A nice dose of contempt

Remembering John Marsden's defamation case against Channel Seven ... Claim that the former president of the NSW Law Society had sex with under-age boys ... Inviting journalists to reveal identity of witness whose name had been suppressed ... From Justinian's Archive, April 20, 2000  

Marsden: poor advice to journalists

Channel Seven will be serving subpoenas on journalists and filing more documents in order to prosecute a case of contempt against Campbelltown solicitor John Marsden.  

The TV network is claiming that Marsden deliberately breached orders of the NSW Court of Appeal in revealing the identity of one of the defendant's truth witnesses in the big defamation case currently part-heard.  

The Court of Appeal made orders to protect the identity of the witness, who was given the pseudonym D20 in the proceedings.  

D20 gave evidence that when he was 15 year old he had sex with Marsden. He requested a pseudonym because he said he would be raped and possibly murdered in jail if other prisoners found out he had given evidence.  

Twenty minutes after the Court of Appeal gave its reasons on March 22 for suppressing the identity of the witness, Marsden distributed an article dated February 13, 1999, headed "Preying on men leads to jail", from a Queensland newspaper called 'The Chronicle'.  

The article was a report of D20's sentencing to six years jail for armed robbery, and it identified the witness, gave his prior convictions and mentioned that he was a "poofter basher".  

Marsden showed and faxed the article to journalists who have been covering the Marsden v Channel Seven defamation case. The faxes were accompanied by a cover sheet from "Marsdens - The Attorneys".  

In its summons Channel Seven claims that on March 22 Marsden spoke to Alex Mitchell from 'The Sun-Herald' on level 10 of the NSW Supreme Court building.  

During that conversation he showed Mitchell the article from 'The Chronicle', and said:  

"That's the man whose name they have suppressed. He is to appear anonymously. It's a disgrace. He has been found guilty on numerous occasions of armed robbery. He also picks up young men, takes them to his flat, makes them such his cock and then beats them up and robs them. You should use his name in the paper. You can take it from the newspaper cutting and publish his name."  

Mitchell:  "Wouldn't that be against the court order?" 

Marsden:  "No, you can say that you are publishing facts from another newspaper article."  

Mitchell:  "I will have to take the advice of the Fairfax lawyers on that."  

Marsden:  "I will fax you a copy of the article."  

At about the same time Marsden also approached Nick Grimm from the ABC, outside the court.  

As the summons says, "the opponent caused Mr Grimm to be handed a copy of an article..." It is claimed he said:   

"You know that the name of the Channel Seven witness has been suppressed by the Court of Appeal. It's outrageous. Take a look at this." 

Marsden went on:   

"That's the guy who's going to testify. He is a criminal. He's been convicted of armed robbery and sex offences. You can use this press cutting to use his name. I'll fax a copy to you too. Give me your number." 

It is also believed that Marsden even handed the newspaper article to 'Sydney Morning Herald' reporter Kate McClymont right in front of Channel Seven's legal team.  

Court of Appeal Registrar Irwin expressed considerable disinterest in having Channel Seven's application heard right now.  

Counsel for Seven, John Sacker QC, said that it was a very grave matter of contempt and it should be heard as soon as possible.  

Guy Reynolds SC, for Marsden, said that it would be oppressive and highly prejudicial if his client had to face a contempt charge while at the same time conducting a major defamation case. It should not proceed until after the defamation case is over.  

Registrar Irwin stood the matter over till mid-June.  

All the journalists who had conversations with Marsden or received faxes from him which were in breach of the Court of Appeal's orders will be subpoenaed by Channel Seven.  

Channel Seven said it would be filing further documents to support its contempt case.  

The defamation case is adjourned for two weeks and is expected to conclude in July or August. The plaintiff indicated that he wanted to call 156 witness, but the trial judge has culled the list to 60.  

Marsden's counsel, Ian Barker QC, is only available until June 23. 

Footnote: The former Law Society president ultimately was successful in his claim agaiunst Channel 7 and was awarded damages of $525,000