Sands v State of South Australia

[2015] HCATrans 196

[2015] HCATrans 196

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A10 of 2015

B e t w e e n -

DERICK JOHN SANDS

Applicant

and

STATE OF SOUTH AUSTRALIA

Respondent

Application for special leave to appeal

KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 14 AUGUST 2015, AT 11.55 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR P.A. HEYWOOD‑SMITH, QC, for the applicant.  (instructed by Duncan Basheer Hannon Barristers & Solicitors)

MR D.A. TRIM, SC:   May it please the Court, I appear with my learned friend, MR H.M. HEUZENROEDER, in Adelaide, for the respondent.  (instructed by Crown Solicitor (SA))

KEANE J:   Yes, Mr Walker.

MR WALKER:   Your Honours, the first of the two points that we propose for a grant of special leave concerns a matter which, in our submission, is not covered by any authority in this Court and such general principles as are to be found in the authorities to which reference was made in the court below such as to raise rather than answer questions.

As your Honours appreciate, part of the reasons in the Full Court to which I am referring start in the application book at page 202 and it refers to what is conveniently called the strikeout of the justification defence.  That, in itself, of course, raises an issue which differs to a degree, perhaps in kind, from the way in which such matters may be thought to have been dealt with previously.  Previously, the issue has arisen concerning what happens when, by dint of something such as parliamentary privilege or by public interest immunity, there is either a preclusion of evidence or a non‑disclosure of potentially relevant material or a non‑answering of questions which might be thought to affect the orderly course of a fair trial.

In previous cases, the issue that has arisen concerns, in particular, whether or not proceedings ought to be stayed as the ultimate and, we accept, on the authorities and in principle, drastic consequence in appropriate cases which ought to be of an extreme kind when a fair trial is threatened by reason of those preclusive effects.

Now, this case is somewhat different and it particularly arises by reason of a pleading by the State.  This case is different because it arises not in relation to special quasi‑constitutional matters such as parliamentary privilege, but it arises with one of the most commonly invoked public interest immunities, namely, to do with not only ongoing police investigations but with investigative techniques more generally.  That is a very common ground of public interest immunity claims being made and upheld. 

It is piquant, therefore, that the matter arises in the setting of a pleading of justification by the State of defamation committed by a police statement concerning a conclusion offered by the police as to the statement of investigation.  There is a statement made about the plaintiff by the police.  The imputation in question after the disputes about it are, as your Honours know, that there are reasonable grounds to suspect him of murder.

The police made that statement, the hypothesis we are addressing, of course, is that that is the imputation which was defamatory.  That is now established between these parties.  They plead justification.  By pleading justification, of course, they make critical the effect of all the material, good, bad and indifferent, possessed by the police at the relevant time when the publication was made.  In our submission, it can be seen then that the justification…..in itself puts not just front and centre but as the whole universe of inquiry the very material over much of which then a claim of public interest immunity is made.

Your Honours will appreciate that the difficulties that that raises, the tensions that that sets up were early at first appreciated by the State to such an extent that they themselves thought a stay of the proceedings on the basis that they could not, by reason of public interest immunity, advance their justification defence.

Now, the boot is on the other foot.  As it transpired ‑ your Honours have seen the quite complex pre‑trial history ‑ the question of a strikeout, the functional equivalent of the stay, if you like, a strikeout of the justification plea was argued on behalf of Mr Sands at trial and then reargued on…..in the manner I am going to show on the basis that the public interest immunity claim treated in accordance with the principle as something not for a litigant to waive or to make tactical decisions about but as a matter of important public policy requiring to be claimed if it existed and not to be waived.

KEANE J:   Requiring to be upheld by the court if it existed.

MR WALKER:   All of that, yes.

KEANE J:   There being no suggestion that it was not rightly found to exist.

MR WALKER:   All of that is correct, yes, your Honour.  We say that those last two matters, in particular, are matters which frame an issue for this Court.  That is, there is no muddying the waters here.  There is no attempt by us to cast doubt upon the correctness of the claim or the order.

NETTLE J:   But you have got the trial judge saying that the claim is justified having looked at the documents.  You do not dispute that finding in the Court of Appeal.

