Sands v Channel Seven Adelaide Pty Limited & Anor [2011] HCATrans 20

[2011] HCATrans 20

[2011] HCATrans 020

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A17 of 2010

B e t w e e n -

DERICK JOHN SANDS

Applicant

and

CHANNEL SEVEN ADELAIDE PTY LIMITED ACN 007 625 603

First Respondent

AUSTRALIAN BROADCASTING CORPORATION

Second Respondent

Application for special leave to appeal

GUMMOW J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 11 FEBRUARY 2011, AT 10.34 AM

Copyright in the High Court of Australia

MR P.A. HEYWOOD-SMITH, QC:   May it please the Court, I appear with MR P. QUINN for the applicant.  (instructed by Swan Lawyers)

MR W.T. HOUGHTON, QC:   May it please the Court, I appear in Canberra with MR T.P. DUGGAN for the first respondent.  (instructed by Kelly & Co Lawyers)

MR R.J. WHITINGTON, QC:   May it please the Court, I appear in Adelaide with MR S.J. DOYLE for the second respondent.  (instructed by Cowell Clarke Commercial Lawyers)

MR HEYWOOD-SMITH:   In the time allowed I propose to concentrate on what we suggest are the more obvious special leave points.  The first one has application to both respondents and it relates to what might be described as the levels of meaning of “jurisprudence” which has in recent years been developed in the United Kingdom.  That jurisprudence is to the effect that where defamatory statements allege criminal conduct in some way ‑ ‑ ‑

GUMMOW J:   Some of us get nervous when something is described as jurisprudence.  You mean the case law in the United Kingdom.

MR HEYWOOD-SMITH:   If your Honour pleases.  Thank you, your Honour.  The case law in the United Kingdom suggest that defamatory imputations will be categorised at one of three levels; actual guilt, reasonable ground to suspect and grounds for inquiry.  For the purposes of this special leave application we have included in the materials the summary of these principles in the 11th edition of Gatley, being the first edition which included them.  We say that the principles that have been adopted are designed to protect individuals from assaults on their reputation.  They are designed to ‑ ‑ ‑

GUMMOW J:   At some stage, Mr Heywood‑Smith, you are going to have to grapple with the clear finding that there were reasonable grounds to suspect your client of the murder of Corinna Marr.

MR HEYWOOD-SMITH:   Can I ask the Court to turn to the materials, page 90, where in 11.6 the learned authors summarised the principles indicated by Justice Eady and endorsed by the Court of Appeal in the United Kingdom, the principles as to how one approaches the question of the justification of an imputation of reasonable grounds to suspect of a criminal offence.  It is the applicant’s submission that the learned trial judge had no regard to these principles and, as a result, fell into error in making findings of fact on irrelevant issues.  For example, his Honour made findings of fact against the applicant on the applicant’s involvement with a federal parliamentarian some four or five years after the alleged murder.  As a result of that, his Honour, having found dishonourable conduct and adverse findings as to credit, then used those findings to approach the applicant’s evidence as to what he actually did do on the day of the murder with suspicion and did not accept it.  But, of course, that does not constitute objective grounds or suspicion as indicated in principle (2) of Justice Eady.

KIEFEL J:   Is your essential point that the trial judge went beyond the particulars pleaded?  Is that really it?

MR HEYWOOD-SMITH:   Certainly went beyond the particulars pleaded and that is important for the second principal special leave question which I will come to, namely, relating to public interest immunity, but can I come back to that.  So far as the United Kingdom case law is concerned, the Full Court at page 198 of the application book, paragraph 120, said only this, the second sentence of that paragraph:

This categorisation, even if rigidly applied in the United Kingdom, has not been so embraced by the Australian courts.

But their Honours did not indicate where it was not embraced.  But, in our submission, we are left with a situation where Australian case law is apparently diverting from the United Kingdom case law in circumstances where the United Kingdom cases, in fact, relied upon earlier judgments of Justice Hunt in the New South Wales Court of Appeal in the 1980s in developing ‑ ‑ ‑

KIEFEL J:   Where do you say the divergence in Australian case law occurs?  Because of this judgment of the Full Court?

