Marsden v Amalgamated Television Services Pty Limited

[2000] NSWSC 631

CITATION:

Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 631

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20223 of 1995; 20592 of 1996

HEARING DATE(S):

4 July 2000

JUDGMENT DATE:

4 July 2000

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J at 1

COUNSEL :	M R Hall (Plaintiff) W H Nicholas Q.C. R Stitt Q.C. J S Wheelhouse (Defendant)
SOLICITORS:	Phillips Fox (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	Admissibility - "collateral facts" rule - Evidence Act 1995 (NSW) s 106(c) - T7920
DECISION:	See paragraph 8

DLJT: 184
(Ex Tempore - Revised)
[2000] NSWSC 631

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

TUESDAY 4 JULY 2000

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
ACN 000 145 246
(Defendant)

JUDGMENT (Admissibility - “ collateral facts” rule - Evidence Act 1995 (NSW) s 106(c) - T7920)

1    HIS HONOUR: The witness presently sworn to give evidence, Ms Jones, has been called in relation to a discrete area of testimony given on 10 February by Mr John Maynard. It is intended that what she will depose to is connected with, to use at this stage a neutral term, matters put to Mr Maynard in cross-examination at T3786 to 3787. 2    It is to be understood that Ms Jones' evidence will be to the effect that on occasions prior to 10 February 2000, Mr John Maynard had said words to her which, first, he in cross-examination denied saying and, second, related to, as Mr Hall put it, the very heart of the subject matter of Mr Maynard's testimony in this trial, namely his allegations against the plaintiff. 3    For the defendant, it is argued that the evidence is inadmissible by reason of the matter relating only to credit and by the operation of the common law rule often described as the “collateral facts” rule (Attorney-General v Hitchcock (1847) 1 Ex.Ch 91; Cross on Evidence paragraph 17580). Further, the situation here, it is said, is starkly distinguishable for the purposes of the operation of s 106 of the Evidence Act from that considered by me on 20 March 2000 in (NSWSC 194: DLJT 121), relating to the admissibility of evidence under s 106(a) (bias, etc.). 4 Section 106(c) of the Evidence Act is an exception to the exclusionary rule in s 102, namely the Credibility Rule. It provides that the exclusionary rule does not apply to evidence that tends to prove that a witness has made a prior inconsistent statement if the evidence is adduced otherwise than from the witness and the witness has denied the substance of the evidence. That structure would, it seems to me, point to Ms Jones being the vehicle for the adducing of the evidence otherwise than from Mr Maynard in circumstances where, it is clear, in relation to the two pages of transcript to which I have referred, there has been a denial of the substance of the evidence and that to which Ms Jones will dispose will be, in the end, of a prior inconsistent statement. 5 There seems to be a lack of judicial consideration of s 106(c) up until as recently as June this year. The learned author Mr Odgers, in his text and guide to the Evidence Act at page 298, appears to suggest that s 106 as a provision replaces that rule to which I have referred as the collateral facts rule. His commentary at page 299 in paragraph 106.5 directs attention to s 43 and compliance with that procedural provision as some foundation for the operation of s 106(c). 6 When one reads the learned author's commentary on s 43, one can be reinforced in coming to the view that if s 106 has not brought to an end the finality of the collateral facts rule, it certainly has alleviated to a great extent the effect of its operation. 7 This is a troublesome matter, but I am persuaded in the end that s 106 is a mechanism, s 106(c) being the pertinent subparagraph, that when one reads the opening parts of the cross-examination of Mr Maynard, the ground work has been laid and a not unimportant consideration is that referred to by counsel for the plaintiff, that the alleviation, if not suspension, of the collateral facts rule the more easily can be considered in the context where really there is a grave question as to whether this is a collateral issue at all. As Mr Hall suggested, it is not here a question of an unrelated lie. It is a question of a statement having been made on an earlier occasion, presumably to be shown to be inconsistent with the very nub of the witness' testimony against Mr Marsden. 8 The defendant has the benefit of having taken the objection and it will run throughout the testimony of the witness. The defendant need not object any further unless some fresh issue arises. I will allow Ms Jones to give the proposed evidence.

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Last Modified: 09/26/2000