Marsden v Amalgamated Television Services Pty Limited

It will, of course, be entirely a matter for his Honour whether to accede, at this late stage of the trial, to an application on behalf of the claimant to reopen its case to call further evidence linking the copy warrants with the tapes and transcripts, sufficient to allow their admission. We are told that such a course will be vehemently opposed by the opponent. Nothing we have said should be taken as evidencing any view as to how the trial judge's discretion should be exercised. He, of course, having had the conduct of the whole trial, is in a uniquely favourable position to make that decision". 5 I will not rehearse the history of my rulings on "the Elomari tapes" issue. That history is set out in paragraph 7 of the judgment delivered by me on 13 June 2000 (NSWSC 530: DLJT 172). 6 In support of the Notice of Motion the following material was tendered without objection as indicative only of the evidence the defendant proposes to call in the event of the grant of leave. 7 Exhibit A is made up of a Certificate of the Police Integrity Commissioner dated 14 July 2000 and the five statements, also of that date, of relevant officers referred to in that Certificate. As part of Exhibit A is what I will describe as the "PIC transcript" of the relevant conversation (78 pages). It should be made clear that for the purposes of the consideration of one issue only in this Motion, during the luncheon adjournment on Tuesday 18 July 2000, I perused this transcript and the "Hamilton" transcript (see below) with the consent of the plaintiff. The issue in the Motion to which the perusal related was the submission for the plaintiff that as at 11 January 1996 there was no expectation in the plaintiff of the likelihood of Mr Elomari playing a part in the defamation proceedings. It is appropriate to remark at this point that the two references given to me by Mr Nicholas after lunch persuade me sufficiently that that submission for the plaintiff lacks foundation. In no other respect was that transcript considered. 8 Exhibit B on the Motion is an affidavit sworn by Mr David Price of the defendant's solicitors. This is in effect a proof of evidence that would be given by Mr Price as to issues of "continuity" and "provenance" of the relevant tape. 9 In this regard, a submission for the plaintiff in opposition to the Motion can now be disposed of: it was submitted that a real evidentiary difficulty confronting the defendant is a gap in tracing the relevant tape from 17 March 1997 on which occasion it was given to the NSW Police Service to February 2000 when it was produced to this Court. Mr Price's affidavit points to evidence that could (and I stress the word "could"') fill the asserted gap. Whilst not eliminating what the plaintiff would contend to be an issue, whilst pointing to the possibility that that issue of provenance would be a live issue in the event of the defendant being granted leave, the submission that leave should be refused by reason of so "patent" a gap in the provenance cannot be accepted. 10 Exhibit C is a statement of Mr Jim Astley (an employee of the defendant - an Audio Supervisor and Head of the Audio Department). This document points to Mr Astley being called in an expert capacity, as I would understand it, to give evidence in relation to his "dealing," on 9 June 2000, with the cassette, MFI 189. His "dealing" with the tape leads to Exhibit D on the application, an affidavit of Dianne Elizabeth Hamilton, solicitor of Mallesons, which confirms that Mr Astley "dealt with" MFI 189 to produce what I will describe for present purposes as an "improved tape" dubbed by him and the "Hamilton transcript" prepared by the solicitors for the defendant, which transcript (59 pages), Mr Nicholas made clear the defendant proposes to tender in the event of leave to re-open being granted. 11 Exhibit E on the Motion is made up of MFI 193, the two warrants referred to above. 12 Exhibit F is a Certificate issued on or about 24 April 2000 being Exhibit 161 in the proceedings. 13 Exhibit G is a letter dated 19 April 2000 from the PIC to the defendant's solicitors. 14 Exhibit H is MFI 189 (the cassette). 15 The proposed evidence relates to the defence of justification. It relates to that component of the defendant's case on justification constituted by Mr Elomari and his allegations against the plaintiff in respect of alleged under age sex. It relates to that component of that part of the defence case described as "Admissions by Conduct" in respect of that witness pursuant to particulars initially delivered on 25 January 2000. 16 Mr Elomari gave no evidence of the terms of any conversation with the plaintiff on 11 January 1996. The only evidence he gave as to the tapes is set out at T4152 (see my judgment 28 February 2000 (NSWSC 98: DLJT 103) paragraph 1). 17 The plaintiff was cross-examined at T7022-3 (8 June 2000) until objection was taken, leading to my ruling (8 June 2000 (NSWSC 519: DLJT 171)). 18 At what stage of the proceedings is this application made? 19 The defence case has closed (the last witnesses were called on 25 May 2000). 20 The plaintiff's case in reply has closed (the last witness was called on 12 July 2000). The closure of the respective cases was subject to the usual matter of the finalisation of the tender of certain documentary material (which in the strict sense is yet to be concluded as at the time, and because, of the preparation of these reasons). 