Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 436

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 436 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 23 May 2000 JUDGMENT DATE : 23 May 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1

I Barker Q.C. M R Hall (Plaintiff) COUNSEL : W H Nicholas Q.C. R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Admissibility - Listening Devices Act 1984 - tender of s 19 reports - Certificate under Police Integrity Commission Act 1996 s 56(4)(c) - admitted on limited basis - T6328 LEGISLATION CITED : Evidence Act 1995 (NSW) Listening Devices Act 1984 DECISION : See paragraph 10

DLJT: 159 (Ex Tempore - Revised) [2000] NSWSC 436

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

TUESDAY 23 MAY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Admissibility - Listening Devices Act 1984 - tender of s 19 reports - Certificate under Police Integrity Commission Act 1996 s 56(4)(c) - admitted on limited basis - T6328) 1 HIS HONOUR: The defendant is seeking to have admitted into evidence what I shall call the Elomari tapes. They are to be understood to be tapes of conversations to which Mr Elomari was a party, recorded by listening devices said to have been used pursuant to warrants under the Listening Devices Act. 2 There has been admitted into evidence thus far Exhibit 161, being a certificate and direction signed by his Honour Judge Urquhart QC the Police Integrity Commission, or dated 24 April 2000. It was issued under s 56(4)(c) of the Police Integrity Commission Act 1996. 3 The eight warrants referred to in the certificate have been admitted as Exhibit 162. Both exhibits have been provisionally admitted pursuant to s 57 of the Evidence Act. 4 Nearly three months ago on 28 February I rejected the tender of the tapes for the reasons stated in my judgment (NSWSC 98: DLJT: 103). Hitherto the tapes have not been tendered in the present exercise. 5 The tenders with which I am presently concerned are of a certificate from the Commissioner dated 24 April 2000 in relation to four reports pursuant to S19 of the Listening Devices Act, the reports themselves, and the document headed "Schedule of Listening Device Tapes and Transcript". I propose to admit the certificate and reports conditionally; the former 163, the latter 164. 6 The warrants already in evidence expressly require the making of a report pursuant to s 19. The documents as documents are flawed in the sense that they are apparently edited. They will be available to be taken into account for the consideration, together with the warrants, for the testing of the admissibility of any tapes which may be tendered in due course, together with any other evidence. 7 The editing of the warrants and the reports arises from the certification as to public interest made by the Commissioner in his certificates. It is not sought to go behind the exercise of the Commissioner's power, or to go behind the issue of the warrants by the respective judges of this court. It is to be noted that the certificates state that it is necessary in the public interest, and it is directed, that the documents be divulged to the parties to these proceedings before me "for the purpose of use in such proceedings." That is the purpose identified by the Commissioner; namely "use in these proceedings." 8 The Commissioner's certificate, whilst divulging documents for the identified purpose, cannot, in my view, compel admissibility, nor, I am of the view, determine admissibility of the tapes or their contents in these proceedings. That is a question for this Court ultimately to decide upon the tender of all relevant material. 9 As to the schedule, I reject the tender. Assuming the document is sourced in some material from the Police Service or the Police Integrity Commission, it contains nothing on its face that leads to the characterisation of it as a record, whose record, and what are the representations it purports to contain. It is edited, and in a confusing way. See paragraph 5. 10 I would otherwise reject that tender as excluded from the exception to the Hearsay Rule as provided for by s 69(3)(b) of the Evidence Act. ***********

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