Amalgamated Television Services Pty Ltd v Marsden

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…