MR WALKER:   Quite so.  We embrace it, your Honour.  We embrace it and say that really does raise a very important question for the operation of the courts.  A proper claim, properly made and upheld means that material which is part of the whole which needs to be consistent in order to investigate and test a justification plea is, at the outset, truncated.  Now, properly truncated by reference to PII to which we say the proper response for the administration of justice is that so great is the effect a priori and for the whole of the trial, so great is the effect of that PII decision that the plea ‑ ‑ ‑

NETTLE J:   Must be upheld.

MR WALKER:   ‑ ‑ ‑ of justification cannot fairly be tried and so it should have been struck out.

KEANE J:   So, the Executive Government of the State is unable to have its issue determined because of the operation of public interest immunity which arises without being invoked by the Executive Government of the State. 

MR WALKER:   It arises, as it were, without there being any proper, either liberty or worse, duty on the State not to make the claim.  The nature of the claim is, as it were, it is immanent.  It comes from the material, the circumstances and proper action by practitioners for the State is to make the claim and the proper response by the court is to uphold it because that is, after all, why it is called public interest immunity.  Now, we say ‑ ‑ ‑

NETTLE J:   Can we just come back for a moment.  If you have got a determination by the trial judge, which is not disputed, that the claim for public interest immunity will not be productive of such unfairness if upheld that the pleading should be struck out, where does the issue arise?

MR WALKER:   If that is where the matter rests, your Honour, there is no special leave point at all.  It is our attempt to persuade your Honours that the Court should examine that proposition, that is, can one say in the manner that the Full Court has said that public interest immunity does not have effect on fair trial.  Now, let me make it crystal clear.  If the matter remains properly viewed, as Justice Nettle has put it, there is neither error nor, as it happens, any reason for special leave.  So, may I take you to the way in which that matter is particularly framed?

Starting at page 202 their Honours turn to matters of principle and your Honours know that there is an attempted analogy with the parliamentary privilege cases to which I will only make passing reference.  But, in the course of that, at page 204, in paragraph 153, one of the steps in the reasoning which draws an analogy with the power to stay a case is noted.  On page 206, in paragraph 156, up to the top of page 207, one sees the way in which it was framed on behalf of our client.  The power to strike out which their Honours against argument on behalf of the State had found should exist, submission for us in 156 is noted that that power:

should be exercised in respect of a plea of justification whenever police choose to defame a person –

that is voluntary, unlike a claim of PII ‑

by asserting that he or she is suspected on reasonable grounds of committing a crime and the police raise a claim for public interest immunity over information within their investigation file.

NETTLE J:   But what about the preceding sentence:

makes it impossible fairly to determine –

You have got a determination by the judge that it is not deductive of such unfairness that it is incapable of being fairly determined.

MR WALKER:   Of course, in our submission, that then leads to the way in which the Full Court deals with what I am going to call the actual or specific or demonstrated prejudice point which, we think, with respect, is at the heart of the matter that your Honour has raised with me.  We submit it is self‑evidently a matter of great public importance and for these reasons.  In relation to the immunity…..matters are plainly and correctly stated in paragraph 159 on page 207 with the sting in the tail in that last sentence:

Material that is subject to public interest immunity generally cannot be disclosed and the immunity cannot be waived by a party to proceedings.

So, at that point it is known that there cannot be knowledge on the part of, in this case the plaintiff, of the extent and nature of the material.  That leaves only two, if you like, forensic mentalities with access to it, the defendant, who not coincidentally is privy to the material ‑ this is not like a dispute between two parties, both of whom are denied PII material ‑ one party, indeed, is in effect the author of it.  It would be ‑ ‑ ‑

KEANE J:   Mr Walker, sorry to interrupt you, but you are really pointing out the nature of this conundrum that how does one solve it, and in this case at your clients ‑ I will not say “urging”, but certainly with your client’s consent, the trial judge cut the Gordian knot by looking at the material and concluded that it did not – it was not apt to advance your client’s case.

MR WALKER:   We do not know that all of the PII material was looked at by the judge and we can say that with some feeling in particular.  We do not know.  There are obviously – there are no disclosures or reasons which could give rise to that at all.

NETTLE J:   But you must surely be taken to accept these findings about that?

MR WALKER:   Absolutely, and there is no qualification to that at all.

KEANE J:   Then, on appeal your client took the position of urging the court not to look at material.  So that what we are looking at is this very difficult conundrum.  The court pursued a particular method of solving it on your client’s urging and then the Full Court did not review the trial judge’s…..Once again, on your client’s urging.

MR WALKER:   I think that is, with respect, correct as to both stages.  May I concentrate on what happened in the Full Court?

