S, D J v Channel Seven Adelaide Pty Ltd - [2006] SASC 268

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
S, D J v CHANNEL SEVEN ADELAIDE PTY LTD & ANOR
[2006] SASC 268
Reasons of Judge Burley a Master of the Supreme Court
31 August 2006
DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING
Statement that plaintiff a suspect in a murder investigation - pleas of justification and fair comment - whether pleas of justification supported by particulars - alternative meanings pleaded in defence.
S, D J v Channel Seven Adelaide Pty Ltd & Anor [2005] SASC 182; S, D J v Channel Seven Adelaide Pty Ltd & Anor [2006] SASC 10; Manock v The Advertiser (2004) 88 SASR at 495; Lewis v Daily Telegraph Limited [1964] AC 234 at 282; Shah v Standard Chartered Bank [1999] QB at 241; Jackson v John Fairfax and Sons Limited [1981] 1 NSWLR at 36; Musa v The Telegraph Group Limited [2004] EWCA Civ at 613 [24]; Chase v News Group Newspapers [2003] EMLR at 218 [50]-[51]; Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10, unreported; McPhilemy v Times Newspapers Limited [1993] 3 All ER 775 at 791[h]; Polly Peck (Holdings) PLC v Trelford [1976] QB at 1000; The Advertiser-News Weekend Publishing Co Ltd v Manock (2005) SASR at 206 (Full Court), considered.

S, D J v CHANNEL SEVEN ADELAIDE PTY LTD & ANOR
[2006] SASC 268

JUDGE BURLEY: In these proceedings the plaintiff claims damages from the defendants for alleged defamation. By a notice for specific directions filed on 16 June 2006 the plaintiff has sought an order that various paragraphs of the further amended defence of the first defendant be struck out. At the hearing of the application on 21 August 2006, Mr P Quinn appeared for the plaintiff and Mr S Doyle for first defendant.
The plaintiff’s pleadings have been the subject of earlier scrutiny resulting in judgment of White J ([2005] SASC 182) and of the Full Court on appeal from this decision ([2006] SASC 10). Those proceedings dealt with the question of whether or not the impugned publication was capable of bearing the meaning contended for by the plaintiff. Both White J and the Full Court held that it could.
The publication complained of is set out at paragraph 3 of the second further amended statement of claim as follows:
3On Friday 14 May 2004 and Saturday 15 May 2004 the first defendant broadcast promotions for a television programme entitled “Today Tonight” in the following terms:
“On Today Tonight South Australian Federal MP, her boyfriend and the business trip – discussed that taxpayer funds have been used – the paper trail and the whistleblower – he is a suspect in a murder case.”
At paragraph 7 of the statement of claim, the plaintiff has pleaded:
7The natural and ordinary meaning of the [impugned words] is:
(a)the plaintiff is a suspect in a murder case arising from the death of Corinna Marr, and
(b)there are grounds to so suspect him which are reasonable.
In its defence the defendant has admitted the substance of the publication of the impugned words in paragraph 3; it has denied that the impugned words were understood to bear the meaning contended for and in the alternative the first defendant pleads justification. Particulars of justification are given in paragraphs 7.2.1.1 to 7.2.1.17.
At paragraph 7.2.2 of the defence the first defendant pleaded the defence of fair comment on a matter of public interest.
Alternative meanings are pleaded at paragraphs 8 and 10 of the defence in respect of which the plea of justification is maintained, as is the defence of fair comment. Insofar as justification is concerned, the same paragraphs setting out the particulars of the original plea of justification are relied upon. As to the defence of fair comment, the same paragraphs setting out the particulars of the original plea of fair comment are relied upon.
The plaintiff contends that all of the particulars in support of the original pleas of justification and fair comment should be struck out and that consequently the additional pleas of justification and fair comment respectively set out in paragraphs 9 and 11 of the defence should also be struck out because of reliance upon the same allegedly defective particulars.
Before turning to the law and the arguments presented at the hearing, it is appropriate to set out a summary of the particulars of justification. These commence at paragraph 7.2.1.1 under the heading “Murder Case”. The initial paragraphs refer to the police and to the police investigation into the death of Corrina Marr. Particulars of the police investigation are given under the heading “Conduct of the Murder Case”. It is alleged that the police obtained evidence from a Forensic Pathologist relating to the time and cause of death. The police obtained evidence from three witnesses, who stated that the plaintiff had been involved in a sexual relationship with Ms Marr. It is alleged that, as a result of those interviews, the Police did not discount the possibility that the plaintiff had a motive for murder because she had broken off a sexual relationship with him. This assertion is made at paragraph 7.2.1.6 of the defence.
