S, DJ v Channel Seven Adelaide Pty Ltd - [2008] SASC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
S, DJ v CHANNEL SEVEN ADELAIDE PTY LTD & ANOR
[2008] SASC 108
Judgment of The Honourable Justice White
24 April 2008
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS - DEFENCES AND COUNTERCLAIM
DEFAMATION - JUSTIFICATION - GENERALLY - WHETHER PLEA ESTABLISHED
Application by first defendant in defamation proceedings to amend its defence of justification - whether proposed pleading complies with pleading rules - whether application by first defendant constitutes an abuse of process - whether proposed pleading involves a contravention of the "conduct" and "repetition" rules - whether proposed pleading raises a reversal of the onus of proof- whether it is reasonably arguable that the particulars contained in the proposed plea are capable of justifying the imputation.
Held: subject to one matter, proposed plea of justification contains adequate particularisation - application by first defendant not an abuse of process - rules concerning conduct and repetition not infringed - no reversal of onus of proof - reasonably arguable that the particulars alleged are capable of justifying the defendant's imputations - application to file amended defence allowed, subject to provision of certain particulars.
Supreme Court Rules 1987 r 46.18, r 46A.05, r 46A.13; Summary Offences Act 1953 s 74D, referred to.
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716, applied.
Nationwide News Pty Ltd v Wiese (1990) 4 WAR 263; Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772; Hamilton v Clifford [2004] EWHC 1542 (QB), distinguished.
Channel Seven Adelaide Pty Ltd v S, DJ (2006) 94 SASR 296; Channel Seven Adelaide Pty Ltd v S, DJ (2007) 248 LSJS 75; S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 60; Channel Seven Adelaide Pty Ltd v Manock (2007) 241 ALR 468; Mannock v Advertiser News - Weekend Publishing Co Ltd (2004) 88 SASR 495; Blatch v Archer (1774) 98 ER 969; Jameel v The Wall Street Journal [2003] EWCA Civ 1694; R v Grimley (1994) 121 FLR 236; R v Haydon (No 4) [2005] SASC 18, considered.

S, DJ v CHANNEL SEVEN ADELAIDE PTY LTD & ANOR
[2008] SASC 108
Civil

WHITE J: The background to these defamation proceedings has been canvassed in a number of previous decisions of this Court.[1] I do not propose to repeat it in any detail.
[1] Channel Seven Adelaide Pty Ltd v S, DJ [2006] SASC 10; (2006) 94 SASR 296; Channel Seven Adelaide Pty Ltd v S, DJ [2007] SASC 117; (2007) 248 LSJS 75; S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 60.
The plaintiff alleges that on 14 and 15 May 2004 he was defamed by Channel Seven’s promotion for its “Today Tonight” television program broadcast in the following terms:
On Today Tonight South Australian Federal MP, her boyfriend and the business trip – disgusted that tax-payer funds have been used – the paper trail and the whistleblower – he is a suspect in a murder case.
The promotion included pictures of the plaintiff and of Corinna Marr who was murdered on 4 July 1997. The plaintiff complains about the words “he is a suspect in a murder case”.
On 5 March 2008, the Full Court made an order striking out Channel Seven’s plea of justification of the impugned passage.[2] Channel Seven now applies to amend its defence in the form of a document entitled “Third Further Amended Defence” (TFAD). The proposed plea of justification is in the following terms:
[2] S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 60.
7.2.1.1As to [sic] first part of the alleged composite imputation pleaded in paragraph 7(a) of the Second Further Amended Statement of Claim, namely that the plaintiff is a suspect in a murder case arising from the death of Corinna Marr, the first defendant relies upon the following material facts:
7.2.1.1.1Corinna Marr died as a result of gun shot wounds between about 2.30pm and 3.30pm on Friday, 4 July 1997 in her Collinswood unit.
7.2.1.1.2On 4 July 1997 the South Australian Police (“the Police”) commenced an investigation into the death of Corinna Marr, which investigation is ongoing.
7.2.1.1.3No person has been charged in relation to Corinna Marr’s death.
