Sands v Channel Seven Adelaide Pty Ltd
[2010] SASC 202
•1 July 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SANDS v CHANNEL SEVEN ADELAIDE PTY LTD & ANOR
[2010] SASC 202
Judgment of The Full Court
(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Vanstone)
1 July 2010
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION - CRIMINAL
DEFAMATION - PRIVILEGE - ABSOLUTE PRIVILEGE - STATEMENTS MADE IN JUDICIAL PROCEEDINGS
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - IN GENERAL
Appeals against dismissal following trial of claims for damages for defamation - Channel 7 published a promotion which described the appellant as "a suspect in a murder case" - proceedings were brought to obtain an injunction restraining broadcast of program - ABC reported on injunction proceedings in three radio broadcasts and in an internet article - ABC's publications included reference to the appellant having been a murder suspect - whether Judge erred in finding that there were reasonable grounds to suspect the appellant of murder, and that Channel 7 were justified in their broadcast - whether Judge's use of evidence in making findings inappropriate - whether Judge applied an inappropriately lenient standard of proof - whether Judge erred in finding that the pleaded imputation that the appellant "is and was" a murder suspect, was not made out in respect of the publications of the ABC - whether Judge erred in his treatment of the repetition rule - whether Judge erred in finding that the radio broadcasts of the ABC were protected by the statutory defence of absolute privilege and the website article by the common law defence of "fair and accurate" report.
Held: appeals dismissed - the evidence supported the Judge's finding that there existed reasonable grounds on which the appellant could have been suspected of murder - Judge's finding that Channel 7's defence of justification was made out open on the evidence - use of evidence by the Judge not inappropriate - in assessing the evidence, Judge applied appropriate standard of proof - the ABC's publications did not give rise to any imputation to the effect that the appellant "was and is" a murder suspect and that the suspicion "was and is" on reasonable grounds - repetition rule of limited application - the ABC publications were fair and accurate reports of proceedings - in the event that radio broadcasts defamatory, they would be protected by statutory defence of absolute privilege - no malice established with respect to the publication of the website article - had the publication been defamatory, the common law defence applicable would be made out.
Criminal Law (Forensic Procedures) Act 1998 (SA); Civil Liability Act 1936 (SA) s 6, referred to.
Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452; Edwards v The Queen (1993) 178 CLR 193; Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490; Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437; Dare v Pulham (1982) 148 CLR 658; Water Board v Moustakas (1988) 180 CLR 491; Briginshaw v Briginshaw (1938) 60 CLR 336; Rejfek v McElroy (1965) 112 CLR 517; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; J McPhee & Son v ACCC (2000) 172 ALR 532; Fox v Percy (2003) 214 CLR 118; Jones v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; Warren v Coombes (1979) 142 CLR 531; Homes v Thorpe [1925] SASR 286; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; Hussien v Chong Fook Kam [1970] AC 942; George v Rockett (1990) 170 CLR 104; Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1; Farquhar v Bottom (1980) 2 NSWLR 380; Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; Keogh v Incorporated Dental Hospital [1910] 2 IR (Irish) 577; Lewis v Daily Telegraph [1964] AC 234; Lane v Channel Seven Adelaide Pty Ltd (2008) 101 SASR 141; Jones v Skelton [1964] NSWR 485; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Channel Seven Adelaide Pty Ltd v S, DJ (2006) 94 SASR 296; Berezovsky v Forbes [2001] EWCA Civ 1251; Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148; Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10; Lim v TVW Enterprises Ltd [2002] WASC 214; Ronci v Nationwide News Pty Ltd [2001] WASC 239; John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279; Coull v Nationwide News Pty Ltd (2008) 23 NTLR 147; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Stern v Piper [1997] QB 123; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255; Bunker v James (1980) 26 SASR 286; Kimber v The Press Association Ltd [1893] 1 QB 65; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58; Bainton v John Fairfax & Sons Ltd [1991] Aust Torts Rep 69,363; Macdougall v Knight (1890) 25 QBD 1; Cook v Alexander [1974] QB 279; Tsikata v Newspaper Publishing [1997] 1 All ER 655; Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313; Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376; Horrocks v Lowe [1975] AC 135; Roberts v Bass (2002) 212 CLR 1, considered.
SANDS v CHANNEL SEVEN ADELAIDE PTY LTD & ANOR
[2010] SASC 202Full Court: Nyland, Gray and Vanstone JJ
NYLAND J: I agree that the appeals should be dismissed for the reasons expressed by Gray J.
GRAY J.
Following trial, the claims of Derick John Sands for damages for defamation against Channel 7 Adelaide Pty Ltd and Australian Broadcasting Commission were dismissed. This is an appeal from those dismissals. It is convenient to separately address the appeals against the dismissal of the claims against Channel 7 and Australian Broadcasting Commission.
Channel 7
The action against Channel 7 was based on a broadcast of a promotion for a television program known as “Today Tonight” in which it was asserted that Mr Sands was a suspect in a murder case. The promotion displayed images of Patricia Draper, a South Australian Federal Member of Parliament, of Mr Sands, and of Ms Marr. The promotion was screened on a number of occasions on 14 and 15 May 2004.
Channel 7 pleaded by way of defence that the imputation conveyed by the broadcast, as pleaded by Mr Sands, was not made out. In the alternative Channel 7 pleaded justification. In the further alternative a defence of extended qualified privilege was pleaded. It was claimed by Channel 7 that the promotion constituted a discussion of government and political matters, and that its conduct in publishing the promotion was reasonable in the circumstances.
The trial Judge concluded that Mr Sands had been defamed but upheld the defence of justification and as a consequence dismissed the claim. On appeal, the primary issue was whether the Judge was correct to uphold the defence of justification.
Background[1]
[1] Most of this section under the heading Background is adopted when addressing the appeal against the ABC.
On 4 July 1997, Corinna Marr was murdered at her home unit in a northern Adelaide suburb. The publication the subject of Mr Sands’ pleaded imputation related to this event.
The Judge made a number of findings about Mr Sands’ antecedents. As these were not challenged on appeal, I have drawn on those findings in this background.
Mr Sands was born on 24 August 1969. He had lived in South Australia all his life. He had never married, but had a number of relationships. By the end of his schooling Mr Sands had completed a Certificate in Business Practice.
Mr Sands developed an interest in photography and undertook and part completed a three year course with TAFE for a Certificate in Photography. While undertaking this course Mr Sands was employed at a commercial photographic studio. In 1988, when aged 18 years, he took a position as a cadet photographer with Messenger Newspapers Pty Ltd. After 12 months he was engaged as a photographer and thereafter worked with Messenger Press until his employment was terminated on 5 July 2004.
Messenger Press published several weekly suburban newspapers for distribution in metropolitan Adelaide. Mr Sands was employed primarily at the Port Adelaide head office but with occasional rotations to the Noarlunga and Salisbury offices. He had the use of a company vehicle and worked on advertising and editorial photographic assignments. Messenger Press formed part of the News Limited Group. Mr Sands occasionally undertook photographic assignments for two other publications of the group - Adelaide Advertiser and Sunday Mail. He also worked part time as a freelance photographer at weddings, engagements and at other occasions.
Mr Sands’ usual work practice was to work at Port Adelaide on Monday, to undertake photographic assignments Tuesday to Thursday and Friday mornings, and to then spend Friday afternoon processing films taken that week in order to meet the following week’s publication deadline.
Prior to 1995 Ms Marr worked as a receptionist at the Walkerville office of Weeks & Macklin, a firm of land agents. Her duties extended to the preparation of sales brochures. She also undertook office work in connection with property management.
Colin Todd was a salesman employed by Weeks & Macklin at the Walkerville office. In late 1994, he commenced his own Weeks & Macklin sales office at Firle. Ms Marr worked at that office and commenced a course as a trainee salesperson. At this time Ms Marr was engaged to Robert Marr.
Mr Todd advertised through the Messenger Press. He wanted photographic work undertaken and approached Mr Sands for this purpose.
Mr Sands first met Ms Marr on 22 May 1995 when visiting the Firle office of Weeks & Macklin to carry out a photographic assignment. He found her attractive. A friendship developed. The nature of that relationship and whether it was sexual was an issue in the proceedings. Mr Sands visited the office of Mr Todd on a number of occasions to see Ms Marr. These visits were not work related. They also met outside the office, and on at least one occasion at Mr Sands’ home at Valley View. On that occasion they discussed an emotional issue between Mr Sands and his then partner. He confided in Ms Marr about that relationship.
Ms Marr married Robert Marr in January 1996. Mr Sands’ visits to the Firle office continued. On occasions Mr Sands and Ms Marr went, unaccompanied, on full day excursions to Sandy Creek and to Port Elliot or Victor Harbor, for photographic shoots. This was to assist Ms Marr in developing her modelling career. The time and nature of their last contact before Ms Marr was murdered was in dispute.
On the afternoon of Friday 4 July 1997 Ms Marr was shot in her unit at Collinswood. She died as a result. Evidence suggested that the most likely time of death was between 2.30pm and 3.30pm. At all relevant times, no-one had been charged with her murder. On 4 July 1997 Mr Sands was at the Salisbury office of Messenger Press.
