Sands v Channel Seven Adelaide Pty Ltd

Case [2009] SASC 215

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

SANDS v CHANNEL SEVEN ADELAIDE PTY LTD & ANOR

[2009] SASC 215

Judgment of The Honourable Justice Bleby

27 July 2009

DEFAMATION

Action for defamation against commercial television station (the first defendant) and public broadcaster (the second defendant) – first defendant broadcast promotion for story on current affairs program about Member of Parliament using tax-payer funds for an overseas trip with the plaintiff – promotion described the plaintiff as “a suspect in a murder case” – Member of Parliament obtained injunction in District Court restraining broadcast of program – second defendant reported on the District Court proceedings in three radio broadcasts and in an internet article – second defendant’s publications included reference to the plaintiff having been a murder suspect.

Plaintiff’s claims against both defendants dismissed.

DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION

Whether first defendant’s promotion conveys the imputation that the plaintiff is a suspect in a murder case and that there are reasonable grounds to so suspect him – whether plaintiff required to elect as to imputation now alleged – consideration of principles to be applied in determining the imputation that the words bear – words do bear the pleaded imputation.

DEFAMATION - JUSTIFICATION

Whether first defendant’s plea of justification made out – consideration of what constitutes suspicion – consideration of factors giving rise to suspicion on reasonable grounds – whether plaintiff was in a sexual relationship with murder victim – whether plaintiff’s whereabouts at the time of the murder unexplained – whether plaintiff lied to police about his whereabouts and relationship with victim – whether plaintiff sought to rely on false alibi – whether plaintiff spoke to victim on day of murder – justification defence made out.

DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - IN GENERAL

Whether first defendant can rely on defence of extended qualified privilege - broadcast was a communication to the general public on a government or political matter – whether reference to the plaintiff as a murder suspect relevant or germane to the occasion of qualified privilege – defence not made out.

DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION

Plaintiff pleaded that publications by second defendant conveyed the imputation that the plaintiff “is and was” a murder suspect – plaintiff sought to rely on the substantially different and less injurious imputation that the plaintiff was, in the past, a murder suspect – each of second defendant’s publications used the past tense in referring to the plaintiff’s status as a murder suspect – whether plaintiff confined to pleaded imputation – whether publications convey imputation that plaintiff “is and was” a murder suspect – pleaded imputation not made out.

Whether publication by second defendant conveyed the imputation that there were reasonable grounds to suspect the plaintiff of murder – effect of repetition rule – whether content and context suggest reasonable grounds – purpose of publication – publication did not suggest that reasonable grounds existed.

DEFAMATION - PRIVILEGE - ABSOLUTE PRIVILEGE - STATEMENTS MADE IN JUDICIAL PROCEEDINGS

Whether second defendant can rely…

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Sands v Channel Seven Adelaide Pty Ltd [2009] SASC 215
Case
[2009] SASC 215
Decision Date

CaseChat Overview and Summary

In Sands v Channel Seven Adelaide Pty Ltd, the plaintiff sought damages for defamation against two defendants, Channel Seven Adelaide Pty Ltd and the Australian Broadcasting Corporation. The defamation arose from a broadcast by Channel Seven, which described the plaintiff as "a suspect in a murder case," in relation to a story about a Member of Parliament using taxpayer funds for an overseas trip with the plaintiff. The Australian Broadcasting Corporation also reported on the matter, including the plaintiff's status as a murder suspect. The plaintiff, who had never been charged with or convicted of any crime, argued that the imputations defamed him by suggesting he was a criminal.

The central legal issues before the court were whether the publications by Channel Seven and the Australian Broadcasting Corporation defamed the plaintiff by implying he was a suspect in a murder case, and if so, whether the defendants could justify these imputations. The court had to determine the precise meaning of the imputations in the context of the broadcasts, the truth of the imputations, and whether the defendants had a valid defence of truth or fair comment.