MR HEYWOOD-SMITH:   Well, because the learned trial judge in the Full Court did not approach the question of what is required to establish reasonable grounds to suspect against any framework.  For example, they did not approach it on the basis, well, there is this third level of grounds for inquiry, is all that exists here grounds for inquiry?  What they did was they fell back upon the wrongful arrest cases as guidance for what is sufficient to result in reasonable grounds to suspect, contrary to principle (2), as expressed by Justice Eady. 

Can I invite the Court to go specifically to the Court of Appeal decision at page 55 of the materials, the decision of Shah v Standard Chartered Bank, a Court of Appeal decision, which addresses this issue and can I refer the Court to the paragraph commencing at point D, which was the judgment of Lord Justice Hirst which was agreed with by Lords Justices Neill and May.  So we say that there is a clear divergence that the South Australian courts are adopting a lower standard than what has been established as the appropriate standard for the protection of reputations in Australia.  Can I ask the Court to note also that paragraph 13 of the applicant’s summary at application book 220 ‑ ‑ ‑

GUMMOW J:   Shah’s Case was a strikeout application, was it not?

MR HEYWOOD‑SMITH:   It was, but it was addressing this issue as to the levels of meaning, if the Court pleases, and what is required for proof of reasonable grounds to suspect.  Can I also indicate that the other differences relate to the reversal of onus.  If the Court goes back to Justice Eady’s principles the Court will see principle (10):

A defendant may not plead particulars in such a way as to have the effect of transferring the burden –

What his Honour here did was having found that he did not have any confidence in the applicant’s evidence as to what he did that day, said that the applicant has failed to satisfy the police as to his movements so as to eliminate him.  Now, that we say is clearly reversing the onus of proof and is adopting a different approach.  Moreover, we invite the Court to note point (9) of Justice Eady’s principles that:

Unlike the rule applying in fair comment cases, the defendant may rely upon facts subsisting at the time of publication even if he was unaware of them –

That principle must also apply to the plaintiffs and yet his Honour the trial judge in his reasons declined to have regard to the applicant’s explanation of what he was doing on the afternoon of the murder because he had not given it at the time of the publication.  So in many respects we say this particular case ‑ ‑ ‑

KIEFEL J:   His Honour was only concerned with the defence, not the outcome.

MR HEYWOOD‑SMITH:   With the defence of justification, the onus being on the defendant to establish reasonable grounds to suspect and the applicant obviously opposing that, as it was entitled to, give evidence as to what he actually did.  That evidence, however, was not said to be something that the court could rely upon by Justice Bleby.  Can I also then turn particularly to the second special leave point which we say is a substantial point and that relates to the issue of public interest immunity.  Now, what happened here was that Channel Seven sought to rely solely upon police investigation material in establishing the defence of justification.

It issued third party discovery proceedings, process against the Commissioner of Police, the Commissioner of Police appeared and was ordered by Justice White to give discovery of documentation relevant only to the particulars of justification pleaded by Channel Seven, which appear in the judgment of the Full Court at page 163, paragraph 33.  Now, the effect of that immediately is, of course, that the police claimed public interest immunity in respect of the balance of the investigation file.  Now, the effect of that immediately is that the plaintiff is immediately faced with a situation where the only material that the police are required to discover is material adverse to him, not in his favour.  He opposed that, he appealed that, it has been rejected all the way through.

The effect also was this, that when his Honour allowed the defendant, Channel Seven, to expand the particulars of justification such as by adding a new matter with the effect that the supposed murderer who was obviously known to the victim because there is no evidence of break‑in or whatever, that matter was then not revisited from the point of view of the obligation of the Commissioner to give discovery of materials relating to that such as materials relating to the identity of other persons in that category.  Further, where his Honour allowed the particulars of justification to be extended to the conduct of the plaintiff in respect to the obtaining of job cards from his employment, that was not a matter that the police were obliged to give discovery on in circumstances where it became apparent during the examination of the detective that they had from an early stage been having access to that material, so that we say the plaintiff was prejudice.