The plaintiff complained that there were two defects in the pleading: first, that the views of police officers could not be relied upon to support a plea of justification; and second, even if the plea could support the defence of justification, the plea in that form is not permissible because it had the effect of reversing the onus of proof by requiring the plaintiff to adduce evidence relating to matters of justification. That complaint was made about the reference to the plaintiff allegedly saying in his statement to the police that he was present at his workplace on the afternoon of Ms Marr’s death, to the assertion that during the interview in October 2002 he allegedly could not give a response that was satisfactory to the SA Police that he was not at his offices on the afternoon of Ms Marr’s death, to the assertion that the police did not discount the possibility that he was not truthful in his responses and to the assertion that a possible motive for his untruthfulness was his alleged involvement in the death of Ms Marr. The first point taken by the plaintiff in relation to such a pleading raises the question of the so-called rules relating to “conduct” and “repetition” which have arisen in the cases and which relate to the plea of justification. The relevant principles were developed by counsel and I shall refer to the cases later in these reasons. It is sufficient to say at this stage that with regard to most of the paragraphs under attack in respect of the plea of justification, the plaintiff complained that they either did not refer to the conduct of the plaintiff or that they consisted merely of a repetition of what others had said, or a combination of both, and as such were defective.
Continuing with the summary of the particulars, the first defendant asserted that the Police were contacted by a person who stated that he/she had heard the plaintiff say that he (the plaintiff) had contacted Ms Marr by telephone on the day of her death. Next, the pleading states that the Police took statements from two witnesses who stated that the plaintiff was not at work on the afternoon of the death of Ms Marr until sometime between 3.30 and 4 pm. The witnesses are alleged to have stated that the plaintiff could not be found at his workplace early in the afternoon of the death of Ms Marr and that his car was missing from the workplace on that afternoon.
The particulars next refer to an interview between police officers and the plaintiff relating to the murder of Ms Marr in which it is alleged that the plaintiff denied ever having had a sexual relationship with Ms Marr, that he had last spoken to her several days before her death and that on the afternoon of her death he was present at his workplace.
The pleading next referred to an interview which took place some months later (in October 2002), in the course of which it is alleged that the plaintiff denied ever having had a sexual relationship with Ms Marr and that the plaintiff “could not give a response that was satisfactory to SA Police to an allegation that he was not at the offices of Messenger Press [his workplace] on the afternoon of the death of Corrina Marr”.
The pleading next states that as a result of the conflicting content of the interviews referred to, the police did not discount the possibility that the plaintiff was not truthful in his responses to questions put to him and that a possible motive for untruthfulness was his involvement in the death of Ms Marr.
The pleading next refers (at 7.2.1.12) to proceedings in the Magistrates Court where that Court found as part of an application under the Criminal Law (Forensic Procedures) Act 1998 that the plaintiff was suspected on reasonable grounds of involvement in the murder of Ms Marr.
The next assertion under the heading “Conduct of the Murder Case” (7.2.1.13) is that the police obtained evidence that the DNA and fingerprint samples taken from the plaintiff did not match DNA and fingerprint samples taken from the murder scene and concluded that such evidence was not exculpatory of the plaintiff.
The plaintiff said that not only was this plea insufficient but also, if allowed, would have the effect of reversing the onus of proof as previously referred to. The same complaint was made about the next allegation which was that at the date of publication the police had obtained no information or evidence to justify discounting the plaintiff as a suspect.
As I have said, the plaintiff objected to all of these paragraphs on the basis that they did not relate to the conduct of the plaintiff but rather consisted of the views and actions of the police. Mr Quinn stressed that, where there has been reference to the police taking statements, either from witnesses or the plaintiff, the central particular given in support of the plea of justification consists of the beliefs of the police relating to the conflicts between the statements of the witnesses and those of the plaintiff.
Further particulars are given (7.2.1.15 et seq) under the heading “Suspicion on Reasonable Grounds”. These particulars commence with the assertion that by reason of the matters referred to in the particulars given to that point, the plaintiff was at the time of the impugned publication a suspect in a murder case arising from the death of Corrina Marr. It was then asserted that there were grounds so to suspect the plaintiff which were reasonable. It is then contended that the standard of reasonableness applicable to the police was that of an ordinary and reasonable member of the police in the proper exercise of their duties.