7.2.1.1.4As at the date of the broadcast of the promotion, the plaintiff was suspected by the Police of the murder of Corinna Marr.
7.2.1.2As to the second part of the alleged composite imputation pleaded in paragraph 7(b) of the Second Further Amended Statement of Claim, namely that there are grounds to so suspect him, which are reasonable, the first defendant relies upon the following material facts:
7.2.1.2.1In August 1997 the plaintiff was interviewed by the Police in respect of the Corinna Marr murder (“the first interview”), and in the course of the said interview the plaintiff:
7.2.1.2.1.1denied ever having a sexual relationship with Corinna Marr;
7.2.1.2.1.2said that he had last spoken to Corinna Marr several days before her death; and
7.2.1.2.1.3said that on the afternoon of Corinna Marr’s death, between 1.30pm and 5.05pm, he was present in the darkroom at the offices of Messenger Press [in the city of Adelaide].
7.2.1.2.1.4said that on the afternoon of Corinna Marr’s death, he was taking photographs for an advertisement for Messenger Press.
7.2.1.2.2In October 2002 the plaintiff was again interviewed by the Police in respect of the Corinna Marr murder (“the second interview”), and in the course of the said interview the plaintiff:
7.2.1.2.2.1denied ever having had a sexual relationship with Corinna Marr;
7.2.1.2.2.2was unable to provide any, or any adequate, explanation for the discrepancy between his statement in paragraph 7.2.1.2.1.3 above, and the information provided to the Police (as pleaded in paragraph 7.2.1.2.5 below) to the effect that he (the plaintiff) was not present at the offices of Messenger Press on the afternoon of Corinna Marr’s death.
7.2.1.2.3The plaintiff had been involved in a sexual relationship with Corinna Marr for a period from at least the date of her wedding in January 1996, which relationship had continued until the day of Corinna Marr’s death on 4 July 1997.
7.2.1.2.4The plaintiff spoke to Corinna Marr by telephone on 4 July 1997.
7.2.1.2.5The plaintiff left his workplace on 4 July 1997 in his vehicle some time prior to 2.30pm, was not present at his workplace at the time Corinna Marr was murdered, and returned to his workplace between 3.30pm and 4.00pm that day.
7.2.1.2.6The plaintiff did not have any involvement in taking the photographs for the advertisement referred to in paragraph 7.2.1.2.1.4 above.
7.2.1.2.7In making the statements he made in the first and second interviews, as pleaded in paragraphs 7.2.1.2.1 and 7.2.1.2.2 above, the plaintiff was not being truthful.
7.2.1.2.8In the alternative, the matters pleaded in paragraphs 7.2.1.2.3 – 7.2.1.2.6 above constitute reasonable grounds for believing or suspecting that the plaintiff was not being truthful in making the statements he made in the first and second interviews, as pleaded in paragraphs 7.2.1.2.1 and 7.2.1.2.2 above.
7.2.1.2.9The plaintiff’s conduct in denying that he had had a sexual relationship with Corinna Marr, in combination with the matters pleaded in paragraphs 7.2.1.2.3 above, constitute reasonable grounds for believing or suspecting that the plaintiff had a motive to murder Corinna Marr.
7.2.1.2.10The plaintiff’s conduct in making the statements he made in the first and second interviews, in combination with the matters pleaded in paragraphs 7.2.1.2.3 – 7.2.1.2.9 above, constitute reasonable grounds for suspecting the plaintiff of murdering Corinna Marr.
Apart from paragraphs 7.2.1.2.3, 7.2.1.2.4 and 7.2.1.2.5, the TFAD is in exactly the same terms as the plea struck out by the order of the Full Court on 5 March 2008. Paragraph 7.2.1.2.3 has been substantially amended. When considered by the Full Court, it contained the following particular of justification:
There was evidence that the plaintiff had been involved in a sexual relationship with Corinna Marr, which relationship had ceased prior to Corinna Marr’s death.