21 The 12th of July 2000 was the one hundred and twenty fourth day of trial hearing in a defamation action the dimensions of which can fairly be regarded as notorious (including the plaintiff being in the witness box for 18 days during twelve of which he was cross-examined). This is the second calendar year during which the trial has been conducted, the jury returning its findings as to defamatory imputations in February 1999. 22 But for the present application, the point of the trial has been reached were directions would otherwise be given as to the delivery of written submissions, the fixing of a time for oral submissions upon the conclusion of which I will reserve my decision. 23 The defendant seeks the opportunity to lead the evidence referred to. It does not presently have the right to do so. It does not presently have any entitlement to do so. Neither a right nor an entitlement flows from the decision of the Court of Appeal. The Court of Appeal held that I was wrong in rejecting the tender of the subject warrants. The Court of Appeal acknowledged that as the trial judge I was peculiarly placed to exercise, judicially, my discretion as to the one right which the defendant does presently have: namely, to apply to have that discretion to permit re-opening exercised in its favour. 24 This is still the position notwithstanding, as is acknowledged by Mr Hall and indeed by myself, there to have been (and still is) a factor in the consideration by myself and the Court of Appeal of "the Elomari tapes" issues. Namely the importance to have it resolved in terms of finality. I am, of course, not concerned with "new trial" points. I am concerned with the proper administration of justice in the trial over which I have been presiding. The Court of Appeal has not ruled, as it could not, that the rejection of the copy warrants is a "new trial" point. Indeed, the decision of their Honours in granting leave and allowing the relevant appeal, points to the present application being clearly available to the defendant as of right to make, but one quintessentially for my discretionary disposition as trial judge. 25 It was submitted for the defendant that the proposed evidence involves no amendment or matters of that kind: that is so as far as pleadings or particulars go. 26 It was submitted that the effect of it will be to extend the trial by "a short time," and a time said to be "relatively insignificant" in the context of the duration of the whole of these proceedings. It was submitted that the proposed evidence would be dealt with "within a day" even if the witnesses were "cross-examined up hill and down dale". To these propositions I will have to return. (I gather one witness could be "heard", it is said, via telephone conferencing or video-link). 27 I accept it to be the position as advanced by Mr Nicholas that the plaintiff has had access to the tape and the PIC transcript since 21 February 2000. 28 Further, I accept that the material constituted by the exhibits in this application have been made available to the plaintiff prior to today, but certainly, as to its bulk, no earlier than 14 July. Though the material constituted by Mr Price's affidavit, Ms Hamilton's affidavit and the statement of Mr Astley dated 17 July 2000 can only be viewed as recent. 29 The next matter upon which reliance was placed as a factor of relevance was what is said to have been an admission made by Mr Barker on 26 May 2000 at T6510. That admission was in the following terms: "BARKER: We are prepared to admit that the signatures on the tapes produced are respectfully those of Mr Da Re, Miss McGinlay and Mr French. We are prepared to admit that the tapes contain a voice which is that of Elomari. That is the extent of my instructions, your Honour". 30 That was an admission made in the context of the tender of purported taped material; so far as that tender included the subject of the present application it could be understood to apply to it. I am not persuaded that that admission by Mr Barker in the context of the events that had happened up to that point of time is one that would be of so compelling a nature either by itself or together with other factors would warrant the exercise of my discretion in favour of the defendant. 31 A further matter of relevance was the evidence given by Mr Marsden in cross-examination to which I have referred which, of course, led to a ruling in respect of which the defendant was not successful on appeal. Its failure on the s 13(2)(b) point obviated the value of a further matter upon which I understood Mr Nicholas to rely, namely, a concession that had the defendant succeeded on that aspect before the Court of Appeal the plaintiff would have made himself available for cross-examination (see paragraphs 24-30 of the Court of Appeal judgment). 