Justification – Relevant Principles
It is against this background that the relevant principles relating to the plea of justification set out in paragraph 7 of the defence should be considered. At the outset, I mention the decision of Manock v The Advertiser (2004) 88 SASR 495 where Besanko J said (at 510) in respect of an application involving the sufficiency of particulars of justification:
They are not permissible particulars if it is not reasonably arguable that they are capable of supporting the pleas [of justification].
His Honour later said:
If it is not reasonably arguable that a particular of a plea of justification is capable of supporting the plea it should be struck out. It should be struck out because it discloses no reasonable defence (r 46.18(a)) or because it has a tendency to cause prejudice, embarrassment or delay in the proceedings (r 46.18(c)).
Mr Doyle did not dispute this as a correct statement of the law.
In his written submissions, Mr Quinn contended that there were potentially three levels of meaning when an accusation was made against someone in relation to the commission of a criminal offence. The statement might mean that the person about whom the statement was made was actually guilty of a criminal offence or that there was a reasonable suspicion in respect of that person’s guilt or that there were grounds for the enquiry. He said that the origin of this analysis was to be found in the speech of Lord Devlin in Lewis v Daily Telegraph Limited [1964] AC 234 at 282 when he said:
I do not mean that ingenuity should be expended in devising and setting out different shades of meaning. Distinct meanings are what should be pleaded; and a reasonable test of distinctness would be whether the justification would be substantially different. In the present case for example, there could have been three different categories of justification – proof of the fact of an enquiry, proof of reasonable grounds for it, and proof of guilt.
As a result, Mr Quinn submitted that where an allegation is made that a person is suspected of having committed a criminal offence, justification of such a statement requires proof of reasonable grounds for suspecting the plaintiff and that proof must focus on the conduct of the plaintiff (the requirement that there be proof of reasonable grounds to suspect arises in this case because this is included in the meaning contended for in paragraph 7 of the statement of claim as to which, see below). He also said that justifying an allegation that there was an enquiry in relation to whether or not a person had committed an offence, consisted of proof of the fact of the enquiry. This is consistent with what Lord Devlin said in Lewis v Daily Telegraph. However, Mr Quinn went further than this when dealing with the defendant’s case on justification of alternative meanings that might be attributed to the impugned words. I shall return to this aspect of the matter when dealing with the plaintiff’s complaint about this aspect of paragraphs 8, 9, 10 and 11 of the defence.
The first plea of justification in the defendant’s defence relates to the meaning contended for in paragraph 7 of the statement of claim. That meaning has two aspects: first, that the plaintiff is a suspect in a murder case; and, secondly, that there are grounds so to suspect him which are reasonable. Reliance was placed on such cases as Shah v Standard Chartered Bank [1999] QB 241. In that case it was held that to justify the assertion that someone was suspected of committing an offence, the facts relied upon to support the plea of justification must focus on the conduct of the plaintiff. Other cases cited were Jackson v John Fairfax and Sons Limited [1981] 1 NSWLR 36 and the decision of the Full Court in this action (Judgment [2006] SASC 10 per Debelle J at [23]).
Mr Quinn submitted that the conduct rule, as he described it, was to be applied strictly. He referred to the Court of Appeal decision in Musa v The Telegraph Group Limited [2004] EWCA Civ 613 where Brook LJ said (at [24]):
Mr Rampton [for the claimant] accepted that in some cases evidence could be adduced, as part of a background narrative, to the effect that police officers had suspected or arrested the claimant or raided his premises, if such was the fact. But in such cases everyone involved (and especially the jury) should be clear as to the role of such evidence. There should be no doubt on anyone’s part that the suspicions of police officers did not support fair justification, and, in particular, they did not in themselves establish reasonable grounds to suspect.