Ms Marr had been at work as usual on the morning of 4 July 1997. At about 10.15am she left work for about 45 minutes to collect an outfit to wear at a promotion for which she had been engaged at the Woodville Hotel later that day. By arrangement with Mr Todd she left work between 2.00pm and 2.30pm, to go to her home unit to change for the promotion. The driving time from the Firle office to her unit was estimated to be 12 minutes. Ms Marr had arranged for Mr Todd to accompany her to the promotion. He was to call for her at her unit between 3.30pm and 3.45pm. Mr Marr was engaged in another activity and could not accompany Ms Marr.
Mr Todd was late to call for Ms Marr. At about 4.00pm he telephoned her unit from his vehicle to advise that he was on the way. Mr Marr answered the telephone and informed him that Ms Marr was dead.
Mr Sands went to the Salisbury Police Station sometime during the week of 11 July 1997 to offer assistance to the police. However, he was not formally interviewed until 30 August 1997. On that day, Mr Sands signed a typed statement acknowledging the truth of the statement to the best of his knowledge and belief. Mr Sands in this statement said that on the afternoon of Friday 4 July 1997, he was working in the Messenger Press office at Salisbury processing his week’s photographs.
On 8 October 2002 Mr Sands was again interviewed by the police. The interview was video-recorded. On this occasion Mr Sands adhered to his statement of 30 August 1997, but added that he may have left the Salisbury office during the afternoon to have lunch or to buy a drink. At this time it would have been obvious to Mr Sands that police were questioning his movements on the afternoon of 4 July 1997.
Shortly following the police interview of 8 October 2002, Mr Sands, while at the Messenger Press office at Port Adelaide, removed from storage, job work sheets for the week ending 4 July 1997. He took the job work sheets to his home. He claimed that they were taken with the authority of the acting photographic manager, Ray Murray. Mr Murray died before trial.
On 24 January 2004 police conducted a search of Mr Sands’ home. During the course of the search, Mr Sands, through his solicitor, provided a selection of the job work sheets to the police. These job work sheets related to assignments carried out on 4 July 1997. On the same occasion Mr Sands supplied, at the request of the police, a DNA sample. He declined to be fingerprinted.
On 25 February 2004 the police applied to a Magistrate for an order authorising the taking of finger and hand prints from Mr Sands pursuant to the Criminal Law (Forensic Procedures) Act 1998 (SA). The ground for the application was that Mr Sands was “reasonably suspected of having committed the offence of murder …”. The application was supported by an affidavit sworn by Detective Sergeant Keane deposing to the grounds of his suspicion. The application was granted on 2 March 2004. At the time there was substantial media coverage of the application under the Forensic Procedures Act. This coverage did not breach the statutory prohibition against publishing the identity of Mr Sands.
At a media conference on 3 March 2004, Superintendent Symons of the South Australian Police revealed that the fingerprints obtained pursuant to the forensic procedures order did not match fingerprints found at the crime scene of Ms Marr’s murder. The superintendent added that Mr Sands, without naming him, “is a suspect and will remain a suspect” in the Corinna Marr murder case.
Channel 7 was aware of the Forensic Procedures Act proceeding, of its outcome and of the media conference held on 3 March 2004. Channel 7 broadcast news items relating to the proceedings and the media conference.
The Publication
The words published were as follows:
On Today Tonight – SA’s Federal MP, her boyfriend and the business trip. Disgusted that tax-payer funds have been used. The paper trail and the whistleblower – and he’s a suspect in a murder case. On Today Tonight.
The relevant pleaded imputation was contained in paragraph 7 of the statement of claim and was in the following terms:
The natural and ordinary meaning of the promotion is:
a)[Mr Sands] 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.
The Judge reached the conclusion that the publication was defamatory. The Judge reasoned:[2]
Channel 7 argued that this was a momentary and transient publication comprising only seven words in a 15 second promotion. The promotion was broadcast during advertising breaks, during or between other scheduled television programs. It was not part of a feature article where relevant facts are examined and considered in such a way as the reader would necessarily conclude there has been a substantial investigation revealing reasonable grounds for the suspicion. Although there may have been some repeated viewing, it was still a transient publication lacking in any factual analysis such as one might have expected from the program it was promoting. On this basis, it was argued, there could be no inference drawn beyond the primary meaning of the words and accompanying images, namely that [Mr Sands] was a suspect in a murder case arising from the death of Corinna Marr.
However, each of the material words used is significant. While the word “case” does not necessarily convey a court case or that [Mr Sands] has been charged with the murder of Corinna Marr, it does suggest some sort of formal or structured investigation. It carries the imputation further than the statement “he is suspected of murder”.
The fact that the case is described as a “murder” case indicates that the suspicion relates to a very serious allegation about a case the investigation of which is not likely to be taken flippantly.
The fact that [Mr Sands] was alleged to be a “suspect” in a murder case carries the inference that the suspicion was held by the police, or a responsible crime detection agency. The further natural inference is that such agencies do not suspect people of serious crime without careful investigation and other than on reasonable grounds.
Finally, the statement was made by an apparently responsible commercial television station which would be unlikely, given the serious nature of the allegation, to make such a statement without being reasonably sure that reasonable grounds existed for making it. It was not a statement made in a casual conversation between a group of people in the bar of a hotel.
The observations I have made about the words used and the circumstances of the publication are not observations which can only be the product of material reflection by a serious observer of police activities. Each of the words used, although used fleetingly, carries an impact and an imputation in the mind of the ordinary reasonable television viewer. That imputation goes beyond a mere allegation of suspicion of murder. Together the words carry an imputation that there exist reasonable grounds for the suspicion. Accordingly, I find that the imputation pleaded in paragraph 7 of the statement of claim has been made out.
It is also clear that an allegation of suspicion of such a serious criminal offence on reasonable grounds also suggests possible serious criminal conduct on the part of [Mr Sands] and, absent any defences, is defamatory of him.
On the hearing of the appeal, Channel 7 did not challenge the above findings.
[2] Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [126]-[132].
Justification
At common law it is a complete defence to an action for defamation that the defamatory imputation was true in substance and in fact, and as a consequence the defendant was “justified” in their publication.[3]
[3] See eg Cowan v Bank of Adelaide [1942] SASR 99 at 101 (Cleland J); Potts v Moran (1976) 16 SASR 284 at 305 (Bray CJ); Sutherland v Stopes [1925] AC 47 at 62 (Viscount Finlay), at 75 (Lord Shaw); Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 at 21, 22 (Street ACJ); Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 536 (Jordan CJ).
Where a publication conveys an imputation of suspicion of guilt, to establish the defence of justification the defendant must prove that the plaintiff was suspected by the police, with reasonable cause, of having committed the offence,[4] in addition to the conduct of the plaintiff which gave rise to the suspicion.[5]
[4] Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 302 ( Mason J); Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 21 (Sugerman ACJ); Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186.
[5] Morris v Cash (1993) 10 WAR 507 at 512, 513 (Owen J); see also Gumina v Williams (No 2) [1990] 3 WAR 351 at 371 (Seaman J); Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 41 (Hunt J); Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186.
As earlier mentioned, Channel 7 raised defences of justification and qualified privilege. The Judge found that the defence of justification had been made out. However he indicated that had it been necessary to do so, he would have rejected the defence of qualified privilege. On the hearing of the appeal, Channel 7 did not seek to challenge the Judge’s conclusions in regard to qualified privilege. Channel 7 restricted its opposition to Mr Sands’ appeal, to supporting the Judge’s findings and conclusions with respect to justification. In the event that the appeal is to be allowed, Channel 7 submitted that damages would need to be reassessed and that reassessment should be remitted to the trial Judge.
Channel 7’s plea of justification appeared in its final form in the third further amended defence filed on 16 May 2008:
7.2.1.1As to [the] first part of the alleged composite imputation pleaded in paragraph 7(a) of the Second Further Amended Statement of Claim, namely that [Mr Sands] 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, [Mr Sands] 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 [Mr Sands] was interviewed by the Police in respect of the Corinna Marr murder (“the first interview”), and in the course of the said interview [Mr Sands]:
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].
7.2.1.2.1AOn or about 24 January 2004, [Mr Sands] said to the police that, on the afternoon of Corinna Marr’s death, he was taking photographs for an advertisement for All-Vac Vacuum Cleaners for Messenger Press (which said advertisement subsequently appeared on page 84 of the 9 July 1997 edition of the News Review Messenger).
7.2.1.2.2In October 2002 [Mr Sands] was again interviewed by the Police in respect of the Corinna Marr murder (“the second interview”), and in the course of the said interview [Mr Sands]:
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 [Mr Sands] was not present at the offices of Messenger Press on the afternoon of Corinna Marr’s death.
7.2.1.2.3[Mr Sands] 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.
7.2.1.2.4[Mr Sands] spoke to Corinna Marr by telephone on 4 July 1997.
7.2.1.2.5[Mr Sands] 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.
7.2.1.2.6[Mr Sands] did not have any involvement in taking the photographs for the advertisement referred to in paragraph 7.2.1.2.1A 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, [Mr Sands] 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 [Mr Sands] 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.
7.2.1.2.9[Mr Sands] 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 [Mr Sands] had a motive to murder Corinna Marr.
7.2.1.2.10[Mr Sands’] 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 [Mr Sands] of murdering Corinna Marr.
The Judge summarised his reasons for his acceptance of the defence of justification as follows:[6]
[6] Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [230]-[242].