The effect of the proposed amendment to paragraph 7.2.1.2.3 is that Channel Seven no longer alleges a sexual relationship between the plaintiff and Ms Marr at some unspecified time in the past but instead a sexual relationship which commenced at least in January 1996 and which continued to the date of her death. Paragraphs 7.2.1.2.4 and 7.2.1.2.5 (and for that matter paragraph 7.2.1.2.3) no longer commence with the words “There was evidence that”. The effect of the deletion of those words is that Channel Seven now asserts that the matters in those three sub-paragraphs had occurred, rather than the more limited proposition that there was some evidence that those matters had occurred.
Channel Seven submits that its amendments address the vice in its pleading identified by the Full Court and provide appropriate particularity.
The plaintiff opposes leave to amend being granted. He does so on five different bases. They are:
(a)the proposed defence is non-compliant with the 1987 Supreme Court Rules in that several paragraphs lack the requisite particularity
(b)as the proposed pleading is substantially in the same terms as that struck out by the Full Court, the application seeking to amend the defence in its terms is an abuse of this Court’s process.
(c)the proposed defence continues to infringe the “conduct” and “repetition” rules applicable to defamation proceedings.
(d)several of the paragraphs in the defence have the effect of impermissibly reversing the onus of proof.
(e)the pleaded facts are not, even if established, capable of justifying an imputation that the plaintiff is a suspect in the murder case arising from the death of Corinna Marr, and that there are grounds to so suspect him which are reasonable.
In considering the application to amend, I proceed on the following bases. Previous decisions of the Full Court in this matter[3] have established that the plea of justification in this case must be established by proof of objective conduct on the part of the plaintiff, and not by proof of what others may have said, or suspected, about him or his conduct. The conduct of the plaintiff to which regard may be had may have occurred before, contemporaneously with, or subsequent to, the time of Ms Marr’s murder.
[3] Channel Seven Adelaide Pty Ltd v S, DJ [2007] SASC 117; (2007) 248 LSJS 75; S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 60.
Secondly, although the TFAD is Channel Seven’s fifth attempt at a defence in the action, the plaintiff has not submitted that the defects in it are incurable, or that the time has come when Channel Seven should simply be denied any further opportunity to amend its defence.[4]
[4] Cf Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [96]-[101]; (2007) 241 ALR 468 at 503-5 per Gummow, Hayne, and Heydon JJ.
Thirdly, the proposed defence of justification should not be permitted unless it is reasonably arguable that the particulars of justification pleaded are capable of supporting the plea. If they lack that quality, they do not disclose a reasonable defence (R46.18(a)) or they will tend to cause prejudice, embarrassment or delay in the proceedings (R46.18(c)).[5] In Favell v Queensland Newspapers Pty Ltd[6] the High Court approved the following statement of McPherson JA as the correct approach to be adopted when application is made to strike out a statement of claim in defamation proceedings as disclosing no cause of action:
Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.[7]
In Channel Seven Adelaide Pty Ltd v Manock[8] it was said that that approach applied equally to the striking out of defences.[9]
[5] Manock v Advertiser News – Weekend Publishing Co Ltd [2004] SASC 164 at [31]; (2004) 88 SASR 495 at 510.
[6] [2005] HCA 52, (2005) 79 ALJR 1716.
[7] Ibid at [6], 1719 per Gleeson CJ, McHugh, Gummow and Haydon JJ.
[8] [2007] HCA 60; (2007) 241 ALR 468.
[9] Ibid at [33], 479.
Fourthly, various previous versions of the Channel Seven defence have been considered by masters and by the Full Court. Much of what each has said is relevant to the present application but I have to consider the TFAD on its own merits. Counsel for Channel Seven submitted that the decision of the Full Court on 5 March 2008[10] had the effect of determining the issues raised by the plaintiff on this application concerning the repetition and conduct rules and on the issue of reversal of onus of proof. I do not accept that submission. I do not understand paragraph 21 of the reasons of Bleby J, to which counsel referred, as purporting to express a conclusion (let alone a final conclusion) about those issues at all.
[10] S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 60.
Finally, it is for Channel Seven to satisfy the Court that it should be permitted to amend its defence. Nevertheless it is convenient to address that question by reference to the objections raised by the plaintiff.
