Marsden v Amalgamated Television Services Pty Limited

HIS HONOUR: A question has been asked of the plaintiff in cross-examination relating to what is said to have been an interview with the police on 16 May 1967 in relation to some alleged incident at a railway station. Objection was taken to that question on the basis that it would be excluded by what is known as the credibility rule ( Evidence Act 1995 (NSW) s 102).

The answer to that question by the witness would only relate to his credibility and not otherwise have substantial probative value.

For the defendant, it is stated to be a fact that about the May 1967 event, the plaintiff was interviewed by the police also in 1995; I gather the defendant's position is that in relation to both the 1967 and 1995 interviews, the plaintiff lied and, in relation to 1967, apparently conducted himself in a way that would attract the description of perverting the course of justice.

The credibility rule which excludes evidence does not apply to evidence adduced in cross-examination if it has substantial probative value. The probative value of evidence means the extent to which that evidence could rationally affect the assessment of the probability of the existence of a fact in issue. That is the probative value. Section 103 speaks of substantial probative value. Section 103 goes on to provide that the Court may have regard in deciding whether the evidence has substantial probative value to whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when under an obligation to tell the truth and the period that has elapsed since the acts or events to which the evidence relates were done or occurred (s 103(2)).

Whilst it must be said that the subject matter to which the question was directed, namely 1967 events, has arisen hitherto in this trial (see exhibit 100 during the evidence of Mr Hall), it arose then in the context of material upon which Mr Hall said he acted in coming to a view about the publication of the 1995 programme.

I am, at the moment, not persuaded that there exists, substantial probative value in the question asked and the evidence that would be constituted by the answer to it, even if it may have a tendency to prove what is set out in 103(2)(a), and taking into account the lapse of nearly 30 years as referred to as the second component in 103(2)(b), I disallow the question.