The circumstances surrounding Ms Marr’s death indicate a likelihood that the person who committed the murder was a person known to Ms Marr. [Mr Sands] was a person within that class.
The most likely time of death was between 2.30pm and 3.30pm, although there is a diminishing likelihood that it occurred outside that period.
Accepting as I do the evidence of Messrs Zvigos, Parrish and Faulkner, I find that on the balance of probabilities [Mr Sands] was not at the Salisbury premises of Messenger between, at the latest, 2.00pm and, at the earliest, about 3.30pm. [Mr Sands’] whereabouts at that time is and was, at the time of Channel 7’s publication, unexplained.
It follows that, in the first formal statement that [Mr Sands] made to the police, on 30 August 1997, [Mr Sands] lied to police about his movements that day. I do not suggest that these or any other lies were lies told out of a consciousness of guilt.[7] The lies that [Mr Sands] told may have been due to panic, a fear that the truth might sound feeble or unconvincing, or that he might not be believed. He may have lied to try and deflect police inquiries away from him. It is not for me to say why [Mr Sands] has lied. Although they may not be evidence of guilt, his lies may properly be included as grounds on which to base a reasonable suspicion.
[7] See Edwards v The Queen (1993) 178 CLR 193.
After the police interview of 8 October 2002 [Mr Sands] must have been aware from police questioning that fellow employees had said that he was absent from work at material times during the afternoon of 4 July 1997 and that the statement on 30 August 1997 was being called into question. He then unlawfully removed job sheets for the relevant week from his employer’s premises. The inference I draw from that conduct is that he did so in order to frustrate any inquiry as to what he may have been doing that day, and so that only he would have control of that knowledge. When the opportunity arose in January 2004 he was prepared to attempt to use that information to his advantage.
During the interview of 24 January 2004 [Mr Sands] attempted to infer to police that his reason for being outside the Messenger office on the afternoon of 4 July 1997 was that he might have been on a photographic assignment, knowing in fact that he was not, and so as to deflect attention from the possibility of his being at the murder site.
As I have said, I do not take into account what [Mr Sands] said in evidence as to his movements that afternoon or that he may well have lied about that. He had not made any such statement as at the time of publication of the promotion by Channel 7. While that evidence may add grounds to suspect him now, it could not have done so at that time. It does, however, have a significant adverse effect on [Mr Sands’] credit.
I am therefore satisfied on the balance of probabilities that not only was [Mr Sands] not at the premises of Messenger at a crucial time during the afternoon and that his absence was unexplained, but that he also lied about that to the police.
I also find that [Mr Sands] had a romantic attachment to Corinna Marr, and that on the balance of probabilities that included a sexual relationship. That has three consequences. In the first place, it presents a bizarre but possible motive for murder where Corinna Marr was married and in an apparently permanent relationship with her husband. It also demonstrates that [Mr Sands] lied to the police about that relationship, presumably in an attempt to disassociate himself from Corinna Marr. In the third place it places [Mr Sands] in a class of persons who is likely to have been let into Ms Marr’s premises as a person well known to her and even a person whom she would allow to remain in her presence while changing.
I have also found on the balance of probabilities that there was a telephone conversation between [Mr Sands] and Ms Marr on the morning of her murder. That in turn raises a suspicion that [Mr Sands] knew of Ms Marr’s intended movements that afternoon. It also means that, on the balance of probabilities, [Mr Sands] lied to police about that incident.
There are matters which can be put in favour of [Mr Sands]. In particular there is the inconclusive evidence as to whether there was any DNA at the scene which matched that of [Mr Sands]. It is perhaps likely that if there were any match [Mr Sands] might by now have been charged with her murder. There is also the evidence that [Mr Sands’] fingerprints did not match any at the murder scene. While these matters do not go towards proof of [Mr Sands’] involvement in the murder, they do not mean that [Mr Sands] was not involved, and they do not detract from the grounds of suspicion which have been established.
In my opinion all the circumstances I have described constitute reasonable grounds on which [Mr Sands], as at May 2004, could properly have been suspected of the murder of Corinna Marr. I stress that these findings are made on the balance of probabilities, and that they are not findings that even on the balance of probabilities [Mr Sands] in fact murdered Corinna Marr. Such a finding is not necessary for Channel 7 to succeed.
For these reasons, in my opinion Channel 7’s defence of justification must succeed.
Earlier in the Judge’s reasons, he made extensive findings of fact upon which he drew in reaching the conclusions set out in the above extracted summary.
The Appeal
The primary complaint advanced on the appeal was that the Judge erred in finding that there were reasonable grounds to suspect Mr Sands of the murder of Ms Marr and that Channel 7 were justified in their broadcast. This ground was supported by numerous complaints, including alleged errors of law, of fact and of mixed law and fact. Many of the complaints were no more than general assertions of error. In essence most aspects of the Judge’s findings with respect to justification were challenged. No outline of argument was filed. Instead a lengthy written submission was presented to the Court. It is against this background that I propose to address the complaint. The particulars to the grounds of appeal have been footnoted. It is to be observed that they have been presented in a somewhat random fashion. I have not addressed them in that manner.
Mr Sands contended that the Judge erred in failing to apply correctly, or at all, principles of law relevant to the defence of justification. Four principal matters of complaint addressed were: an alleged failure to consider whether the pleaded particulars of justification, if established, constituted reasonable grounds to suspect; alleged errors as to the burden and onus of proof; a suggested incorrect treatment and consideration of Mr Sands’ evidence, and finally; an inappropriate reliance on matters not pleaded.[8]
[8] Ground of Appeal 1 was in the following terms:
That in respect of [Channel 7’s] defence of justification of the pleaded imputation the learned Trial Judge erred by failing to apply correctly or at all the principles of law relevant to that defence in that his Honour:
a.failed to consider whether the particulars of justification pleaded, if established, constituted reasonable grounds to suspect;
b.failed to consider whether the particulars of justification pleaded constituted only the third level of meaning, namely grounds for enquiry, or something less;
c.ignored the presumption of innocence and thereby failed to apply that presumption;
d.effectively reversed the onus of proof;
e.considered the onus was only to prove, objectively, reasonable grounds on which to suspect [Mr Sands] of “involvement” in the murder of Corinna Marr;
f.failed to consider the seriousness of the imputation conveyed, ignored the Briginshaw principle, and thereby applied the wrong standard of proof;
g.failed to have regard to previous decisions of the Full Court in this matter concerning the defence of justification and the manner in which that defence must be proved;
h.treated [Mr Sands’] evidence after the Defence case as rebuttal evidence and, in any event, failed to have regard to that evidence, thereby failing to consider [Mr Sands’] case;
i.relied upon evidence led by [Channel 7] when no particulars had been given of the facts said to be supported by that evidence.
Mr Sands further complained that the Judge in reaching his conclusions with respect to the defence of justification, failed to properly consider the evidence relevant to that defence. This ground was supported by multiple particulars.[9] Finally, it was complained that the Judge erred in his admission and use of evidence when considering the defence of justification. In this respect multiple particulars of complaint were again identified.[10]
[9] Ground of Appeal 2 was in the following terms:
That in respect of [Channel 7’s] defence of justification the learned Trial Judge erred by finding that the circumstances constitute reasonable grounds on which [Mr Sands], as at May 2004, could properly have been suspected of the murder of Corinna Marr which error was the result of the failure to properly consider the evidence relevant to that defence. In amplification of ground 2 the Learned Trial Judge erred in that his Honour:
a.found matters proved in favour of [Channel 7] which were not supported by the evidence;
b.found matters proved in favour of [Channel 7] which were contradicted by unchallenged evidence;
c. gave undue weight to evidence favourable to [Channel 7];
d.failed to consider whether the evidence actually established any or all of the particulars of justification pleaded;
e.to the extent that [Channel 7] failed to establish all of the particulars pleaded, failed to consider what impact such failure had on the discharge of the onus;
f.failed to make any finding as to the duration of the “intimate sexual relationship” when such a finding was essential to establish paragraph 7.2.1.2.3 of the defence;
g.found [Mr Sands] to have lied to police and others where some or all of those findings were not supported by the evidence;
h.found that [Mr Sands] gave “alibis” to police;
i.criticised [Mr Sands’] evidence at trial as constituting “reconstruction” and ignoring the unchallenged evidence that [Mr Sands] was not asked to specifically recall his movements on the relevant day until many years afterwards;
j.ignored the impact of [Mr Sands’] right to silence when being interviewed by police;
k.ignored the plain English meaning of the statement given by [Mr Sands] to police on 30 August 1997;
l.failed to consider the difference between evidence capable of justifying an imputation of reasonable grounds to suspect a person of murder on the one hand and evidence which could only justify an imputation of grounds for enquiry on the other;
m.ignored unchallenged evidence favourable to [Mr Sands];
n.gave insufficient weight to evidence favourable to [Mr Sands];
o.finding that [Mr Sands] put forward a job sheet for All-Vac Vacuum Cleaners on the basis that he had taken the photographs for that assignment on 4 July 1997 when the evidence did not support such a finding;
p.disregarded [Mr Sands’] unchallenged evidence that he had processed the photographs taken at All-Vac Vacuum Cleaners on the afternoon of 4 July 1997;
q.found that [Mr Sands] had given three different accounts of his movements on 4 July 1997 which were inconsistent when there was nothing materially inconsistent in the accounts given;
r.used unfavourable credit findings as an apparent basis for finding that there were reasonable grounds to suspect [Mr Sands] of the murder of Corinna Marr;
s.found that the most likely time of Corinna Marr’s death was between 2.30pm and 3.30pm when unchallenged evidence existed to the contrary;
t.failed to make a more precise determination of the time of Corinna Marr’s death when there was evidence to support such a determination;
u.found that [Mr Sands] had a motive for the murder of Corinna Marr.
