Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1099 (12 November 1999)

Last Updated: 15 November 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1099

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20223 of 1995; 20592 of 1996

HEARING DATE{S): 28, 29 October 1999

2 November 1999

JUDGMENT DATE: 12/11/1999

PARTIES:

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED

(Defendant)

JUDGMENT OF: Levine J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

G Reynolds S.C.

M R Hall

(Plaintiff)

J Sackar Q.C.

L McCallum

(Defendant)

SOLICITORS:

Marsdens

(Plaintiff)

Mallesons Stephen Jaques

(Defendant)

CATCHWORDS:

Use of Pseudonyms

ACTS CITED:

DECISION:

See paragraph 80

JUDGMENT:

DLJT: 51

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DEFAMATION LIST

No. 20223 of 1995

No. 20592 of 1996

JUSTICE DAVID LEVINE

FRIDAY 12 NOVEMBER 1999

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED

ACN 000 145 246

(Defendant)

Judgment (use of Pseudonyms)

1 This application is concerned with whether or not those who have hitherto been described as "complainants" should have the benefit of the continuation of the pseudonym orders presently in place.

2 For a history of the use of pseudonyms see my judgment of 20 November 1998 (DLJT: 6). It fairly can be said that the orders hitherto in operation were made against a background of consent. The argument recently heard was the first occasion on which the question of whether there should be any such orders at all was considered and full submissions made on the subject.

3 Contrary to the usual practice, no formal Notice of Motion has been filed. A preliminary question therefore is the identity of the moving party. That shortly can be answered: the plaintiff. The defendant has been content with the orders presently in place (to the effect that, until further order, the names of the complainants - the D persons - should not be mentioned in open Court). The defendant opposes the vacation of the present order. It is the plaintiff who seeks to have the order dissolved.

4 On 28 October at the commencement of submissions, orders were made discharging the application of a pseudonym to the persons hitherto referred to as D2 (who is deceased), D3, D14, D19 and D22.

5 The D persons with whom this application is concerned, in the end, are D1, D5, D6, D13, D15, D16, D17, D18, D21, D23 and D24.

6 The evidence tendered for the plaintiff is made up of a bundle of documents (Exhibit A) parts only of which were relied upon in relation to several of the D persons. Further reference will be made to it below. Three affidavits, used on a previous occasion, were also relied upon being those of Mr Richard William Potter of 5 and 18 September 1998 and Kate Louise Gillingham of 18 September 1998, together with an affidavit of John Patrick Deane sworn 26 October 1999.

7 For the defendant the affidavits of Mr Ian Robert Angus sworn 17 April 1996, 10 May 1996, 13 January 1996 and David Charles Price sworn 14 January 1999 and 27 October 1999 (there are two such affidavits) were relied upon.

8 Earlier written submissions and outline of submissions were usefully provided together with two schedules prepared for the defendants. The first schedule is headed "Schedule of References to D Witnesses" which I will mark as MFI 1 and keep with the papers; the second schedule a "cut and paste" compilation of material said to be relevant on both sides, will be MFI 2.

9 The evidence contains no "direct" evidence from the "complainants". For the defendant the evidence is on information and belief, updated in the recent affidavits, of communications with complainants or persons acting on their behalf. The evidence for the plaintiff similarly can be characterised; it does not however have the more direct connection with the complainants disclosed in the defendant's affidavit.

10 It is appropriate, first, to summarise the state of the evidence as to the "position" of the complainants and my conclusions.

D1

11 D1 appeared prominently on the "Witness" program. In a statement made to the police on 29 July 1998 produced under subpoena (part of Exhibit A) he states:

"13. On 6 May 1996 the Channel 7 programme `Witness' went to air which showed me under the nickname `Bill'. I decided to appear on television `full face' without masking and without disguising my voice because of my concern that the public would only see the victims as blank faces, not real people. I was standing up for the victims.

14. Everything I have ever said in any of these statements has been true to the best of my knowledge and recall. I have been persuaded by the police to be re-interviewed to try and provide further detail, though I would sooner forget about the whole thing. But I want to see justice done. It hasn't been done so far. I stick to everything I have said, and I want to tell this story in Court".

12 Annexure C to Mr Deane's affidavit is a Victim's Compensation claim (or part thereof) which discloses the identity of the complainant. The claim is against the plaintiff.

13 On or about 17 May 1995, according to Mr Angus' affidavit of 17 April 1996, a conference took place between D1 and counsel for the defendant, Mr Wheelhouse, in which the following exchange took place:

"Wheelhouse: If you decide to give us a statement, that means, that you will probably be called on to give evidence at the trial. We will take all steps that are reasonably available to us to conceal your identity prior to the trial, but it is unlikely that we will be able to protect your identity at trial.

D1: I have no problem with giving you a statement, as long as my name is kept completely confidential, at least up to the trial. I want your undertaking that I will not be called as a witness without my agreement.

Wheelhouse: We can give you that undertaking.

D1: I am prepared to give evidence at the trial, as long as the evidence is in camera and my name is kept confidential at all times. The decision to appear as a witness is to be mine if the in camera application is unsuccessful.

Wheelhouse: That's fine."