KEANE J:   Sure.

MR WALKER:   At the top of page 208, quoting from Justice Peek’s reasons at the stage where the matter was, as it were, put over to the trial, you will notice that Justice Peek anticipates at the top of page 208 in paragraph 160 the following:

if the plaintiff were to suggest at trial that the defendant actually did have material in his possession that tends to lessen –

et cetera.  That is, of course, a circumstance which can never happen except by fortuitous perhaps deplorable accident, lack of security or care on the part of those responsible for making the claim, or is a reference to what can only be described as inspired guess work.  It might be guess work based upon experience of police investigation but that is all.

Now, that really provides an indication of the dilemma that courts are placed in here.  How can a plaintiff in such a case ever come without mere speculation of a kind that would be most unhelpful and perhaps extremely invidious in relation to the contents of an investigation file, ever come to make such a suggestion forensically responsibly.  Then you notice what his Honour’s suggestion is in that event, namely, you revisit PII.  Well, no, not in theory or on principle.  The balance has been struck by the finding of PII.  The public interest requires it not to be disclosed and that is made in the context of that other aspect of the public interest which is the open administration of justice and the availability of evidence et cetera, et cetera.

Then one comes down to the commentary by their Honours about the way in which the matter was argued in the Full Court.  Paragraph 162 you have already seen.  Number 1 is, as it were, the abstract, number 2 is the slightly less abstract.  In paragraph 163 of number 2, their Honours, if I may say so, themselves understandably uses the phrase “perhaps understandably” to describe the lack of particularity in even the less abstract proposition.  That is the nature of the position we are put in.  We cannot say what it is we do not have.

Now, then the logic follows that one sees in paragraph 165.  I am not going to ignore 164 but I am coming back to it, but the logic follows in 165.  Namely, it might be, to use my expression earlier, good, bad or indifferent, “equally likely . . . it would not have assisted him”.  Now, that is again the nature of things.  So, it means, as it were, by rule – not by an ad hoc decision, it means by rule ‑ a plaintiff can never point to something which will either enhance or detract from respectively his or the opponent’s case. 

Now, that really means that the whole matter is left entirely in the hands of a judge.  In our submission, it is at that point that the authorities do not extend that in relation to whether the material would help materially, it does not have to be a knockout blow on its own because we know that a holistic view in a justification case has to be taken of all the available material to justify the police’s defamation.  You have to look at all of it.

So, as to any bit that is kept out by PII under the law as it stands following this decision, the trial judge makes, as it were, vicariously a decision for the plaintiff, because if the trial judge had come to the conclusion that PII was precluding the plaintiff to having access to material which the plaintiff could properly argue detracted from the reasonableness of any suspicion then it is clear from their Honour’s reasoning that that would give rise to an occasion to consider favourably the exercise of the power to strike out the defence.

NETTLE J:   Just looking again at propositions 1 and 2 in paragraph 162 of the Full Court’s reasons, does the argument amount to this?  That the error of the court below and the point of principle now raised by the application is that whenever there is a claim for public interest immunity in a defamation case that claim must be struck ‑ ‑ ‑

MR WALKER:   If it is a claim by – if the plea of justification is to say that there were reasonable grounds for suspicion and the PII removes the material in which those grounds must be found – that is, the material available to the police because it has got to be actual not constructed after the event, then, in our submission, the proposition for which we contend is, as your Honour has just put ‑ ‑ ‑

NETTLE J:   And that is, as it says, “regardless of the probative value of that material” and regardless, as it were, of whether the trial judge looks at it and says, well, it really does not make much difference.

MR WALKER:   It has to be that strong because, in our submission, what is at the heart of the matter here is that a judge should not be placed in a position of making adversarial judgments, as it were, vicariously on behalf of the plaintiff.  Of course the judge will not do it that way.  It would be contrary to every instinct for that to be the case and that is why, in our submission, there is a special leave point.  If it please the Court.

KEANE J:   We need not trouble you, Mr Trim. 

The applicant’s conduct of the case in the courts below makes this case an unsuitable vehicle for the consideration of the public interest immunity issue and concurrent findings of fact by the courts below as to reasonable suspicion mean that there are not sufficient prospects of success on that issue to warrant the grant of special leave.  Special leave is accordingly refused with costs.

AT 12.16 PM THE MATTER WAS CONCLUDED