Mr Doyle submitted that the conduct “rule” is not a rule at all. He submitted that it was, at most, a general guideline. He referred to the judgment of Hirst LJ in Shah v Standard Chartered Bank (supra) where His Lordship said (at 261C-D) that the focus of justification needed to be on some conduct on the part of the plaintiff but he added that the evidence supporting the plea was not confined to the plaintiff’s conduct. In addition, strong circumstantial evidence could be used to support the plea: Chase v News Group Newspapers [2003] EMLR 218 at [50] – [51]. Mr Doyle also made reference to the decision of the Court of Appeal in King v Telegraph Group Limited [2004] EWCA 613 at [20] where reference is made to hearsay matters being relied upon. I am not sure that that line of English authority is helpful in this jurisdiction because the rules relating to the admission of hearsay evidence in the UK are different from those which apply in this State.
Mr Doyle also referred to the decision of Levine J in Rakhimov v Australian Broadcasting Corporation, an unreported decision delivered on 25 January 2001, Judgment No [2001] NSWSC 10. As I understand his submission, he asserted that the trial Judge took a less rigid view of the conduct rule. In that case, allegations were made that the plaintiff was suspected by the FBI of being engaged in specified criminal conduct. His Honour reviewed the cases relating to the conduct rule. White J referred to this decision in his Judgment of 20 May 2005 in this action. He said:
Levine J was not concerned with the same question with which I am concerned, namely whether a statement that a person is a suspect in relation to a particular crime conveys an imputation that there are grounds for that suspicion. Levine J was concerned with a different question of whether the statement that the plaintiff is a suspect conveys an imputation that there are aspects of the plaintiff’s own conduct which warrant that suspicion.
I do not consider that the decision in Rakhimov assists the first defendant in this case to support the particulars given in relation to the first plea of justification, because the decision related to what the impugned words were capable of meaning as opposed to what particulars would support a plea of justification.
Whatever the status of the “conduct rule” is, it seems to me that the particulars of justification of paragraph 7.2.1.4 to 7.2.1.10 focus not on the conduct of the plaintiff but on the police investigations, what those investigations revealed in relation to statements by other people and the views formed by the police. Consequently it could not be said that the particulars were focused on the conduct of the plaintiff.
The technique adopted by the pleader is demonstrated by what is contained in the following paragraphs:
7.2.1.5The Police interviewed three witness (one of whom was unknown to the other two) who stated that the plaintiff had been involved in a sexual relationship with Corrina Marr;
7.2.1.6As a result of those interviews the police did not discount the possibility that the plaintiff had a motive for the murder of Corrina Marr in that she had broken off a sexual relationship with him;
The first paragraph consists of hearsay evidence on the part of the police. It is then followed by a particular which refers to a view formed by the police. In my opinion, because such particulars do not focus on the conduct of the plaintiff, they do not support a plea of justification where the meaning of the impugned words contended for by the plaintiff (para 7 of the statement of claim) includes the assertion that the words complained of implied that there were reasonable grounds to suspect that the plaintiff had committed murder. This defective technique pervades the particulars.
I have not referred to the particulars given under the heading “Murder Case”. These consist largely of background matters and would be proper particulars if they were followed by adequate particulars focused on the conduct of the plaintiff.
As to the particulars given under the heading “Suspicion on Reasonable Grounds”, these are more in the nature of submissions than particulars and do not, in my opinion, add to the factual matters said to support the plea of justification.

It seems to me that, where allegations relating to the conduct of the plaintiff are not included within the particulars, those particulars which are actually provided should be examined to see whether or not they offend what has been referred to in argument as the repetition rule. This rule was referred to in the decisions of White J and the Full Court referred to earlier in these reasons. Gray J, in the Full Court, referred to what White J said in the following manner [47]:
White J dealt with the repetition rule in the following terms:
[Counsel for the plaintiff] relied on the so-called repetition rule. Persons who report defamatory statements made by another do themselves make a defamatory statement even though the report of what was said by the other is factually accurate. Further, it is no defence for the defendant to prove that it was merely repeating what was said by another. The basis for the rule was stated succinctly by the Court of Appeal in Bennett v News Group Newspapers Limited as “repeating someone else’s libellous statement is just as bad as making the statement directly”. The rule was stated for fully in Stern v Piper in the following terms:
“The repetition rule …… is a rule of law specifically designed to prevent a jury from deciding that a particular class of publication – a publication which conveys rumour, hearsay, allegation, repetition, call it what one will – is true or alternatively bears a lesser defamatory meaning than would attach to the original allegation of self. By definition, but for the rule, those findings could otherwise be open to the jury on the facts; why else the need for a rule of law in the first place? …”
Turning again to the particulars provided between paragraphs 7.2.1.4 and 7.2.1.10, it seems to me that there is some substance in the plaintiff’s contention that the pleadings are insufficient not only by reference to the conduct rule but also by reference to the repetition rule. To the extent that the particulars plead that the police had certain views (“the police did not discount the possibility that …”), such particulars, in my opinion, offend the repetition rule.