14 In his affidavit of 10 May 1996 Mr Angus deposes to a telephone conversation he had with D1 in April of that year as follows:

"Angus: An application has been made to the Court by Mr Marsden in the defamation proceedings between him and Channel 7 for an order that your identity be revealed to Mr Marsden as part of the particulars of Channel 7's defence. Do you have any objection to your name being publicly disclosed to Mr Marsden? DO you have any objection to your name being publicly disclosed during the defamation proceedings either now or at the trial? Would you agree to a meeting with Mr Marsden or his solicitors, if asked?

D1: I do not want my name published or made available to John Marsden or his lawyers. I want my name suppressed both before and during any trial. If John Marsden is given my name, I fear harassment by him. If my name were to be given to Mr Marsden and he or his lawyers were to approach me for a meeting or interview, I would refuse to agree".

15 Mr Price in his affidavit of 9 February 1999 deposes to a conversation he had with D1:

"DCP: You know that the Court has made orders preventing your name from being published in open Court. Justice Levine confirmed that order this morning.

D1: That's good. You have to do everything you can to keep my name out of the papers and off the TV.

DCP: We'll do our best.

D1: Mate you've got to. I've got custody proceedings about to start over my little girl. She's the most important thing in my life. I don't want any media thing to stuff that case up. I'm about to start university this year and I don't want to have to turn up on the first day and have all these people pointing and talking about my past. I'm going to have spend a lot of time with these people. It'll be bad enough for me just trying to learn to study, I don't need these people talking about me".

16 Another conversation with D1 took place on 21 October this year to which Mr Price deposes as follows:

"DCP: I need to talk to you about the issue of pseudonym orders again.

D1: What is that?

DCP: I'm sorry the pseudonym orders are the orders that witnesses names not be used in Court. Code names are used instead.

D1: Yes. I know about that.

DCP: Marsden has made an application for the orders to be change.

D1: In what way?

DCP: He wants to be able to name people in Court. Do you still want us to seek to have the orders kept in place?

D1: Absolutely. I have no desire whatsoever for my name to be splashed all over the newspapers or on TV. I have an outside life and I don't want my past to become to become common knowledge. I've got a daughter and family to think of. I would not be at all happy if my identity was published during this trial".

17 It is not easy to reconcile the desire of D1 not to have name splashed all over newspapers or on television with his behaviour in appearing, even with the nickname "Bill", in the program in 1996. It is to be borne in mind that that program was publicly shown as an exhibit in the trial of this action in February of 1999. The face of D1 would have been known both in 1996 and 1999 to anyone who knew him. No further mention was made of "harassment".

18 He was concerned in February of this year about custody proceedings in relation to a child the details of whom are unknown. It appears to me that D1 is expressing what might be described as a firm preference or wish about disclosure of his identity in terms of "embarrassment". He would not be "happy" if his identity was published. Whether or not the custody proceedings would bring about exposure not merely, of course, of his identity, but also of the details of his conduct as alleged vis-a-vis the plaintiff is a matter open to question.

D5

19 In May 1995 D5 conferred with Mr Wheelhouse during which (Angus affidavit 17 April 1996) the following exchange took place:

"Wheelhouse: If you decide to give us a statement, that means that you will probably be called on to give evidence at the trial. We will take all steps that are reasonably available to us to conceal your identity prior to the trial, but it is unlikely that we will be able to protect your identity at the trial.

D5: I am prepared to give you a statement, as long as my name is not revealed publicly or in any way".

20 In April 1996 a telephone conversation took place between D5 and Mr Angus (affidavit 10 May 1996):

"Angus: An application has been made to the Court by Mr Marsden in the defamation proceedings between him and Channel 7 for an order that your identity be disclosed to Mr Marsden as part of the particulars of Channel 7's defence. Do you have any objection to your name being revealed to Mr Marsden? Do you have any objection to your name being publicly disclosed during the defamation proceedings either now or at the trial. Would you agree to a meeting with Mr Marsden or his solicitors, if asked?

D5: I do not want my name revealed either to Mr Marsden or publicly in Court. I am afraid of harassment of myself and my family from Mr Marsden and others. I have three children, one of whom is only four months old. I believe three attempts were made on my life last year. I want my name suppressed now and at the trial. I do not wish to speak to Mr Marsden or his lawyers. If my name is given to Mr Marsden, I would refuse to talk to him or his lawyers".

21 Mr Price had a conversation with D5 on 25 October 1999 it was in the following terms:

"DCP: Do you remember that orders have been made in these proceedings preventing you being named in Court?

D5: I remember something like that.

DCP: Well, so far in this case, whenever references have had to be made to witnesses, they have been referred to by code names. You have been given the code name `D5'.

D5: I knew they couldn't say my name but I didn't know I had a code name.

DCP: Marsden has made application to change those orders so that he can name you in Court.

D5: Fuck him.

DCP: By that, I take it that you still don't want your name published.

D5: Too fuckin' right.

DCP: Can you tell me why you don't want your name published?

D5: Mate, I don't want my kids seeing or hearing about this shit.

DCP: How old are they?

D5: The oldest is 4 but they know who I am?

DCP: Do they live with you.

D5: No, my wife has them and she has cut off access to them. I'm meant to see them on weekends, but she won't let me. I've got to go back to court to get a variation of the access orders.

DCP: When will that be?

D5: I don't really know. Either late this year or early next year.

DCP: Are you concerned about the effect of this matter on those proceedings?