32 Another matter of relevance upon which Mr Nicholas relied was the statement made on 16 June 2000 at T7341.16 by Mr Barker, on the subject of re-opening. It was made in the context that the judgment of Priestley JA on 16 June 2000 standing the then applications for leave to appeal over generally and consequent upon certain remarks made in the course of submission to their Honours leading to that outcome on that day, of an application by the plaintiff to inspect warrants in the Court files. Further, of course, what Mr Barker there said cannot be understood as an unlimited admission of an entitlement in the defendant to have me exercise the undoubted discretion available to me in its favour to grant leave. A fortiori, now, in the light of what I have extracted from the Court of Appeal above. Further, insofar as in some way the defendant seeks to "hold" the plaintiff to that statement by Mr Barker, it has to be viewed in the light of what the defendant intends to do upon the grant of leave, now, as opposed to what it had unsuccessfully sought to have done then. To this I refer below. 33 I am not persuaded that the statement by Mr Barker can be employed in the way the defendant seeks to use it. 34 It was further submitted that there is a significant public interest in the resolution of this case on its merits. That is a proposition that cannot be gainsaid. The real issue is whether or not the resolution of this case on its merits in the public interest would be compromised by the continued exclusion by the adverse exercise of my discretion of this one component of one part in relation to one witness in respect of the whole of the defendant's case in the trial of the dimensions to which I have referred. That one evidentiary component must be taken to be seen as important. 35 Both counsel referred me to the statements of principle expounded by Clarke JA in Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 475B-D; 475F-476B; 476C-F; 477F; 478D-479C. I will not extract these well known portions of his Honour's judgment. The guiding principle for a Court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application. 36 The application of this general principle to the present Motion is clear. The circumstances with which the Court of Appeal was concerned in Nweiser are quite different to those now confronting me. The dimensions of the trial with which their Honours were concerned are of course quite different although that is really of not significance. In Nweiser the application to re-open was made during the course of a closing address. That is a situation quite different to the present. Indeed, we are very far from such an occasion. We are closer in point of the time of relevant trial "moments" to the closure of all the evidence rather than to the conclusion of submissions. 37 A point at issue here was whether or not the present state of affairs arises from what was contended to be, for the plaintiff, a deliberate tactical decision by the defendant not to pursue the issue of the admissibility of what was then "the Elomari tapes" (as opposed to, now, "the Elomari tape") after the adverse ruling on 28 February 2000. 38 It was advanced for the plaintiff that the failure of the defendant to produce evidence in its case "the first time around," in the light of the history of this matter, puts this application to re-open, inter alia, to admit the second copy warrants, in a special category. It is open to me, it is submitted, that I would infer that there has been a deliberate or unexplained failure to ask any additional questions of Mr Elomari (who was not even re-examined and also, it appears, will not be recalled) after the first failure, and the failure to make any application earlier than July to the Police Integrity Commissioner to disseminate information regarding the continuance and provenance of the storage of the tapes and the failure to make any effort while the case was still open to prove the steps leading to the transcription of the tape. 39 What gives rise to this submission, as I understand it, is the Certificate dated 14 July 2000, the first document in Exhibit A and the fact that the statements of the proposed officers are themselves dated 14 July 2000, one day after the decision of the Court of Appeal. As I understand it, the plaintiff submits that whilst the Court of Appeal has said I was in error in not admitting the second set of warrants, had I done so that would "have put in train," a course of evidence for which the defendant had taken no steps to prepare itself, namely, in relation to provenance, continuity and transcription. This can be inferred, it is said, from the fact of the Certificate issued by the Commissioner on 14 July. This is an unexplained failure on the part of the defendant, it is said, when from late February, on every occasion that the matter of the tapes was brought up, and as is indeed acknowledged in the judgment of the Court of Appeal, the defendant would be put to strict proof. 40 What is here happening is not merely an application for leave to re-open to tender the warrants I wrongly rejected as the Court of Appeal has said, but to tender the warrants as part of a course of evidence for which hitherto the defendant took no steps by way of preparation at all. It is one thing to seek leave to re-open to have admitted that which was said to have been wrongly excluded and embark upon a course of evidence which would otherwise have been embarked upon, but another to have admitted those warrants and then embark upon a course of evidence that the defendant had not intended to take at all. The more so is this the case when one considers the objections taken to evidence in the light of PIC Certificates at the time of the determination of the issues in late May leading ultimately to the formulisation of the leave applications to the Court of Appeal dealt with on 13 July 2000. 