Sands v Channel Seven Adelaide Pty Ltd

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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

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Details
Case
[2010] SASC 202
Decision Date

CaseChat Overview and Summary

In Sands v Channel Seven Adelaide Pty Ltd, the plaintiff, Mr Sands, brought claims against Channel Seven Adelaide Pty Ltd and the Australian Broadcasting Commission (ABC) for defamation. Mr Sands alleged that Channel Seven defamed him by describing him as a suspect in a murder case. The ABC was also sued for reporting on the injunction proceedings brought by Mr Sands against Channel Seven, which included references to Mr Sands as a murder suspect. The central legal issues in the appeal concerned the Judge's findings on the justification defence, the appropriateness of evidence used, the standard of proof applied, and the application of statutory and common law defences to the ABC's publications.

The Court of Appeal examined the Judge's decision to uphold the defence of justification for Channel Seven. The Court found that the Judge's conclusions about reasonable grounds for suspecting Mr Sands of murder were supported by the evidence, and the Judge's assessment of Mr Sands' credibility was not flawed. Regarding the ABC's publications, the Court held that the statutory defence of fair and accurate report applied to the ABC's radio broadcasts, and the common law defence applied to the website article. The Court concluded that the publications did not defame Mr Sands because they did not convey a defamatory meaning about him. The appeal was dismissed, and the original decision was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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