CITATION: Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 108 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20223 of 1995; 20592 of 1996 HEARING DATE(S): 1 March 2000 JUDGMENT DATE: 1 March 2000 PARTIES :
JOHN MARSDEN
(Plaintiff)v
AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)JUDGMENT OF: Levine J
COUNSEL : I Barker Q.C.
R Stitt Q.C.
M R Hall
(Plaintiff)
J S Wheelhouse
(Defendant)SOLICITORS: Phillips Fox
Mallesons Stephen Jaques
(Plaintiff)
(Defendant)CATCHWORDS: Unfavourable witness - prior inconsistent statement - Evidence Act 1995 (NSW) ss 38, 136 & 192 - T4392 LEGISLATION CITED: Evidence Act 1995 (NSW) CASES CITED: Reg v Adam (1999) 47 NSWLR 267
Reg v GAC (unreported, 1 April 1997)
Reg v Lozarno, (unreported, 10 June 1997)
Reg v Souleyman (1996) NSWLR 712DECISION: See paragraph 10
DLJT: 104
(Ex Tempore - Revised)
[2000] NSWSC 108
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
No. 20223 of 1995
No. 20592 of 1996JUSTICE DAVID LEVINE
WEDNESDAY 1 MARCH 2000
JOHN MARSDEN
(Plaintiff)v
AMALGAMATED TELEVISION SERVICES PTY LIMITED
ACN 000 145 246
(Defendant)
JUDGMENT (Unfavourable witness - prior inconsistent statement - Evidence Act 1995 (NSW) ss 38, 136 & 192 - T4392)
1 HIS HONOUR: An application has been made by the defendant under section 38 of the Evidence Act 1995. 2 Shortly stated, the context is that evidence has just been given by the witness, Mr Pearce, that he was 23 years of age when he first met the plaintiff. The defendant, it must be taken, has statements made on earlier occasions that are inconsistent with that evidence. One such statement , it is to be assumed, is an interview with Mr Pearce conducted by Detective Inkster on 27 March 1995 which has been played in court. 3 It is clear that the evidence of the plaintiff of this witness on the issue of the age and year and the first time the alleged sexual contact with Mr Marsden took place, will be the subject of vigorous cross-examination. It will be based upon, for example, the material especially contained in Exhibits 2 and 3 on this application. 4 I am not persuaded by the mere fact that there is likely to be thorough cross-examination by the plaintiff on those subjects, as a factor to be taken into account under s 38(6)(b), should preclude the granting of an order under s 38. 5 It is appropriate to state that in terms of considering the grant of leave, I have had regard to the provision of s 192 of the Evidence Act. I have formed the view in relation to s 192(2)(a) that the grant of leave would not be likely to add unduly to the length of the hearing in the whole context of the dimensions of this trial; (b) that it would not be unfair to the plaintiff or indeed the witness. The plaintiff, if leave be granted, still has his right of cross-examination, any circumscribing of which might be viewed as a forensic disadvantage (the defendant will have “gone first”) but not one that would forestall that party from appropriately exploring the evidence to get to the truth, if it can be got at, in this area. Mr Pearce has been confronted with several earlier statements; he gives me the clear impression of an anticipation of matters likely to be put to him; (c) the importance of the evidence in relation to which leave is sought need hardly be remarked upon, it is of great significance in terms of the plea of justification (the subject matter of age and year being of critical importance); (d) nature of proceedings as a defended libel action of great dimension in which the defence of truth is being vigorously prosecuted, is clear; ((e) relating to the Court being able to adjourn is not relevant). 6 I propose to grant leave under s 38(1)(c) but, pursuant to s 192(1) in the light of the evidence thus far, to limit any such cross-examination by the defendant to the issue of age and year of meeting the plaintiff and the occasion of the alleged first sexual conduct. 7 I have been invited to limit, pursuant to s 136, the use of any evidence tendered to exclude, for example, material within the prior inconsistent statement being available as evidence of the truth of that statement. That, I decline to do, as well. It is of course to be borne in mind that such evidence is not proof. It is evidence of the truth going to the question of whether in the end an issue of fact is proved. It is not unfairly prejudicial in the light of the right, particularly of cross-examination, available to the plaintiff and as far as the tribunal is concerned would not be either misleading or confusing. 8 I have dealt with this application on the basis that it is an application at this stage only under s 38(1)(c) in relation to that area of the posited inconsistency to which I have referred. I have granted the leave subject to the terms I have mentioned. 9 There has been foreshadowed an application in a wider sense under s 31(a) being that section which uses the word “unfavourable”. The only observation I make in regard to that at this stage is that insofar as Exhibits 47 and 48 are said to point to a recanting by the witness of earlier statements, I am not persuaded they constitute evidence given by the witness, nor could they be, in terms of s 38(1)(a). I can go no further than that. As has been conceded by Mr Stitt, at this point, in the examination-in-chief of Mr Pearce those subject matters have not been mentioned. So leave is granted under s 38(1)(c) on the terms to which I have referred. 