41 This submission is made acknowledging the statement at 478E of Clarke JA in Nweiser that a decision not to call a witness in the party's case being a deliberate one does not give rise to the application of any hard and fast rule that requires the Court to reject an application to re-open. It is however a very relevant consideration. 42 Here, as I understand it, the steps taken reflected in those exhibits brought into existence on and from 14 July, the day after the judgment of the Court of Appeal, reflect a deliberate forensic decision by the defendant to take a course of proving a chain of evidence as outlined by that material. That was a course, so it is said, in respect of which there is no evidence that it was going to be taken before then. It is in this context that I understood Mr Hall to be making a passing reference to a concept of "new" evidence. That "passing reference" is really not to the point. The point of the submission is that it conforms with the principles enunciated by Clarke JA in Nweiser to view what has happened here, namely the steps taken by the defendant after a series of adverse rulings by myself, after the clear indication from February to May that it would be put to strict proof, after the judgment of the Court of Appeal on 13 July 2000, as in the same category as a deliberate forensic decision not to call evidence and, in effect, to confront the plaintiff not merely with the prospect of the tender of the wrongly rejected warrants but with a completely different and new approach to a newly defined course of evidence. Not only does the defendant, as-it-were, wish to try again but it wishes to "try again," on the basis of the admissibility of the second pair of warrants to prove its case on this issue in a way different to that hitherto indicated. 43 For the defendant Mr Nicholas argued that it could not be held against the defendant in the context of forensic decisions or unexplained steps, that "so often had it failed on the threshold" point, namely the tender of warrants. The defendant simply could not get past that initial hurdle and the decision last made by me to exclude those warrants has been held to be incorrect and the defendant should be free to embark upon the course it proposes. 44 I am persuaded by Mr Hall's submissions that the course proposed by the defendant in the event of leave being granted can be considered cognate with a deliberate forensic decision not to call evidence as adverted to by Clarke JA. I consider this and find it to be a very relevant consideration. It is a consideration that I do not find to be determinative by itself but is very persuasive. 45 For the plaintiff, in summary, it was contended in opposition to the motion that the stage of the trial is important. I have indicated above that stage at which the trial presently rests. 46 Secondly, reliance is placed upon the circumstances pointing to a "failure" in the defendant to call the evidence, that is, to pursue admissibility. This I have found to be a persuasive point. 47 Finally it was contended that the grant of leave would be futile for two reasons. The first, I have already dealt with and that is the question of provenance and continuity. That area of evidence is not such that one could at this point come to a view that it is futile. What it does point to is that it will be a matter in issue. 48 The second area of futility rests upon the construction of paragraph 2 of the relevant warrants (Exhibits E, MFI 193) in relation to the authorisation of the "installation" of the listening device on Mr Elomari by Mr French in circumstances where his name has been mentioned in paragraph 1, but not in paragraph 2. 49 Mr Nicholas made submissions as to the operation of s 16 of the Listening Device Act 1984 the second schedule thereto as it applied in 1996 and SCR Pt 77. The point shortly stated is that arguably none of the mechanisms of the Listening Device Act required any express authorisation in relation to the installation of the device on a consenting party such as Mr Elomari. For present purposes I am prepared to accept that Mr Nicholas' submissions point to the non-availability of the futility argument in relation to the warrants raised by Mr Hall. 50 Having rejected the defendant's submissions as to the availability as relevant considerations the concessions and admissions made by Mr Barker Q.C., having rejected the plaintiff's submissions as to futility but accepted as persuasive the submission as to failure to pursue admissibility, I turn to the "stage of the trial" point and by doing so return to an observation I made earlier. 51 Mr Nicholas approached the application on the basis that the exercise of my discretion whether or not to grant leave should not involve the consideration of questions of admissibility or the quality of the evidence. Those questions of admissibility would be dealt with following the grant of leave. This approach was not disputed for the plaintiff except in the areas, essentially, of futility to which I have referred above. 