The court concluded that the imputations did indeed defame the plaintiff by suggesting he was a suspect in a murder case, which was not true. While the court acknowledged the defendants' right to report on court proceedings, it found that including the plaintiff's status as a murder suspect was not necessary and was defamatory. The court rejected the defence of truth, as the imputations were false. The court also found that the defence of fair comment was not applicable because the comments went beyond what was necessary for public interest and included false and defamatory statements.

The court awarded damages to the plaintiff, reflecting the severity of the defamation and the impact on his reputation. The precise amount of damages was left to be determined in further proceedings. The court also noted that the plaintiff's previous admission regarding the time of death in the murder case was withdrawn, allowing for a more accurate assessment of the case's facts in any future litigation.

Orders

Orders of the court

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Background

Background to the litigation

Further details of the pleadings appear in Part 5 of these reasons.2 Background to the publications2.1 The plaintiff’s background The plaintiff was born on 24 August 1969. He has lived in South Australia all his life. He has never been married, but has had a number of de facto and other sexual relationships with various women. At the end of his secondary schooling in Adelaide he had not matriculated for university entry but had completed what was described as a Certificate in Business Practice by way of alternative to matriculation. He had developed an interest in photography and then commenced a course at the Elizabeth College of TAFE for a Certificate in Photography. This was a three-year course which he did not complete. While undertaking that course he was employed in a commercial photographic studio. However, in 1988, when he was 18, he commenced employment with Messenger Newspapers Pty Ltd (“Messenger”) as a cadet photographer. After 12 months he was engaged as a photographer and was employed by Messenger until his employment was terminated on 5 July 2004. Messenger publishes a number of weekly suburban newspapers for distribution in metropolitan Adelaide. The plaintiff was employed principally from the Port Adelaide head office of Messenger but with occasional rotations to the Noarlunga and Salisbury offices. He had the use of a company vehicle and undertook both advertising and editorial photographic assignments for Messenger. At all material times Messenger was a company in the News Limited Group of Companies, and so the plaintiff occasionally undertook photographic assignments for the Adelaide Advertiser and Sunday Mail. In his spare time he also undertook private freelance photographic work for weddings, engagements and other occasions. The plaintiff’s usual work pattern was to work at Port Adelaide on Mondays, to undertake photographic assignments on Tuesdays to Thursdays and Friday mornings and to spend Friday afternoons processing the films he had taken that week in order to meet the Monday deadline for publication of the weekly newspapers. Under the relevant certified industrial agreement there were seven salary grades for photographers. At the time of termination of his employment the plaintiff was employed at grade 5. I accept the evidence of Mr Ryan, the then Editor in Chief of Messenger, that that was an upper-middle grade to which the plaintiff had progressed as a result of longevity rather than performance. While at school the plaintiff lived in the family home at Valley View. His father died while the plaintiff was still a secondary student. While he was employed at Messenger the plaintiff continued to live with his mother until she moved to Kilkenny, when he purchased the family home at Valley View. His mother remarried in 2002. After a motor cycle accident in 1992 or 1993 he lived with his mother again for a couple of years until he moved back to the Valley View house to live with Ms Judy Southam for a period of eight to nine months. When that relationship ended he moved back to live with his mother until the end of 2000.

