Sands v Channel Seven Adelaide Pty Ltd - [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 on statutory defence of fair and accurate report of court proceedings in respect of internet publication – what constitutes fair and accurate report – whether reports were fair and accurate – what constitutes malice for purposes of internet article – whether malice established – whether radio broadcasts were contemporaneous with proceedings – radio broadcasts protected by defence in s 6 Civil Liability Act 1936 (SA) – s 6 as in force on 19 May 2004 did not apply to internet publication – internet publication protected by common law defence of fair and accurate report.

DEFAMATION - DAMAGES
Consideration of the basis upon which damages would have been assessed if plaintiff’s claim had succeeded – purposes of damages award – whether plaintiff’s distress and hurt feelings caused by publication of statements that he was a murder suspect or by his involvement in political scandal – whether reliable evidence of loss of reputation – effect of attempts at suppression on plaintiff’s desire for vindication – whether grounds for awarding aggravated damages – whether plaintiff’s loss of employment caused by first defendant’s publication or by other reasons.

EVIDENCE - ADMISSIBILITY AND RELEVANCY - HEARSAY - IN GENERAL
Whether police officer could give evidence of the view he formed as a result of inquiries made of persons not called as witnesses – whether hearsay evidence admissible to prove that there were reasonable grounds to suspect the plaintiff of murder – whether rules of evidence apply in the usual way to proof of pleaded facts said to constitute reasonable grounds – question depended for its answer on inadmissible hearsay – question disallowed.
Admissibility of evidence of statements made by murder victim to witnesses about her sexual relationship with the plaintiff – whether admissible to prove that the deceased was in a sexual relationship with plaintiff – admissible as original evidence of the deceased’s state of mind with respect to plaintiff but not as proof of sexual relationship.

EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PUBLIC POLICY - AFFAIRS AND DOCUMENTS OF STATE - RELEVANT PRINCIPLES - CROWN PRIVILEGE
Whether police officer was required to answer certain questions about the murder investigation and the use made of a sample of plaintiff’s DNA – whether public interest immunity applies – whether police officer required to answer questions.

EVIDENCE - ADMISSIBILITY AND RELEVANCY - IN GENERAL
Admissibility of audio visual records of plaintiff’s interviews with police – whether records relevant to plea of justification – whether s 47 Criminal Law (Forensic Procedures) Act 1998 (SA) prohibits admission into evidence of record of interview during which forensic procedure was carried out – whether s 63 Telecommunications (Interception and Access) Act 1979 (Cth) renders records inadmissible where explicit references to intercepted material excised – whether police questioning in interview improper – records of interview admitted into evidence.

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS
Application to withdraw admission in reply – time of death of murder victim – whether time of death a matter within plaintiff’s knowledge – whether amendment likely to cause significant delay or to jeopardise satisfactory and timely completion of trial – amendment allowed.

EVIDENCE - DOCUMENTARY EVIDENCE - STATUTORY PROVISIONS AS TO STATEMENTS IN DOCUMENTS WHERE DIRECT ORAL EVIDENCE ADMISSIBLE - IN GENERAL
Admissibility of written statements made to police by plaintiff’s work colleagues – whether requirements of s 34C Evidence Act 1929 (SA) satisfied – statements admitted.

EVIDENCE - DOCUMENTARY EVIDENCE - STATUTORY PROVISIONS RELATING TO BUSINESS RECORDS - IN GENERAL
Admissibility of report of forensic pathologist relating to murder victim – forensic pathologist not called to give evidence – whether report admissible as a “business record” under s 45A Evidence Act 1929 (SA).
Civil Liability Act 1936 (SA) s 3A, s 6; Criminal Law (Forensic Procedures) Act 1998 (SA) s 26, s 47, s 48; Evidence Act 1929 (SA) s 34C, s 34D, s 45A, s 59J, s 69A; Telecommunications (Interception and Access) Act 1979 (Cth) s 63; Wrongs Act 1936 (SA) s 3A, s 4, s 6; Wrongs Act Amendment Act (No 2) 1983 (SA) s 4; Defamation Act 2005 (SA) s 4, s 25, Sch 1; Wrongs Act Amendment Act 1975 (SA); Industrial and Employee Relations Act 1994 (SA) Ch 3, Pt 6, s 109; Industrial and Employee Relations (Harmonisation) Amendment Act 1997 (SA) s 4(4); Supreme Court Rules 1987 (SA) r 54.04; Evidence Act 1995 (Cth) s 63, referred to.
Lewis v Daily Telegraph Ltd [1964] AC 234; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; Grain Elevators Board (Victoria) v Shire of Dunmunkle (1946) 73 CLR 70; Commissioner of Stamps (South Australia) v Telegraph Investment Company Pty Ltd (1995) 184 CLR 453; Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255; Kimber v The Press Association Ltd [1893] 1 QB 65; Sankey v Whitlam (1978) 142 CLR 1; R v Matthews (1990) 58 SASR 19, applied.
Attorney-General v Leveller Magazine Ltd [1979] AC 440; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465; Hounslow v Woodward [2007] WASC 27, distinguished.
Channel Seven Adelaide v S, DJ (2007) 248 LSJS 75; S, DJ v Channel Seven Adelaide Pty Ltd (2008) 253 LSJS 468; S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 229; Sands v Channel Seven Adelaide Pty Ltd (2005) 91 SASR 466; Channel Seven Adelaide Pty Ltd v S, DJ (2006) 94 SASR 296; Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10; Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36; Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148; Shah v Standard Chartered Bank [1999] QB 241; Chase v News Group Newspapers Ltd [2003] EMLR 11; Farquhar v Bottom [1980] 2 NSWLR 380; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; TCN Channel 9 Pty Ltd v Mahony (1993) 32 NSWLR 397; Homes v Thorpe [1925] SASR 286; George v Rockett (1990) 170 CLR 104; Adam v Ward [1917] AC 309; Manock v Advertiser News-Weekend Publishing Co Ltd (2004) 88 SASR 495; Stern v Piper [1997] QB 123; Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43; John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58; Bunker v James (1980) 26 SASR 286; Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313; Horrocks v Lowe [1975] AC 135; Roberts v Bass (2002) 212 CLR 1; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Hamilton v Clifford [2004] EWHC 1542 (QB); Walsh v Loughnan [1991] 2 VR 351; Shaaban Bin Hussien v Chong Fook Kam [1970] AC 942; R v Heaney [1992] 2 VR 531; Police v Beck (2001) 79 SASR 98; Manley v Tucs (1985) 40 SASR 1; R v TC Lavelle [1978] Crim LJ 105; Iskra v Police (2003) 84 SASR 586; Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (reg) (No 11) (2002) 82 SASR 63; Walton v The Queen (1989) 166 CLR 283, discussed.
Sands v Channel Seven Adelaide Pty Ltd (Unreported, Supreme Court of South Australia, Judge Bowen Pain, 8 November 2004); Hamilton v Clifford [2004] EWHC 1542 (QB); S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 229; Polly Peck (Holdings) PLC v Trelford [1986] QB 1000; Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206; Jones v Skelton [1963] 1 WLR 1362; Jones v Skelton [1963] SR (NSW) 644; Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1; Keogh v Incorporated Dental Hospital of Ireland (1910) 2 Ir R 577; Lang v Australian Consolidated Press Ltd v; Morgan v Odhams Press Ltd [1971] 1 WLR 1239; Middle East Airlines Airliban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323; Hussien v Chong Fook Kam [1970] AC 942; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; Edwards v The Queen (1993) 178 CLR 193; Channel Seven Adelaide Pty Ltd v Draper (2004) 234 LSJS 15; Watkin v Hall (1868) LR 3 QB 396; Truth (NZ) Ltd v Holloway [1961] NZLR 22; Ronald v Harper (1910) 11 CLR 63; Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679; Buck v Jones [2002] NSWCA 8; Australian Broadcasting Corporation v Comalco (1986) 12 FCR 510; Nationwide News Pty Ltd v Heggie [2001] NSWCA 257; Yoon Shin Lee v Bok Chae-Sang Cha [2005] NSWCA 279; Bunker v James (1980) 26 SASR 286; Smith v Harris [1996] 2 VR 335; Scott v Scott [1913] AC 417; McPherson v McPherson [1936] AC 177; Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376; Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313; Godfrey v Henderson (1944) 44 SR (NSW) 447; Oldfield v Keogh (1941) 41 SR (NSW) 206; Lange v Australian Broadcasting Corporation (2002) 212 CLR 1; Clark v Ainsworth (1996) 40 NSWLR 463; Cooke v Wood (Unreported, Supreme Court of Victoria Court of Appeal, 11 December 1997, Ormiston, Charles and Batt JJA); Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474; Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575; Al Amoudi v Brisard [2007] 1 WLR 113; McArdle v Egan (1934) 150 LT 412; McArdle v Egan (1934) 150 LT 412; Tepper v Kelly (1988) 47 SASR 271; Conway v Rimmer [1968] AC 910; Medical Board of South Australia (2000) 76 SASR 242; Adelaide Brighton Cement Ltd v State of South Australia (1999) 75 SASR 209; Alister v The Queen (1984) 154 CLR 404; Woodroffe v National Crime Authority (1999) 107 A Crim R 384; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667; McDermott v The King (1948) 76 CLR 501; R v Pritchard [1991] 1 VR 84; R v Wills (1985) 39 SASR 35; R v O’Neill (1988) 48 SASR 51; ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron (Reg) (2003) 231 LSJS 454; Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd (2000) 191 ALR 579; Feltafield Pty Ltd v Heidelberg Graphic Equipment (1995) 56 FCR 481; Jarman v Lambert and Cooke Contractors Ltd [1951] 2 KB 937; Southern Equities Corporation Ltd (in liq) v Bond (No 2) (2001) 78 SASR 554; Murray-Oates v Jjadd Pty Ltd (1999) 76 SASR 38; Murphy v Haskell [1961] SASR 1; Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (No 10) (2002) 82 SASR 53; R v Perry (No 3) (1981) 28 SASR 112; R v Perry (No 4) (1981) 28 SASR 119; Spicer v Coppins (1991) 56 SASR 175 ; In the Estate of Hassan (dec’d) (2008) 100 SASR 464; R v Toki (No 3) (2000) 116 A Crim R 536; R v Lester (2007) 176 A Crim R 152, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"suspect"
"fair and accurate report"