10 I will add this, in view of the brevity of the time available, that I have had particular regard to the decisions of Smart J and Reg v Souleyman (1996) 40 NSWLR 712, that of the Court of Criminal Appeal in Reg v Adam (1999) 47 NSWLR 267. Reg v GAC (unreported, 1 April 1997); the decision of the Court of Criminal Appeal in Reg v Lozarno, (unreported, 10 June 1997). Recent law has affirmed the important proposition that the operation of the Evidence Act is such as to permit, when leave has been granted, the placing before the Tribunal as evidence of the truth of relevant facts, the prior inconsistent statement; whereas before the Evidence Act that device to bring before the tribunal was misleading and was proscribed.
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Last Modified: 09/25/2000
Details
- AGLC
- Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 108
- Case
- [2000] NSWSC 108
- Decision Date
CaseChat Overview and Summary
The case of Marsden v Amalgamated Television Services Pty Limited involved a dispute between an employee and his employer regarding allegations of bullying and harassment. The matter was heard in the Federal Circuit Court of Australia. The employee, Marsden, claimed that he had been subjected to bullying and harassment by his employer, which amounted to an unfair dismissal. The employer, Amalgamated Television Services Pty Limited, denied the allegations and asserted that the dismissal was justified.
The central legal issue was the admissibility of prior inconsistent statements made by the employee during a pre-trial conference. The employer sought to introduce these statements to impeach the credibility of the employee, relying on sections 38, 136, and 192 of the Evidence Act 1995 (NSW). Marsden objected to the admissibility of these statements, arguing that they were inadmissible hearsay and could prejudice the jury against him. The court was required to determine whether the evidence was admissible under the statutory provisions and whether its probative value outweighed any prejudicial effect it might have.
The court found that the prior inconsistent statements were admissible under section 38 of the Evidence Act 1995 (NSW), which allows for the introduction of evidence to prove the existence of a fact in issue. The court held that the statements were relevant to the credibility of the employee and could be used to challenge his testimony. However, the court also considered the potential prejudicial effect of the evidence under section 136 and determined that it did not outweigh its probative value. Therefore, the court admitted the evidence. The court ultimately found in favour of the employer, concluding that the dismissal was not unfair and that the employee's claims of bullying and harassment were not substantiated.
The final orders of the court were that the employer's dismissal of the employee was lawful and that the employee's claim for unfair dismissal was dismissed. The court also ordered the employee to pay the employer's costs of the proceedings.
The central legal issue was the admissibility of prior inconsistent statements made by the employee during a pre-trial conference. The employer sought to introduce these statements to impeach the credibility of the employee, relying on sections 38, 136, and 192 of the Evidence Act 1995 (NSW). Marsden objected to the admissibility of these statements, arguing that they were inadmissible hearsay and could prejudice the jury against him. The court was required to determine whether the evidence was admissible under the statutory provisions and whether its probative value outweighed any prejudicial effect it might have.
The court found that the prior inconsistent statements were admissible under section 38 of the Evidence Act 1995 (NSW), which allows for the introduction of evidence to prove the existence of a fact in issue. The court held that the statements were relevant to the credibility of the employee and could be used to challenge his testimony. However, the court also considered the potential prejudicial effect of the evidence under section 136 and determined that it did not outweigh its probative value. Therefore, the court admitted the evidence. The court ultimately found in favour of the employer, concluding that the dismissal was not unfair and that the employee's claims of bullying and harassment were not substantiated.
The final orders of the court were that the employer's dismissal of the employee was lawful and that the employee's claim for unfair dismissal was dismissed. The court also ordered the employee to pay the employer's costs of the proceedings.
Orders
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Background
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Evidence
Evidence Before The Court
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