Non-compliance with the Pleading Rules
Leave to amend should not be granted in respect of a proposed defence which is not compliant with the pleading rules. The plaintiff submitted that the proposed paragraphs 7.2.1.2.3, 7.2.1.2.4, 7.2.1.2.6 and 7.2.1.2.9 lacked the particularity required by the Rules. Rule 46A.05 of the 1987 Rules is relevant in this case. Rule 46A.05(2) provides:
(2)     The Defence must plead, but plead only:
(a)     what parts, if any, of the Statement of Claim are admitted;
(b)     the material facts relied upon to constitute any ground of defence on                   which Channel Seven bears an evidentiary or a legal onus of proof;
(c)     such further material facts as are necessary to give other parties fair                   notice of Channel Seven’s case which they will have to meet;
(d)     any defences in law; and
(e)     any statutory provisions to be relied upon by Channel Seven.
The plaintiff’s submissions did not refer at all to the requirements of R46A.05(2) but I take his submissions to invoke both sub-paragraphs (b) and (c).
When I heard the oral submissions, the proposed paragraph 7.2.1.2.3 was in a different form. It pleaded that “the plaintiff had been involved in a sexual relationship with Corinna Marr, which relationship had ceased prior to Corinna Marr’s death”. After I expressed the view that that pleading did lack requisite particularity, Channel Seven amended the proposed plea in the way indicated earlier. I received further written submissions as to the adequacy of these proposed particulars. Although the plaintiff continued to criticize the proposed pleading, I did not understand him to maintain his submission that the plea in paragraph 7.2.1.2.3 lacked the requisite particularity. In any event, I do not consider it necessary for Channel Seven to plead the place or places at which it alleges that the sexual relationship occurred or the nature of that relationship, as the plaintiff had originally submitted.
In the case of paragraph 7.2.1.2.4, the plaintiff submitted that Channel Seven should plead particulars of the conversation, including what was said or, at least, the effect of the conversation. This was so, because it was said that the content of the conversation might have been quite innocent. Counsel referred to R46A.13 which provides:
Insofar as a document or conversation, or parts of them, need to be pleaded under Rule 46A only the effect of them need be pleaded and verbatim quotations are to be included only if that is necessary for proper pleading.
I do not accept that further particulars of paragraph 7.2.1.2.4 are required. As I understand the plea, the matter upon which Channel Seven relies is that the plaintiff spoke to Ms Marr by telephone on the day of her murder, and not the particular words spoken in, nor the effect of, the conversation. R46A.13 is not applicable in those circumstances.
In relation to paragraph 7.2.1.2.6, counsel focussed on Channel Seven’s plea that the plaintiff did not have any involvement in taking the photographs for the advertisement referred to in paragraph 7.2.1.2.1.4. The use of the definite article indicated, it was said, that Channel Seven was referring to photographs for a particular advertisement, and therefore should specify it. To some extent, the plaintiff’s submissions overlooked that paragraph 7.2.1.2.6 identifies the advertisement to which it refers as being the advertisement mentioned in paragraph 7.2.1.2.1.4, namely, an advertisement which the plaintiff himself had nominated as the advertisement for which he was taking photographs on the afternoon of Ms Marr’s death. There has therefore been some specification of the particular advertisement. Nevertheless, I do consider that r 46A.05(2) requires particularity of the advertisement in question to be given. The gist of this part of the TFAD is that when questioned by the Police in August 1997, the plaintiff gave two different alibis, both of which were false. The relevant elements of the alibi are therefore material facts which should be pleaded. If the advertisement in question was eventually published, further particularisation should be given of that advertisement. If it was not published, particulars of the proposed advertisement identified by the plaintiff in the Police interview in August 1997, should be given.
As I understood the plaintiff’s submissions, the argument that paragraph 7.2.1.2.9 lacked requisite particularity depended for its force upon the critique of paragraph 7.2.1.2.3 in the form in which it was initially proposed. As I am satisfied that the revised paragraph 7.2.1.2.3 now complies with r 46A.05(2), the attack on paragraph 7.2.1.2.9 fails.