52 What was submitted by Mr Hall is that there would be, upon the evidence being admitted, the likelihood that a consequence would be at least further examination (including reliance on other tapes) and cross-examination of the plaintiff, the requirement of consideration of whether additional material he and his advisers consider should be tendered. The point was raised in the context that this was not application that is to be dealt with in a "single day" (by that I understand the evidence to be called if leave were granted) because while the material specifically sought to be re-opened is of "narrow" compass the consequence will be prejudicial by reason of additional delay and extension of the trial and a concomitant increase in costs. Mention was made of the plaintiff's stress undergone and likely further to be undergone in the grant of leave: I note that, but it is not a factor that I would take into account determinative of the outcome. Common sense, as Mr Hall submitted, does dictate that a continuation of the trial by the calling of further evidence would involve further costs. 53 What Mr Hall was focusing upon was the "stage of trial" component of his submissions. Mr Nicholas submitted it would not be appropriate to "speculate" as to whether or not the plaintiff would seek leave to re-open his case in reply to deal with the matters of evidence led by the defendant consequent upon the grant of leave, or as to whether the defendant would apply to have the plaintiff recalled for further cross-examination. I agree that it is inappropriate to speculate. 54 However being the trial judge in this particular case especially, and as a general proposition, I could not, by the mere avoidance of speculation, be obliged to accept or be content with accepting, the defendant's estimate that only about a day would be involved. 55 To speculate is one thing. To consider realistically and reasonably forensic possibilities is another; as a discrete component in opposition to the leave application I have not accepted the futility argument. That does not mean and cannot mean that the tender of the warrants and evidence called by the defendant consequent upon their admission will be non-contentious. It does not mean, that there will be no argument as to the admissibility of the very transcript upon which the defendant relies - namely, that created by itself and not the one provided by the Police Integrity Commissioner. It does not mean that any sensible appreciation of the reality of protracted further hearing time be ignored. 56 As the Court of Appeal made clear in the extract from their Honours judgment set out above, leave is sought to commence a chain of evidence with a view to having admitted the tape and, according to the Notice of Motion, a transcript being one prepared by the defendant. In the light of the history of the litigation of the issues in relation to "the Elomari tapes" as it hitherto has been experienced, the only view to which I can come is that the grant of leave would involve not a day but many days. This is not speculation. It is a realistic appreciation by me as the trial judge in the light of the history of this whole case, of the possibility of every step in this proposed evidentiary path vigorously being contested. I of course do not now conclude anything as to admissibility, let alone weight. But this frank recognition of the possibilities and at this stage of this trial and, in relation to the issue as I have identified it, leads to the conclusion that the extension of time would not be "relatively insignificant". The dimensions of the trial are such that any extension of the time would be extremely significant. 57 Given the issue to which the evidence relates, given the dimensions of the trial generally, given in particular the stage of the trial at which the application is made, given that the proposed evidence as I have said relates to but one component of one part of the defendant's case in relation to one witness, I do not see the interests of justice in terms of finality being reached at trial, on the issues litigated in the light of the evidence presently available, being compromised by rejecting the application. 58 As Mr Nicholas submitted there is a significant public interest in the resolution of this case on the merits. I am of the view that there is a sufficiency of a case (especially after the length of time), an abundance of evidence on all issues in relation to all relevant people to permit the resolution by me of it all on its merits. The resolution of this litigation on its merits will not, I am comfortably persuaded, be impugned by the dismissal of an application with the result that the defendant has not been able to lead evidence on this one issue in relation to one witness in relation to one part of its defence at this stage of this lengthy trial. It would be unjustly disproportionate to the dimensions of this case in every respect, especially in duration and quantum of evidence, further to permit its prosecution to allow the tendering of evidence on this discrete issue. 59 The "failure to pursue admissibility" point, as I have described it is persuasive as I have said. Of itself it would not be sufficient. The stage of trial point is sufficient; it combined with the persuasive point, leads me to the view that this is a case where the interests of justice are better served by rejecting rather than allowing the application. 60 Accordingly, I am not persuaded, in the exercise of my discretion, to grant leave to the defendant to re-open and the Notice of Motion is dismissed. The exhibits are to be returned.

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Judgment (9 paragraphs)

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Cases Cited (3)