S, DJ v Channel Seven Adelaide Pty Ltd - [2008] SASC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
S, DJ v CHANNEL SEVEN ADELAIDE PTY LTD
[2008] SASC 60
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Layton)
5 March 2008
DEFAMATION - JUSTIFICATION - GENERALLY - WHETHER PLEA ESTABLISHED
Respondent broadcast promotion for television programme - alleged libellous statements that appellant a suspect in murder investigation - appeal from interlocutory order of Master allowing defence plea of particulars of justification - whether plea of justification supported by particulars - whether plea based on objective facts which could justify reasonable grounds to suspect - whether repetition rule breached - insufficient to plead existence of evidence that may prove conduct occurred - plea of justification must answer appellant's pleaded imputation that there were reasonable grounds of suspicion - appeal allowed.
Channel Seven Adelaide Pty Ltd & Anor v S, DJ (2007) 248 LSJS 75, applied.
Shah v Standard Chartered Bank [1999] QB 241; Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772; Jackson v John Fairfax Sons Ltd [1981] 1 NSWLR 36; Stern v Piper [1997] QB 123; Hamilton v Clifford [2004] EWHC 1542 (QB), considered.

S, DJ v CHANNEL SEVEN ADELAIDE PTY LTD
[2008] SASC 60
Full Court: Duggan, Bleby and Layton JJ

DUGGAN J. I would allow the appeal. I agree with the orders proposed by Bleby J and the reasons which he has prepared.
BLEBY J.
Introduction
No-one has ever been charged with the murder of Corinna Marr. She was shot in July 1997. However, that and other events have given rise to a fiercely contested defamation action, the subject of these proceedings.
Excluding this appeal, the action has been the subject of at least six considered judgments of judges and masters of this Court, three of them by the Full Court.[1] At the time of the alleged defamation, the plaintiff, the present appellant, was a 34-year-old professional photographer. In August 2000 he accompanied Ms Patricia Draper, then a South Australian Member of the House of Representatives, on a trip overseas. The trip was described as “overseas study travel”.
[1] S v Channel Seven Adelaide Pty Ltd & Anor (2005) 91 SASR 466, [2005] SASC 182 (White J); Channel Seven Adelaide Pty Ltd & Anor v S, DJ (2006) 94 SASR 296, [2006] SASC 10 (Full Court); S, DJ v Channel Seven Adelaide Pty Ltd & Anor [2006] SASC 268 (Master Burley); S, DJ v Channel Seven Adelaide Pty Ltd & Anor (2007) 97 SASR 118, [2007] SASC 80 (Full Court); Channel Seven Adelaide Pty Ltd & Anor v S, DJ (2007) 248 LSJS 75, [2007] SASC 117 (Full Court); S, DJ v Channel Seven Adelaide Pty Ltd & Anor (unreported) 26 June 2007 (Master Lunn).
The defendant and present respondent (“Channel Seven”) is a commercial broadcaster of free-to-air television in South Australia. On 14 and 15 May 2004 Channel Seven broadcast a promotion for a television programme entitled “Today Tonight” 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 whistle blower – he is a suspect in a murder case.
The promotion included pictures of Ms Draper, of the plaintiff and of Corinna Marr.
The plaintiff alleges that he was defamed by the promotion.
In its defence Channel Seven included a plea of justification. That plea was struck out by a decision of the Full Court on 4 April 2007.[2] I will refer to that decision as “the previous Full Court decision”.
[2] Channel Seven Adelaide Pty Ltd v S, DJ (2007) 248 LSJS 75, [2007] SASC 117.
Channel Seven then applied for leave to amend the defence to include a modified plea of justification which was said to have overcome the problems identified in the previous Full Court decision. A master granted leave to Channel Seven to amend the defence accordingly. The plaintiff now appeals against that decision of the Master.
It is not necessary to conduct a close analysis of the differences between the plea that was struck out by the previous Full Court decision and the amended plea the subject of this appeal. Whether this plea discloses a reasonable ground of defence must be determined according to its own terms.
The relevant pleadings
In his second further amended statement of claim the plaintiff relevantly pleads:
7.     The natural and ordinary meaning of the promotion is:
(a)     The plaintiff is a suspect in a murder case arising from the death of Corrina [sic] Marr, and
(b)     There are grounds to so suspect him, which are reasonable.
In its second further amended defence now filed by leave of the Master, Channel Seven pleads the following particulars of justification:
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.