D5: What do you mean?

DCP: Are you concerned that the publication of your name in the defamation case might affect your access to your kids?

D5: It better fuckin' not.

DCP: OK. I also need to ask you about another matter. One of Marsden's lawyers has sworn an affidavit in which he says, I'll just read this to you: Mr John Marsden has informed me that in relation to D5, Ron Kinchela, Mr John Marsden and Marsdens the Attorneys act for many members of the Aboriginal Community in Campbelltown who are well aware of Ron Kinchela's allegations of underage sex against Mr John Marsden. Mr John Marsden has advised me that Ron Kinchela's daughter, his two ex-defacto's and a number of his friends including Gary Stewart and Ron Webb. Do you have anything to say about that?

D5: Does it say who my ex-defacto's are?

DCP: No, it doesn't.

D5: Well my daughter is only about 21. The only thing she knows about this case is what she has seen on television..

DCP: Have you spoken to her about this case.

D5: No.

DCP: Did you ever speak about this case with any of your defacto's?

D5: They knew I was involved in it, but I never said much about it to any of them. Did you know that Marsdens' are representing one of my ex's in the case about access to my kids?.

DCP: No I didn't. Which one is that?

D5: Veronica.

DCP: How long have you known Gary Stewart and Ron Webb?

D5: I met Gary Stewart in about 1987. I've never heard of Ron Webb. Who's he?

DCP: I don't know, just one of the names in this affidavit. How often do you see Gary Stewart?

D5: I don't.

DCP: Is he a friend of yours?

D5: No. He's the guy who swore that stat dec saying that we were in Dharruk together. I can prove he's full of shit because I've never been in Dharruk.

DCP: And you've never heard of Ron Webb?

D5: No."

22 In his affidavit of 26 October 1999 Mr Deane (for the plaintiff) swears as to conversations he has had with other solicitors in the plaintiff's firm which apparently acted for a former wife of D5 who was aware of allegations of under age sex that D5 had made against the plaintiff. The plaintiff's daughter Tammy Mathieson also is aware of the allegations. Statements from solicitors in the plaintiff's firm are attached to Mr Deane's affidavit. I can draw the inference from the material in Mr Deane's affidavit, the statements in the affidavit of Mr Tom Charles Reid another solicitor in the employ of Marsdens that the fact of the allegations is well known amongst the Campbelltown Aboriginal Community in which both the plaintiff and D5 move. D5 has had four ex-defacto's; it is well known that he has made the allegations about events that he said took place in 1970 and said that he anticipates getting a lot of money by way of compensation. The plaintiff's firm has received information from two of the ex-defacto's of D5 and his daughter. Again in this instance there is some question of "access" to children. One might well query whether any of this conduct nearly 30 years ago would arise during any contested applications in the Family Court or otherwise in relation to access however, at its best, given the attitude evidenced in the last conversation with Mr Price on 25 October 1999 it represents on the part of D5 (and I stress only for the purposes of this current application) an attitude of hostility and an expression of a preference and a wish. It is very difficult to see even "embarrassment" in the ordinarily understood meaning of that word. Again, there is no further mention of harassment.

D6

23 Annexed to Mr Price's affidavit of 25 October 1999 is an exchange of correspondence with the solicitor for the person referred to as D6. The defendant's solicitors indicate that their client "intends to call D6 to give evidence". D6's solicitors state "whilst our client is unsure of what assistance he can provide to these proceedings having regard to the subject matter and nature of questions likely to be asked we would request our client remain being referred to by a pseudonym". It is then pointed out that D6 has young school age children and an extended family who would be "subject of ridicule and embarrassment" if the name was published even if he was to play "no part" in the proceedings.

24 Mr Deane (for the plaintiff) in his affidavit swears to D6 being among the D persons whose identity has been made known to other clients, people in custody, investigators and as I understand it, nearly three hundred people connected with the plaintiff in the course of his general preparation of the case.

25 It seems to me on the material available that D6 falls into the category of a witness who would be "embarrassed".

26 I gather that D6 has not hitherto been interviewed by or on behalf of the defendant.

D13

27 D13 is D14's brother. Mr Price swears to two conversations with D13. The first occurred on 13 January 1999 and is in the following terms:

"DCP: Hello, [D13]?

D13: Yes, hello.

DCP: My name is David Price. I am a solicitor assisting Channel 7 in the defamation proceedings brought by John Marsden.

D13: Yes.

DCP: So far in these proceedings, you have only been referred to as D13. John Marsden's solicitors have asked us to tell them your name. We have told them that we will only tell them your name when the Court makes an order that they are not to published your name in open Court. The Court has made that type of order in respect of other witnesses in this case. Do you want us to seek an order like that to protect your name.

D13: Yes.

DCP: Thanks.

D13: is that all?

DCP: Yes.

D13: OK. Thanks. Bye.

DCP: Goodbye".

28 The second conversation occurred on 3 February, this year, the relevant part of which is as follows:

"DCP: ... Do you still want us to try and get an order like that for your name?

D13: Yes. I don't want anyone to know that I'm involved in this case?

DCP: Why is that?

D13: Mate, my family is dead set against me doing this. They don't know much about what's going on. It could also affect my access to my kids. I don't mind helping you as long as my name is not going to end up all over the papers. It's just not worth the hassle.