SANDS v CHANNEL SEVEN ADELAIDE PTY LTD & ANOR
[2009] SASC 215
Table of Contents
1            Introduction
2            Background to the publications
2.1          The plaintiff’s background
2.2          The Draper connection
2.3          The Corinna Marr connection
2.4          The murder of Corinna Marr
2.5          The police investigation
3            The Channel 7 publication
4            The ABC publications
4.1          The Draper injunction application and District Court order – 16 May 2004
4.2          The District Court proceedings – 19 May 2004
4.3          The ABC publications
4.3.1        The 2.00pm broadcast
4.3.2        The 3:00pm broadcast
4.3.3    The 4:00pm broadcast
4.3.4        The Website Article

4.4          Resumption of the District Court hearing
5            The pleadings
5.1          The pleaded imputations
5.2          Channel 7’s pleadings
5.3          Channel 7’s justification defence
5.4          Channel 7’s qualified privilege defence
5.5          The plaintiff’s reply to Channel 7’s defence
5.6          The ABC’s pleadings
5.7          The plaintiff’s reply to the ABC’s pleadings
6.           The Channel 7 Promotion – Whether the pleaded imputation was in fact conveyed
6.1          Introduction
6.2          Reasonable grounds simpliciter or reasonable grounds based on direct evidence of conduct
6.3          The relevant legal principles
6.4          The imputation conveyed
7           Channel 7’s plea of justification
7.1          Introduction
7.2          What is required to be proved
7.3          The witnesses
7.3.1        The plaintiff
7.3.2        Detective Sergeant Keane
7.3.3        Colin Todd
7.3.4        George Svigos, Ian Parrish, Janelle Denley and Andrew Faulkner
7.3.5        Tom Milosevic
7.3.6        Angela Hudoba
7.3.7        Other witnesses as to justification

7.4          Facts
7.4.1        Time of death
7.4.2        The circumstances of the murder
7.4.3    The plaintiff’s 30 August 1997 statement
7.4.4        The plaintiff’s work colleagues
7.4.5        The plaintiff’s 8 October 2002 interview and its aftermath
7.4.6        The plaintiff’s 24 January 2004 interview
7.4.7        The plaintiff’s evidence
7.4.8        The plaintiff’s relationship with Corinna Marr
7.4.9        The plaintiff’s contact with Corinna Marr immediately before her death

7.5          Justification – conclusion
8            Channel 7 – Extended qualified privilege
9            The ABC publications – Whether the pleaded imputation was in fact conveyed
9.1          Introduction
9.2          Use of the past tense
9.3          The repetition rule
9.4          Whether the content and context suggest reasonable grounds
9.5          Conclusion
10          The ABC publications – Fair and accurate report
10.1        Whether the statutory defence applies
10.2        Whether the reports were fair and accurate
10.2.1       General considerations
10.2.2       The fairness and accuracy of the reports

10.3        The common law defence and malice
10.3.1       General considerations
10.3.2       Whether malice is established

10.4        Whether the ABC’s reports were contemporaneous
10.5        Conclusion
11          Damages
11.1         General considerations
11.2         Distress and hurt feelings
11.3         Loss of reputation
11.3.1       Nature and extent of publication
11.3.2       Evidence of loss of reputation

11.4         Vindication
11.5         Aggravation
11.6         Loss of employment – Channel 7
12          Conclusion
Appendix 1 - Hearsay Evidence Ruling
Appendix 2 – Ruling on Public Interest Immunity
Appendix 3 - Admissibility of plaintiff’s records of interview
Relevance
Criminal Law (Forensic Procedures) Act
Telephone Intercept
Cross-examination by police
Other objections
Conclusion
Appendix 4 – Ruling on amendment of reply
Appendix 5 - Admission of written statements of witnesses Svigos, Parrish, Hudoba and Faulkner
Appendix 6 - Admission of Professor Byard’s Report
Appendix 7 - Admission of evidence of statements made by Corinna Marr to witnesses

Civil
BLEBY J.
1 Introduction

The plaintiff, Mr Sands, brings this action for defamation against Channel Seven Adelaide Pty Ltd (“Channel 7”) and Australian Broadcasting Corporation (“the ABC”).
The action against Channel 7 is based on the broadcast of a 15 second promotion for a program known as “Today Tonight”. The promotion was screened on a number of occasions on 14 and 15 May 2004. Further details of the promotion can be found in Part 3 of these reasons. The words used in the promotion were:
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 promotion included pictures of Patricia Draper, a South Australian Federal Member of Parliament, of the plaintiff, and of Corinna Marr who was murdered in South Australia on 4 July 1997.
The publications giving rise to the action against the ABC all occurred on the afternoon of 19 May 2004 in three radio news broadcasts at 2.00pm, 3.00pm and 4.00pm that day and in an internet article posted on the ABC’s website at 3.49pm (CST) that day. Each of them reported unfinished proceedings in the District Court earlier that day in which Channel 7 had sought the dissolution of an injunction restraining Channel 7 from broadcasting the Today Tonight program the subject of the promotion. The injunction had been granted by the District Court on Sunday 16 May 2004 on the application of Ms Draper. Each of the news bulletins and the website article referred to the plaintiff as having been or as “a murder suspect”. Full details of the ABC publications appear in Part 4 of these reasons.
As against Channel 7 the plaintiff claims damages, including damages for economic loss as a result of the termination of his employment after the broadcast. General damages only are claimed against the ABC.