The situation may be different if the plaintiff were permitted at trial to depart from the meaning contended for in paragraph 7 of the statement of claim to the extent that the “reasonableness” component was not included in the impugned words. I shall return to this aspect of the matter when dealing with paragraphs 8–11 of the statement of claim.
I have reached the conclusion that the central thrust of the particulars provided in support of the plea of justification, namely paragraphs 7.2.1.4 to 7.2.1.10, are defective because there is no focus upon the conduct of the plaintiff, the repetition rule is sometimes transgressed and the remaining hearsay and inclusion of the views of the police in themselves are not sufficient. In my opinion, the particulars that precede and succeed this block of particulars must also fall because they are dependent on them for their force.
I turn now to the contention by the plaintiff that some of the particulars constituted a reversal of the onus of proof. This complaint was made in respect of paragraph 7.2.1.6, 7.2.1.8.1, 7.2.1.8.2, 7.2.1.9.3, 7.2.1.10.2, 7.2.1.11, 7.2.1.13 and 7.2.1.14. Mr Quinn referred me to McPhilemy v Times Newspapers Limited [1999] 3 All ER 775, a decision of the Court of Appeal, where May LJ said, at 791[h]:
Equally, and bearing in mind that the burden of proving justification is on the defendants, particulars of this kind may not cast a burden on the plaintiff to make a positive case in an attempt to show absolutely that the whole of the defendant’s evidence is incorrect. If a plaintiff choses to shoulder that burden, that is another matter.
In my view, the particulars referred to above come within that stricture. This conclusion constitutes an additional ground for the striking out of those paragraphs.
The next aspect of the plaintiff’s application consists of the complaints about paragraphs 8-11 of the defence. Those paragraphs also contain a plea of fair comment which I shall deal with separately. The relevant parts of the paragraphs are as follows:
8Further, or in the alternative, the natural and ordinary meaning of the promotion was that the plaintiff was a suspect in a murder investigation in respect of the death of Corinna Marr.
…..
9.1was true in substance and in fact.
…..
9.1.1 the first defendant repeats the matters pleaded in paragraphs 7.2.1.1-7.2.1.17 inclusive and paragraphs 7.2.2.4 to 7.2.2.7 inclusive of 5this Further Amended Defence;
…..
10Further or in the alternative, if the natural and ordinary meaning of the promotion was not as set out in paragraph 8 of this Further Amended Defence, the natural and ordinary meaning of the promotion was that the police believed there were grounds to treat the plaintiff as a suspect in the murder investigation in respect of the death of Corinna Marr.
11In the meaning contended for in paragraph 10 of this Further Amended Defence, the promotion:
11.1was true in stance and in fact.
…..
11.1.1 the first defendant repeats the matters pleaded in paragraphs 7.2.1.1 to 7.2.1.17 inclusive and paragraphs 7.2.2.4 to 7.2.2.7 inclusive of this further Amended Defence.
Paragraphs 8 and 10 were attacked by the plaintiff on the basis that the pleading by the first defendant of alternative meanings and seeking to justify them was not permissible because the approach permitted by the decision in Polly Peck (Holdings) PLC v Trelford [1986] QB 1000 had not been followed in South Australia: cf The Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206 (Full Court).
There were two attacks made on paragraphs 8 and 10: first, the pleading of alternative meanings by the defendant was not permitted; and second, that even if a pleading of alternative meanings as set out in paragraphs 8 and 10 were permitted, the particulars said to support the additional plea of justification were insufficient.
Pleading of Alternative Meanings
Mr Quinn directed my attention to the Judgment of Doyle CJ in Manock (supra) where his Honour said (at 219) [72]:
[T]o the extent that a plaintiff may be permitted to depart from the meaning pleaded, fairness requires that the defendant be permitted to anticipate and deal with the alternative meaning. In that context the expression “alternative meaning” is something of a misnomer. An alternative meaning can be pleaded and justified by the defendant can be no more than a shade or nuance of the meaning pleaded by the plaintiff, and so in substance (as it seems to me) the alternative meaning must be close to or the same as the meaning pleaded by the plaintiff.