DCP: Do you mean you might not give evidence?

D13: I'd have to consider whether it was worth it.

DCP: I can't promise what the judge will do, but we'll try our best to get an order preventing publication of your name".

29 D13, as I understand the defendant's case, will be giving evidence as to what is alleged to have happened between the plaintiff and D14. D13 was named in the "Witness" program. D14 I am informed will be a witness for the plaintiff, if necessary.

30 D13 in fact is interviewed in the second program in relation to his brothers who were involved in one of the most notorious murders in New South Wales in recent times (the Anita Coby murder). The two brothers in fact involved were shown in the second program.

31 It seems to me (and strangely there is the coincidence of concern about access to children) that D13 does not elevate his position beyond a wish not to be involved. He is concerned about the "hassle". I would characterise the position of D13 insofar as it can be ascertained from the evidence in his application as the expression of a preference.

D15 and D16

32 These are brothers. Mr Price for the defendant swears that on 4 February 1999 he had a conversation with D15:

"DCP: Do you remember that I spoke to you on Tuesday afternoon about seeking orders preventing your name being published in court in these proceedings?

D15: Yeah.

DCP: I would like to talk to you a little bit more about that. We have had to give your name to Marsden's lawyers because we have given them particulars of your circumstances.

D15: Do you have to tell him?

DCP: Yes. We had to tell his lawyers, so it is likely that he has been told. The judge has made confidentiality orders in respect of other witnesses and has said that he would be minded to extend those orders to other witnesses in similar positions. I expect that the Court will deal with confidentiality of your name and some other witnesses later today. I need you to tell me the reasons why you don't want your name published.

D15: I don't want my name put all over the papers.

DCP: Why is that?

D15: 'Cause I might not be allowed to see my kids.

DCP: Do you have custody proceedings pending?

D15: Yeah.

DCP: When will they be?

D15: I don't know.

DCP: Are there any other reasons why you don't want your name published?

D15: I don't want my name dragged into the gutter.

DCP: Do you mean that you are concerned about your general reputation?

D15: Yeah. But also I don't want my all my family and friends knowing everything I've done and I don't want to lose access to my kids. I never had a chance to lead a normal life. I want to have a normal life with my kids.

DCP: Is there anything else?

D15: I'm worried about my safety. Would it be possible for me to give evidence by video or something?

DCP: I don't think so. I'll have to check. But let me know if you if have any concerns about your safety. Are there any other reasons why you don't want your name published?

D15: No, that's about it.

DCP: Can I just go over what you have told me to make sure I've got it right?

D15: Yeah.

DCP: I understand that there are 3 main reasons why you don't want your name published. First, you are concerned about your reputation. Second you are concerned about access to children and your relationships with your family and friends. Third, you are concerned about your personal safety. Is that right?

D15: Yeah."

33 On 22 October 1999 he had a further conversation with D15:

"DCP: Do you remember that orders have been made in these proceedings preventing you being named in Court?

D15: Yeah.

DCP: Marsden has made an application to the Court for those orders to be changed so that he can name in you Court. We will oppose his application, but I need to know whether you still want your name kept out of Court. Do you still want to be referred to by a code name?

D15: I'd prefer not to be named in Court.

DCP: Why is that?

D15: I don't want my kids hearing about me like that.

DCP: Do you see your children?

D15: I'm trying to get access to see them. I'm going to have to go to Court.

DCP: Where do they live?

D15: They live with their mother and her new bloke. He really hates me, so I'd prefer that he didn't get any further ammunition to use against me."

34 In relation to D16 Mr Price had a conversation on 20 October 1999:

"DCP: You know that an order has been made in this case that prevents you being named in Court. Instead, you are referred to by a code name.

D16: Yes.

DCP: Well, Marsden wants the judge to change that order so witnesses can be named in Court. We will oppose that and seek to maintain those orders. Do you still want to be referred to by a code name?

D16: Yes.

DCP: Can you tell me why you don't want to be named in Court?

D16: Well family reasons mainly. I don't want all the world knowing about my involvement in this and the effect that it would have on my family. I'm also involved in other cases and I don't want them to be affected by publicity."

35 Insofar as D15 has said he is concerned about his children's mother and her "new bloke" and his preference that he did not get any ammunition to use against him, that must be viewed in the light of the fact that her "new bloke" is D16, his own brother.

36 The allegations in relation D15 and D16 concerning the plaintiff is that the alleged conduct occurred in the course of a "threesome".

37 In Exhibit A there is a statement from D15 and D16's mother, Pamela Mary Kemp dated 13 August 1998 in paragraph 17 of which she states: "Even though the boys admitted that they had sexual relations with Marsden they would not discuss the finer details with me and I was not aware of when the boys became involved with him or for how long they had been with him. Thinking back now it adds up because the boys would come home from time to time with money and I knew that they did not have a job and were only on the dole".

38 Also in Exhibit A is a statement of Deane Lee Maynard, the wife of D16 in paragraph 3 of which she states:

"I grew up in Coonabarabran, my parents also live in the area. I am presently living at my home address with john Maynard, who is 26 years old and I have been living with him since December 1994. At first we lived together in Taree then moved to Coonabarabran in June 1996. I have a child to John his name is Torey and he is two years old. John's mother, Pam Kemp, also resides with us. Before I met John I was married to his brother, David. David and I were married in 1990 in Taree. I have three children to David. They are Ashleigh who is 7 years old, David who is 5 years old and Breannon who is 3 years old. All the children are living with me and John supports them".