Now, there is a novel proposition that this applicant wishes to put to this Court and it is this.  When police authorities or through police authorities a media defendant seeks to justify an allegation or an imputation of reasonable grounds to suspect and the police claim public interest immunity, having come out and made this allegation such that the person concerned is unable to test it, then the defence of justification ought not to be available as a matter of public policy to either the police or when relied upon by the media defendant, the media defendant.  Now, that is an issue that ‑ ‑ ‑

GUMMOW J:   Looking at the application book page 232, what do you say as to the response, paragraph 25, line 10?

MR HEYWOOD‑SMITH:   What we say about that is that we accept that public interest immunity will often be appropriately claimed.  When it is claimed, however, there may be consequences where the police is the source of the initial imputation that they cannot make those imputations and then fall back upon a reliance of public interest immunity to prevent the plaintiff from testing.  What we say is that there is no authority that we have been able to find directly on this issue.  There is authority on the analogous issue of what happens when parliamentary privilege is claimed in defamation actions in circumstances where a defendant is prevented from relying upon matters said in Parliament and there are authorities, both at the Privy Council level and in the Full Court of this State, which address the issue of permanent stays and the prevention of certain defences being taken.  This is a novel issue which we say calls out for some guidance.

GUMMOW J:   What you want is judgment entered in your favour, do you not?  That is what you want from us, at page 215?

MR HEYWOOD‑SMITH:   It depends upon what grounds the Court might be attracted to.  If the Court was attracted to the ground that the particulars of justification could never amount to reasonable grounds to suspect, that would be the verdict.  If it is not that, then there may have to be a remittal, but we do not know about that at this stage.  Can I turn to the other more obvious basis upon which this point is put and can I direct the Court to the materials at page 277.  This is the start of a series of documents received into evidence by the learned trial judge pursuant, in the first instance, to section 45A of the Evidence Act and also subsequently section 34C.

Now, the Court will immediately see Dr Byard’s report, pages 278, 279, 280.  It is substantially redacted, redacted in circumstances where it could have been anticipated that it would address matters going to the existence of DNA material, to the existence of fingerprints, to the existence of fibres that might all in the circumstances where there is no evidence of this plaintiff having by DNA or fingerprints or fibres ever been in the room where the woman was murdered, might well have been material that he could have sought to rely upon to rebut a suggestion of reasonable grounds to suspect.

Similarly, when we turn to page 304, we have the statements of work colleagues and so on and other peripheral witnesses, heavily redacted in circumstances where the redacted portions might very well have included material that would have been available to the plaintiff who suggest that rather than there being reasonable grounds to suspect him, there were reasonable grounds to suspect others and, of course, the more that there are others, the less likely it is that there is appropriate degree of proof to establish reasonable grounds to suspect of murder.

KIEFEL J:   I am sorry, I do not quite follow what it is you say about the incomplete evidence as undermining somehow the defence of justification.  How does that work?

MR HEYWOOD‑SMITH:   It works in this way, if your Honour pleases.  If there is two, three, four, five people in respect of whom the same level of suspicion might arise, then it must impact on whether in respect of one it can be said that there are reasonable grounds to suspect that person of murder.  What the applicant says is that in order to justify that effectively ‑ ‑ ‑

KIEFEL J:   There are either reasonable grounds on the evidence available or there are not.  What does it matter in relation to a particular person?  What does it matter if there are two or three other people?

MR HEYWOOD‑SMITH:   In this instance, the detective conceded at page – can I ask the Court to go to 218 of the materials.  The first 19 lines we have the detective conceding that after 11 years there was no incriminating evidence against the plaintiff.  At line 16, the only reason that he had any suspicion is because we cannot clear him.  Now, that we say is simply inadequate to establish reasonable grounds to suspect of murder for the purposes of the law of defamation.

