NEW SOUTH WALES SUPREME COURT
CITATION: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
CURRENT JURISDICTION:
FILE NUMBER(S): 40505/99
40499/01
HEARING DATE{S): 8 April 2002, 9 April 2002, 10 April 2002, 11 April 2002, 15 April 2002, 16 April 2002, 17 April 2002, 18 April 2002, 22 April 2002, 23 April 2002, 19 September 2002
JUDGMENT DATE: 24/12/2002
PARTIES:
Amalgamated Television Services Pty Limited
John Robert Marsden
JUDGMENT OF: Beazley JA Giles JA Santow JA
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): 20223/95
20592/96
LOWER COURT JUDICIAL OFFICER: Levine J
COUNSEL:
W H Nicholas QC/R R Stitt QC/K A Rees (A)
B W Walker SC/M B J Lee (R)
SOLICITORS:
Malleson Stephen Jacques (A)
Marsdens Law Group (R)
CATCHWORDS:
DEFAMATION - justification - substantial truth
DEFAMATION - qualified privilege - reasonableness - 'Lange' defence - malice - reckless indifference - lack of honest belief - improper motive
DEFAMATION - damages - harm to reputation - lifestyle - injury to feelings - plaintiff not giving evidence
DEFAMATION - damages - psychiatric injury
DEFAMATION - exemplary damages
APPEAL - credit based findings - 'Abalos' principle
STANDARD OF PROOF - civil case - grave allegations - evidence act s140
INDENTIFICATION EVIDENCE - civil case
CORROBORATION - civil case - allegations of criminal conduct
ADMISSION BY CONDUCT - interfering with witnesses - lies
COSTS - offer of compromise in defamation case - interest
ACTS CITED:
Crimes Act 1900 (NSW), s 333
Criminal Procedure Act 1986 (NSW) s 24A
Defamation Act 1974 (NSW) ss 7A(4), 15(2), 16, 22
Evidence Act 1995 (NSW) ss 32, 48, 135, 140, 164(1), 165
Listening Devices Act 1984 (NSW), ss 3, 5, 13, 16, 19
Police Integrity Commission Act 1996 (NSW), s 56(4)(c)
Supreme Court Act 1970 (NSW), s 94
Supreme Court Rules Pt 37 r 2, Pt 51 r 23(1)
DECISION:
No substantive orders at this time. Stood over for mention on 14 February 2003
LAST UPDATED: 24/12/2002
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40502/99
CA 40499/01
CL 20223/95
CL 20592/96BEAZLEY JA
GILES JA
SANTOW JATuesday, 24 December 2002
AMALGAMATED TELEVISION SERVICES PTY LIMITED v MARSDEN
The appellant broadcast on the Today Tonight programme what it claimed to be the result of an investigation of allegations of paedophilia in New South Wales. Fourteen months later the appellant broadcast on the Witness programme what it claimed to be the result of a second investigation on the same subject matter. The respondent was named and accused in both programmes as having engaged in sexual activities with boys under the age of 18.
The respondent commenced proceedings in relation to alleged defamatory imputations arising from the two programmes. A jury found a number of defamatory imputations to have been made concerning the respondent in the two programmes. The gravamen of the imputations was that the respondent knowingly had sexual intercourse with boys under the age of 18, and in one case, a boy aged 15.
Following this verdict the trial…
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- Case
- [2002] NSWCA 419
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the trial judge had applied the correct principles in assessing identification evidence, particularly in relation to its reliability rather than solely as a matter of credit, and whether the principles regarding corroboration, often considered in criminal law, were appropriately applied or considered in the civil context of this defamation case. The court also considered the standard of proof applicable to grave allegations in civil proceedings.
The court reasoned that the reliability of identification evidence is a crucial consideration in both criminal and civil trials, irrespective of whether the witness is honest. It affirmed that the principles derived from criminal law concerning the potential unreliability of identification evidence, such as those outlined in *Domican v R* and recognised by s 165 of the *Evidence Act 1995* (NSW), are equally applicable to civil proceedings, subject to the civil standard of proof. The court rejected the appellant's challenge to the trial judge's findings on identification evidence, finding no error in the principles applied. Regarding corroboration, the court noted that while s 164(1) of the *Evidence Act* does not mandate corroboration in New South Wales, a trial judge must still give due weight to uncorroborated evidence and consider its absence, especially when grave allegations are made, to avoid a miscarriage of justice, as indicated by principles from cases like *R v Longman*.
The court made no substantive orders at that time, with the matter being stood over for mention.
Orders
Orders of the court
No substantive orders at this time. Stood over for mention on 14 February 2003
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
As we have said, the real issue in identification evidence is its reliability. It is not a credit issue per se. That is so whether the case is a civil or a criminal one. An honest witness may not give reliable identification evidence. The warnings to the jury are directed to ensuring that they are satisfied that the identification evidence is reliable. As Mason J pointed out in Alexander v The Queen (1980) 145 CLR 395 at 426:“Identification is notoriously uncertain. It depends upon so many variables. They include [relevantly for this case] … the vagaries of human perception and recollection.”Application of a criminal law standard of proof to the issue of corroboration In New South Wales, s 164(1) of the Evidence Act provides that evidence need not be corroborated. The section does not, however, prohibit the giving of a direction in respect of corroboration: R v Lewis (unreported, New South Wales Court of Criminal Appeal, 8 September 1998). Section 165 of the Evidence Act deals with “unreliable evidence”, specifying the type of evidence which may be unreliable, for example, identification evidence: s 165(1)(b); and evidence given in a criminal proceeding by a witness who is a prison informer: s 165(1)(e). The evidence of a complainant of a sexual assault does not fall into any of the nominated categories of unreliable evidence, although it is important to keep in mind that s 165(1) does not constitute a code of unreliable evidence. Section 165(2) provides that in a case before a jury, the judge is to give a direction if so requested, that the evidence may be unreliable. Subsections (3) to (6) qualify this requirement in certain respects. Levine J, at J 64 dealt with the question of corroboration in a civil trial in the following terms:“The trial judge in a civil action, as the fact finding tribunal, will give due weight to uncorroborated evidence but will bear in mind the fact that it is uncorroborated (which in the end may have no effect at all) in determining whether on the balance of probabilities the particular issue has been established. To ignore the absence of corroboration in a civil case where a grave allegation is made could give rise to a perceptible risk of the miscarriage of justice: R v Longman (1989) 168 CLR 79 at 86: not because it is a grave allegation of sexual misconduct, but because it is evidence standing alone without corroboration.” Longman was a criminal case dealing with the question whether a warning should be given in respect of the uncorroborated evidence of the victim of sexual abuse. There were statutory provisions which governed the giving of warnings in such a case. The High Court held that notwithstanding that the statute in part prohibited the giving of a warning, a warning could still be given “where the particular circumstances of the case provide a justification”: per Brennan, Dawson and Toohey JJ at 88–89. See also Deane J at 94-95 In R v Crampton (2000) 206 CLR 161 the High Court, in applying Longman, considered that a warning of the danger of convicting on uncorroborated evidence was justified – and it would seem required – where there was a delay in a complaint of sexual assault.