39 In paragraph 6 of her statement she states:

"I have some knowledge of David and John's background n regards to when they were young because from time to time they had discussed their lives with me. Their mother also discussed the boys early lives with me and over the years I had a general overview of the way they were raised and an insight into their childhood. As a result I was aware that both boys had been `street kids' and were involved in drugs and child prostitution".

40 The "concern" on the part of both D15 and D16 in relation to (as usual) access and not wanting to be named in Court and keeping things from their family seems to me somewhat artificial in the light of the information available to me in this application. D15 did not mention again his safety concerns. It is again a matter of preference.

D17

41 D17 had a telephone conversation with Mr Price on 21 October 1999:

"DCP: Do you remember that orders have been made that prevent you from being named in Court?

D17: Yeah.

DCP: Code names have been used to identify the various witness that Channel 7 will to call to prove that what it said was true. Marsden has applied to the Court to change that order so that witnesses names can be used in Court. Do you still want to be referred to by a code name?

D17: Yes. I would prefer not to have my name published.

DCP: Why is that?

D17: Because I don't want my family dragged through the mud over this. It's got nothing to do with them.

DCP: We have received an affidavit from one of Marsden's lawyers that says you have told people about this case. I'll just read the paragraph to you:

Mr John Marsden tells me that Les Murphy, D14 and Jason Muntz Summons as well as others who are clients of Marsdens the Attorneys and are in custody at Kirkconnel have advised Mr John Marsden that Jason Lilburn, D17, Shane Olive, D18, Jason Stevens D21, have told a number of people that they are making allegations of under-age sex against Mr John Marsden.

Do you have anything to say about that?

D17: I spoke to Les Murphy about it at Goulburn last year because he brought it up and I've spoken to the Police but its not something that I talk about, particularly in gaol because it's not good for your health.

DCP: What do you mean?

D17: You can get bashed if people find out you've talked to the Police."

42 D17's approach seems to be, in my view, a matter of preference. Indirectly from the material set out above it can be seen that the reference to Les Murphy is indicative of a widespread knowledge certainly throughout the jail system about these events. In relation to D17 there is no other evidence as to the realisation of fears.

43 As to concern about family involvement there is a report of the Department of Family and Community Services dated 7 August 1991 (part of Exhibit A). in relation to D17, in which it is stated that his mother had been interviewed and was then still unwilling to take D17 mainly because of previous difficulties and also a restraining order that was currently in force between D17 and D17's step father. She was of the view according to the report that D17 should then be made a Ward of the State. The position in 1991 in relation to D17's relationship with the family is supported to some extent by a Probation and Parole Service Court Duty Officer Report of 1 April 1998 (also part of Exhibit A).

44 In relation to D17 any concern about effect upon the family (save for an 11 year old sister) cannot be elevated even to embarrassment, in my view. It is again an expression of his particular desire in relation to this affair and his preference in the light of what he asserts to be his reasons.

D18

45 D18 had a conversation with Mr Price on 20 October 1999 in the following terms:

"DCP: Orders were made earlier in the year that prevent you being named in Court. Marsden is applying to the Court for those orders to be changed. Do you want us to seek to have the orders continued?

D18: Definitely.

DCP: Why is that?

DCP: I have a life outside of this case. All this stuff is in the past. I don't want people at work knowing all about it.

DCP: I want to read to you part of an affidavit that we received from a lawyer working for Marsden. It says:

Mr John Marsden tells me that Les Murphy, D14 and Jason Muntz Summons as well as others who are clients of Marsdens the Attorneys and are in custody at Kirkconnel have advised Mr John Marsden that Jason Lilburn, D17, Shane Olive, D18, Jason Stevens D21, have told a number of people that they are making allegations of under-age sex against Mr John Marsden.

Do you have anything to say about that?

D18: Did you say `Les Murphy'?

DCP: Yes.

D18: One of the guys who done that murder?

DCP: Yes.

D18: I met him once about 5 or 6 years when I was inside but I didn't say anything to him. Who is the other guy you mentioned?

DCP: Jason Muntz Summons.

D18: I've never heard of him. Where's he from.

DCP: I think he was in Berrima for a while.

D18: I don't know anything about him.

DCP: Have you told people about this matter.

D18: Apart from you and the other lawyers for Channel 7 the only other people I've spoken to about this is are the police and they tracked me down. I don't talk about this stuff to anyone."

46 It is interesting to note the notoriety in relation to Les Murphy. This material again, in my view, cannot easily be elevated to the level of embarrassment. It is a question of preference and not wishing people at work to know about it.

D20 and D24

47 The only information in relation to these "complainants" is that contained in an exchange of correspondence referred to by Mr Price in his affidavit. The defendant's solicitors wrote to a Mr McKimmie, solicitor, informing him that the defendant intends to call D20 and requesting whether D20 seeks to be referred to in Court by a pseudonym. The response was "I do not have any instructions that my client is prepared to resile from the use of a pseudonym".

48 The same expression is used by the same solicitor in relation to D24. The very best that can be said of this response as indicative of any "position" of D20 and D24 is that it is equivocal. No information of any assistance is provided.

