Amalgamated Television Services Pty Ltd v Marsden

Link copied
Case Copied 66 min read

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      20592/96

BEAZLEY JA
GILES JA
SANTOW JA

Tuesday, 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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Amalgamated Television Services Pty Ltd v Marsden and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2002] NSWCA 419
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Amalgamated Television Services Pty Ltd against findings made in a defamation proceeding brought by Mr Marsden. The appeal raised several issues, including the reliability of identification evidence in civil trials and the application of principles concerning corroboration.

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

The principles upon which his Honour relied were principles derived from the criminal law, which is the area where identification evidence is most contentious. However, there is always a risk that identification evidence, whether in a criminal or a civil trail, may be unreliable. This has now been recognised by statute in the Evidence Act 1995 (NSW) s 165 (1)(b). Although criminal law references are the source of the passage in Cross on Evidence to which we have referred, this passage, like the passage in Domican v R, to which we have also referred, provides reasons why identification evidence may be unreliable – reasons which may be equally applicable to identification evidence in a civil trial, subject to their being considered according to the appropriate standard of proof. Accordingly, we do not consider that by reference to the principles stated in the criminal law his Honour applied any wrong principle. We see nothing in his Honour’s statement of his approach to the identification evidence to indicate that he applied any wrong principle or the wrong standard of proof. Accordingly, we reject these aspects of the appellant’s challenge to his Honour’s findings. 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.”

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.