under a pseudonym. 2 Notice of this personal application by the witness was given literally as he walked into the courtroom, at about 11.30am on Friday. He gave evidence in open court, but subject to a non publication order. His name has been referred to in the course of the trial and in the course of the evidence of at least two other defence witnesses. 3 That a person can make such an application is a course approved by the Court of Appeal in the D20 appeal Witness v Amalgamated Television Services Pty Limited [2000] NSWCA 52 (see paragraph 75 in the judgment of Heydon JA). 4 From evidence subsequently given, it is apparent that the witness has had many contacts with the defendant's solicitors. He knew he was to give evidence on or about 1 May, but did not think of asserting his wish to have a pseudonym until last Friday morning. 5 At T6051.25, the witness said, of the basis for his application: "I am currently assisting the police in an unrelated matter that is ongoing and I believe, if I was to be identified, your Honour, it may jeopardise the case and also myself." 6 Mr Stitt, as amicus, led the witness through some documentary material, subject to objection. Exhibit A is an undated letter from Superintendent Woodhouse, which, according to the applicant, came into his possession shortly prior to 15 September 1999. The context surrounding that really cannot be identified and articulated. It does appear that, as at about September, Mr Woodhouse was able to say things about the witness in relation to what is described as "completely unrelated investigations". 7 Exhibit B is made up of a document prepared during the lunch hour on Friday, setting out some purported particulars in support of the witness' application. I ruled that particular 2 (v) could not be the subject of evidence led from the applicant. Otherwise it was the witness' position that the contents of exhibit B were true. 8 As to particular 2 (v), notwithstanding my ruling, I did allow a question by Mr Stitt, over Mr Barker's objection, which was on the voir dire. In the end, however, as to the subject matter of the whole of the evidence on the application, it does not persuade me that the asserted status in fact exists. It has not been independently established. It has not been independently asserted by the authorities. Indeed, the whole of the evidence includes, as part of exhibit C, made up of edited and unedited police duty books and running sheets, an express disavowal of that status in December 1999 by Detective Superintendent Woodhouse. 9 Exhibit C, insofar as it can be deciphered in its holograph parts, points to contact between the applicant and the police in relation to the plaintiff, and to the applicant being a "community source". Exhibit A refers to him being a "peer counsellor", the subject matter of earlier evidentiary references. 10 Although it was not ordered that the evidence on the voir dire would be evidence on the application, even if it were so, I would still not be persuaded, viewing the evidence as a whole, that a case has been established as to the existence of that status asserted by and for the witness. 11 The applicant is at liberty. There is no evidence of unwillingness to give evidence if the order is refused. There is no evidence of precise fears over and above the possibility of jeopardy, referred to in a context which I cannot clearly or persuasively identify, in terms of actual things done in discrete areas by this witness vis-a-vis the police, in the unconnected matters, otherwise than as a community source. 12 I have not found the status which would attract the observations of McHugh JA, as he then was, in Cain v Glass (1985) 3 NSWLR 230, which informed my earlier decision in respect of D18, which decision, in any event, was also informed by the operation of section 130 of the Evidence Act, and by the weighing exercise adopted by the Court of Appeal in the Witness case. 13 Adopting the weighing exercise (see paragraph 125 of Witness v Amalgamated Television Services Pty Limited) to such positive evidence as there is and to other matters on which there is no evidence, I am not persuaded that a case for a pseudonym has been made out. 14 In the event that it evolves, in the course of the witness' evidence, that the situation changes, appropriate mechanisms (compare s 130(5)(d) of the Evidence Act) can be adopted for any protection the witness may then require in the interests of justice. 15 The application is declined. The non publication order is dissolved and the exhibits are to be retained. *********** 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. 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.