49 Mr Deane annexes to his affidavit of 26 October 1999 a communication from Mr McKimmie in relation to D20 addressed to Mallesons for the defendant which indicates that at that time (prior to the later equivocal response) that D20 was not willing to cooperate. In relation to D24 Mr Deane annexes a letter of 2 July 1999 to Mallesons from Mr McKimmie indicating an intention not to cooperate with the defendant.

D21

50 There is simply no information as to any requirement of a pseudonym for this person or any reason for one.

D23

51 On 26 October 1999 Mr Price had a conversation with D23 to the following effect:

"DCP: So far in these proceedings witnesses have been referred to by codenames. You have been referred to as `D23'. Marsden has made an application to the Court that these orders be changed so that he can name you in Court. This would mean that your name could be published. We are opposing Marsden's application to change the orders. Do you still want to be referred to by a code name?

D23: Yes.

DCP: Can you tell me why you want to be referred to by a code name?

D23: The embarrassment. I have lost a lot of friends over the whole situation and I have lost my marriage over this and I had to leave my job because the people at work found out it about it. I don't want everyone to know about my past. When I first spoke to the Royal Commission in 1996, no one told me that my name would be published. I'm going through a divorce at the moment and I don't want any of this to affect my wife and kids or make things any worse for me.

DCP: Is there anything else?

D23: This all happened when I was a ward of the State. I've wanted to put all this behind me. I only became involved when investigators from the Royal Commission asked me to assist them.

DCP: So you had no idea that it was going to develop into being involved in this defamation case?

D23: No.

DCP: Did you talk about any of these matters with your wife before you spoke to the Royal Commission?

D23: No. She knew that I was having nightmares but I never told her what was causing them. Eventually she wanted to see the statements that I had made to the Police. After she had seen them, she couldn't handle it and our marriage started falling apart.

DCP: Are you employed now?

D23: No, I haven't been employed since 26 May this year.

DCP: Why did you leave your job?

D23: People at work found out that I had been talking to the Royal Commission and the Police and what I had been talking to them about. It got to the point where I couldn't stay any longer.

DCP: Are you looking for work now?

D23: Yes. I'm trying to get a job where people don't know about my past".

52 D23, of course, uses the word "embarrassment". It would certainly appear from this relating of the conversation that the people he does not wish to know in fact know. This is a question of exacerbation perhaps of embarrassment. He like many of the other D persons, so it would appear, made no specific application on his behalf for a pseudonym order.

53 I have come to the view that on the material available (and bearing in mind its limitations) that none of the complainants really elevate their position above "embarrassment". As can be seen in respect to one there is no explanation at all, in respect to two there is the equivocal response from the solicitor. I mention this in the context of a submission in due course made by Mr Sackar Q.C. for the defendant that what one can really do in relation to those that do give some sort of explanation is come to the view that they are really talking about "shame". In my opinion, that view is not open. Insofar as Mr Price interviewed these people they were "lead" into their responses. Their spontaneous replies seemed to focus on embarrassment or something less and in the context generally of circumstances wherein the people they feared would know in fact do know. There is a common feature about concern in relation to child access.

54 It might well be as Mr Sackar suggested that it turns out that each of these complainants does have an appalling personal history that lead him to the life which, one is to understand, was an imperative at the time of the alleged events. They were not the "winners" in society, it is said. It is argued that they perhaps could not articulate their feeling of shame. I am simply in no position to make any judgments in relation to any of them on the material in this regard. This application will be determined on the material I have to the extent that it does establish something sought to be relied upon by the defendant in support of the maintenance of the status quo (that is, that present order).

55 I further should add that any views that I have expressed above as to individual complainants are expressed solely in the context of this application. I will be the judge of the facts: the facts on the trial issues will be determined on the evidence called in relation to them.

56 As stated at the outset of these reasons, this is the first occasion on which the question of whether or not there should be, at all, any pseudonym orders has been argued. My judgment of 20 November 1998 was against a backdrop of consent. What is clear from Order 3 is that the order then made as to non-publication of the then D persons names in open court would operate "until further order" (page 26). Nothing that has been put to me has been persuasive that the situation is otherwise than it has always been available to either party to seek a "further order" in relation to any of the D people who by reason of amendment of the Defence, either by consent or as a result of a ruling (23 June 1999), became embraced by the order made on 20 November 1998.

57 A context which must be borne in mind is that this is a civil action in which the plaintiff is claiming damages for defamation. It is not a criminal case at all. The imputations found by the jury are of the utmost gravity; the defendant has chosen to justify them and the relevant standard of proof is on the balance of probabilities. From time to time reference has been made to the criminal nature of the charges constituted by the imputations but this litigation cannot be viewed otherwise than civil litigation in the strict sense.

58 There was no issue that the use of "pseudonyms" could be characterised as a "suppression" order, or as an order of a kind, (for example, hearing in camera), that would derogate from "open justice".

59 For the plaintiff it was submitted that what is described as the principle of "open justice" is paramount and that whoever seeks to depart from it must make out a case therefor (Scott v Scott [1913] AC 417 at 437-8; Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1 at 20D-E per Hunt J; Raybos Australia Pty Limited & Anor v Jones (1985) 2 NSWLR 47 at 54A-C per Kirby P; John Fairfax & Sons Pty Limited v Police Tribunal of NSW & Anor (1986) 5 NSWLR 465 at 477B per McHugh JA).