By way of defence Channel 7 argues that the imputation conveyed by the Channel 7 broadcast as pleaded by the plaintiff is not made out. In the alternative it pleads justification. In the further alternative it pleads extended qualified privilege in that the promotion constituted a discussion of government and political matters, and that Channel 7’s conduct in publishing the promotion was reasonable in the circumstances. It denies that economic or any other loss was caused to the plaintiff as a result of the publication.
The ABC pleads that the imputation pleaded against it by the plaintiff has not been made out and that the words used in the publications were not defamatory of the plaintiff. It also pleads that the matters complained of were published on an occasion of privilege pursuant to s 6 of the Civil Liability Act 1936 (SA) and/or at common law as being a fair and accurate report of proceedings in the District Court of South Australia on 16 and 19 May 2004.
Further details of the pleadings appear in Part 5 of these reasons.
2 Background to the publications
2.1 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.
In May 1997 he commenced a relationship with Janelle Denley. They did not live with each other but met frequently during the week, and he would often stay with her at her unit over weekends. That relationship ended in about May 1998.
In mid 1998 the plaintiff commenced a relationship with Ms Kellie Nelson. The plaintiff was living with his mother at Kilkenny and Ms Nelson lived in a rented property at Brompton. They saw each other two or three times a week and would generally spend weekends together at her residence. For most of the time until May 2004 it was an intimate relationship. In 2002 they travelled together for two weeks in France, Italy and Greece and commenced living together in a house which the plaintiff had purchased in Alberton. The relationship with Ms Nelson ended early in 2005 in circumstances discussed later in these reasons.
Later in 2005 the plaintiff began a relationship with Ms Yvette Francis. That relationship terminated after 12 months. He then met Bridgitte Zander and formed a relationship with her in 2006. They travelled overseas together in 2007 and she then lived with the plaintiff in his house for six months until the relationship ended. At the time of the trial the plaintiff had recently entered into another relationship.
2.2 The Draper connection
Ms Draper was a member of the Federal Parliament representing the suburban seat of Makin. Through his work the plaintiff met Ms Draper in 1996. He was required to photograph her on a number of occasions thereafter. He became close friends with Ms Draper and in 2000 began travelling with her at Government expense to Canberra. While there he stayed at her place of accommodation in Canberra. They did not live together in Adelaide.
In August 2000 the plaintiff accompanied Ms Draper on a tax-payer funded ten day trip to Europe. He travelled on a diplomatic passport which had been issued to him as Ms Draper’s “spouse”. What had been a relatively short sexual relationship ended as such shortly before their return to Australia. It will be noted that at that time the plaintiff was also in a sexual relationship with Ms Nelson.
2.3 The Corinna Marr connection
Prior to 1995 Corinna Marr was the receptionist at the Walkerville Office of Weeks & Macklin, a firm of land agents. She assisted in undertaking necessary paperwork in connection with sales, preparing folders and brochures and performing office work in connection with property management.
Colin Todd was a salesman employed by Weeks & Macklin at the Walkerville office. In late 1994, by arrangement with the firm, he commenced his own franchise of the Weeks & Macklin office at Firle. Corinna Marr came to work for him at that office and she began a course as a trainee salesperson. She was then engaged to be married to Robert Marr. Mr Todd was doing business with Messenger. He wanted some photographic work to be done and approached the plaintiff to carry out that work. The plaintiff first met Corinna Marr on 22 May 1995 when he visited the Firle office of Weeks & Macklin to carry out the photographic assignment. He found her attractive and a friendship developed. The precise nature of that relationship and whether it was a sexual one is an issue in the proceedings and will be addressed later. It is sufficient for present purposes to record that the plaintiff visited the office on a number of occasions to see Ms Marr, which visits were not work related. They also met outside the office, and at least on one occasion at the plaintiff’s house at Valley View when they discussed an emotional issue which the plaintiff had had with his then partner, Judy Southam. He confided in Ms Marr about the relationship. It will be necessary to return to that visit later in these reasons.
Corinna was married to Robert Marr in January 1996. The plaintiff’s visits to the office continued, and during a period which possibly ended in early 1997 they went, unaccompanied, on full day excursions, on one occasion to Sandy Creek and on another occasion to Port Elliot or Victor Harbor, for photo shoots to assist Ms Marr in developing a modelling career. The time and nature of their last contact before Ms Marr was murdered is a matter of some dispute.
2.4 The murder of Corinna Marr
On the afternoon of Friday 4 July 1997 Corinna Marr was shot dead in her unit at Collinswood. She had been at work as usual that morning. At about 10.15am she left work for about 45 minutes to collect an outfit to wear at a “Strongbow” promotion for which she had been engaged at the Woodville Hotel late that afternoon. By arrangement with Mr Todd she left work early that afternoon, between 2.00pm and 2.30pm, to go home and change for the promotion. The driving time from the Firle office to her home was about 12 minutes. She had also arranged for Mr Todd to accompany her to the promotion and to pick her up from her unit between 3.30pm and 3.45pm, because her husband was engaged in some other activity and could not do so.
Mr Todd was running late to pick her up. At about 4.00pm he telephoned the Collinswood apartment from his car to say that he was on the way. To his surprise Robert Marr answered the telephone and told him that Ms Marr was dead.
As appears later in these reasons,[1] the most likely time of death was between 2.30pm and 3.30pm.
[1] Part 7.4.1.
No-one has ever been charged with her murder.
2.5 The police investigation
The murder of Corinna Marr attracted substantial media coverage at the time. As might be expected, police were quickly at the scene and commenced investigations. A forensic pathologist, Dr Byard, was part of the investigation team.
The officer in charge of the investigation was Detective Sergeant Keane. He was called to give evidence by Channel 7 as part of its case of justification. He gave evidence of a number of inquiries that were made and of interviews conducted with various persons of interest, including the plaintiff. Early in his evidence he was asked a question, the answer to which seemed at the time to require a knowledge of facts not within the witness’s own knowledge but which was dependent on hearsay evidence supplied to him when there was no intention to call the maker of the statement. It was suggested that he would be asked a number of questions the answer to which would be, or would be based on, hearsay evidence. I therefore heard full argument on the admissibility of such evidence and delivered a ruling, the substance of which is reproduced at Appendix 1.
Throughout his evidence, Detective Sergeant Keane was represented by counsel in order to assist in the resolution of any arguments that might arise as a result of Detective Sergeant Keane declining to answer questions on the ground of public interest immunity relating to the ongoing investigation into Corinna Marr’s murder. Objection to his answering five questions was taken on that ground. After hearing argument I ruled that Detective Sergeant Keane was not required to answer any of the questions. The reasons for that ruling appear at Appendix 2.
I am not privy to all the investigations conducted by the police into Corinna Marr’s murder. However, statements were taken from a number of people shortly after the event. They included Mr Todd and Ms Mehendale, a neighbour of Mr and Mrs Marr who lived in the unit next door.
On 4 July 1997 the plaintiff was working from and at the Salisbury office of Messenger. According to the plaintiff’s evidence he went to the Salisbury Police Station to offer assistance to the police sometime during the following week. No evidence of any such contact was led from the police. That is not to say that it did not occur. The plaintiff was, however, formally interviewed at the Angas Street Police Station on 30 August 1997, and on that day signed a typed statement acknowledging the truth of the statement to the best of his knowledge and belief. The statement was admitted without objection. It will be necessary in due course to refer to the details of that statement. For present purposes it is sufficient to note that he told police that on the afternoon of Friday, 4 July 1997 he was working in the Messenger office at Salisbury processing his week’s photographs.
There is evidence that police inquiries continued into 1998 and that in June a number of other persons were interviewed, including Mr Ian Parrish, Messenger’s Pictorial Editor and the plaintiff’s immediate supervisor who worked at Port Adelaide. Mr Andrew Faulkner, another work colleague of the plaintiff was also interviewed. He was employed in July 1997 at the Salisbury office of Messenger. The statements given by those people tended to cast doubt on the plaintiff’s assertion that he had been at the Salisbury office of Messenger throughout the afternoon. At about the same time police also obtained copies from Messenger of job cards indicating photographic assignments that had been undertaken by Messenger staff during the week ending 4 July 1997. Another Messenger employee, George Svigos, who was interviewed by police on or about 2 October 1998 also tended to cast doubt on the plaintiff’s statement as to his activities on the afternoon of the murder.
On 8 October 2002 the plaintiff was interviewed at some length by police in a video-recorded interview. The plaintiff objected to the tender of this record of interview and also those of 24 June 2004 referred to below. I admitted all records of interview for reasons which appear in Appendix 3. During the 8 October 2002 interview the plaintiff adhered to the alibi he had given to police in his statement of 30 August 1997, but added that he may have left the office during the afternoon to have lunch or to buy a drink.
At that time it was obvious to Mr Sands that police were questioning his movements on the afternoon of 4 July 1997. Shortly after the police interview, when he was at the Messenger premises in Port Adelaide, he extracted from their usual storage place and took home all the job work sheets for the week ending 4 July 1997. He claims that they were taken with the authority, if not the direction, of Mr Ray Murray, the Acting Photographic Manager at the time. That is a matter of some dispute. Mr Murray has since died.
On 24 January 2004 police conducted a search of the plaintiff’s home at Alberton, during the course of which the plaintiff, through his solicitor, provided some of the work sheets to police that he had earlier removed from the office of Messenger, being work sheets which related to assignments carried out on 4 July 1997. The significance of those work sheets and the manner of their presentation is a matter for further analysis later in these reasons.[2] On the same occasion the plaintiff supplied, at the request of the police, a sample of his DNA, but declined to supply any fingerprints.
[2] Part 7.4.6.
On 25 February 2004 a member of the police force applied to the Adelaide Magistrates Court for an order authorising the taking of finger and hand prints from the plaintiff in accordance with the requirements of Division 4 of Part 3 of the Criminal Law (Forensic Procedures) Act 1998 (SA) (“the Forensic Procedures Act”). The grounds for the application were that the plaintiff 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 at the time. The application was heard in the Magistrates Court on 2 March 2004. The plaintiff did not attend but was legally represented. An order was made as requested.
I pause to observe that s 48 of the Forensic Procedures Act provides that a person must not “intentionally … publish by newspaper, radio, television or in any other way” a report of proceedings under the Act containing the name of a person under suspicion or other information tending to identify the person unless, among other things, he consents to the publication. After I had reserved judgment, and in order to avoid a possible complication in the writing of these reasons, I caused an enquiry to be made of the plaintiff’s solicitors as to whether he consented to publication of a report of these proceedings in these reasons, at least to the extent necessary properly to understand the reasons for judgment given in the proceedings. The plaintiff, through his solicitors has consented to such publication.
At the time there was substantial media coverage of the application under the Forensic Procedures Act which did not breach the statutory prohibition against publishing the identity of the suspect. On the following day, 3 March 2004, Superintendent Symons of the South Australian Police held a media conference to reveal that the fingerprints obtained under the order did not match unidentified prints found at the crime scene. Superintendent Symons also said that the plaintiff, without naming him, “is a suspect and will remain a suspect” in the Corinna Marr murder case.
Channel 7 was plainly aware of the Forensic Procedures Act proceedings, of their outcome and of the media conference held the next day. It broadcast news items relating to the proceedings and the news conference.
3 The Channel 7 publication
The subject of the plaintiff’s claim against Channel 7 is a promotion for a story which was to be broadcast on the Today Tonight programme. In his statement of claim the plaintiff alleges (and Channel 7 admits) that the promotion was broadcast on Friday 14 and Saturday 15 May 2004. Mr Archer, the executive producer of Today Tonight, gave evidence that the promotion was also broadcast on Sunday 16 May. According to Mr Archer, the promotion was shown six to ten times on each of those days.
The promotion, which ran for approximately 15 seconds, consisted of a series of images and the following spoken words:
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 first two scenes of the promotion showed Ms Draper with the then Prime Minister, Mr Howard. In the first scene, Mr Howard was making a speech whilst Ms Draper stood beside him. In the second scene, Ms Draper and Mr Howard were walking side by side. These scenes were accompanied by the words “On Today Tonight – SA’s Federal MP”.
A very brief shot of the plaintiff was then shown as the words “her boyfriend” were spoken. He was shown standing outside an unidentified building, apparently listening to another person speak. The footage showed only the back of the other person. The promotion then showed a Qantas aircraft landing as the words “and the business trip” were spoken.
Next, the promotion cut to footage of a woman saying “disgusted that tax-payer funds have been used”. A shadow was across her face so as to make her unidentifiable. The next image, which appeared as the words “the paper trail and the whistleblower” were spoken, showed a man holding a folder of documents while getting into a black car.
The next image appeared to be a continuation of the earlier footage showing the plaintiff having a conversation outside a building. This time, however, a sign displaying the Messenger Newspapers logo was clearly visible on the building behind the plaintiff. This segment of the promotion ran for no more than one second, and was accompanied by the words “and he’s a suspect - ”. The remainder of that sentence, “- in a murder case” was spoken as a black and white photograph of Corinna Marr’s face appeared on the screen.
The promotion concluded with a screen displaying the Today Tonight and Channel 7 News logos and images of Today Tonight presenters and newsreaders.
4 The ABC publications
4.1 The Draper injunction application and District Court order – 16 May 2004
On Sunday 16 May 2004 an urgent application was made by Ms Draper in the District Court for an injunction to restrain Channel 7 from broadcasting the advertised Today Tonight program. The plaintiff was not a party to the application, although he was represented at the hearing by leave. Channel 7 opposed the application. There was no court reporter present. After hearing the parties, including counsel for the plaintiff, Judge Bishop of the District Court made the following orders:
[T]hat:
1.Until further order the defendant (whether by its agents or employees) be restrained from:
1.1 the ongoing broadcasting of promotion advertisements featuring the plaintiff in the defendant’s programme “Today Tonight”;
1.2 broadcasting a “Today Tonight” programme referring to the plaintiff in the context of parliamentary travel allowance and/or association with Mr Sands;
2.The cost of the application be reserved.
3.The parties may apply for further orders and directions at short notice.