In applying that principle Doyle CJ said (at [74]):
In other words, in the present case it suffices to say that the alternative meaning pleaded by the defendant is a meaning on which Dr Manock would not be entitled to rely at trial and so cannot be pleaded and justified by the defendant as an alternative meaning. The meanings are different for the reasons that led me to conclude that the challenge to the particulars could not prove the truth of the imputation of which Dr Manock complains. The “common sting” on which the defendant relies is created by removing or ignoring an aspect of the meaning alleged by Dr Manock, or by raising the meaning alleged by Dr Manock to a higher level of generality so as to change the alleged meaning from a meaning with an area of overlap with the defendant’s meaning to a meaning that is the same. While Polly Peck might contemplate that approach, Australian authority is to the contrary.
In my opinion, the alternative meanings contended for by the defendant in paragraphs 8 and 10 fall directly foul of the statement of principle enunciated and applied by Doyle CJ in Manock’s case. Because each of the alternative meanings removes the concept of reasonableness, and, because in my opinion, the plaintiff would not be permitted to depart from the meaning contended for in paragraph 7 of the statement of claim to that extent, the defendant may not do so in its defence. To paraphrase what was said by White J at the end of [50] Channel Seven can go to trial knowing that the alternative meanings are not imputations on which the plaintiff may rely.
It follows that paragraphs 8 to 11 of the defence should be struck out including the reference to fair comment because, if the defendant is not permitted to pursue the alternative meanings raised in paragraphs 8 and 10 of the defence, the question of fair comment in relation to such alternative meanings does not arise.
Although it is not strictly necessary to do so, in deference to the arguments put and in case I am wrong in my conclusion that paragraphs 8 to 11 should be struck out, I propose to mention briefly the second plea of justification.
The Second Plea of Justification
It is apparent from paragraphs 9.1 and 11.1 respectively that the particulars of justification refer to the particulars given between paragraphs 7.2.1.1 and 7.2.1.17 and to additional particulars between 7.2.2.4 and 7.2.2.7, the latter of which were inserted at subparagraphs 7.2.2.4 to 7.2.2.7 to support a plea of fair comment. I have determined that the particulars given in respect of the original plea of justification should be struck out. It now needs to be determined whether or not such particulars together with the particulars contained between paragraphs 7.2.2.4 and 7.2.2.7 should be struck out as being insufficient to support what I have referred to as the second plea of justification.
The plea of justification has been advanced in paragraphs 9 and 11 by reference to meanings set out respectively in paragraphs 8 and 10 which are each different from the meaning contended for by the plaintiff in paragraph 7 of the statement of claim. Paragraph 8 of the defence is different from paragraph 7 of the statement of claim in that it contends for a meaning which is confined to the concept of the plaintiff being a suspect in a murder investigation without any implications of reasonableness. Paragraph 10 contends for a meaning that does not raise the concept of reasonableness. It is based on an assertion that “the police believed there were grounds to treat the plaintiff as a suspect in the murder investigation”.
Given that the nature of an enquiry upon an application to strike out particulars is limited to whether or not arguable contentions are raised in the pleadings, the absence of the concept of reasonableness from the alternative meanings contended for by the defendant in paragraphs 8 and 10 of the defence has a bearing on the sufficiency of the particulars relied upon to support the plea of justification of such meanings.
In my opinion, it is at least arguable that if the concept of reasonableness is removed from the meanings contended for, the plea of justification made in respect of such alternative meanings may be based on particulars which refer to the fact of investigation and the fact of suspicion on the part of the police as pleaded by the defendant in paragraph 7 of the defence whether by reference to a plea of justification or by reference to a plea of fair comment. Consequently, had I formed the view that it was permissible to pursue the alternative meanings referred to in paragraphs 8 and 10 of the defence, I would not have struck out the particulars relied upon to support the plea of justification of such meanings.
The Plea of Fair Comment
At paragraph 7.2.2 of the defence the defendant contended that the impugned words constituted fair comment on a matter of public interest. The particulars given of the public interest are as follows:
7.2.2.1 The first defendant repeats the matters pleaded in paragraphs 7.2.1.1-7.2.1.14 inclusive of this Further Amended Defence.
7.2.2.2 The death of Corinna Marr and the investigation into her murder have been the subject of substantial and ongoing publicity and media reporting and public comment and discussion.