60 The test which must be satisfied before the Court can or should depart from the principle of open justice is whether or not it is "necessary" for the administration of justice that such an order be made: John Fairfax & Sons Pty Limited v Police Tribunal of NSW & Anor at 476-477 per McHugh JA; John Fairfax Group Pty Limited & Anor v Local Court of NSW & Ors (1992) 26 NSWLR 131 at 161B per Mahoney JA; Attorney General for NSW v Mayas Pty Limited (1988) 14 NSWLR 342 at 345F per Mahoney JA.

61 The material available in this application, at its highest, suggests that the witnesses or third parties identified by the witness such as their families would suffer "embarrassment". "Embarrassment" can never justify such an order: Scott v Scott at 438 and 439; Raybos at 54C; Fairfax v Local Court at 143 and 163; Fairfax v Local Court at 3 per Kirby P; Savvas (1989) 43 A Crim R 331 at 335-6. In the instant case in relation to none of the complainants is there material that would permit any application on his behalf to maintain the status quo or to preclude the vacation of the order by reason of any such complainant falling into categories recognised, more often in the criminal law: informers, victims of blackmail or where interests of the security of State are involved; or, in civil cases, the protection of confidentiality.

62 Examples of witnesses in criminal trials being given a pseudonym because it is "necessary to secure the proper administration of justice" can be found in Savvas at 335-336; Mr C (1993) 67 A Crim R 562 at 564-565; The Queen v Ngo, Tran & Dao, (Wood CJ at CL 16 July 1999, unreported).

63 The inherent power of the Court to deal with this matter has been at least recognised (Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 at 16); it is not "at large" (Reid (supra)) nor is the jurisdiction conferred by s 23 of the Supreme Court Act 1970 (Reid (supra)). That section provides that the "Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales". Section 80(b) (subject to any Act the business of the Court may be conducted in the absence of the public - (b) where the presence of the public will defeat the ends of justice), does not derogate from the nature of the power the Court can exercise as identified especially in Scott v Scott at 438: not a matter resting in the judge's "mere discretion"; it is one of principle, turning on "not convenience" but on "necessity". This is to be contrasted with the situation arising under s 50 of the Federal Court Act or s 373(4) of the Industrial Relations Act 1988 (Cth.): as to the former see Australian Broadcasting Corporation v Parish [1980] FCA 33; (1980) 43 FLR 129 as to the latter see Chambers v James Cook University of North Queensland (1995) 61 IR 145.

64 Pausing there, it is submitted, as a matter of general principle, on the material available in this application, no case at all has been made out to establish that it is necessary for the proper administration of "open justice" for the orders presently in place to be maintained.

65 It is further submitted that the principles of open justice and "necessity" as applying in the circumstances of this litigation direct attention to factors that would make pseudonym orders inimical to the administration of open justice.

66 Orders in relation to pseudonyms would prevent what is described as the beneficial aspects of an "open trial" as identified by Wigmore, Evidence 3rd ed. Volume 6 para 1834 where it is stated that the publicity of the judicial proceeding is a requirement of much broader bearing that its mere effect upon the quality of testimony. Its operation tends to "improve" the quality of testimony especially in the modern era where publicity given by media reports of trials is often the means of securing useful evidence. The openness of the trial would discourage false testimony, might induce people to come forward once the identity of witnesses is disclosed (and this can operate in the defendant's favour as well as the plaintiff's) and it would increase public respect for the trial process (see also Raybos at 52B per Kirby P).

67 It is argued that it would be inimical to the administration of justice to permit pseudonym orders in this litigation because the quality of any vindication ultimately received by the plaintiff by a verdict in his favour would be undermined. A verdict in favour of the plaintiff would constitute vindication in the face of the imputations found by the jury as having been carried by the defendant's publications. He would be vindicated in the face of the defendant having sought to justify those imputations by calling evidence from people to establish the truth of those imputations. The quality of the vindication would be adversely affected if anonymity attended those who accused him. The charges could be repeated, the verdict could not be pointed at in clear terms as identifying the finding of this Court that the defendant had failed in its case on justification in respect of the precise allegations made against the plaintiff by particular persons. In Australian Broadcasting Commission v Parish [1980] FCA 33; (1980) 43 FLR 129 at 157 Deane J said:

"In some case, the prima facie right of the individual litigant to open justice within the Court room may be of a heightened importance because of the nature of the proceedings. In, for example, proceedings for defamation where the vindication of reputation may be more important to the plaintiff than the solace of pecuniary damages, the plaintiff may have a special interest in ensuring that it is apparent to the public that all the evidence is open to public scrutiny so as to ensure that the proceedings which were legitimately regarded as a vehicle to clear his name cannot be wrongly seen as indicating that there is secret material which might tend to confirm the blackening of it".