Abuse of Process
The plaintiff submitted that the proposed amended plea of justification does not differ materially from earlier forms of the defence which have been struck out. He submitted that the re-litigation of an issue which has already been resolved favourably to the plaintiff constituted an abuse of the Court’s process.
The plaintiff relied upon the decision of the Full Court of the Supreme Court of Western Australia in Nationwide News Pty Ltd v Wiese.[11] In that case, the Court had struck out a defence of qualified privilege. It did so on the basis that the facts alleged in support of that defence, supported by particulars, did not disclose a basis for the defence. The defendant sought leave to amend so as to maintain the defence of qualified privilege by relying on the same facts, but supported by different particulars. It was held that the proposed amendment was an abuse of the Court’s process. Wallace J, with whom Pidgeon J agreed, said:
True it is that [the learned judge] did decide that the appellant’s summons to re-amend its statement of defence did in the circumstances involve an abuse of process and with that opinion I entirely agree. The proposed amendment to the appellant’s pleading is in identical terms to that struck out by the learned Master. It is true that the particulars set out in support thereof have been slightly enlarged, but that in my view does not alter the position…[12]
[11] (1990) 4 WAR 263.
[12] Ibid at 266-7.

The circumstances of the present application are quite different from those considered in Nationwide News Pty Ltd v Wiese. Channel Seven is not seeking to re-agitate the issue which has been determined by the Full Court. Instead it seeks to address the very deficiency in its pleading identified by the Full Court, namely, that instead of pleading the plaintiff’s conduct, it was pleading evidence garnered by the Police concerning that conduct. If the proposed pleading does not repeat the vice upon which the Full Court ruled, the mere fact that it may otherwise substantially be in the same form as that considered by the Full Court does not involve an abuse of process. I reject this ground of the plaintiff’s objection.
Infringement of the Conduct and Repetition Rules
The conduct and repetition rules have been discussed in earlier Full Court decisions in these proceedings[13] and it is not necessary to repeat the principles.
[13] Channel Seven Adelaide Pty Ltd v S, DJ [2006] SASC 10 at [46]-[50]; (2006) 94 SASR 296 at 312‑5;Channel Seven Adelaide Pty Ltd v S, DJ [2007] SASC 117 at [34]-[43]; (2007) 248 LSJS 75 at 79-81; S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 60 at [17]-[19].
Although a large part of the plaintiff’s written outline addressed the conduct and repetition rules, the only paragraph of the proposed TFAD said to infringe those rules is paragraph 7.2.1.2.2.2. That paragraph pleads, in effect, that the plaintiff did not give a satisfactory explanation for the discrepancy between his account of his whereabouts on the afternoon of Ms Marr’s murder, and other information available to the Police. As I understand it, Channel Seven’s plea is that, objectively speaking, the plaintiff’s explanation at the time when the issue was put to him was not satisfactory. I do not understand the plea to rest on the subjective view taken by the police investigators of the adequacy of the plaintiff’s explanation. Instead it pleads the plaintiff’s own conduct, namely, his response when interviewed in October 2002. Paragraph 7.2.1.2.2.2 contains alternatives. The first alternative indicates that Channel Seven relies on the absence of any explanation by the plaintiff. The second alternative indicates that to the extent that the plaintiff did give an explanation, Channel Seven asserts that it was, considered objectively, inadequate. In each case it is the conduct of the plaintiff which is relied upon.
Channel Seven will have to establish what was put to the plaintiff by the Police in the October 2002 interview and his response (if any). It will not, however, be entitled to lead any evidence about the view taken by the Police of the absence of any explanation or of the adequacy of any explanation which was proffered.
There is a sense in which paragraph 7.2.1.2.2.2 does depend on the evidence which the Police had. But I do not understand Channel Seven to plead the existence of that evidence as being by itself a particular of justification. Rather it is the plaintiff’s response to what he was told in October 2002 about the Police evidence which is relied upon. Such a usage does not infringe the conduct or repetition rules.
It is possible that the paragraph 7.2.1.2.2.2 lacks appropriate particularity for the assertion that the plaintiff did not give any adequate explanation. However, the plaintiff did not impugn the pleading on that basis.