7.2.1.2.3There 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.
7.2.1.2.4There was evidence that the plaintiff spoke to Corinna Marr by telephone on 4 July 1997.
7.2.1.2.5There was evidence that the 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.
Some preliminary observations must be made about that pleading.
The particulars contained in paragraph 7.2.1.1 relate to the allegation in paragraph 7(a) of the statement of claim that the natural and ordinary meaning of the promotion is that the plaintiff is a suspect in the murder case arising from the death of Corinna Marr. Each of the particulars alleges facts which, if established, would prove that the plaintiff was suspected by the police of the murder.
The remaining particulars contained in paragraph 7.2 of the defence purport to allege facts which justify the plea that there are reasonable grounds to suspect him of the murder. These are particulars of justification in relation to paragraph 7(b) of the statement of claim.
The first two particulars, namely those contained in paragraphs 7.2.1.2.1 and 7.2.1.2.2 plead what the plaintiff is alleged to have said to police in two separate interviews the police had conducted with the plaintiff. They are allegations of fact capable of proof by the defendant at trial. The same can be said of the allegation contained in paragraph 7.2.1.2.6 of the particulars. However, it will be noted that in paragraphs 7.2.1.2.3, 7.2.1.2.4 and 7.2.1.2.5 Channel Seven does not plead that in fact the plaintiff had been involved in a sexual relationship with Corinna Marr, that the plaintiff spoke to Corinna Marr by telephone on 4 July or that the plaintiff left his workplace on 4 July during the period alleged. It merely pleads that “there was evidence that” those events occurred.
From the structure of the plea it is reasonable to infer that the foundation for the allegation in paragraph 7.2.1.2.7, that the plaintiff was not being truthful in the statements he made to the police, is to be found in the matters pleaded in paragraphs 7.2.1.2.3 to 7.2.1.2.6 inclusive. That is made explicit in paragraph 7.2.1.2.8 where it is pleaded that those matters constitute reasonable grounds for believing or suspecting that the plaintiff was not being truthful in making the statements.
Paragraph 7.2.1.2.9 relies for its validity on the validity of the particulars contained in paragraph 7.2.1.2.3, and paragraph 7.2.1.2.10 relies on the validity of the pleas contained in paragraphs 7.2.1.2.3 to 7.2.1.2.9. Apart from paragraph 7.2.1.2.6, the subsequent paragraphs all rely on the validity of the pleas in paragraphs 7.2.1.2.3, 7.2.1.2.4 and 7.2.1.2.5.
The relevant principles
The principles to be applied are the same as those relied on in the previous Full Court decision. The complaint about the defence in that case was that it did not plead the facts or the objective conduct which gave rise to the reasonable suspicion, but concentrated on pleading the information obtained by the police and on the views formed by the police based on that information. For that reason the pleading was disallowed.
Perry J, with whom Duggan and David JJ agreed, cited Shah vStandard Chartered Bank,[3] Chase v Newsgroup Newspapers Ltd[4] and Jackson v John Fairfax & Sons Ltd.[5] Those cases were also relied on by the respondent in this appeal in support of the proposition that, in cases such as the present where a plaintiff pleads an imputation of suspicion on reasonable grounds of complicity in an offence, a defence of justification must plead the conduct of the plaintiff said to justify the reasonable suspicion. Perry J conceded, with respect correctly, that that may be achieved by pleading the facts of the plaintiff’s conduct, or facts from which his conduct can be reasonably inferred, as justifying the grounds of suspicion and the reasonableness of those grounds. Having reviewed the authorities Perry J concluded:[6]
It seems to me right in principle that the defence of justification should proceed on an objective view of the facts which are offered in support of the plea, and if the plea is in response to an accusation that a person is under suspicion, what has been held to be the necessary implication that the plaintiff has been guilty of conduct giving rise to the suspicion can only properly be proved by objective evidence of conduct on the part of the plaintiff, rather than by evidence of what others might have said or observed.
[3] [1999] QB 241, 261 Hirst LJ.
[4] [2002] EWCA Civ 1772 [50]-[51] Brook LJ.
[5] [1981] 1 NSWLR 36, 41 Hunt J.
[6] (2007) 248 LSJS 72, 80; [2007] SASC 117, [41].