No reasons for that order were published.
4.2 The District Court proceedings – 19 May 2004
The proceedings relating to the injunction application were called on again, it would appear at the instance of the Judge, shortly after 12.00noon on Wednesday 19 May 2004. A transcript of the proceedings was taken.
Ms Draper and Channel 7 were again represented by counsel, as was the plaintiff. Counsel sought leave to appear for Advertiser Newspapers Ltd. That company had a right, under s 69A(5) of the Evidence Act 1929 (SA), to make submissions on any application that might be made for a suppression order.
There was initially some confusion expressed by all counsel as to the purpose of the hearing. Counsel for Mr Sands indicated that the hearing was not at the instigation of his client. Counsel for Channel 7 then announced that he would be taking the opportunity to make an application that the orders made on the previous Sunday be discharged. He tendered an affidavit in support of that application.
The Judge then indicated that the hearing had been reconvened because it came to his notice that a media organisation had sought a copy of the order made on the previous Sunday evening and a copy of any transcript that may have been taken on that occasion. Having considered the order that he made, it occurred to him that if it were published, that “would result in a publication in itself of that very thing which by my order I have sought to not have published”. He had expressed concern that “interested parties, and in particular Mr Sands, may wish to be heard further as to whether the terms of the order were to stand”.
In other words, at that stage of the hearing the only questions which had been ventilated were whether the previous order should stand at all or whether it should be varied. Counsel for Mr Sands was then asked by the Judge what his attitude was in relation to the naming of Mr Sands in the terms of the order – a naming which had apparently been made expressly at the request of counsel who appeared for Mr Sands on the previous Sunday. Counsel for Mr Sands then said:
… my application this afternoon is, for reasons your Honour has foreshadowed, that the appropriate order would be a s 69A suppression order, which would prevent publication of Mr Sands’ name, his addresses, his image, his workplace, or any other matter that would tend to identify him. And that further, it (sic) be suppressed from publication any reference to Mr Sands as a murder suspect.
As was the application by Channel 7 to discharge the order, this was an oral application, although the terms of the order sought were apparently contained in “a hastily typed document” which was handed to the Judge. Neither that document nor a copy of it has been produced by the plaintiff. Counsel for Mr Sands did not develop any argument in favour of his application at that time or at any time before the luncheon adjournment. However, from the nature of the exchange that took place, the context in which it occurred and the tender of the hastily typed document, it appears that Mr Sands’ application was for an order of suppression from publication of his name or identity in the order for the interlocutory injunction. That is confirmed by what subsequently occurred. There was a brief discussion as to how Mr Sands came to be named in the existing order. In response to a question by the Judge, counsel for Channel 7 indicated that he would deal with his client’s attitude to the application for a suppression order in the course of making his application for discharge of the existing order. That was not surprising, as if he were to be successful in his application to discharge the injunction, the question of suppression of Mr Sands’ name in the order might not arise or might have to be treated differently.
Counsel for Ms Draper then indicated that he supported the application for a suppression order but would make no submissions in respect of it.
After some brief discussion about the registry procedures which had occurred, counsel for Channel 7 developed his submission as to why the interlocutory injunction should be discharged. During the course of those submissions the Judge made the first published observation as to why he had made the previous order. He said:
I haven’t been asked to give reasons for my making that order on Sunday. If called upon to do that, I can assure you that [the reference to Mr Sands as a murder suspect] will be at the forefront of my reasons. This order would not have been made had this merely been a ventilation of what was said to have been a travel rort. It was the conjunction of that with Mr Sands being a suspect in a murder case which concerned me and which led me to make the order that I did.
It seemed to me that that conjunction took it beyond the realms of a defamation which was remedial (sic) by damages. And it brought it within the qualifications for an interim injunction being appropriate. That was in the forefront of my mind, and I must say I thought it was in the forefront of [counsel for Ms Draper’s] submissions on Sunday.
Counsel for Channel 7 then continued his submissions until the Court adjourned at 1.06pm. The thrust of Channel 7’s submission in favour of discharging the injunction was that news of Ms Draper’s overseas trip with the plaintiff at tax-payers’ expense had been the subject of reports and comment in various forms of media all around Australia and the injunction was serving no useful purpose.
To that time there had been no application made nor any mention of any possible suppression order relating to that morning’s proceedings.
After the adjournment at 1.06pm, the Court did not resume until 4.41pm, no doubt because of other commitments either of the Judge or of counsel that afternoon.
It was during that period that the ABC broadcast three news bulletins and published an article on the internet. The plaintiff complains of all four publications.
4.3 The ABC publications
The plaintiff’s claim against the ABC relates to the ABC’s reporting of the proceedings described in Part 4.2. The three radio news segments were broadcast at approximately 2:00pm, 3:00pm and 4:00pm during the afternoon. The article was posted on the internet at 3.49pm that day. Each of the radio news segments was broadcast on ABC Local Radio, ABC News Radio and ABC Radio National. There is no evidence as to how long the article remained posted on the internet.
4.3.1 The 2.00pm broadcast
The segment broadcast during the 2:00 pm 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, Tony 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.
4.3.2 The 3:00pm broadcast
The following story was broadcast during the 3:00 pm 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.
4.3.3 The 4:00pm broadcast
The transcript of the segment broadcast during the 4:00 pm news notes that there was a break in transmission part way through the story. The remainder of the 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.
4.3.4 The Website Article
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.
4.4 Resumption of the District Court hearing
In view of the plaintiff’s reply denying that the publications constituted fair and accurate reports and asserting that they were premature rather than contemporaneous and that the ABC was actuated by malice, it is necessary to summarise what happened when the hearing resumed at 4.41pm.
Counsel for Channel 7 resumed his submissions in support of the discharge of the injunction by referring to a number of other media publications relating to the overseas trip. He informed the Court that there had been news broadcasts about the matters on ABC radio that afternoon, and that those instructing him were endeavouring to obtain transcripts. He completed his submissions as to the discharge of the injunction and then made submissions opposing any suppression order, noting that Mr Sands was not a party to those proceedings. Those submissions were directed to opposing an order suppressing Mr Sands’ identity in the interlocutory order. Towards the end of his submissions counsel tendered a further affidavit exhibiting a transcript of a radio broadcast of another radio station and a copy of the ABC’s website article in further support of his application to discharge the injunction.
Upon reading the latter the Judge expressed concern at publication of remarks that he had made during the course of the hearing “because I had intended to deal with the matter of suppression of what is here taking place. That has effectively been defeated by the third to last paragraph on the first page of the ABC News Online”. He went on to express regret that he had not made an order suppressing what was said in the proceedings that day. He thereupon immediately made an order “suppressing publication of what is taking place at the moment in this hearing”. From that point on, the focus of any suppression application shifted to suppression of the identity of the plaintiff in reports of that day’s proceedings and in relation to the interlocutory order.
Counsel for Advertiser Newspapers Ltd made submissions opposing any suppression order. Counsel for Ms Draper then, notwithstanding his earlier intimation, made some brief submissions in support of the suppression order and addressed the Judge in opposition to the discharge of the injunction. Counsel for the plaintiff then addressed the Court in support of the application for a suppression order.
Counsel for another television station then made submissions opposing any suppression order. Mr Hull, a reporter from the ABC, was present. When asked whether he wanted to make any submission he indicated that he had no submissions to make. It was Mr Hull who had reported the earlier proceedings that day and whose voice was heard on the ABC radio broadcasts as the reporter.
Having heard counsel for Channel 7 in reply, and after some brief discussion about the terms of his proposed order, the hearing ended at 6.14pm, the Judge having made the following order:
[T]hat:
1.the oral application of [Channel 7] made on 19 May 2004 to have the injunction granted on 16 May 2004 discharged, be dismissed.
2.the order of 16 May be varied so that the words of that order “with Mr Sands” be struck out and replaced with the words “her companion of August 2000”.
3.pursuant to section 69A of the Evidence Act the publishing of any report relating to the hearing which took place before the Court commencing at 4.30pm on 19 May 2004 in this action be suppressed from publication.
4.pursuant to section 69A(1)(b) of the Evidence Act there be suppressed from publication any reference to Derick John Sands being a murder suspect.
It will be noted that the Judge dealt with the suppression of Mr Sands’ identity in the interlocutory injunction by paragraph 2 of his order, and with suppression of Mr Sands’ identity and of his being referred to as a murder suspect in the proceedings of 19 May by paras 3 and 4 of the order.
For the sake of completeness it should be noted that Channel 7 then appealed to a single judge of this Court against the interlocutory injunction restraining the broadcast of the Today Tonight program. On 21 May 2004 Perry J, in an ex tempore judgment, allowed the appeal and quashed the interlocutory injunctions.[3]
[3] Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 144.
On the same day a further application by Channel 7 for an order discharging the suppression order was dismissed by the District Court Judge. Channel 7 then appealed to the Full Court of this Court against the original suppression order made by Judge Bishop on 19 May and against the order made by the Judge on 21 May 2004 dismissing the oral application by Channel 7 to have the suppression order revoked. By a majority, that appeal was dismissed.[4]
5      The pleadings
[4]    Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 351; (2004) 90 SASR 160; Nyland and Gray JJ, Besanko J dissenting.
5.1    The pleaded imputations
The plaintiff pleads, in paragraph 7 of his further amended statement of claim, that the natural and ordinary meaning of the Today Tonight promotion is that:
a)The plaintiff 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 plaintiff pleads in paragraph 11 that the natural and ordinary meaning of the words used in the ABC publications is that:
a) The plaintiff is and was a person suspected of murder, and
b) There are grounds to so suspect him which are reasonable.
This action has proceeded on the basis that the imputation alleged against each defendant is a single composite imputation; the plaintiff does not plead two separate imputations against each defendant.[5]
[5] Sands v Channel Seven Adelaide Pty Ltd [2005] SASC 182, [16], (2005) 91 SASR 466, 470.
The defendants applied to have paragraphs 7 and 11 of the statement of claim struck out on the ground that the words complained of were incapable of conveying the imputation that there were grounds to suspect the plaintiff of murder which were reasonable. A master of this Court made an order striking out the two paragraphs.[6] On appeal, however, a single judge and subsequently the Full Court held that the words were capable of conveying the composite imputation pleaded.[7]
[6]    Sands v Channel Seven Adelaide Pty Ltd (Unreported, Supreme Court of South Australia, Judge Bowen Pain, 8 November 2004).
[7]    Sands v Channel Seven Adelaide Pty Ltd [2005] SASC 182, (2005) 91 SASR 466; Channel Seven Adelaide Pty Ltd v S, DJ [2006] SASC 10, (2006) 94 SASR 296.
5.2    Channel 7’s pleadings
Channel 7 admits that the promotion was broadcast but denies that the promotion bore the meaning complained of by the plaintiff. Further, Channel 7 raises defences of justification and qualified privilege. A third defence, that the publication constituted fair comment on a matter of public interest, was struck out on the grounds that the statement made could not be classified as a “comment” and that the matters pleaded as material upon which the ‘comment’ was based extended beyond the matters that an ordinary viewer could be aware of.[8]
[8] Channel Seven Adelaide Pty Ltd v S, DJ [2007] SASC 117, (2007) 248 LSJS 75.
5.3 Channel 7’s justification defence
The particulars of Channel 7’s justification defence have been the subject of extensive interlocutory argument, including consideration by the Full Court on three separate occasions.
As formulated in Channel 7’s further amended defence filed on 26 May 2006, the claim of justification relied on the facts that the South Australian Police had commenced an investigation into the murder of Corinna Marr and that, during that investigation, certain matters had come to light. The justification as pleaded depended on what the plaintiff and others had told police and what the police did as a consequence. Channel 7 did not seek to justify the grounds by alleging the underlying facts. It was then alleged that these matters amounted to reasonable grounds to suspect the plaintiff of the murder of Corinna Marr, the applicable standard of reasonableness being “that of an ordinary and reasonable member of the police charged with the duties of exhaustively investigating” Corinna Marr’s death.