[10] Ground of Appeal 3 was in the following terms:
That in respect of [Channel 7’s]’s defence of justification the learned Trial Judge erred in the admission and use of evidence in that his Honour:
a.admitted hearsay evidence;
b.admitted evidence obtained by telephone intercepts and failed to apply the express prohibitions contained in the Telecommunications (Interception and Access) Act 1979 (Cth) on making use of and the giving of such evidence in proceedings;
c.held that evidence sought to be elicited from Detective Keane during cross-examination was subject to public interest immunity;
d.admitted the redacted Forensic Report of Dr Roger Byard;
e.admitted the redacted prior statements in writing made by witnesses called by [Channel 7] where those witnesses’ memories were not refreshed by those statements;
f.gave excessive weight to prior statements in writing made by witnesses called by [Channel 7] which were not made contemporaneously with the occurrence or existence of the facts stated therein;
g.preferred a statement in writing made by Angela Hudoba almost 12 months after the event to her sworn evidence at trial;
h.admitted evidence led by [Channel 7] not relevant to any pleaded issue in dispute, in particular hearsay evidence said to establish that the person who killed Ms Marr was likely to be a person well known to her when that matter was not particularised;
i.admitted evidence led by [Channel 7] not relevant to any pleaded issue in dispute, in particular that [Mr Sands] unlawfully removed job sheets from his employer’s premises;
j.used [Mr Sands’] denials in and out-of-court as positive proof of reasonable grounds to suspect him of murder;
k.found that he could not take into account what [Mr Sands] said in evidence about his movements on 4 July 1997 because he had not made any such statement prior to [Channel 7’s] publication and instead finding that that evidence had a significant adverse effect on his credit.
Mr Sands also complained about the award of damages that the Judge said he would make had the defence of justification been rejected. If Mr Sands were to succeed on this appeal it would follow that the basis for the assessment of damages would be undermined. There would need to be a reassessment of the claim for damages. It would not be appropriate in the circumstances of this matter for any reassessment to be undertaken by this Court. The proceedings would need to be remitted for rehearing. Particular difficulty would arise on issues of credibility and reliability. These issues would be difficult, if not impossible, to resolve fairly without hearing the relevant evidence. In these circumstances, it is not necessary or appropriate to consider the complaints advanced in regard to the notional assessment undertaken by the Judge.
Going Beyond the Pleaded Defence
It is evident from the Judge’s reasons that in reaching his conclusions on justification he acted on findings that related to matters beyond the pleaded facts said to support justification.
From time to time, evidence led at a trial may lead to findings that are beyond the pleaded particulars supporting the claim advanced. What use may be made of such evidence has caused difficulty and has been the subject of considerable judicial comment.
In Gould v Mount Oxide Mines Ltd (in liq),[11] Isaacs and Rich JJ discussed the function of pleadings, and in particular commented on how evidence led at trial may enlarge the issues for determination:
Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest. ...
[11] Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517.
In Leotta v Public Transport Commission (NSW),[12] Stephen, Mason and Jacobs JJ, when discussing the approach to be taken when the evidence departs from the particulars, observed:
The only question which arises on this appeal is whether there was any evidence of negligence upon which the jury might find a verdict in favour of the appellant. Much attention was paid in the New South Wales Court of Appeal and in the argument upon this appeal to the fact that the case which the appellant at the trial sought to have submitted to the jury was factually different from that alleged in the statement of claim and the particulars of negligence included therein. But the duty of the trial judge was clear. If in the cause of action upon which the plaintiff sued there had emerged at the conclusion of the evidence facts which, if accepted, established that cause of action, then it was the duty of the trial judge to leave the issue of negligence to the jury. The pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence which had emerged. Part 20, r 1(2) of the New South Wales Supreme Court Rules provides that all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings. Now, and for many years past, a plaintiff does not fail by being refused leave to amend or through failure formally to apply for amendment, where the evidence has disclosed a case in the cause of action fit to be determined by the tribunal of fact. Particularly is this so when the action finally determines the rights of the parties in the cause of action.
In a case where the question arose whether an amendment ought to have been requested and allowed in order to raise breach of a different duty of care the court in Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 112 ; [1956] ALR 795 at 802, said: “There is, of course, no doubt that the question of extending the issues at the trial was peculiarly within the discretion of the trial judge. But, on the assumption that there was some evidence upon which the jury could have reached a conclusion on this additional issue, there was every reason why it should have been submitted to the jury. If, as the members of the Full Court appear to have thought, the present judgment precludes the appellant from bringing any further action that was an additional reason why that course should have been adopted. We find it unnecessary to express any view upon that question but our doubts on this point do not lessen our belief that, if there was evidence upon this additional issue, a refusal to extend the issues was not, in the circumstances, justifiable.”
These observations apply a fortiori to a case where amendment would not raise a fresh issue based on a different duty of care but would only amend the expression of the course of events so that the facts pleaded would conform with the evidence given. An amendment to allege a different duty of care, namely, that of occupier to invitee, was rightly refused by the trial judge upon the ground that there was no evidence to support an issue of breach of that different duty.
[Emphasis added]
[12] Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at 446-467.
In Dare v Pulham[13] the High Court approved the observations of Stephen, Mason and Jacobs JJ in Leotta, and commented:
Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq); they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v Cameron); and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon; Sri Mahant Govind Rao v Sita Ram Kesho). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed (Mummery v Irvings Pty Ltd), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence (Leotta v Public Transport Commission (NSW)).
[Footnotes omitted - emphasis added.]
[13] Dare v Pulham (1982) 148 CLR 658 at 664.
In Water Board v Moustakas[14] Mason CJ, Wilson, Brennan and Dawson JJ endorsed the above:
In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged. In Leotta v Public Transport Commission (NSW), a case having been submitted to the jury which was factually different from that alleged in the pleadings and particulars, Stephen, Mason and Jacobs JJ observed that the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence. The failure to apply for the amendment in that case was held not to be fatal. But in Maloney v Commissioner for Railways (NSW). Jacobs J, with whom the other members of the court agreed, pointed out that the conclusion in Leotta was reached only upon the presupposition that the new issue or new way of particularising the existing issue had emerged at the trial and had been litigated.
[Footnotes omitted – emphasis added]
[14] Water Board v Moustakas (1988) 180 CLR 491 at 497.
Earlier in these reasons, reference was made to the Judge’s conclusions about justification and in particular the finding that Mr Sands unlawfully removed job sheets for the relevant week from his employer’s premises and that he did so in order to frustrate any inquiry. Evidence was led on each of these topics. Had Mr Sands wished to contend that the evidence was irrelevant, objection could and should have been taken. No objection was raised. Had Mr Sands wished to contend that the evidence was only relevant to credit but could have no wider use having regard to the pleaded particulars, objection should have been taken to any wider use. If objection had been taken on either basis, it would have been open to Channel 7 to seek to amend its particulars. The topics the subject of the Judge’s earlier extracted conclusions were fully litigated. Mr Sands’ evidence addressed the matters the subject of the Judge’s findings which supported the conclusions on justification in this respect. In these circumstances, a fair trial took place with respect to these matters.
Insofar as the Judge’s findings on justification could be said to rely on matters beyond the particulars pleaded, as observed above, no objection was taken on this ground to the admissibility of the evidence supporting those findings. It follows that the question on appeal is whether the findings made by the Judge were open on the evidence and whether those findings supported his conclusions in regard to the plea of justification.
It was open to the Judge in his discretion to make findings based on the evidence discussed above and to use those findings as he did, in reaching his conclusion that the defence of justification had been made out. I reject Mr Sands’ submission on appeal that the Judge acted inappropriately in making use of this evidence in the making of his findings.
The Standard of Proof
Mr Sands submitted that the Judge when assessing the evidence, applied an inappropriately lenient standard of proof. It was argued that the nature of the defamatory publication and the issues raised at trial required the Judge to be satisfied in accordance with the test identified by the High Court in Briginshaw.[15] It was emphasised that nowhere in the Judge’s reasons does any reference appear to the Briginshaw principle - that is, that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved.[16] It was pointed out by way of contrast that there are a number of references to the civil burden – that is, it was said, to the simple balance of probabilities.
[15] Briginshaw v Briginshaw (1938) 60 CLR 336.
[16] Rejfek v McElroy (1965) 112 CLR 517 at 521-522.
The standard of proof required in a civil case where serious allegations are made was discussed in Rejfek v McElroy where Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ observed:[17]
…The "clarity" of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved: see Briginshaw v Briginshaw, per Dixon J; Helton v Allen per Starke J; Smith Bros v Madden, per Dixon J.
But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge: see Helton v Allen per Dixon, Evatt and McTiernan JJ. …
[Footnotes omitted – emphasis added]
[17] Rejfek v McElroy (1965) 112 CLR 517 at 521.