I respectfully agree with and adopt that summary. His Honour went on to observe that if the pleading were otherwise, it would breach the repetition rule. In brief, that rule requires that a plea of justification based on reasonable grounds of suspicion is not permitted to rely on hearsay evidence. A plea of justification will only be allowed where it pleads facts and not where it pleads repetition of the statement of another.[7] The same principles are applicable to the disposal of this appeal.
[7] Stern v Piper [1997] QB 123, 134 Hirst LJ, 136 Simon Brown LJ; Shah v Standard Chartered Bank [1999] QB 241, 263 Hirst LJ, 266-270 May LJ; Hamilton v Clifford [2004] EWHC 1542 (QB), [27]-[33], [37]-[40] Eady J; Channel Seven Adelaide Pty Ltd v S, DJ (2006) 94 SASR 296, 312-313, [2006] SASC 10, [46]-[49] Gray J.
Application of the principles
The linchpin of Channel Seven’s plea of justification to paragraph 7(b) of the statement of claim comprises the pleas in paragraphs 7.2.1.2.3, 7.2.1.2.4 and 7.2.1.2.5. Unlike the other particulars, they do not plead facts relating to the plaintiff’s conduct. By pleading that “there was evidence” that the plaintiff did certain things, Channel Seven is not pleading the plaintiff’s conduct but the existence of evidence which might prove that such conduct had occurred. That is insufficient. It also breaches the repetition rule.
Those three paragraphs relate directly to what Channel Seven pleads that the plaintiff allegedly said to the police, as pleaded in paragraphs 7.2.1.2.1 and 7.2.1.2.2. No doubt the intention of Channel Seven is to justify the reasonable suspicion of the plaintiff’s involvement in the murder by attempting to show that the plaintiff was lying to the police when he made the relevant statements. If that was so, it might provide justification for a reasonable belief that he was so involved. If paragraphs 7.2.1.2.3, 7.2.1.2.4 and 7.2.1.2.5 are struck out, as they must be, the pleading in paragraphs 7.2.1.2.1 and 7.2.1.2.2 as to what the plaintiff told the police becomes quite irrelevant to any plea of justification of reasonable suspicion. The justification for the plea in paragraph 7.2.1.2.7 that the plaintiff was not being truthful disappears and the alternative pleas contained in paragraph 7.2.1.2.8 to 7.2.1.2.10, also fall away. In other words, the removal of those pleas providing the linchpin means that the integrity of the whole plea collapses. It leaves nothing that could justify reasonable grounds to suspect the plaintiff of involvement in the murder.
The plea in paragraph 7.2.1.1 relating to paragraph 7(a) of the statement of claim does not contain any such defect. In itself, it is an adequate plea to that paragraph. However, subparagraphs (a) and (b) of paragraph 7 of the statement of claim are pleaded conjunctively. They are not pleaded in the alternative. Unless Channel Seven’s plea responds to the whole of paragraph 7, it is not an adequate answer and must be struck out.
As previously noted, there was no objection to paragraph 7.2.1.1 of the defence so far as it goes. It pleads facts in justification of paragraph 7(a) of the statement of claim. In respect of paragraph 7(b) of the statement of claim, Mr Houghton QC, counsel for Channel Seven, argued that it was sufficient to plead facts indicating that the suspicion held by the police was based on reasonable grounds. He submitted that that could be done by pleading the evidence obtained by the police rather than the facts on which that evidence is based. However, that does not answer the plaintiff’s specific plea in paragraph 7(b).
It is for the plaintiff to choose how he pitches his case. He has not pleaded that there were reasonable grounds on which the police could entertain the suspicion. The identity of the police as holding the suspicion is a notion introduced to the pleadings by Channel Seven. The plaintiff does not plead that the meaning of the promotion was that the police or anyone else suspected the plaintiff of the murder. He merely pleads that the ordinary meaning of the publication was that –
(a) the plaintiff was a suspect, and
(b) objectively, there existed reasonable grounds to justify that suspicion.
He does not plead that the promotion meant that any particular person entertaining the suspicion in fact did so on reasonable grounds. He pleads that the imputation of the promotion was that, objectively, there were reasonable grounds to suspect the plaintiff. A plea of justification therefore, requires pleading of the facts which justify the reasonableness of those grounds, not the evidence by which those facts may be established.
Conclusion
For these reasons, I would allow the appeal. I would direct that the order of the Master granting leave to Channel Seven to amend the defence be set aside and that paragraph 7.2 of the defence be struck out.
LAYTON J. I agree that the appeal should be allowed for the reasons given by Bleby J. I also agree with the orders which he proposes.