The Full Court held that the particulars of the plea should be struck out. Perry J (with whom Duggan and David JJ agreed) said:[9]
It seems to me right in principle that the defence of justification should proceed on an objective view of the facts which are offered in support of the plea, and if the plea is in response to an accusation that a person is under suspicion, what has been held to be the necessary implication that the plaintiff has been guilty of conduct giving rise to the suspicion can only properly be proved by objective evidence of conduct on the part of the plaintiff, rather than by evidence of what others might have said or observed.
[9] Ibid [41], 80.
In other words, the plea of justification could not depend upon the view that a reasonable police officer would have formed. It had to be based on conduct on the part of the plaintiff. In addition, if the plea did not allege that conduct, it was at risk of breaching the repetition rule. That rule is that a plea of justification which is based on repeating the defamatory statement of another will not be allowed without justification of the original statement. [10]
[10] Ibid [42]-[43], 81; S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 60, [19], (2008) 253 LSJS 468, 472; Stern v Piper [1997] QB 123, 134 Hirst LJ, 135-136 Simon Brown LJ; Shah v Standard Chartered Bank [1999] QB 241, 261-263 Hirst LJ, 266-270 May LJ; Hamilton v Clifford [2004] EWHC 1542 (QB), [27]-[33], [37]-[40] Eady J; Channel Seven Adelaide Pty Ltd v S, DJ [2006] SASC 10, [46]-[49] Gray J, (2006) 94 SASR 296, 312-313.
Channel 7 then filed a second further amended defence. In its particulars of justification it pleaded that the plaintiff had, in his interviews with police, stated that he had last spoken to Corinna Marr several days before her death; denied having a sexual relationship with Corinna Marr; and said that on the afternoon of the murder he was in the darkroom of the offices of the Messenger Press. It was then pleaded that “there was evidence” of certain matters, namely that the plaintiff had been involved in a sexual relationship with Corinna Marr; that he had spoken to her by telephone on the morning of 4 July 1997; and that he had not been present at his workplace on the afternoon of 4 July.
The Full Court struck out the revised particulars on the ground that they suffered from much the same defects as the earlier plea.[11] The linchpin of the defective plea comprised three paragraphs which did not plead facts relating to the plaintiff’s conduct, but merely that “there was evidence” of certain matters. Channel 7 was therefore not pleading the plaintiff’s conduct but the existence of evidence which might prove that such conduct had occurred.
[11] S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 60, (2008) 253 LSJS 468.
Channel 7 then applied to further amend its plea of justification. Much of the plea of was identical to the version struck out by the Full Court. However, the words “there was evidence that” had been removed from the three paragraphs concerned. White J granted Channel 7 leave to file a third further amended defence in those terms.[12] It was held that the amended particulars pleaded the plaintiff’s own conduct and not the subjective view taken by the police. Furthermore White J was satisfied that the matters pleaded were capable of supporting the imputation that the plaintiff was a suspect in a murder case arising from the death of Corinna Marr, and that there were reasonable grounds for that suspicion.[13] Permission to appeal from the decision of White J was refused.[14]
[12] S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 108.
[13] Ibid [48].
[14] S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 229.
Channel 7’s plea of justification appears 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 the plaintiff is a suspect in a murder case arising from the death of Corinna Marr, the first defendant relies upon the following material facts:
7.2.1.1.1Corinna Marr died as a result of gun shot wounds between about 2.30pm and 3.30pm on Friday, 4 July 1997 in her Collinswood unit.
7.2.1.1.2On 4 July 1997 the South Australian Police (“the Police”) commenced an investigation into the death of Corinna Marr, which investigation is ongoing.
7.2.1.1.3No person has been charged in relation to Corinna Marr’s death.
7.2.1.1.4As at the date of the broadcast of the promotion, the plaintiff was suspected by the Police of the murder of Corinna Marr.
7.2.1.2As to the second part of the alleged composite imputation pleaded in paragraph 7(b) of the Second Further Amended Statement of Claim, namely that there are grounds to so suspect him, which are reasonable, the first defendant relies upon the following material facts:
7.2.1.2.1In August 1997 the plaintiff was interviewed by the Police in respect of the Corinna Marr murder (“the first interview”), and in the course of the said interview the plaintiff:
7.2.1.2.1.1denied ever having a sexual relationship with Corinna Marr;
7.2.1.2.1.2said that he had last spoken to Corinna Marr several days before her death; and
7.2.1.2.1.3said that on the afternoon of Corinna Marr’s death, between 1.30pm and 5.05pm, he was present in the darkroom at the offices of Messenger Press [in the city of Adelaide].
7.2.1.2.1AOn or about 24 January 2004, the plaintiff 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 the plaintiff was again interviewed by the Police in respect of the Corinna Marr murder (“the second interview”), and in the course of the said interview the plaintiff:
7.2.1.2.2.1denied ever having had a sexual relationship with Corinna Marr;
7.2.1.2.2.2was unable to provide any, or any adequate, explanation for the discrepancy between his statement in paragraph 7.2.1.2.1.3 above, and the information provided to the Police (as pleaded in paragraph 7.2.1.2.5 below) to the effect that he (the plaintiff) was not present at the offices of Messenger Press on the afternoon of Corinna Marr’s death.
7.2.1.2.3The plaintiff 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.
7.2.1.2.4The plaintiff spoke to Corinna Marr by telephone on 4 July 1997.
7.2.1.2.5The plaintiff left his workplace on 4 July 1997 in his vehicle some time prior to 2.30pm, was not present at his workplace at the time Corinna Marr was murdered, and returned to his workplace between 3.30pm and 4.00pm that day.
7.2.1.2.6The plaintiff did not have any involvement in taking the photographs for the advertisement referred to in paragraph 7.2.1.2.1A 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, the plaintiff was not being truthful.
7.2.1.2.8In the alternative, the matters pleaded in paragraphs 7.2.1.2.3 – 7.2.1.2.6 above constitute reasonable grounds for believing or suspecting that the plaintiff was not being truthful in making the statements he made in the first and second interviews, as pleaded in paragraphs 7.2.1.2.1 and 7.2.1.2.2 above.
7.2.1.2.9The plaintiff’s conduct in denying that he had had a sexual relationship with Corinna Marr, in combination with the matters pleaded in paragraphs 7.2.1.2.3 above, constitute reasonable grounds for believing or suspecting that the plaintiff had a motive to murder Corinna Marr.
7.2.1.2.10The plaintiff’s conduct in making the statements he made in the first and second interviews, in combination with the matters pleaded in paragraphs 7.2.1.2.3 – 7.2.1.2.9 above, constitute reasonable grounds for suspecting the plaintiff of murdering Corinna Marr.
5.4 Channel 7’s qualified privilege defence
Channel 7 raises a defence of qualified privilege on the ground that the promotion constituted a discussion of government and political matters. At the time of the broadcast, Patricia Draper was a Member of the House of Representatives and was expected to stand for re-election at the next Federal election. Channel 7 says that the promotion raised:
the issue of the desirability of the expenditure of public funds on the travel expenses of persons accompanying Members of the House of Representatives on overseas travel and, in particular:
8.8.1the requirements relating to the use of parliamentary entitlements for the travel expenses of spouses;
8.8.2the processes and criteria applicable to the classification of a person as a spouse for the purpose of claiming travel expenses;
8.8.3the absence of processes and criteria applicable to the question of whether a person (whether a spouse or otherwise) accompanying a parliamentarian on overseas travel at tax-payers expense is an appropriate person to receive the benefit of such travel;
8.8.4in considering whether it was appropriate for a person in the position of Ms Draper to:
8.8.4.1 take the plaintiff on a parliamentary trip;
8.8.4.2claim payment from public funds for travel expenses in respect of the plaintiff;
8.8.4.3make declarations and nominations that the plaintiff was her spouse for the purposes of the Parliamentary Entitlements Act.
Channel 7 further pleads that it was reasonable to broadcast the promotion because it had reason to believe the statements of fact in the promotion to be true, because it took steps to verify the accuracy of the material relied upon, and because the “broadcast of the promotion represented a balanced discussion reasonably and proportionately adapted to the occasion of the privilege.”
5.5 The plaintiff’s reply to Channel 7’s defence
The plaintiff says in his amended reply to the third further amended defence of Channel 7 that the particulars of Channel 7’s plea of justification are “inadmissible and/or irrelevant.” The plaintiff asserts that the particulars do not establish reasonable grounds, that they involve second-hand reports and the assertions of others, and that they “are incapable of establishing reasonable suspicion as the matters referred to merely involve the reactions of others to the Plaintiff”. The plaintiff also claims that the facts upon which Channel 7 relies in its plea of justification involve lawfully intercepted information subject to the prohibitions contained in the Telecommunications (Interception and Access) Act 1979 (Cth).
In relation to the claim of qualified privilege, the plaintiff admits that insofar as it concerned Ms Draper’s activities the promotion constituted a discussion of government and political matters. He says, however, that the reference to the plaintiff being a murder suspect was not relevant to such a discussion and went beyond the ambit of the privilege. Further, the plaintiff says that the publication was not reasonable and was actuated by malice.
