Marsden v Amalgamated Television Services Pty Limited

[2000] NSWSC 451

CITATION:

Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 451

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20223 of 1995; 20592 of 1996

HEARING DATE(S):

25 May 2000

JUDGMENT DATE:

25 May 2000

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J at 1

COUNSEL :	I Barker Q.C. M R Hall (Plaintiff) R Stitt Q.C. J S Wheelhouse (Defendant)
SOLICITORS:	Phillips Fox (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	On objection to question asked of Detective French in relation to Elomari tapes - admissibility - Listening Devices Act 1984 - Police Integrity Commission Act 1996 - T6492
LEGISLATION CITED:	Listening Devices Act 1984 Police Integrity Commission Act 1996
DECISION:	See paragraph 20

DLJT: 162
(Ex Tempore - Revised)
[2000] NSWSC 451

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

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

THURSDAY 25 MAY 2000

JOHN MARSDEN
(Plaintiff)

v

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

JUDGMENT (On objection to question asked of Detective French in relation to Elomari tapes - admissibility - Listening Devices Act 1984 - Police Integrity Commission Act 1996 - T6492)

1    HIS HONOUR: In this civil action for damages for defamation, the defendant has sought to tender what are known as the “Elomari” tapes. The initial attempt to tender those tapes was unsuccessful on 28 February (NSWSC 98: DLJT 103). 2    For the purpose of the resolution of the objection taken to a question asked of the witness, those tapes are to be understood as being the product of the utilisation of listening devices said to be pursuant to warrants issued by Judges of this Court. 3    Detective French has been asked the question:

"Did you use a listening device that was installed on or about the body of Steven Elomari?"

and objection has been taken to it. Thus far, the detective has given evidence of his having been an investigator attached to the Royal Commission into the New South Wales Police Service; that on 11 January 1996, he attended at the residential premises of Steven Elomari for a purpose, the purpose being to install a listening device on Elomari to record a conversation between that person and the plaintiff. He has given evidence that in the presence of Investigator Denelle McGinlay, he installed and activated a listening device on Elomari covered by two listening device warrants identified as numbers 345 and 346 of 1995, issued by the Royal Commission into the New South Wales Police Service under the provisions of the legislation. There effectively thus far his evidence-in-chief ends and I have rehearsed it without the benefit of a transcript.

4 An observation that can be made, if the witness in fact said this, is of course the warrant is not issued by the Royal Commission into the Police Service. It is issued by a Judge of this Court on the application by an appropriate officer of the Royal Commission. 5 Exhibit 173, to which I have already referred, is a certificate by his Honour Judge Urquhart QC, the Police Integrity Commissioner, which, amongst other things, certifies that this witness may give evidence in these proceedings in accordance with his statement. That certificate is issued pursuant to s 56(4)(c) of the Police Integrity Commission Act 1996. 6 Attached to that certificate is a letter to the solicitors for the defendant dated 24 May signed by APL Naylor, Solicitor, which inter alia encloses a statement by Detective French which has been marked for identification 187. 7    Objection has been taken to this question and other questions on the basis that the evidence constituted by both the question and the answer sought to be given to it is not "in accordance with" the statement. 8    There is no reference in the statement to “use”. There is reference merely to installation and activation and nothing more in terms of things done. There is no reference in the statement to information or what I have hitherto described as the product. 9    The paradoxical situation has arisen that the witness has given evidence about something in respect of which there is no evidence that he was authorised to do at all, namely install and activate a listening device. I say that because the relevant documents referred to as "warrants" 345 and 346 of 1995 contain nothing that evidence such authorisation. 10    Paragraph 1 of the document described as a warrant authorises “use” but no part of the statement of Detective French refers to “use”. 11    Paragraph 2 authorises “installation”, but by two people, neither of whom is the witness. Why is this so? It is so because in the exercise of the authority given to him by the Police Integrity Commission Act, the Commissioner, pursuant to s 56(4)(c), provided to the parties documents edited by him. That they were edited by him is a reasonable conclusion given the very terms of his certificate to which reference was made in the judgment I delivered earlier this week. 12 It is not sought, as I have remarked before, by anyone to go behind either the exercise of the power by the Commissioner or the issue of the warrant by a Judge of this Court; but what I have identified as the reason why there is no evidence that this witness was authorised to install and activate points to a consequence of the fact and manner of the exercise by the Commissioner of his power. 13 The view I have formed is that the Commissioner, having exercised his power in the terms in which he has expressed it in his certificate, has circumscribed in very clear English the limits of the evidence that this officer can give. Those limits are "in accordance with his statement" and if his statement is silent on any one single thing, he cannot give evidence on it. 14 The paradox, of course, is, as I have said, that he has given evidence of something in respect of which there appears quite clearly to be no evidence of him being authorised to do that which he said he did. I propose to disallow the question and to make some observations which I think are pertinent, though are not necessary, to the conclusion to which I have come. 15 The Listening Devices Act can be characterised as a statutory exercise in seeking a balance between crime fighting and privacy. The Act speaks for itself as to the circumstances in which a Judge of this Court is to be persuaded as to a basis for the issuing of a warrant, the effect of the execution of which constitutes an invasion of a citizen's privacy. 16    Where, as here, it is obviously the case that the plaintiff, in accordance with his right, has put the defendant to strict proof, the defendant is required strictly to prove whatever it is the defendant has to prove with the ultimate objective of having these tapes admitted into evidence. 17    It is a matter of concern to me as a Judge of this Court that litigants and this Court may be seen to be affected in the performance of their respective duties and functions by the production to this Court, by way of tender, as a result of the exercise of a statutory power under the Police Integrity Commission Act of documents which have been edited. The Police Integrity Commission Act does give the Commissioner power to do certain things in what he sees to be the public interest. 18    As presently informed, and I acknowledge that extensive submissions have not been made by either side, it appears that an effect is that documents which are issued by this Court, namely the warrant, and documents which the warrants direct to be delivered to this Court, namely s 19 reports, return to this Court censored in the name of the public interest by a person outside this Court. I hasten to make it clear that I am not being critical of the Commissioner but am expressing concern that in so sensitive an area of the administration of criminal justice and, indeed, civil justice, documents emanating under the authority of this Court and returned to it can subsequently be returned and sought to be relied upon in the form about which I have, in effect, complained. 19    In my ruling earlier this week, I said that the certificate of the Commissioner neither compels admissibility nor determines it. One effect of the exercise of the Commissioner's power could well turn out to be - and I stress could well turn out to be without saying that that in fact will occur - is that documents in the form of the warrants as edited, the reports as edited, may never be capable of being admitted into evidence. 20    For present purposes, I repeat that this witness can give no evidence of any matter not referred to in terms in his statement. I formally disallow the question.

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Last Modified: 09/25/2000