Time requires me to go to the ABC specifically.  I have addressed the ABC in one sense in that the learned trial judge found that the imputation there was mere suspicion, carry no other inferences.  Now, that falls outside the three levels.  It directly raises the issue of the appropriateness of the English case law being adopted into this country.  The second issue in respect of the ABC was this, the learned judge found, notwithstanding that the imputation is virtually in identical terms to that of Channel Seven, namely, Sands is a suspect in a murder case, a lower level of imputation is – perhaps if I could just ask for a few minutes extension?

GUMMOW J:   Yes.

MR HEYWOOD‑SMITH:   The application of the repetition rule we say dictates that the same imputation arises and it is immaterial that it goes through a court, that the ABC is reporting a judge saying what Channel Seven has said.  Their defence is a fair and accurate report.  That is another matter, but that will not go to meaning.  Finally, the issue of principle raised against the ABC is this.  It is said that this could be a fair and accurate report in circumstances where, at page 24 of the application book, the trial judge records what happened on the occasion of the interlocutory application by Channel Seven to lift an injunction.  Counsel for Mr Sands appeared on the same day ‑ ‑ ‑

GUMMOW J:   I think you had better finish up, Mr Heywood‑Smith.

MR HEYWOOD‑SMITH:   If the Court pleases.  I will simply refer to paragraph 52 and the evidence of the application for a suppression order.  If the Court pleases.

GUMMOW J:   Yes, Mr Houghton.

MR HOUGHTON:   In our submission, your Honours, the application raises no special leave question of principle and our learned friend quite rightly does not rely on any supervisory jurisdiction of this Court to justify the intervention of this Court.  The matters raised by our learned friends in oral argument seem to be this.  Somehow the learned trial judge below and the Full Court did not give sufficient or any regard to the United Kingdom line of cases which deal with gradations of meaning.  In our submission, the courts below were absolutely correct in giving that line of authority short shrift for the simple reason that those cases are irrelevant to any issue that needed to be determined at the trial as distinct from issues which needed to be determined pre‑trial in relation to the pleadings.

Now, this case went on three occasions to the Full Court on pleading points and there the English line of authorities were fully argued and it resulted in – the first decision of the Full Court was to allow the composite imputation of defamatory meaning to go forward to trial and the last two Full Court decisions struck out the particulars of justification that my client relied upon.  On the third occasion our particulars were allowed and they are the particulars that went to trial.  So we say, in brief, the English line of authorities deals with pleading points in defamation actions.  They are not apt or relevant to any of the triable issues that the learned trial judge had to determine, so that raises no point at all.

Our learned friend then relied, albeit briefly, that there was some transfer of the onus of proof.  That is dealt with by the learned trial judge at application book 46.  There was no reversal of the onus of proof by the learned trial judge.  His Honour at paragraph 7.2 on that page under the heading “What is required to be proved” set out the conventional test and made it quite plain that that conventional test, that is, what did Channel Seven need to prove at trial, the onus of that test was plainly and squarely upon Channel Seven.  So our learned friend can point to no error in that regard.

Next, our learned friend fatally put forward a proposition that the case of Channel Seven went beyond the particulars that had been pleaded.  That was dealt with fully in the Full Court and what was remarkable about that complaint was that even though there might be said to be one or two matters out of perhaps a dozen matters that might be said to have gone beyond the particulars pleaded before the learned trial judge, no objection was ever taken to the evidence that Channel Seven led in that regard.  In other words, the parties conducted the trial below on the evidence before the learned trial judge and the learned trial judge came to the findings that your Honours have already seen in the judgment below. 

So we say there is no substance to the complaint that in one or two small particulars, or small matters, there was not a particular pleaded in the defence of justification.  No injustice resulted from that.  There was no application, for instance, that there should be some adjournment to enable the plaintiff to meet that case.  The two small cases were, number one, there was evidence by the police investigating detective sergeant that in his view the deceased must have known the person who murdered her because there was no sign of forced entry and so on.  That was simply a matter that came out from the police evidence in‑chief.  No objection was taken to it and there was no application to call any evidence in rebuttal of that. 