68 This submission is not without substance, in my view. It was not addressed by the defendant.

69 It is also submitted that the use of pseudonyms would encourage blackmail. A person could threaten to give true testimony or worse, false testimony in the comfort of his knowledge that his identity would not be disclosed. A precedent could be set. This was not merely a rhetorical submission. There was a suggestion in the evidence (annexure C to Mr Deane's affidavit) that one of the complainants (D3 Pearce) had been, in effect, assured by a representative of the defendant (Mr Quail) of the availability of a pseudonym. It is however that type of conduct whether by a private or corporate litigant or by a prosecuting authority which attracts the disapprobation of the Courts. Rockett v Smith (1992) Qd R 660 at 667-8; John Fairfax Group v Local Court at 143B.

70 It is further submitted that the maintenance of the present regime would introduce the "newspaper rule" into the proceedings. A distinction of course has to be drawn between the identification of the defendant's sources used for the preparation of the publication of the matter complained of (the television programs) and such "sources" who may give evidence in support of the plea of justification, and those witnesses who are not connected with the compilation of the programs but rather have been located as persons who can support the defence of justification. Only in relation to the former can the fear expressed in the submission attach. Further in relation to the former it would be the defendant who would be compelled at some stage to disclose identity. In relation to the latter it is acutely the subject of the present application. This was an interesting submission but is by no means determinative.

71 It was additionally submitted that there would be immense practical difficulties in the maintenance of the present regime. Senior counsel for the plaintiff curiously had difficulty in preventing himself from time to time mentioning by name certain of the D persons. He has not been alone however in this unfortunate mishap. One of course can anticipate practical difficulties: the requirement for some sort of secret list as to the identity of D persons being used both by counsel and query by witnesses themselves to avoid confusion. This again is not a major determinative matter but the realities of it must be recognised.

72 It was also argued that the orders would in effect be futile. The orders merely preclude the naming of the persons in open Court. Investigations by both parties have no doubt spread their identities abroad. When one looks at individual cases especially, for example, D1 the submission has merit. As to D13, (even if it be the case that he has changed his name), the notoriety of his name and its connection with a notorious murder is clear. Setting to one side all other matters (as to applicable principle and the merits hitherto considered), I do not agree that pseudonym orders would be of no utility. Media exposure (which most complainants do not wish) would be, at least, constrained: see Fairfax v Police Tribunal at 477C-D per McHugh JA.

73 I accept the submissions for the plaintiff subject to the reservations as I have expressed above.

74 I reject the submission for the defendant, which was truly rhetorical in nature, as to the complainants really talking about "being ashamed". By saying that I must not be taken as suggesting that they may in fact not be "ashamed". It is merely that the evidence, such as it is, and given the leading nature of the questions asked by Mr Price of those D persons in respect of whom he swore on affidavit, the material simply cannot be elevated to that level. In those cases where I have so indicated it amounts to no more than embarrassment and conformably with authority that is insufficient a basis for the making of a pseudonym order.

75 As was submitted by Mr Hall of junior counsel for the plaintiff in Reply the question of onus in the end does not really matter given the state of the evidence overall viewed in the context of the principles to which I have referred. It was certainly the plaintiff's application to have the orders vacated; the plaintiff has succeed in persuading me that on that evidence there is no basis for taking that step which would constitute a radical departure from the principle of open justice and in respect of which I am persuaded that there is no necessity in terms of the ends of justice being met and in respect of which, as I have indicated, that are positive reasons that to make such orders would be inimical to that principle of necessity in the context of open justice.

76 Mr Sackar Q.C. sought to draw a distinction between the period of time up to the commencement of the trial and the trial itself. The trial commences on 15 November and to a great extent the division into time zones to that effect has become academic. In any event, I am not persuaded that there is any basis in principle or upon the material placed before me that would warrant the drawing of that distinction.

77 Reliance was placed upon the observations of Lord Woolf MR in Reg v Legal Aid Board ex parte Kaim Todner [1998] EWCA Civ 958; [1999] QB 966 at 978. His Lordship was concerned with contempt proceedings (Contempt of Land Act 1981 (UK) s11) and rules of the High Court (Ord. 106 r 12). In that context is his Lordship's review of the "general approach" (at 975H) is useful and clear. In the end however, the references to "unacceptable inroads on the general rule" (978G) and "Although the foundation of the exceptions is the need to avoid frustrating the ability of the courts to do justice, a party cannot be allowed to achieve anonymity by insisting upon it as a condition for being involved in the proceedings irrespective of whether the demand is reasonable" (978H), accord with the general approach of the Court of Appeal in this State. Nothing in Todner, in my view, justifies the isolation of witnesses from the operation of the principles to which I have referred, at any stage of the proceedings.

78 In John Fairfax Group v Local Court of NSW Kirby P said at 141C:

"At common law the rule is absolute, as the Law Lords were at pains to stress in Scott v Scott and have done since both in the Privy Council ... and in the House of Lords... Exceptions have been allowed by the common law to protect police informers ... blackmail cases ... and cases involving national security... The common justification for these special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of Court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourage its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of the particular case".

79 No exigencies have been established that would warrant the modification of the openness of justice or as necessary for the administration of justice in this defamation action. The usual incidents of a witness giving evidence will apply.

80 Accordingly, the formal orders are:

1. I vacate the order made by me on 20 November 1998 as it applied to the D persons therein referred to and as has been applied to all remaining D persons. Persons hitherto who have been referred to by the pseudonym followed by a number may now be referred to in open Court by name.

2. The costs are reserved.

3. The exhibits are to be returned.

***********

LAST UPDATED: 12/11/1999