Reversal of the Onus of Proof
The submission that the proposed pleading had the effect of reversing the onus of proof was a significant part of the plaintiff’s resistance to the application to amend. The plaintiff submitted that paragraphs 7.2.1.1.3, 7.2.1.2.2.2 and paragraphs 7.2.1.2.5 to 7.2.1.2.10 inclusive each had the effect of reversing the onus of proof. The plaintiff’s written outline also referred to paragraphs 7.2.1.1.4. 7.2.1.2.1.3 and 7.2.1.2.1.4, but these paragraphs were not pursued in the oral submissions.
It is clear enough that a plea of justification should not have the effect of casting upon the plaintiff the onus of disproving the contentions of fact relied upon by a defendant. The onus, both legal and evidential, remains on a defendant at all times. A plaintiff may, of course, set out to disprove the truth of the defendant’s assertions, but that is a matter of choice for the plaintiff.
The plaintiff referred to two English authorities. In Chase v Newsgroup Newspapers Ltd[14] Brooke LJ (with whom Rix and Keene LJJ agreed) said:
On the appeal to this Court Mr Spearman made no attempt to challenge the judge’s rulings on specific elements of his clients’ plea of justification in paragraph 12 of the defence in the event that he was unable to persuade us that the HRA had any effect on the relevant principles of defamation law and practice which have so recently been restated by this court. It appears to me that if these particulars were allowed to stand they would have the effect of transferring the burden onto the claimant of making a positive case to disprove them. This the law does not permit (see McPhilemy v Times Newspapers Ltd [1999] EMLR 751, 774 per May LJ).[15]
[14] [2002] EWCA Civ 1772.
[15] Ibid at [65].
It is not clear from the judgment which of the particulars to which Brooke LJ was referring were said to involve a reversal of the onus of proof. However, many of the particulars of justification pleaded by the defendant in Chase referred not to the plaintiff’s own conduct but instead to complaints, accusations and allegations made by others. Pleas in that form more obviously involve a transfer of the onus of proof. The proposed TFAD does not contain pleas in that form.
In Hamilton v Clifford[16] the defence of justification offended both the conduct and repetition rules. The defendant pleaded, in addition, that the police had been unable to disprove a complainant’s allegations of rape. Eady J held that a plea in this form involved a reversal of the onus of proof:
[The defendant] relies also upon the fact that the police have been unable to disprove her allegations despite careful investigation. That is a curious way to approach the burden of proof, and I am reminded in this context that in Chase Brooke LJ made the very point that a defendant should not be permitted to plead particulars of justification in such as way as to have the effect of transferring the burden to the claimant of making a positive case to disprove them: see [2003] EMLR 11 at [65]. It was a point made also by May LJ some years earlier in McPhilemy v Times Newspapers Ltd [1999] EMLR 751, 774.
Mr Molony supplemented the argument, albeit in relation only to the GMTV broadcast, by pleading that the claimants had been apparently unable to establish a clear alibi for the period on 5 May 2001, when the rape was supposed to have taken place. That falls foul of the same objection.[17]
[16] [2004] EWHC 1542 (QB).
[17] Ibid at [45]-[46].
It can be seen that Eady J mentioned two types of pleas giving rise to a reversal of the onus: the pleaded inability of the police to disprove the complainant’s allegations and the pleaded inability of the plaintiffs to establish an alibi. The circumstances discussed by Eady J in Hamilton v Clifford should not be understood as stating exhaustively the circumstances in which a reversal of the onus of proof may occur.
I do not consider that paragraph 7.2.1.1.3 (which alleges that “no person has been charged in relation to Corinna Marr’s death”) involves any reversal of onus. The plaintiff submitted that it required him to prove that he should not be charged, but I am unable to see how that follows from the pleading.
Paragraph 7.2.1.1.4 cannot be said to involve a reversal of the onus. It does not cast on the plaintiff the burden of proving that he was not a suspect. Nor do I consider that paragraphs 7.2.1.2.3 and 7.2.1.2.4 involve a reversal of the onus. As I have said, the plaintiff did not make any oral submissions about these paragraphs to support the submission in the written outline.