Further observations were made in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[18] where the High Court explained that while the ordinary standard of proof in civil litigation, of proof on the balance of probabilities, applied even where the matter to be proved involved criminal conduct or fraud, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. In particular, the Court observed:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...".
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.
[Footnotes omitted.]
[18] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 449-450.
A similar complaint to that advanced in the present proceeding was considered in J McPhee & Son v ACCC[19] where the Full Federal Court rejected the complaint, observing:
The executives submitted that this was a case for careful application of the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 360-363. They submitted that the fact that the case was not referred to by his Honour and the fact that his Honour made no reference to the exclusion of a reasonable hypothesis consistent with innocence suggested that he did not advert to the Briginshaw principle. This principle applies to penalty proceedings of the present type but the fact that a trial judge does not refer specifically or explicitly to the Briginshaw principle does not mean that he or she has not given due consideration to the well-known principle discussed in that case. Although his Honour did not refer specifically to the case, the nature and structure of his reasoning on particular issues shows that he had the Briginshaw principle in mind when making his findings, and that he arrived at a sufficient degree of satisfaction having regard to the gravity of the matter to be proved: Briginshaw v Briginshaw (above) at 362.
[Emphasis added]
[19] J McPhee & Son v ACCC (2000) 172 ALR 532 at [130].
In the present proceeding, the reasons of the Judge are very detailed. The analysis of the evidence and the reasons for the acceptance or rejection of particular testimony is both thorough and transparent. The depth of the reasoning demonstrates an acute awareness of the seriousness of the nature of the allegations arising in the trial. The Judge clearly had in mind the need to be satisfied to the appropriate degree by clear and cogent evidence. There is no obligation on a trial Judge to specifically refer to the principle in Briginshaw. The analysis and reasoning displayed demonstrate the special care taken by the Judge in the present proceeding.
In my view, there is no substance to this complaint.
The Challenged Findings
On appeal, Mr Sands presented a lengthy written submission to which were attached two appendices and a separate submission responding to Channel 7’s submission and evidence summary. In addition, counsel for Mr Sands made extensive oral submissions in support of the appeal. Mr Sands’ case as presented at the trial was recounted in detail. The Court was assisted by references to the transcript of evidence. This presentation laid the foundation for an attack on the Judge’s adverse findings of credit with respect to Mr Sands and to the relevance and reliability of the evidence called on behalf of Channel 7.
In response, Channel 7 drew the Court’s attention to the High Court authorities dealing with the role of the Court when faced with an attack on findings of fact by a trial Judge where issues as to credibility and reliability of witnesses arose.
The approach of this Court is settled. The Court’s function was considered in Fox v Percy.[20] Gleeson CJ, Gummow and Kirby JJ noted that, while an appeal court should conduct a “real review”[21] of the trial and the trial judge’s reasons, there was nevertheless a need for “appellate respect for the advantages of trial judges”.[22]
[20] Fox v Percy (2003) 214 CLR 118.
[21] Fox v Percy (2003) 214 CLR 118 at [25].
[22] Fox v Percy (2003) 214 CLR 118 at [26].
The majority also considered that an appeal court should give weight to the trial judge’s reasons for making his or her findings. The Court should also take into account “the ‘feeling’ of a case which an appeal court, reading the transcript, cannot always fully share”[23] and “the unexpressed conclusions” that went into the judge’s findings.[24]
[23] Fox v Percy (2003) 214 CLR 118 at [23].
[24] Fox v Percy (2003) 214 CLR 118 at [41].
In particular, the members of the High Court endorsed the statement of principle to be found in Jones v Hyde,[25] Abalos v Australian Postal Commission,[26] and Devries v Australian National Railways Commission,[27] that a finding of fact by a trial judge, based on the credibility of a witness may only be set aside upon appeal where incontrovertible evidence or uncontested testimony demonstrate that the judge’s conclusions are erroneous,[28] or that alternatively, a decision at trial may be set aside where a finding of fact is “glaringly improbable” or “contrary to compelling inferences”.[29]
[25] Jones v Hyde (1989) 63 ALJR 349 at 351-352.
[26] Abalos vAustralian Postal Commission (1990) 171 CLR 167 at 179.
[27] Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482-483.
[28] Fox v Percy (2003) 214 CLR 118 at [26]-[27].
[29] Fox v Percy (2003) 214 CLR 118 at [29].
Channel 7 submitted that the Judge was in the best position to assess the credibility of Mr Sands and the other witnesses. Credibility was crucial to the factual questions in the proceedings: whether Mr Sands had a sexual relationship with Ms Marr; whether Mr Sands intended to put forward false alibis, and; whether Mr Sands had spoken to Ms Marr on the day of the murder.
The Judge found Mr Sands to be an unimpressive witness and not a witness of truth. The Judge considered that the other witnesses gave honest and reliable evidence. Credibility findings were made with the advantage of observing the demeanour of the witnesses and, in the case of Mr Sands, observing him give evidence over several days. There is a need for this Court to respect the advantages of a trial judge, especially where the decision was affected by an impression about the credibility of witnesses whom he or she saw but the appellate court will not.[30]
[30] Fox v Percy (2003) 214 CLR 118 at [26]-[27]; see also Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; Warren v Coombes (1979) 142 CLR 531.
Before addressing in detail the Judge’s findings as to justification, it is important to note the test that Channel 7 was required to satisfy with respect to the pleaded imputation. Evidence required to prove that there are reasonable grounds to suspect a person committed a crime is slighter than evidence required to establish that there are reasonable grounds to believe that a person committed a crime.
In Homes v Thorpe, Angas Parson J said:[31]
[31] Homes v Thorpe [1925] SASR 286 at 291; Suspicion is more than a mere idle wondering whether something exists or not: Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303.
The gradation in mental assent is “suspicion” which falls short of belief, “belief” which approaches to conviction, and knowledge which excludes doubt.
In Hussien v Chong Fook Kam the Privy Council similarly defined suspicion as a state of conjecture or surmise where proof is lacking, observing:[32]
[32] Hussien v Chong Fook Kam [1970] AC 942 at 948.
…Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove." Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. …
In George v Rockett, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ approved the Privy Council’s comments and further observed:[33]
In considering the sufficiency of a sworn complaint to show reasonable grounds for the suspicion and belief to which s 679 refers, it is necessary to bear in mind that suspicion and belief are different states of mind (Homes v Thorpe; Seven Seas Publishing Pty Ltd v Sullivan) and the section prescribes distinct subject matters of suspicion on the one hand and belief on the other. The justice must be satisfied that there are reasonable grounds for suspecting that "there is in any house, vessel, vehicle, aircraft, or place -- Anything" and that there are reasonable grounds for believing that the thing "will ... afford evidence as to the commission of any offence".
Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: `I suspect but I cannot prove."' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, "was unable to pay [its] debts as they became due" as that phrase was used in s 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said:
"A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors."
[Footnotes omitted –emphasis added.]
[33] George v Rockett (1990) 170 CLR 104 at 115 – 116.
The Judge subjected Mr Sands’ credibility to close analysis. He discussed that analysis in considerable detail.[34] The Judge concluded:[35]
[Mr Sands] was not an impressive witness. Many of his answers were disingenuous and designed to cast himself in the best possible light. A number of examples can be given.
…
In all the circumstances I cannot accept [Mr Sands] as a witness of truth. He lied and misled the Court in the witness box. He lied to police if it seemed in his interests to do so. He has been shown to have lied to and deceived his closest friends and relatives. I am not prepared to accept his evidence on any disputed matter unless it is corroborated. In matters where the only evidence favourable to [Mr Sands] is that of [Mr Sands] himself which is not corroborated, I entertain grave doubts as to its reliability, and treat it with the utmost caution.
His findings were summarised in the opening and concluding paragraphs of the earlier extracted section of his reasons.
[34] Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [143]-[161].
[35] Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [143], [161].
Counsel for Channel 7 both in written and oral submissions, made extensive reference to the evidence that was said to not only support the findings, but to do so compellingly. It was said that each of the relevant findings was supported by evidence, which if accepted, justified the finding.
On the topic of false alibis, attention was drawn to the changing accounts of Mr Sands. When first providing a statement in 1997 in relation to the death of Ms Marr, he claimed to be working at the Salisbury office that afternoon. His statement included the following:
On Friday, 4th July, 1997 I was working from the Messenger Press office, Salisbury. Every Friday afternoon I processed all the photographs taken during the week. On this day from 1.30pm to 5.05 pm I was processing. Nick Wrankmore (photographer) and George Svigos (journalist) were in the office on this day.
When interviewed in October 2002, Mr Sands generally adhered to his 1997 statement but added that he may have left for lunch or a drink. However at trial, Mr Sands accepted that he left the Salisbury office that afternoon claiming that he left the office some time after 1.30pm and returned at approximately 3.00pm.
Channel 7 drew attention to what were said to be other inconsistent statements from Mr Sands about his movements that afternoon. Evidence was before the Judge of a statement given to police by George Svigos, the substance of which was that he had called out to Mr Sands at about lunchtime on Friday 4 July 1997 but could not find him at the office, that he was aware that Mr Sands’ vehicle was not there and that Mr Sands returned at about 3.30pm - 4.00pm and went straight to the darkroom. Mr Svigos recalled that at about 4.30pm - 4.45pm Mr Sands came from the darkroom to the office and in response to the question: “Where the hell have you been?” Mr Sands gave a non-committal answer to the effect of: “I just had some stuff to take care of”.
