There were some rumblings in the media last week (for example see here) relating to a defamation action won by the late John Marsden, a prominent Sydney lawyer, before his death. In 1999 a NSW Supreme Court jury found he had been defamed by the Seven Network, the matter ultimately settling in 2003 when he received a rumoured $6 million pay out. Marsden sued the Network Seven for defamation after its Today Tonight and Witness current affairs programs alleged he had sex with underage boys.
Since Marsden's death, it has been revealed in The Australian that in 2001 NSW District Court judge Ken Taylor accepted on the balance of probabilities that Marsden had sexually abused Paul Michael Fraser after swimming lessons, after football training and after a junior rugby league grand final. The abuse occurred in the late 1960s when Fraser was 8 years old. Fraser was awarded a total of $53,078 in compensation.
Chris Merritt, who has been denounced by Marsden's brother for reporting this story, wrote in The Australian last Friday that in Marsden's defamation action Justice David Levine held that "Procedural rules ... prevented Paul Michael Fraser from giving evidence against Marsden". Merritt then wrote this damning statement about Australia's justice system:
The late Sydney lawyer won a defamation payout of more than $6 million after Kerry Stoke's Seven Network called him a pedophile.
At the time, it looked like vindication. But not any more.
Over the past week The Australian has revealed that the same legal system that punished Seven also gave $40,000 to Paul Michael Fraser.
That money was to compensate Fraser for having been sexually abused by Marsden at the age of eight.
These decisions are clearly inconsistent, and confirm yet again that the courts - particularly defamation courts - are ill-equipped to search for the truth. They merely deliver justice according to law.
...
All Marsden proved in court was that his reputation had been harmed. For that he received $6 million. Fraser proved he had been sexually assaulted by a pedophile. He received a pathetic $40,000.
If we accept what Merritt says, then the outcome of Marden's defamation action does seem troubling. And more significantly, the conclusions he draws about Australia's defamation laws seem disturbingly accurate. However, I am also sure that the legal issues are a little more complex than Merritt seems willing to admit. While I have not been able to find out the exact reason Justice Levine did not admit Fraser's evidence, for all I know there may have been not only sound legal reasons for that ruling, but there may also be further facts that cast doubt on Fraser's account (notwithstanding the finding of Judge Taylor in Fraser's criminal compensation case). Also, it seems as though there was more to Marsden's defamation case than Fraser. According to the usually reliable Wikipedia, at the defamation trial Network Seven "produced witnesses who claimed to have sex with Marsden while underage, but many were discredited by errors on points of fact, such as the type of house Marsden lived in and, in one case, whether he was circumcised". This seems to fit with what Martin Chulov also wrote in The Australian:
In his times of candour since the verdict in mid-2003, Marsden would reflect on the parallels between his epic ordeal and the tribulations of Oscar Wilde, another high-powered homosexual who took on the establishment. In Wilde, Marsden saw a shining light. Where Wilde took on the marquess of Queensberry, Marsden took on the power of a commercial TV network. Both cases began with a slur against prominent gay men and both of them hung on the testimony of rent boys.
Sydney had rarely been so titillated and appalled as it was in 2001 when a string of young male prostitutes and dysfunctional youths exposed the city's seedy underside in a process tailored to prove that Marsden was not what he was accused of being: a pedophile.
So even though Merritt may have over-simplified things in his article, this case does seem to raise, at least on some level, a situation where there are competing legal decisions that appear to be inconsistent. That alone should be a little concerning to all of us.
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