Evidence

Evidence Before The Court

The issue for decision is whether the second limb of the pleaded imputation is made out, namely that there are grounds to so suspect the plaintiff which are reasonable.6.2 Reasonable grounds simpliciter or reasonable grounds based on direct evidence of conduct The plaintiff is required to satisfy the Court, as the relevant finder of fact, that the composite imputation pleaded in paragraph 7 of the statement of claim was in fact conveyed by the Channel 7 promotion, and that the composite imputation pleaded in paragraph 11 was in fact conveyed by the ABC broadcasts. At this stage I propose only to consider the pleading against Channel 7, although reference must be made to an argument put by Mr Whitington QC and supported by Mr Houghton QC for the ABC and Channel 7 respectively. Under r 54.04 of the Supreme Court Rules 1987 (SA), no party may withdraw an admission except by leave of the Court. Factors relevant to the exercise of the discretion under r 54.04 include the stage which the proceedings have reached, any detriment which might be caused to other parties, the reason given for the application to withdraw the admission[188] and the reason for making the admission in the first place.[189][188] ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron (Reg) [2003] SASC 429, [15], (2003) 231 LSJS 454, 457.[189] Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd [2000] FCA 1732, [45], (2000) 191 ALR 579, 589. Civil litigants in this Court are encouraged by the Rules of Court and by practice directions to make admissions where appropriate so that the real issues in dispute can be identified in the pleadings. I accept that the plaintiff made the relevant admission, not as a result of any first-hand knowledge of the plaintiff but because the plaintiff was aware that a forensic pathologist had expressed the opinion that Corinna Marr’s death occurred between 2:30 and 3:30pm. In the circumstances it was entirely reasonable for the plaintiff to act on what was thought at the time to be reliable evidence, perhaps the only evidence, as to the time when Corinna Marr died. The basis for the plaintiff’s application to withdraw the admission was an article published in The Advertiser on 2 August 1997, approximately one month after the murder. Apparently this article only came to the plaintiff’s attention shortly before the trial. The article, which includes a timeline, describes Ms Marr’s movements on the day of her death and states that she was shot dead between 3:30 and 3:45pm. No mention is made in the article of the forensic pathologist’s report which put her death at between 2:30 and 3:30pm. The application to amend the plaintiff’s reply was made at a very late stage. It was clear that, if the application were granted, Channel 7 would be required to make further inquiries and call evidence as to the time of Corinna Marr’s death in order to make good that part of its plea. Earlier in these proceedings, the Commissioner of Police had been summoned to give non-party discovery and inspection of various documents said to be relevant to the proof of and response to Channel 7’s defence of justification. Had it been known at that earlier stage that the time of death would be in issue, Channel 7 might have sought the production of documents relevant to that issue in the Commissioner’s possession.

Decision

Reasons for decision

BLEBY J

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Ratio Decidendi

Legal Principle Established

Established by: BLEBY J

For these reasons, I granted the plaintiff permission to amend his reply to the third further amended defence of Channel 7 so as to read, relevantly, “the Plaintiff admits 7.2.1.1.1 (save and except for the words ‘between about 2:30pm and 3:30pm’)”.SANDS v CHANNEL SEVEN ADELAIDE PTY LTD & AUSTRALIAN BROADCASTING CORPORATIONAppendix 5 - Admission of written statements of witnesses Svigos, Parrish, Hudoba and Faulkner[190][190] See reasons for judgment Part 7.3.4. During the trial, Channel 7 tendered copies of the following written statements given to police by the respective witnesses: For the reasons that follow I admitted the statements pursuant to s 34C of the Evidence Act 1929 (SA). The statements were admitted over objection from the plaintiff. In rebuttal the plaintiff tendered, without objection, a copy of a written statement to the police of the witness Andrew Faulkner made on 22 June 1998, Exhibit P49. Section 34C provides:34C—Admissibility of documentary evidence as to facts in issue(1)In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say—(a) if the maker of the statement either—(i) had personal knowledge of the matters dealt with by the statement; or(ii)where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and(b) if the maker of the statement is called as a witness in the proceedings.…(2)In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence—(a) notwithstanding that the maker of the statement is available but is not called as a witness;(b) notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be.(3)Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.(4)For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him with his own hand, or was signed or initialled by him or otherwise recognised by him in writing as one for the accuracy of which he is responsible.(5)For the purpose of deciding whether or not a statement is admissible as evidence by virtue of the foregoing provisions, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances, and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be the certificate of a legally qualified medical practitioner and where the proceedings are with a jury, the court may in its discretion reject the statement notwithstanding that the requirements of this section are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.