Further evidence was led by Channel 7 that was said to support a finding that Mr Sands was not at the Salisbury office from at the latest 2.00pm and at the earliest, about 3.00pm.
On this topic, the Judge’s conclusions were as follows:[36]
Accepting as I do the evidence of Messrs Zvigos, Parrish and Faulkner, I find that on the balance of probabilities [Mr Sands] was not at the Salisbury premises of Messenger between, at the latest, 2.00pm and, at the earliest, about 3.30pm. [Mr Sands’] whereabouts at that time is and was, at the time of Channel 7’s publication, unexplained.
It follows that, in the first formal statement that [Mr Sands] made to the police, on 30 August 1997, [Mr Sands] lied to police about his movements that day. I do not suggest that these or any other lies were lies told out of a consciousness of guilt. The lies that [Mr Sands] told may have been due to panic, a fear that the truth might sound feeble or unconvincing, or that he might not be believed. He may have lied to try and deflect police inquiries away from him. It is not for me to say why [Mr Sands] has lied. Although they may not be evidence of guilt, his lies may properly be included as grounds on which to base a reasonable suspicion.
After the police interview of 8 October 2002 [Mr Sands] must have been aware from police questioning that fellow employees had said that he was absent from work at material times during the afternoon of 4 July 1997 and that the statement on 30 August 1997 was being called into question. He then unlawfully removed job sheets for the relevant week from his employer’s premises. The inference I draw from that conduct is that he did so in order to frustrate any inquiry as to what he may have been doing that day, and so that only he would have control of that knowledge. When the opportunity arose in January 2004 he was prepared to attempt to use that information to his advantage.
…
As I have said, I do not take into account what [Mr Sands] said in evidence as to his movements that afternoon or that he may well have lied about that. He had not made any such statement as at the time of publication of the promotion by Channel 7. While that evidence may add grounds to suspect him now, it could not have done so at that time. It does, however, have a significant adverse effect on [Mr Sands’] credit.
[36] Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [232]-[234],[236].
There was ample evidence to support the Judge’s conclusions on justification. There was evidence to support the findings that Mr Sands had repeatedly lied to Police during the murder investigation. This included the topic of a sexual relationship with Ms Marr. Mr Sands lied about his whereabouts during the probable time of the murder and he lied to Police about when he last spoke to Ms Marr. The Judge was entitled to find on the evidence that Mr Sands spoke to Ms Marr on the day of the murder.
These matters assume heightened significance given the circumstances of Ms Marr’s death. It was likely that the attacker was known to Ms Marr. She was prepared to let that person in whilst she was either changing or wearing her outfit for the promotion at the Woodville Hotel. It was relevant that Mr Sands had talked to Ms Marr that day because of the likelihood that the attacker had particular knowledge that Ms Marr had left work early to change at her Collinswood Unit.
Conclusion
The Judge in his reasons thoroughly addressed the evidence on this topic. The Judge gave close consideration to the reliability and credibility of all witnesses and reached conclusions adverse to the credibility of Mr Sands.
My review of the evidence, having particular regard to those extracts emphasised by both counsel on appeal, allows the conclusion that each of the findings made by the Judge were open to him. There was good reason for the Judge to find the evidence of Mr Sands unreliable. The Judge had the advantage of seeing and hearing the witnesses and, in particular, the advantage of observing the thorough testing undertaken through cross-examination. The Judge was entitled to reach the conclusion that Mr Sands’ evidence lacked reliability and credibility. There is nothing glaringly improbable about those findings. It has not been demonstrated that the Judge had regard to any inappropriate material or failed to have regard to relevant material.
The findings and conclusions of the Judge on the issue of justification should be sustained, in particular, the Judge’s conclusions that:[37]
In my opinion all the circumstances I have described constitute reasonable grounds on which [Mr Sands], as at May 2004, could properly have been suspected of the murder of Corinna Marr.
[37] Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [241].
Australian Broadcasting Commission
This appeal raises the question of whether the ABC publications were defamatory of Mr Sands. The statutory and common law defences of fair and accurate report also arise for consideration.
The general background earlier set out under the heading “Channel 7 – Background” is adopted with respect to this appeal.
Before the court may determine whether a publication is defamatory, it must first determine the meaning or meanings conveyed, or communicated, by the publication.[38] In order to be actionable that meaning or imputation conveyed by the publication must be about the plaintiff and be defamatory.
[38] John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; see also McDonald v North Queensland Newspaper Co Ltd [1997] 1 Qd R 62; Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309; see also Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506 (Brennan J).
A publication will be defamatory of the plaintiff where the meaning conveyed by the publication was likely to cause an ordinary reasonable person to think less of the plaintiff,[39] shun or avoid the plaintiff,[40] or subject the plaintiff to hatred, ridicule or contempt.[41]
[39] Also referred to as ‘hypothetical referees’: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506; (Brennan J); Grundmann v Georgeson (1996) Aust Torts Reports 81-396 at 63,503 (Davies JA); the objective standard is of the ordinary reasonable person or ordinary decent folk: Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7 (Griffith CJ); see also Farquhar v Bottom [1980] 2 NSWLR 380 at 385 (Hunt J).
[40] See Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 23-24 (Mason J); Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 453 (Hunt J); Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 at 447; Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 (Brennan J); Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at 172 (Jordan CJ); Farquhar v Bottom [1980] 2 NSWLR 380 at 385 (Hunt J).
[41] Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 453 (Hunt J); John Fairfax & Sons Ltd v Punch (1980) 47 FLR at 468 (Brennan J); Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506 (Brennan J); Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 at 719, 721 (Mahoney JA).
It is to be noted that the question as to whether a publication has the capacity to bear the meaning or meanings alleged by the plaintiff and of being defamatory of the plaintiff, is separate to the questions of whether a publication did in fact convey the meaning the plaintiff contends and whether the publication was defamatory of the plaintiff.[42]
[42] See Jones v Skelton [1964] NSWR 485 at 491, 497 (Lord Morris PC) Lewis v Daily Telegraph Ltd [1964] AC 234 at 264 (Lord Morris), at 271 (Lord Hodson); Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728.
In the circumstances of the present proceeding the pleaded imputation was that Mr Sands was and is a murder suspect and that suspicion was and is reasonable. The principal issue arising was whether the publication actually conveyed that imputation.
The Publication
The claim against the ABC arose from radio news broadcasts at 2.00pm, 3.00pm and 4.00pm on Wednesday 19 May 2004 and a publication posted on the ABC website during the afternoon of the same day. Each of the radio news segments was broadcast on ABC local radio, ABC news radio and ABC Radio National.
The segment broadcast during the 2.00pm news began with a newsreader saying:
A District Court judge in Adelaide is still deciding whether to maintain a prohibition on Channel Seven from reporting that Liberal MP Trish Draper went overseas with her boyfriend at tax-payers’ expense.
The Judge said he was concerned that Seven had mentioned that the man in question had been a murder suspect.
Tony Hull explains.
The reporter, Anthony Hull, carried on the story:
The Court heard that late on Sunday lawyers for Trish Draper won a court injunction preventing Channel Seven from running a story that Ms Draper, the federal member for the northern Adelaide seat of Makin, went on an overseas study tour in August 2000 with her then boyfriend, Derick Sands. She claimed he was her spouse to win parliamentary entitlement to take him.
Channel Seven’s lawyers argued the horse had bolted, that the Draper-Sands story had already become a national political talking point on which the Prime Minister and the leader of the Opposition had commented.
Judge Tony Bishop said he would not have imposed an injunction if the story was just about a travel rort. He said he was concerned Channel Seven referred to Sands as a murder suspect.
The hearing resumes later today.
The following story was broadcast during the 3.00pm news:
Newsreader: Lawyers for Channel Seven have told an Adelaide court that a story the station was prevented from running throws into sharp focus the issue of MPs’ travel rorts.
The Federal Liberal Member for Makin in Adelaide, Trish Draper, went on an overseas study tour in the year 2000 with a man she claimed was her spouse. But the Channel Seven revelations go further than that, as Tony Hull reports.
Reporter (Tony Hull): The Court heard that while Channel Seven was prevented from airing this story, every other media outlet in Australia was free to run it. Seven’s lawyers told the District Court the Trish Draper story had become a national talking point and the injunction slapped on them three days ago was now meaningless. The horse had bolted.
Judge Tony Bishop, who granted the injunction in an extraordinary court sitting late on Sunday, said if the report was just about an MP’s travel rort he wouldn’t have stopped it. But he said Seven referred to Miss Draper’s boyfriend, the photographer Derick Sands, as having been a murder suspect. Judge Bishop will decide the issue later today.
The transcript of the segment broadcast during the 4.00pm news reveals that there was a break in transmission part way through the story. The 4.00pm story was as follows:
Newsreader: An Adelaide judge says he blocked Channel Seven from running a story about South Australian Federal Liberal MP Trish Draper going on a tax-payer funded trip with her boyfriend because the boyfriend was once a murder suspect. Tony Hull reports lawyers for Channel Seven are urging the Judge to lift the injunction, saying the story is being run by every other media outlet in the country.
Reporter (Tony Hull): Late on Sunday lawyers for Trish Draper, the Federal Member for the northern Adelaide seat of Makin, won a temporary injunction preventing Channel Seven reporting that she went on an overseas study tour in 2000 with her boyfriend at the time, photographer Derick Sands.
