Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 699

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 699 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 14 July 2000 JUDGMENT DATE : 21 July 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

M R Hall (Plaintiff) COUNSEL : J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : REASONS - Admissibility - photographs - discovered by plaintiff - relevance - s 55 Evidence Act 1995 (NSW) DECISION : See paragraph 8

DLJT: 199 CAV [2000] NSWSC 699

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

JUSTICE DAVID LEVINE

FRIDAY 21 JULY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (REASONS - Admissibility - photographs - discovered by plaintiff - relevance - s 55 Evidence Act 1995 (NSW) ) 1 On 18 July I rejected the tender of certain photographs. 2 The defendant tendered a series of photographs discovered by the plaintiff. They are selection of photographs said by the plaintiff to have been taken of him in the years 1977 and 1978. That is about all that is known about the photographs. They were not deployed in evidence at all either during the examination-in-chief of the plaintiff (where there relevance would escape me) or during the cross-examination of the plaintiff's witnesses called to establish that the plaintiff was not seen by the relevant witness at Costellos during the relevant periods. Nor were they deployed in the course of the defendant's case in aid of any identification by a relevant witness of the plaintiff at a given place at a given time. 3 For example, Mr Thompson, for present purposes, could be understood as saying that he had no idea what the plaintiff looked like in 1978. He described him as looking like a "hedgehog," a description that was not amplified or pursued. Again for present purposes, it may be questionable as to what is to be understood by that word. Mr Thompson gave evidence of recognising the plaintiff in 1996, the act of recognition being based upon what is said to have been the publication of advertisements by the plaintiff at or about the relevant time (in the 1970s) in the gay press. 4 It is submitted for the defendant that the admission into evidence of this photographic material, for example, would enable me to put no weight upon such "identification" in circumstances where the appearance of the plaintiff in the photographs is substantially different to his appearance in 1995 or 1996. 5 As I have said it is not known, save perhaps for the year in which the photographs were taken, on what date or days in any given year the photographs were taken. It is thus a matter of speculation as to whether or not the plaintiff bore the resemblance as depicted in the photographs during the whole of the year or any relevant part of any such year. It was conceded that the material, whilst perhaps not being completely persuasive, would be a "piece of evidence" which would enable me to conclude that I would not be satisfied that the plaintiff was "properly identified" in such a way as to exclude him from Costellos at the relevant period. 6 Insofar as I am able to understand these submissions, they seem to me to be essentially flawed. What is sought to be done, in the absence of description followed by identification by a witness, is to have me perform the act of identification in terms of the plaintiff, being the person said by a particular witness to have been at Costellos or was not or could not have been. 7 This course is one that does not lend itself at all to characterisation as evidence that in any way "rationally" would go to establishing on the balance of probabilities the relevant fact for the purposes of s 55. 8 I therefore rejected the tender and the photographs were marked for identification 286. ***********