There was another very minor matter of a false alibi that the plaintiff had put forward in a police interview where he produced forms which he had taken from his employer.  Those forms constituted a false alibi because the plaintiff had nothing to do with doing the job at the time that the job was said to be done and the new case was, or the unparticularised part of that was that the plaintiff had unlawfully removed those employment records from his employer.  Now, again, that was a matter that came out in evidence, it was not objected to and no injustice could be said to have resulted from it.

Then our learned friend pointed to redacted witness statements and redacted pathologist report.  Now, it is true that the pathologist’s report was heavily redacted.  The relevance of the pathologist’s report, of course, was to establish the time of death of the deceased as between, the most likely time, between 2.30 and 3.30 in the afternoon.  Now, that fact initially was admitted by the plaintiff in its reply to our defence.  At trial the plaintiff successfully applied to withdraw that admission such that it now became a live issue, namely, the time of death.

GUMMOW J:   The time of death.

MR HOUGHTON:   Yes, because the plaintiff could not explain his whereabouts between 2.30 and 3.30.  We then were forced to seek the tender of Professor Byard’s report, which his Honour allowed, albeit in a redacted form, because of public interest immunity grounds.  Interestingly enough, the plaintiff sought to rebut the evidence of Professor Byard by calling its own pathologist, Dr James.  Even more interestingly, Dr James in his evidence in‑chief said that the most likely time of death was, as Professor Byard had reported, between 2.30 and 3.30 and he thought Professor Byard’s conclusion was eminently reasonable.  So the point went nowhere.

Finally, our learned friends put forward what they candidly called a novel proposition, that is, where a media defendant seeks to justify a defamatory imputation in circumstances where the Crown claim public

interest immunity and are successful and somehow the defence of justification ought be struck out and be not available.  Now, it simply has to be stated to realise that that is, with great respect, a ridiculous proposition.  If the Court please.

GUMMOW J:   We do not need to hear from you orally, Mr Whitington.  Yes, Mr Heywood-Smith, anything in reply?

MR HEYWOOD-SMITH:   Yes, if the Court pleases.  It is not, with respect, correct for our learned friend to say that no objection was taken to the evidence beyond the particulars.  For a start, if the Court turns to the application book page 141, we have the ruling of Justice Bleby on the objection taken to the materials relating to the access to the unit of persons well known to the deceased, particularly at paragraph 532.  Nor is it correct to say that no objection was taken to the use of the evidence relating to the obtaining of the job seeker sheets or the question of justification of reasonable grounds to suspect.  What was conceded was that questioning on that topic was obviously allowable to the Channel Seven because it went to credit, the plaintiff himself having raised that issue in his response, but my learned friend is incorrect to suggest that it was taken without objection.

So far as the Byard report is concerned, our learned friend does not, with respect, accurately indicate the reasons for the application to withdraw the admission.  Evidence came up late in the matter that the victim was alive at 3.15 pm because a neighbour heard her using a hairdryer.  A detective agreed that they approached the investigation on the basis that the murder had occurred after 3.15.  Mr James, the other person called, agreed that the murder could have been as late at 3.45.  This was of some significance to the plaintiff who had evidence that he had returned to his place of work, which was at least half an hour away from the place of the murder, as early as 3.00 but no later than 3.30.

So, with respect, our learned friend, Mr Houghton, does not address the real issue of the significance of the redaction of material from Dr Byard’s report.  We do not know what is in the redacted material.  That is the issue.  We do not know what other DNA material or other fingerprints that could not be our client’s were disclosed.  It is on that basis that we say that the applicant was clearly prejudiced by the court allowing public interest immunity to be used to filter the evidence from the police investigation to only matters that could count against the applicant and to exclude matters that might be in his favour.  If the Court pleases.

GUMMOW J:   There are insufficient prospects of success of an appeal against either of the respondents to warrant a grant of special leave, nor do the interests of justice require a grant in either case.  Accordingly, special leave is refused with costs.

AT 11.07 AM THE MATTER WAS CONCLUDED