Today Judge Tony Bishop of the District Court was told the story had been run all over the country by many media outlets and had become a na…
[break in transmission]
…the injunction if it had just been a story about an MP’s travel rort. He said Seven went further and mentioned that Derick Sands had been a murder suspect. This warranted the injunction. He will hear more argument later today.
The article published on the ABC website on 19 May 2004 was headed “MP seeks to block story about overseas trip” and read:
Federal Labor leader Mark Latham says the public has the right to know all about a Liberal MP’s taxpayer-funded trip to Europe with her then-boyfriend.
In August 2000, South Australian MP Trish Draper spent nearly $10,000 on a trip to England, Ireland, France and the Netherlands with a man she nominated as her spouse.
Prime Minister John Howard says the trip was within the rules because a spouse does not have to be a live-in partner.
Ms Draper has reportedly taken legal action to prevent Channel Seven airing a story about the trip, a move criticised by Mr Latham.
“I think it’s extraordinary that a member of Parliament would use legal proceedings to close down public information about a publicly funded trip,” he said.
“I mean, this is a trip funded by the Australian taxpayer, it’s public money and the public has got the right to know what has actually gone on.”
Meanwhile, an Adelaide District Court judge is still deciding whether to maintain a prohibition on Channel Seven from reporting its story.
The judge said he was concerned that Channel Seven had mentioned the man in question had been a murder suspect.
The court heard that late on Sunday, lawyers for Ms Draper won a court injunction preventing Channel Seven from running a story that claimed she went on an overseas study tour in August 2000 with her then-boyfriend, Derick Sands.
Channel Seven’s lawyers argued the horse had bolted as the story had already become a political talking point on which the Prime Minister and Opposition leader had commented.
Judge Tony Bishop said he would not have imposed an injunction if the story was just about a travel rort.
He said he was concerned Channel Seven referred to Mr Sands as a murder suspect.
Judge Bishop will decide the issue later today.
The Pleaded Imputation
Mr Sands contended, with reliance on English authority,[72] for a three-fold categorisation of meaning for the word “suspect”: actual guilt; reasonable grounds to suspect, and; grounds for inquiry.[73] This categorisation, even if rigidly applied in the United Kingdom, has not been so embraced by the Australian courts.
[72] Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; Lewis v Daily Telegraph Ltd [1964] AC 234 at 282; Shah v Standard Chartered Bank [1999] QB 241.
[73] Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772 at [45] (Brooke LJ):
The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they mean that there are grounds for investigating whether he/she has been responsible for such an act.
The noun “suspect” is not a word of precise meaning. A statement that someone is suspected of something may, depending on the context, convey a number of different meanings. To the extent that the use of the word “suspect” conveys anything about the grounds upon which suspicion is based, it may suggest either suspicion based on slight or no evidence, suspicion based upon reasonable grounds, or, suspicion based upon reasonable grounds founded in direct evidence of the suspect’s own conduct.[74] In determining the meaning conveyed by the word in a particular case, it is important to distinguish those authorities which address the independent issue of whether a particular meaning is capable of being conveyed.
[74] Channel Seven Adelaide Pty Ltd S,DJ (2006) 94 SASR 296 at [17] (Debelle J); see also at [45] (Gray J).
A number of authorities suggest that a statement that a person is suspected of something may imply reasonable grounds for the suspicion.[75] However, such implication will necessarily depend on the context arising in the particular proceeding and in some cases less speculation may be appropriate. A bare statement that a person is suspected of something may not necessarily convey any information about the basis for, or nature of, the suspicion, beyond the mere fact that the person is suspected of that thing.[76]
[75] Lewis v Daily Telegraph Ltd [1964] AC 234 at 275, 285; Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148.
[76] Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10; Lim v TVW Enterprises Ltd [2002] WASC 214; Ronci v Nationwide News Pty Ltd [2001] WASC 239.
The ABC contended that putting aside the issue of capacity of words to bear meaning, a bare reference to a person as a suspect, does not give rise to the imputation that the person is not only suspected of having committed a murder, but also suspected on reasonable grounds. It was contended that arriving at the conclusion that such reference imputes that a person is suspected on reasonable grounds, involves a level of speculation in which an ordinary reasonable listener or reader would not engage. Such imputation is only arrived at by taking into account the individual assumptions or beliefs of a listener, reader or viewer.
In the circumstances of the present proceeding where a reference to suspicion was made, although it could be understood that a reasonable listener may assume that the police suspected Mr Sands, it would be speculation on the part of a listener as to the precise nature of the grounds on which the police suspicion was based.
The decision in Favell v Queensland Newspapers Pty Ltd[77] concerned an application for summary judgment or striking out of a pleading in a defamation proceeding. The Court was concerned with several alleged imputations, one of which was that “the appellants were reasonably suspected by the police of committing the crime of arson”.[78] The Court considered whether the publication was capable of conveying the alleged imputation such that the proceeding should be allowed to continue to trial. In the course of the reasons of Gleeson CJ, McHugh, Gummow and Heydon JJ, the following observations were made:[79]
A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that point towards a likelihood of guilt, then the position may be otherwise. There is an overlap between providing information and entertainment, and the publishing of information coupled with a derogatory implication may fall into both categories. It may be that a bare, factual, report that a house has burned down is less entertaining than a report spiced with an account of a suspicious circumstance. At this preliminary stage of the proceedings, the respondents have not yet had an opportunity to indicate why it was considered relevant to the story about the fire to link it with the development application. For that matter, the occasion has not yet arisen for a jury to decide what meanings the article would convey. We are concerned only with the anterior question of what the article is capable of conveying.
…
Each alleged imputation is to be considered in the context of the entire article. A report that the second appellant gave an account of neighbourhood reaction to the development proposal different from that of her neighbours, if it stood alone, might mean no more than that there were two different points of view. However, when that report appears in the context of an account of a suspicious fire, the grounds for suspicion being based on the development proposal, a different impression may be created. Ultimately, the question is what a jury could properly make of it. …
[Footnotes omitted.]
[77] Favellv Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716.
[78] Favellv Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [3].
[79] Favellv Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [12],[17].
In Favell,[80] the High Court held that the reference to “suspicious circumstances” was capable of conveying that there were grounds for the suspicion. The statement under consideration in that case was not a “bare” statement of suspicion and the context rendered the words capable of bearing the meaning alleged.[81]
[80] Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716.
[81] Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 involved only a question of capacity to bear meaning rather than the question of actual meaning.
In the circumstances of the present proceeding, the ABC publications involved a bare reference to Mr Sands as a suspect. The words in the publication were not elaborated in a way to warrant an implication of reasonable grounds for the suspicion on the part of the police, or reasonable grounds based on direct evidence of Mr Sands’ own conduct. The use of past tense tended against any inference of reasonable grounds, as did the fact that the broadcasts were reports of court proceedings involving a dispute over whether Channel 7 were permitted to refer to Mr Sands as a suspect, and the fact that the Judge hearing those proceedings had expressed concern over Channel 7 referring to Mr Sands as such.
In my view the Judge was correct to conclude that the ABC’s publications did not give rise to any imputation to the effect that Mr Sands was and is a murder suspect, and that the suspicion was and is on reasonable grounds.
The Defence of Fair and Accurate Report
The Judge held that, even if defamatory, the ABC radio broadcasts were protected by the statutory defence of absolute privilege,[82] and the website article was protected by the common law form of the same defence.[83]
[82] Civil Liability Act 1936 (SA) section 6 which provides:
A fair and accurate report published by newspaper, radio or television of proceedings publicly heard before any court exercising judicial authority shall, if published contemporaneously with such proceedings, be privileged: Provided that nothing in this section shall authorise the publication of any blasphemous or indecent matter.
[83] Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [318]:
It follows that s 6 of the Civil Liability Act, if there was any doubt about its meaning in 1936, must now be construed by reference to the amendment which occurred in 1986, and the provisions as amended in 1986 must be construed in the light of the amendments effected by the Defamation Act in 2005. The specific reference to the internet in the latter enactment means that the 1986 provisions, as they apply to these proceedings, must be interpreted as excluding any reference to the internet. It follows that the statutory privilege applies to the ABC’s radio broadcasts and not to the internet publication. In respect of that publication the ABC can only rely on the common law defence of fair and accurate report.
Mr Sands challenged the Judge’s conclusions in relation to the defence of fair and accurate report. He contended that the publications were not “contemporaneous” for the purposes of the statutory defence because they were premature. He claimed that the ABC had “jumped the gun”. It was said that the publications were not “fair and accurate” because they did not refer to the suppression application in addition to the injunction application. It was further contended that the common law defence ought to have been defeated because the ABC should have been found to have published maliciously.[84]
[84] The principle underpinning the common law defence of fair and accurate report and its statutory counterparts was expressed by Jordan CJ in Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255, 257-258:
As a general rule all Courts must be open to the public. It is a principle of the utmost importance in the administration of justice that the liberty or rights of the subject should not be adjudicated upon by tribunals sitting in secret and behind closed doors. Not all the public can obtain admission to the public sittings of the Courts, and therefore those who do are at liberty to communicate to the public generally an account of the proceedings which they have witnessed. So long as any account so published is fair and accurate and is published in good faith and without malice no one can complain that its publication is defamatory of him notwithstanding that it may in fact have injured his reputation, and no one can in general be heard to say that it is a contempt of Court notwithstanding that it may in fact be likely to create prejudice against a party to civil or criminal litigation.