Paragraph 7.2.1.2.2.2 raises different issues. It pleads (in effect) the alleged inability of the plaintiff (when interviewed by the Police in October 2002) to explain the discrepancy between an alibi which he had previously given to the Police, and other evidence. It is important to note that paragraph 7.2.1.2.2.2 does not allege a continuing or present inability of the plaintiff to provide a relevant explanation. A plea of that kind would more obviously involve a reversal of the onus. As indicated earlier, I understand this plea to raise the inadequacy, objectively considered, of the plaintiff’s explanation in October 2002 when confronted with the discrepancy. This will require, amongst other things, consideration of what was actually put to the plaintiff in the interview in October 2002 and of the content of his response at that time. Understood in that way, I do not regard paragraph 7.2.1.2.2.2 as involving a reversal of the onus.
At this stage, I am considering the adequacy of the pleading by reference to its own terms and not by reference to evidence. It is to be expected however that at least an audio record, if not an audio-visual record, of the interview in October 2002 was made. If that be so, there may not be much factual dispute about what took place in the interview, with instead the focus being on the inferences to be drawn from what was said or not said. That process confirms my opinion that the process is not likely to involve a reversal of the onus.
I do not consider that the remaining paragraphs involve a reversal of the onus of proof. Unlike the circumstances considered in Hamilton v Clifford, Channel Seven does not plead an inability by the Police to disprove positive allegations of an offence made by a third party, nor does it plead an inability by the plaintiff to establish a clear alibi for the afternoon of 4 July 1997. Channel Seven’s plea does allege facts which, if established, may (I emphasise the word “may”) indicate that the plaintiff had an opportunity to participate in Ms Marr’s murder, but that does not cast upon the plaintiff the onus of disproving either actual involvement, or actual opportunity.
The plaintiff submitted that each plea in paragraph 7.2.1.2 of the TFAD which was a plea of a negative proposition (eg, the plea that the plaintiff was not present at his workplace at the time Ms Marr was murdered) involved a reversal of the onus. The implicit proposition was that the plaintiff then had the onus of establishing the contrary affirmative position. The plaintiff’s submissions on this topic were, in my opinion, put too absolutely. One may accept that by their very nature some negative propositions may have the effect of casting the onus of disproving them on to those who wish to assert the contrary, but it is not every pleading asserting a negative proposition which should be characterised in that way.
The maxim that all evidence is to be weighed according to the power of one party to produce it and of the other to contradict it[18] provides some support for the plaintiff’s submission in this respect. At the trial, it will be natural to consider what evidence the plaintiff has adduced in relation to each of Channel Seven’s negative propositions. But despite that consideration, I do not regard Channel Seven’s pleas as involving a reversal of the onus of proof. Using the example given above, it will be for Channel Seven to prove that the plaintiff was not at his workplace at relevant times. Evidence from the plaintiff will be very relevant to that issue but, in the absence of evidence from the plaintiff, the onus will remain on Channel Seven. The same can be said in respect of the remaining negative propositions in the proposed TFAD which the plaintiff identified.
[18] Blatch v Archer (1774) 98 ER 969 at 970.
I do not accept that the TFAD involves a reversal of the onus of proof.
Are the Matters Pleaded Capable of Justifying the Defendant’s Imputation?
The plaintiff’s oral submissions tended to focus on the individual factual allegations contained in the proposed pleading and proceeded on the basis that each individual fact had, by itself, necessarily to raise a suspicion about the plaintiff’s involvement. The submission in relation to each of the factual allegations was that they were of “no moment” and that, by themselves, they did not disclose grounds, let alone reasonable grounds, for the suspicion which is the subject of the claimed imputation.