The first defendant next pleads “Particulars of Facts upon which Comment is Based” as follows:
7.2.2.3 The first defendant repeats the matters pleaded in paragraphs 7.2.1.1-7.1.1.17 inclusive of this Further Amended Defence.
7.2.2.4 an affidavit was sworn on 20 February 2004 by John Gerard Keane of the Major Crime Investigation Branch of the SA Police, who was an investigating officer in respect of the murder investigation of Corinna Marr, deposing, inter alia, that:
7.2.2.4.1 the plaintiff “… is suspected of the murder of Corinna Joanne Marr …”; and
7.2.2.4.2 “(t)his investigation has been going on for the past six years during which in excess of 170 statements have been taken and it has failed to provide a suspect or motive other than the (plaintiff)”;
7.2.2.5 on or about 3 March 2004, the SA Police held a Media Conference at which the SA Police confirmed that the plaintiff remained a suspect in the Corinna Marr murder investigation and would remain a suspect in the investigation until the case was solved;
7.2.2.6 on 3 March 2004 the SA Police published a Media Release in which Superintendent Mick Symons of the Major Crime Investigation is quoted as saying that the person finger printed by police (being the plaintiff) “is and will remain a suspect until this matter is cleared up”.
7.2.2.7 at the time of the broadcast of the promotion, there had been no statement by the SA Police to the effect that the plaintiff was no longer considered a suspect in the investigation of the murder of Corinna Marr.
The plaintiff contended that the words “he is a suspect in a murder case” is a statement of fact and therefore cannot be characterised as comment, fair or otherwise. Reference was made to Pryke v Advertiser Newspapers Limited (1984) 37 SASR 175 where Kingsley J said (at 191):
A doctrine of fair comment therefore provides extensive protection to citizens who express opinions, even unfounded opinions, on matters of public interest and to the newspapers and others who disseminate those opinions. To qualify for the protection, however, what is said must be expression of opinion and not allegations of fact. Fair comment cannot be made a cloak for defamatory misstatements of fact. Moreover, it must be clear that the defamatory criticism is by way of expression of opinion upon the facts and does not purport to state the facts. In order to make that clear it is necessary that to state the facts truly or, or if they are public facts which are well known or readily ascertainable, to indicate them clearly, thereby distinguishing between fact and opinion.
The defence is confined to comment and can therefore extend only to such part of a defamatory statement as consists of comment as distinct from statement of purported fact.
Reliance was also placed on the decision of Eady J in Hamilton v Clifford [2004] EWHC 1542 (QB) at [59]-[60] where his Lordship said:
For reasons of policy, as explained in the recent authorities in the Court of Appeal cited above, one is not permitted to seek shelter behind a defence of fair comment when the defamatory sting is one of verifiable fact. ….. Fair comment does not provide an escape route in such circumstances.
Mr Quinn submitted that even if the impugned words were comment, there was no statement of facts, or reference to facts by which the comment could be judged.
Mr Doyle submitted that that it was at least arguable that the statement “he is a suspect in a murder case” should be characterised as comment for the purposes of the defence of fair comment because the imputation contended for by the plaintiff included the implied meaning that there were grounds for the suspicion which were reasonable. In those circumstances, Mr Doyle submitted that the defendant should not be confined to the words themselves in making out a defence of comment. The defendant should be able to rely upon an implied comment arising from the imputation of reasonableness contended for by the plaintiff.
As to the submission of the plaintiff that the facts upon which the comments were not set out or referred to in the impugned statement, Mr Doyle submitted that it was sufficient that the relevant subject matter was identified. He relied upon Pervan v North Queensland Newspaper Company Limited (1993) 178 CLR 309 at 336-340 (per McHugh J) and Kemsley v Foote [1952] AC 345 at 345-362.
Given that my function in this application is to determine whether or not an arguable point arises out of the pleading the subject of the strike out application, I consider that both points made by Mr Doyle are arguable and that accordingly the defence of fair comment ought to be allowed to stand.
For the above reasons there will be orders in relation to the Further Amended Defence as follows:
1That paragraph 7.2 up to and including paragraph 7.2.1.17.3 be struck out.
2That the application to strike out paragraph 7.2.2 be refused.
3That paragraphs 8, 9, 10 and 11 be struck out.
I will hear the parties as to costs