The plaintiff relies on a number of matters in pleading that Channel 7’s conduct was not reasonable. He says that Channel 7 made impermissible use of lawfully intercepted information contrary to the Telecommunications (Interception and Access) Act 1979 (Cth), that it failed to take into account the seriousness of the allegation, that it failed to seek a response from the plaintiff prior to publication, and that it relied upon a statement from the police in circumstances where no reasonable grounds for suspicion were advanced by the police. The plaintiff also complains that, in effect, Channel 7 used information obtained from documents filed in proceedings under the Forensic Procedures Act. That Act places restrictions on the identification of persons and the disclosure of information obtained through the conduct of forensic procedures. Finally, the plaintiff asserts that “there can be no public interest in disclosing the identity of a suspect in circumstances which prejudice the proper administration of justice.”
The plaintiff’s plea of malice rests on the assertion that Channel 7 identified the plaintiff as a suspect using information obtained as a result of the Forensic Procedures Act proceedings and knowing of the restrictions on the disclosure of information contained in the Act. The plaintiff says that Channel 7 broadcast the promotion “for an improper purpose or motive being to defeat or possibly defeat the purpose of the protections provided by the Forensic Procedure[s] Act.”
On the first day of the trial the plaintiff applied for, and was granted, permission to amend his reply so as to withdraw an admission that Corinna Marr had died between about 2:30pm and 3:30pm. The reasons for granting permission to amend the reply in those terms are set out in Appendix 4 to this judgment.
5.6 The ABC’s pleadings
The ABC admits the publication of the relevant broadcasts and of the internet article, but disputes the imputations conveyed by those publications.
As mentioned earlier, it is the plaintiff’s case that the natural and ordinary meaning of the relevant words used in each of the ABC publications was that the plaintiff is and was a person suspected of murder, and that there are grounds to so suspect him which are reasonable. The ABC denies that the words bore that meaning and says that, instead, the words bore the following non-defamatory meaning:
6.1that Channel Seven had described the Plaintiff as a murder suspect in their promotion for a television programme, which programme a Court had ordered not be broadcast because the Judge was concerned about the allegation concerning the Plaintiff; and
6.2that Judge Bishop was concerned about whether or not the allegation about the Plaintiff being a murder suspect was one which was appropriate to broadcast.
In the alternative, the ABC raises a defence of absolute privilege pursuant to s 6 of the Civil Liability Act 1936 (SA) (as it stood in May 2004) and/or at common law. It says that the publications amounted to a fair and accurate report of the District Court proceedings before Judge Bishop.
5.7 The plaintiff’s reply to the ABC’s pleadings
In his reply, the plaintiff says that the ABC’s claim that the words bear a different meaning to that contended for by the plaintiff and that they are not defamatory raises a “false issue”. This allegation is not expanded upon in the pleadings. However, in his written submissions the plaintiff argues that this is a Polly Peck[15] defence which is not permitted by the law of South Australia.[16] I disagree. A Polly Peck defence is where a defendant pleads an alternative imputation to that pleaded by the plaintiff and seeks to justify that alternative imputation. The ABC’s pleading does not do that. It merely gives notice of what it contends is the true imputation of the publications. Justification forms no part of the ABC’s defence.
[15] Polly Peck (Holdings) PLC v Trelford [1986] QB 1000, 1032.
[16] Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82, (2005) 91 SASR 206.
In response to the ABC’s plea of absolute privilege the plaintiff says that, for a number of reasons, the publications do not constitute fair and accurate reports of the injunction proceedings. He says that a fair and accurate report of an application to determine whether certain matters should be suppressed could not occur until after the determination of that application, that there was no relevant duty to report on such proceedings and no public interest in the public receiving any report of the proceedings. The plaintiff also pleads that certain matters addressed in the proceedings were omitted from the ABC’s publications. These matters included facts which tend to demonstrate a lack of reasonable grounds for suspecting the plaintiff of murder, the risk that identification of the plaintiff would prejudice the administration of justice, the potential undermining of the operation of the Forensic Procedures Act, the possibility that Channel 7’s statements had defamed the plaintiff and Ms Draper, and the fact that the purpose of the hearing on 19 May was to “modify and perfect” the orders made on 16 May and to make appropriate suppression orders. The plaintiff further pleads that the publications fall outside the scope of the privilege because they were “premature” rather than contemporaneous, having been made before the Judge had finished hearing and determining the application on 19 May 2004. Finally, the plaintiff says that the internet article does not fall within the privilege granted by s 6 of the Civil Liability Act, which expressly refers only to newspaper, radio and television reports.
The plaintiff in his reply also pleads that the ABC was actuated by malice in publishing the words and the article. The plaintiff conceded in argument that the plea of malice was misconceived in relation to the radio broadcasts, because s 6 confers an absolute privilege which cannot be defeated by malice. However the plaintiff maintains that he is able to rely on the plea of malice in respect of the internet article. The thrust of the plea of malice is that the article was published for an improper purpose, being:
3.14.1to defeat or possibly defeat the purpose of the protections provided by the Forensic Procedure Act; and
3.14.2to defeat or possibly defeat the purpose of the hearing before his Honour Judge Bishop on 19 May 2004.
6. The Channel 7 Promotion – Whether the pleaded imputation was in fact conveyed
6.1 Introduction
It has already been authoritatively decided that the words used in the Channel 7 promotion are capable of bearing the imputation pleaded in paragraph 7 of the statement of claim.[17] It is now necessary for me to decide whether the words in fact bear that meaning.
[17] Sands v Channel Seven Adelaide Pty Ltd [2005] SASC 182, (2005) 91 SASR 466. On appeal Channel Seven Adelaide Pty Ltd v S, DJ [2006] SASC 10, (2006) 94 SASR 296.
The imputation pleaded against Channel 7 is a composite one. Both limbs need to be satisfied if the plaintiff is to succeed. It was not argued that the words and images taken together do not bear the first limb of the imputation, namely that the plaintiff is a suspect in a murder case arising from the death of Corinna Marr.
Corinna Marr’s murder received intensive and extensive media coverage. It was a matter of notoriety at the time. The ongoing police investigation into the murder was also a matter of notoriety. Further extensive media coverage of the still unsolved murder and police investigation appeared in early March 2004 in association with the Forensic Procedures Act proceedings referred to in Part 2.5 above. The image of Corinna Marr which appeared in the promotion had been published in the various news media on all of those occasions. The reasonable viewer watching the promotion and hearing the words spoken would have little doubt in concluding that the male person shown in the promotion in association with the words spoken, acknowledged to be the plaintiff, is a suspect in the murder case arising from the death of Corinna Marr. The first limb of the imputation is therefore readily satisfied.
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.
The Court expresses its gratitude to the Crown Solicitor and to those for whom he acts for their cooperation in advising the parties and the Court as to what further documents relevant to determining the time of the death of Corinna Marr would be able to be produced which had not already been produced and as to the orders that the Commissioner of Police and the Coroner would seek concerning the production of those documents in order to protect the public interest. The Crown Solicitor indicated that a list of documents could be produced by close of business on the third day of trial, and that it was likely that the documents would be able to be produced by close of business on the fourth day of trial.
The time of Corinna Marr’s death and the plaintiff’s movements at that time are particularly significant issues in respect of Channel 7’s plea of justification. This Court encourages the making of appropriate admissions. However where the existence of the relevant fact on which the admission is based is not, on the plaintiff’s case, within the knowledge of the plaintiff, and where the plaintiff relies on the evidence of others to establish the fact, and where enforcement of an admission made on that basis may compromise the ascertainment of the truth and the proper administration of justice, the Court should not insist on the plaintiff being bound by the admission unless there are other compelling reasons to do so.
I accepted that the amendment would require Channel 7 to make additional inquiries and lead evidence which it would not otherwise be required to lead. I also accepted the possibility that a short adjournment might be necessary in order for Channel 7 to make those inquiries and gather that evidence. However, in light of the indications given by the Crown Solicitor I did not consider that the potential delay and disruption was likely to be such as to jeopardise the satisfactory completion of the trial in a timely fashion. If there was evidence about which there could be little or no dispute I expected the plaintiff to cooperate in placing it before the Court or for Channel 7 to seek appropriate orders under s 59J of the Evidence Act 1929 (SA). Finally, I considered that any resulting disruption to the trial could appropriately be remedied by a costs order against the plaintiff and in favour of Channel 7.
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 CORPORATION
Appendix 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:

Witness
Date of Statement Exhibit No.

George Svigos
2 October 1998 D29

Ian Parrish
15 June 1998
21 January 2004
6 November 2004

D32

Angela Hudoba 15 June 1998 D37

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.
These are civil, not criminal, proceedings. The statements each contained statements tending to establish a fact direct oral evidence of which was admissible in the proceedings. The statements were made to police and concern matters of which each witness had personal knowledge. Each of the four witnesses in question was called to give evidence. Each statement was signed on each page by the relevant witness. Thus, the requirements of s 34C(1)(a)(i), 34C(1)(b) and 34C(4) were satisfied.
Counsel for the plaintiff argued that the only use that could be made of such statements, if the relevant conditions were fulfilled, was for the purpose of refreshing memory. I reject that argument for reasons which appear below. Counsel also objected to the tender of the statements on the ground that Channel 7 sought to tender photocopies rather than the original statements. While it is true that sub-s 34C(1) requires production of the original document, sub-s 34C(2)(b) provides for the tender of a copy of the original document, or “the material part thereof”. Each witness gave evidence, which I accept, that they recognised the document shown to them as a true copy of the signed statement they gave to police. Each witness also gave evidence that it was their signature which appeared on the copy documents. I am satisfied that the documents produced are true copies of the original statements.
The plaintiff made a further objection that the documents produced were not true copies of the original statements, because parts of some of the statements had been redacted on public interest immunity grounds. As stated previously, sub-s 34C(2)(b) allows for the tender of a true copy of the “material part” of an original document. I am satisfied that the material part of each statement appears in the documents produced by Channel 7.
A third ground on which the plaintiff objected to the tender of the witness statements was based on s 34C(3), which effectively prohibits the tender of any statement “made by a person interested at a time when proceedings were pending or anticipated”. Two observations may be made about the application of that sub-section to the witness statements tendered in these proceedings. First, it does not appear that any proceedings were “pending or anticipated” at the time the statements were made. Proceedings are anticipated if it is regarded as likely or reasonably probable that they will occur.[191] No criminal proceedings have ever been commenced in respect of the murder of Corinna Marr. I consider that the statements were made in the course of routine police inquiries. While it may be that police were hoping that a person would eventually be charged with the murder of Ms Marr, it cannot be said that either the police or any of the witnesses positively “anticipated” any proceedings when the statements were made. I add for completeness that none of the statements were made in anticipation of the defamation proceedings before me. This is obvious because the statements were made prior to the alleged defamatory publication.
[191] Feltafield Pty Ltd v Heidelberg Graphic Equipment (1995) 56 FCR 481; Jarman v Lambert and Cooke Contractors Ltd [1951] 2 KB 937.
Secondly, none of the witnesses could readily be described as a “person interested” either in any potential murder trial or in these proceedings. A person interested, for the purposes of s 34C(3), is one who has a substantial material interest in the subject matter of the statement.[192] Mr Svigos, Mr Parrish, Ms Hudoba and Mr Faulkner all worked at Messenger at the time of the murder. None of them appear to have ever been suspects. None of them were close friends with Corinna Marr, although Ms Hudoba did meet Ms Marr and could remember having one conversation with her. These four witnesses simply assisted police with their inquiries. They have never had a substantial material interest in the outcome of these proceedings or of any anticipated or pending proceedings relating to the murder of Ms Marr. For these reasons s 34C(3) does not prevent the tender of the witness statements.
[192] Southern Equities Corporation Ltd (in liq) v Bond [2001] SASC 70, [280]-[291], (2001) 78 SASR 554, 592-593; Murray-Oates v Jjadd Pty Ltd [1999] SASC 537, [64]-[71] (1999) 76 SASR 38, 49-50; Murphy v Haskell [1961] SASR 1, 3.
Counsel for the plaintiff expressed some concern that the witness statements would be used as proof of the truth of statements made out of court. While at common law such a use may well be impermissible, s 34C clearly allows the statements to be used in that way. It provides that a statement of fact appearing in a document which satisfies the various conditions of s 34C is admissible as evidence of that fact.
There are only three circumstances under s 34C where the Court can exercise a discretion not to admit evidence of this nature. One is under sub-s (2)(a) where the maker of the statement is not called. That is not relevant here. Another is under sub-s (2)(b) where the original is not produced. I have dealt with that argument above. The third is under sub-s (5) but only where proceedings are with a jury. This Court does not sit in civil proceedings with a jury, so that provision has no practical application. I agree with Lander J in Southern Equities Corporation Ltd (In liquidation) v Bond (No 2)[193] that, unless the discretion is able to be exercised under one of the above provisions, the Court must accept the tender of the evidence if it is relevant.
[193] [2001] SASC 70, [244]-[249]; (2001) 78 SASR 554, 588-589.
The weight to be attached to any written statement admitted under s 34C is affected by s 34D:
34D—Weight to be attached to evidence
(1)In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
(2)For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by this Act shall not be treated as corroboration of evidence given by the maker of the statement.
As will be seen from the body of my reasons for judgment, I have taken those provisions into account when assessing the weight to be given to the written statements.
For these reasons I admitted each statement as evidence of the facts contained therein.
SANDS v CHANNEL SEVEN ADELAIDE PTY LTD & AUSTRALIAN BROADCASTING CORPORATION[194]
[194] See reasons for judgment Part 7.4.1.
Appendix 6 - Admission of Professor Byard’s Report
Professor Byard is a forensic pathologist who attended at Corinna Marr’s unit on the day of her death to make observations and who subsequently performed an autopsy. He wrote a report on the autopsy which included an opinion as to the probable time of death. A redacted copy of the report was produced under subpoena, the redaction having been made on grounds of public interest immunity relating to the still current investigation of Corinna Marr’s death. The portion of the report produced related to Professor Byard’s opinion concerning the probable time of death.
Counsel for Channel 7 sought to tender the redacted version of the report as a business record pursuant to s 45A of the Evidence Act 1929 (SA). Section 45A(1) provides:
(1)     An apparently genuine document purporting to be a business record—
(a)     shall be admissible in evidence without further proof; and
(b)     shall be evidence of any fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence).
For the purpose of that section “business record” is defined as meaning—
(a) any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or
(b) any reproduction of any such record by photographic, photostatic, lithographic or other like process.
The word “business” is defined as meaning—
business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality;
Factors to consider when determining whether a document was “prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business” include the nature of the record, its apparent author, to whom it was sent, its content and other matters to be inferred from the document itself.[195] Documents which have been held to be business records include patient medical records made and kept by a public hospital,[196] a medical analyst’s report provided to the Victorian police,[197] witness statements taken by police in the course of investigations,[198] and solicitor’s files.[199]
[195] Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (No 10) [2002] SASC 128, [34], (2002) 82 SASR 53, 61.
[196] R v Perry (No 3) (1981) 28 SASR 112.
[197] R v Perry (No 4) (1981) 28 SASR 119.
[198] Spicer v Coppins (1991) 56 SASR 175.
[199] In the Estate of Hassan (dec’d) [2008] SASC 14, [24], (2008) 100 SASR 464, 474.
It was not seriously disputed that Professor Byard’s report falls within the definition of “business record”. The report is published under the letterhead of a South Australian Government body known as the Forensic Science Centre. I accept that the Forensic Science Centre is a “business” within the meaning of s 45A. Furthermore, it may readily be inferred that a report prepared by a pathologist and bearing the organisation’s letterhead is a document produced in the ordinary course of the business of a forensic science organisation. Therefore I had little difficulty concluding that the report is a “business record” for the purposes of s 45A.
Section 45A(2) provides:
(2)A document shall not be admitted in evidence under this section if the court is of the opinion—
(a)    that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or
(b)    that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c)    that it would be otherwise contrary to the interests of justice to admit the document in evidence.