As I endeavoured to indicate during the course of oral submissions, I do not regard it helpful to consider each individual allegation in isolation. Channel Seven’s submissions make it plain that it is the combined effect of the pleas in paragraph 7.2.1 upon which it relies. This seems in any event to be the effect of paragraph 7.2.1.2.10. The allegations of fact upon which Channel Seven relies are, in substance, these: the plaintiff had a sexual relationship with Corinna Marr for some time continuing to the date of her death; the plaintiff had spoken to Ms Marr by telephone on the day of her death; the plaintiff was absent from his workplace at the time of Ms Marr’s murder in circumstances giving him, if so minded, the opportunity to be at the place where her death occurred; the plaintiff had falsely denied his sexual relationship with Ms Marr and his contact with her on the day of her death (or at least there are reasonable grounds for considering his denials to be false); alibis proffered by the plaintiff were false; the plaintiff did not explain, satisfactorily or at all, his assertion of an alibi which was false; and the plaintiff’s sexual relationship with Ms Marr and his false denial concerning that relationship provide reasonable grounds for suspicion that he had a motive to murder Ms Marr. It is those matters in combination upon which Channel Seven relies for its plea of justification.
I repeat that the question for me to consider on the application to amend is whether it is reasonably arguable that the particulars pleaded are capable of supporting Channel Seven’s plea of justification. I do not have to determine at this stage whether, if proved at trial, the particulars proposed will establish the defence of justification.
The plaintiff submitted that Channel Seven’s particulars would at best support a plea of justification to a much less serious imputation, namely that there existed reasonable grounds for further inquiry about his possible involvement in Ms Marr’s murder, but not that there were reasonable grounds to suspect him of her murder. The difference between these two positions is one of degree.[19] In some cases the difference will be clear. In other cases the distinction between strong grounds for further inquiry, on the one hand, and reasonable grounds upon which to suspect a person of involvement in a murder is likely to be slight, if not non-existent. Accordingly I do not consider it helpful to approach the matter by considering which of these two levels of meaning Channel Seven’s particulars may support a plea of justification. The question is simply whether it is reasonably arguable that they are capable of justifying the particular imputation on which the plaintiff sues.
[19] Jameel v The Wall Street Journal [2003] EWCA Civ 1694 at [20].
Section 74D of the Summary Offences Act 1953 (SA) requires an investigating police officer who has reasonable grounds to suspect a person of having committed an indictable offence to take certain steps when interviewing that person. It has been said that that obligation arises when the investigating police officer has reasonable grounds for apprehending that the person might possibly have committed an indictable offence.[20] Of course this is the meaning attributed to a statutory provision and it does not necessarily govern the meaning of the plaintiff’s imputation. It does, however, serve to emphasise that caution should be exercised at this stage before concluding that it is not reasonably arguable that Channel Seven’s particulars are incapable of justifying its imputation.
[20] R v Grimley (1994) 121 FLR 236 at 258-9; R v Haydon (No 4) [2005] SASC 18 at [46]; (2005) 238 LSJS 149 at 158.
In my opinion, it is reasonably arguable that the circumstances pleaded by Channel Seven comprising (at a level of generality) an intimate relationship between Ms Marr and the plaintiff, contact between them on the day of her murder, the possibility of a motive, the existence of an opportunity, and untruths by the plaintiff about the nature of their relationship and his whereabouts at relevant times are capable of supporting the plea of justification.
I am satisfied that it is reasonably arguable that the matters pleaded are capable of supporting the imputation that the plaintiff is a suspect in the murder case arising from the death of Ms Marr and that there are reasonable grounds for that suspicion.
Miscellaneous Matters
The plaintiff raised a number of other complaints about the TFAD. It was said that the TFAD focuses on the conduct of the Police investigation and the reactions of the Police to the plaintiff, instead of the objective conduct of the plaintiff. I do not accept that submission as a characterisation of the present plea of justification.
It was suggested that TFAD had been drafted with a view to the parties’ discovery obligations, or to the scope of an order for non-party discovery. However, the plaintiff expressly withdrew any suggestion that the pleading was an abuse of process on the ground that it was put forward for an ulterior purpose.
I am satisfied that the discretion with respect to amendment should be exercised so as to allow the amendment.
Conclusion
Subject to Channel Seven providing appropriate particulars of the proposed paragraph 7.2.1.2.6, I will grant permission to it to amend its defence in the form of the Third Further Amended Defence which incorporates the additional particulars provided on 28 March 2008.