The Judge held that there was no substance in Mr Sands’ argument that the publications were not contemporaneous or that the defence was otherwise defeated by virtue of the broadcasts occurring before the result of the proceedings being reported on was known.[85]
[85] Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [372].
The statutory form of the fair and accurate report defence requires that the report of proceedings be published “contemporaneously” with such proceedings.[86] This temporal limitation has been interpreted as meaning that the protection does not extend to reports that are stale and in that sense no longer news. As observed by Cox J in Bunker v James:[87]
There does not appear to be any judicial exegesis on the word “contemporaneously” in s. 6 of the Wrongs Act or in the English provision from which it was derived. Obviously a literal interpretation cannot be required. In my opinion, the word should be given a reasonable application having in mind the evident policy of Parliament to deny the statutory protection to reports that are stale and in that sense no longer news. …
[86] Civil Liability Act 1936 (SA) section 6.
[87] Bunker v James (1980) 26 SASR 286 at 303.
The attack by Mr Sands on the finding that the reports were contemporaneous is misconceived. The complaint that the publications were not contemporaneous because they were “premature” ought to be understood as a complaint about reporting on proceedings prior to their completion. This complaint is independent from the contemporaneous nature of the publications.
The fact that the ABC publications were a report only of the hearing before the adjournment of the proceedings is irrelevant. As the Judge correctly held, the defence of fair and accurate report is available in respect of proceedings which are not yet complete. As observed by Lord Esher MR in Kimber v The Press Association Ltd:[88]
Next, it is said that, though the proceedings were judicial proceedings in open Court, no account, however true, of what took place can be published until the justices have given a final decision. Having regard to the cases, that is not the correct way of stating the rule, because it has been held that where there are proceedings before justices which may in the result arrive at a final decision, a true and fair account of those proceedings published without malice is privileged, although it be published before the final decision is arrived at. …
…
…I think it must be so. If it were not, the ridiculous result would follow that, where the trial of a case of the greatest public interest lasted fifty days, no report could be published until the case was ended. I am, therefore, of opinion that where the proceedings are such as will result in a final decision being given, a fair and accurate report, made bona fide, of those proceedings is privileged, although it be published before the final decision is given. …
[88] Kimber v The Press Association Ltd [1893] 1 QB 65 at 70, 71.
The report does not need to be of the whole proceedings.[89] It may be a report of part of the proceedings. The report may also be selective.[90] As found by the Judge, there is no reason why the availability of the defence should be confined to reports at the end of each day. Any privilege that attached was not defeated by virtue of publication before the result of the proceedings was known.
[89] Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 at [42] (Gaudron & Gummow JJ).
It is well settled that to be fair and accurate, a report need not be a complete report of the proceedings in question. Nor need it be accurate in every respect. It must, however, be substantially accurate. And the question whether it is substantially accurate is a question of fact. It is not suggested that [the trial judge] erred in principle in determining whether the articles in question in this appeal were fair and accurate. Thus, the question that arises is whether it was open to his Honour to find that they were not. [Footnotes omitted].
[90] Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 at [153]; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 65; Bainton v John Fairfax & Sons Ltd [1991] Aust Torts Rep 69,363 at 69, 373; Macdougall v Knight (1890) 25 QBD 1 at 7; Cook v Alexander [1974] QB 279 at 288, 290-291; Tsikata v Newspaper Publishing [1997] 1 All ER 655 at 669-670.
Broadcast was Fair and Accurate
The Judge found that the three ABC news bulletins and the website publication were, at the times of their respective publication, all fair and accurate reports of what had taken place before the Judge hearing the injunction application,[91] and this defence would have been available to the ABC if the publications were defamatory.
[91] Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [340], [348]-[349].
What is at issue when considering the defence of fair and accurate report is whether the publications the subject of complaint reported with substantial accuracy that part of the proceedings which they purported to describe.[92] As Mason JA said in Anderson v Nationwide News Pty Ltd:[93]
The fairness of the report is to be determined objectively by comparing the report with the event or events which it purports to describe.
[92] Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313 at 320; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 63A; Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380, 383.
[93] Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313 at 324, Jacobs JA agreeing.
Omissions or inaccuracies in a report that do not result in the defamatory impression or effect of the actual proceedings being substantially misrepresented, do not render a report unfair or inaccurate. There must be a substantial misrepresentation of a material fact prejudicial to a plaintiff’s reputation.[94] As earlier observed, the requirement that a report be fair or accurate merely requires that the report represent with substantial accuracy the relevant part of the proceedings.
[94] Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 63B; Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380; 393; Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 at [2]-[3], [4], [153].
Mr Sands contended that the failure of the ABC to refer to the foreshadowed application for suppression made by Mr Sands’ counsel, rendered the reports inaccurate and consequently, they did not attract the defence of “fair and accurate” reporting.
This contention should be rejected. The foreshadowed application for a suppression order was no more than that. There was no application for a suppression order and no ruling was made in the course of the proceedings. There was no suggestion at the time that an interim suppression order relating to the morning’s proceedings was necessary.
It is permissible to report on parts or aspects of proceedings. The ABC were not required to make reference to the foreshadowed suppression application when reporting on the injunction proceedings. There is no obligation to summarise an entire proceeding for the report to be fair and accurate. Further, had the ABC publications referred to the foreshadowed application, such reference may not have altered or ameliorated any defamatory impact or impression created by the broadcasts. It is to be observed that the mention of a suppression order instead possibly exacerbated the defamatory impact of what was in fact reported. As a consequence any failure to mention the foreshadowed suppression application did not render the publications unfair or inaccurate.
In the circumstances of the present case the publications, the subject of complaint, reported with substantial accuracy that part of the proceedings which they purported to describe. The respective publications were all fair and accurate reports of what had taken place before the Judge hearing the injunction application and consequently, the ABC had made out that defence.
Malice
The issue of malice only arose in the context of the website article, as the statutory defence is one of absolute privilege and is not to be defeated by malice.[95] However, the website article only attracted the qualified common law privilege of fair and accurate report.
[95] Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [350].
The Judge summarised the interaction between privilege at common law and malice:[96]
The privilege is based on the need to ensure that justice is done openly and not in secret, and that for reasons of public policy a fair and accurate report of such proceedings should not be inhibited by exposure to actions in defamation at the instance of those adversely affected. Malice involves a misuse of the occasion of the privilege, or a purpose or motivation on the part of the publisher that is inconsistent with the rationale for the occasion of the privilege. It is the purpose or motive for the publication foreign to the occasion of privilege that must be the dominant purpose or motive and which must actuate the publication if the defence is to be defeated by malice.
[96] Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [351].
The establishment of malice in order to defeat the defence of qualified privilege requires something different to what would be required to demonstrate that a defendant published a fair protected report with an absence of good faith. In order to establish malice and defeat the defence of qualified privilege, a plaintiff must show either that the defendant used the occasion to publish the matter complained of for a purpose other than that for which the privilege is given, or that the defendant did not have an honest belief in the truth of what was published.[97]
[97] See the comments of Bleby J in Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [354] citing Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58.
Malice will not be lightly found or inferred.[98] Further, carelessness of expression or carelessness in making a defamatory statement never provides a ground for inferring malice.[99]
[98] Horrocks v Lowe [1975] AC 135, 150-151.
[99] Roberts v Bass (2002) 212 CLR 1 at [103].
The establishment of malice required the proof of a state of mind on the part of the ABC as represented by the ABC’s journalist, involving a dominant or actuating purpose other than the dissemination of a report of what was occurring in the courtroom that day.
The finding by the Judge that there was no basis for inferring that the ABC journalist was motivated by anything other than an intention to provide a fair and accurate report of what transpired during the injunction hearing, if sustained, is fatal to any allegation of malice. In any event, the evidence does not permit a contrary finding.
As discussed above, in order to support a finding of malice, Mr Sands needed to establish that the dominant and actuating purpose or motivation on the part of the ABC journalist was other than to publish an accurate report of what had occurred in court during the injunction proceedings. Mr Sands needed to demonstrate that the ABC journalist’s dominant and actuating purpose was, as alleged by Mr Sands, to either defeat or attempt to defeat the purpose of the protections provided by the Forensic Procedures Act or to defeat or possibly defeat the purpose of the injunction hearing.
During the course of evidence, the ABC journalist denied the serious allegations of improper motives attributed to himself and the ABC, by Mr Sands. It is to be observed that a deliberate attempt on the part of the ABC by its representative, to defeat the purpose of the protections provided by the Forensic Procedures Act or the purpose of the hearing, is unlikely. There is nothing to suggest any basis for such deliberate conduct. No personal involvement on the part of the ABC journalist with the case or with Mr Sands was suggested that would potentially motivate such conduct. Commonsense suggests that an experienced journalist would be unlikely to behave in the manner alleged and deliberately seek to frustrate the operation of the law. The evidence did not support any finding in relation to the actuating purpose of the ABC and its journalist, necessary to support a finding of malice. As a consequence, no malice can be established and, had the publication of the website been defamatory, the defence of qualified common law privilege of fair and accurate report would have been made out.
Conclusion
I would dismiss both appeals.
VANSTONE J: I agree with the orders proposed by Gray J and with his reasons.
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