For the reasons which follow I decided that the report should be admitted without the necessity of Channel 7 having to call Professor Byard to give evidence of the matters contained in the report.
In the first place, this is a civil case. It is not a trial of a person for the murder of Corinna Marr. The probable time of death is not something which needs to be proved beyond reasonable doubt. Channel 7 was only required to prove on the balance of probabilities that there were reasonable grounds on which to suspect the plaintiff of the murder.
Channel 7 had opposed permission being given to the plaintiff to amend the plaintiff’s reply to Channel 7’s defence. Channel 7 failed in that argument for reasons which appear in Appendix 4. The effect of that successful application by the plaintiff was withdrawal by the plaintiff of his formal admission that the time of death of Corinna Marr was between about 2.30pm and 3.30pm on the day in which she died. The right to withdraw that admission was won by the plaintiff on the first day of the trial. Channel 7, at short notice, was therefore put to proof of one of the facts on which it relied for its defence of justification, namely that the death occurred between 2.30pm and 3.30pm.
At the time of tender of the report Professor Byard was overseas. It was uncertain precisely when he would return and whether that would be before the case concluded. It was uncertain as to whether and, if so, to what extent, the trial would be disrupted if Professor Byard were to be called.
The solicitors for the plaintiff had also consulted Dr Ross James, a retired forensic pathologist who was in practice at the time of the murder. He also attended at the murder scene with Professor Byard. He was aware of the circumstances and was available to give evidence.
In all those circumstances, I considered that the evidentiary weight of the document was not slight. It formed an important part of Channel 7’s defence of justification. The evidentiary weight of the document was not outweighed by the prejudice, if any, that might result to the plaintiff from the admission of the document in evidence. It was not otherwise contrary to the interests of justice to admit the document in evidence. Any potential prejudice to the plaintiff was relieved by his having access to and his ability to call Dr James, which indeed the plaintiff did.
SANDS v CHANNEL SEVEN ADELAIDE PTY LTD & AUSTRALIAN BROADCASTING CORPORATION
Appendix 7 - Admission of evidence of statements made by Corinna Marr to witnesses[200]
[200] See reasons for judgment Part 7.4.8.
The witnesses Mr Todd, Ms Halls and Ms Sheridan gave evidence of conversations they had had with Ms Marr in which she described her relationship with the plaintiff. Counsel for the plaintiff objected on the grounds of relevance and hearsay.
Mr Todd was Ms Marr’s employer at the time of her death. He said that Ms Marr had often spoken to him about the plaintiff. These conversations had commenced in June or July 1995 and had continued up until the time of Ms Marr’s death. Ms Marr told Mr Todd that the plaintiff was attractive and a good kisser. She told him that, about a month prior to her marriage in January 1996, she went to the plaintiff’s house and they had sex.
Ms Halls was a sales person at Weeks & Macklin. Ms Marr was her receptionist and the two formed a friendship which extended outside work. Ms Halls gave evidence about conversations in which Ms Marr had said she had had a sexual relationship with the plaintiff.
Ms Sheridan was a close friend of Ms Marr and was matron of honour at her wedding. She said that Ms Marr had told her several times, at various points before the wedding, that she had had sex with a man she had met who was a photographer.
Counsel for Channel 7 sought to have the evidence admitted as what he described as “relationship evidence”. He submitted that it was relevant and admissible as evidence of the plaintiff’s state of mind, of Ms Marr’s state of mind, and as “background” to put the narrative into context. It was further submitted that the evidence of Mr Todd, Ms Halls and Ms Sheridan was admissible to prove that there had been a sexual relationship between the plaintiff and Ms Marr. It was said that there was an exception to the rule against hearsay for evidence of this sort. In support of that proposition, a number of authorities decided in other jurisdictions were cited.[201]
[201] Eg R v Toki (No 3) [2000] NSWSC 999, (2000) 116 A Crim R 536; R v Lester [2007] QSC 229, (2007) 176 A Crim R 152.
It may be that evidence of statements made by Ms Marr would be admissible as proof that she was in a sexual relationship with the plaintiff under, for example, s 63 of the Evidence Act 1995 (Cth). However, in this State there are a limited number of exceptions to the hearsay rule and I am not satisfied that the evidence of Mr Todd, Ms Halls and Ms Sheridan falls within any of these exceptions. I was therefore not prepared to admit the evidence as proof that the plaintiff was involved in a sexual relationship with Ms Marr.
There is another use, however, to which the evidence may permissibly be put. Detective Sergeant Keane gave evidence of his observations of the crime scene. There was no sign of a forced entry, robbery or sexual assault. These factors tend to suggest that Ms Marr let the murderer into her house. They also suggest that the murderer was a person known to Ms Marr. Ms Marr’s body was found in her bedroom. She had changed her clothes since coming home from work. It is possible that she changed her clothes in the presence of the murderer. These matters are consistent with the murderer being a person with whom Ms Marr shared a close and intimate relationship. Ms Marr’s state of mind and her attitude towards the plaintiff are therefore relevant matters.
In Walton v The Queen,[202] Mason CJ said, in relation to statements by a person about his or her intentions or state of mind:[203]
[T]he better view is that evidence of such statements is not merely hearsay. Even when the testimony proffered is not that of the maker of the statement, but that of a person who heard the author make the statement, it is original evidence. It is because the making of the statement has independent evidentiary value in proving the author’s intentions, those intentions being a fact in issue or a fact relevant to a fact in issue, that the witness’s testimony does not infringe the hearsay rule. It is original evidence, rather than an exception to the hearsay rule …
[202] (1989) 166 CLR 283.
[203] Ibid 289.
Wilson, Dawson and Toohey JJ said in Walton:[204]
When a person’s state of mind is relevant, evidence tending to prove that fact is admissible. That evidence may, of course, take the form of conduct on the part of the person whose state of mind is in question from which the state of mind might be inferred. But it might also take the form of statements made by the person or by another from which a similar inference might be made.
In R v Matthews,[205] the appellant had been convicted of the rape and murder of his wife. Witnesses gave evidence that the victim had told them she was frightened of her husband and that he had made threats against her. The relevant principles and authorities were discussed by Bollen J,[206] who said[207]
The state of mind of the deceased in the days preceding her death and on the day and, indeed, at the time of her death was relevant "on" each charge. The deceased, of course, could not give evidence of this. She could not say that she was in fear of the appellant and wished to have nothing to do with him. But, nevertheless, the fact that she was in fear and had the wish not to see him at all was relevant. Statements made by the deceased to or in the presence of others could be proved by those "others". Such evidence is admissible. It is probably not hearsay. It is probably "original evidence" …
[204] Ibid 300.
[205] (1990) 58 SASR 19.
[206] Ibid 29-34.
[207] Ibid 29.
The evidence was held to be admissible, not as evidence that the threats had been made, but as evidence relevant to the issues of whether the victim had let the appellant into her house and whether she had consented to sexual intercourse. It was admissible, not under any exception to the hearsay rule, but as original evidence of the deceased’s state of mind.
I considered that the evidence of statements made by Ms Marr to the witnesses Mr Todd, Ms Halls and Ms Sheridan was admissible as original evidence of Ms Marr’s state of mind. It shows that she was on good terms with the plaintiff and that he was the sort of person whom she would allow into her house and in whose presence she might change her clothes. I admitted the evidence for that limited purpose.

Witness	Date of Statement	Exhibit No.
George Svigos	2 October 1998	D29
Ian Parrish	15 June 1998 21 January 2004 6 November 2004	D32
Angela Hudoba	15 June 1998	D37