NEW SOUTH WALES COURT OF APPEAL
CITATION: Amalgamated Television Services Pty Limited v John Marsden [2001] NSWCA 32 revised - 5/06/2001
FILE NUMBER(S):
40204/2000
HEARING DATE(S): 05/03/01, 06/03/01, 07/03/01
JUDGMENT DATE: 27/04/2001
PARTIES:
Amalgamated Television Services Pty Limited v John Marsden
JUDGMENT OF: Powell JA Giles JA Ipp AJA
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
(Claimant): W H Nicholas QC/N J Williams
(Opponent): In Person
SOLICITORS:
(Claimant): Mallesons Stephen Jaques
(Opponent): In Person
CATCHWORDS:
CONTEMPT - criminal contempt - standard of proof "beyond reasonable doubt" - CONTEMPT - knowledge of orders essential element of contempt charges - level of knowledge required - knowledge of substance of orders sufficient - lack of evidence showing requisite knowledge - CRIMINAL LAW - "no case" submission - can be made at close of claimant's case in criminal contempt - standard of proof "beyond reasonable doubt" - difference between jury trials and cases where judge/magistrate sitting alone - whether it is permissible for judge/magistrate sitting alone to assess evidence qualitatively and make factual findings - "no case" submission question of law - determination of guilt question of fact - preference to keep questions of fact and law separate - wrong for judge/magistrate to make factual findings at "no case" submissions stage. D
LEGISLATION CITED:
DECISION:
1. No case submission by Opponent upheld
2. Application dismissed
3. The Claimant to pay the Opponent's costs.
JUDGMENT:
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40204/00
POWELL JA
GILES JA
IPP AJA
Friday 27 April 2001
AMALGAMATED TELEVISION SERVICES PTY LIMITED v JOHN MARSDEN
Facts:
The claimant and opponent (Mr Marsden) are parties to defamation proceedings before Levine J. In that action Levine J made orders in relation to an application by a witness to give evidence at the defamation trial under a pseudonym. His Honour dismissed the application and this decision was reversed by the Court of Appeal, reported as Witness v Marsden (2000) 49 NSWLR 429. During these proceedings the Court of Appeal made a series of orders both interim and final. On 10 March 2000, at the commencement of the hearing the Court ordered that;
“Until further order there will be no publication of the name of the witness involved.”
The Court further ordered at the close of the hearing on 15 March 2000;
“Until further order, there be an order prohibiting publication referable to proceedings in the Court of Appeal of any material that would identify or be likely to identify the witness.”
In the judgment handed down on 22 March 2000 the Court made the following orders, which are relevant to these contempt proceedings;
“4. The Witness is to be addressed and referred to in the court only by a pseudonym.
5. Any matter which is likely to lead to identification of the Witness is not to be reported by those in court.”
The claimant sought a declaration that Mr Marsden was guilty of contempt in relation…
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- Case
- [2001] NSWCA 32
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the claimant had adduced sufficient evidence to prove, beyond reasonable doubt, that Mr Marsden possessed the requisite knowledge of the substance of order 5. This involved assessing the evidence presented by the claimant, including the testimony of a solicitor, Mr Price, regarding Mr Marsden's presence in court, and an exchange during Mr Marsden's cross-examination. The court also considered the principles applicable to a "no case" submission in criminal contempt proceedings, particularly when a judge sits alone.
The court reasoned that to establish criminal contempt, knowledge of the substance of the order was an essential element. The claimant relied on Mr Price's evidence that Mr Marsden was present in court on 22 March 2000 when the orders were read. However, Mr Price's later affidavit and oral testimony clarified that he could not definitively state that Mr Marsden was in court at the precise moment the orders were delivered, only that he was present before the court sat and after it rose. The court found this evidence insufficient to establish the necessary knowledge. Furthermore, the court found that an exchange during Mr Marsden's cross-examination on 9 June 2000 did not demonstrate that Mr Marsden knew the substance of order 5, despite the claimant's submission that it showed knowledge of an order protecting a witness's identity. The court applied the standard of proof beyond reasonable doubt and concluded that the claimant had failed to present evidence capable of establishing the requisite knowledge.
Consequently, the court upheld Mr Marsden's "no case" submission, dismissed the application, and ordered the claimant to pay Mr Marsden's costs.
Orders
Orders of the court
1. No case submission by Opponent upheld
2. Application dismissed
3. The Claimant to pay the Opponent's costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.