Sands v State of South Australia

[2015] SASCFC 36

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

SANDS v STATE OF SOUTH AUSTRALIA

[2015] SASCFC 36

Judgment of The Full Court

(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Nicholson)

31 March 2015

DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION - CRIMINAL

DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - REFERENCE TO PLAINTIFF - INNUENDO

DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING

DEFAMATION - JUSTIFICATION - GENERALLY - WHETHER PLEA ESTABLISHED

DEFAMATION - PRIVILEGE - ABSOLUTE PRIVILEGE - OTHER CASES

DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST - PARTICULAR STATEMENTS - PUBLICATION FOR THE PUBLIC GOOD

DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - REBUTTAL OF PRIVILEGE BY MALICE - GENERALLY

STATUTES - ACTS OF PARLIAMENT - ENFORCEMENT OF STATUTORY RIGHTS AND REMEDIES - BREACH OF STATUTORY DUTY - GENERALLY

Appeal against dismissal by a Judge of the Supreme Court of an action for defamation and breach of statutory duty.

On 4 July 1997, South Australian Police commenced an investigation into the murder on that afternoon of Corinna Marr at her Collinswood unit.  The plaintiff, Mr Sands, who was then employed as a photographer by Messenger Press, was a friend of Ms Marr.  Mr Sands provided a statement to SA Police on 30 August 1997 and was formally interviewed by police on 8 October 2002.

On 2 March 2004, an application by SA Police for an order under the Criminal Law (Forensic Procedures) Act 1998 (SA) to compel Mr Sands to supply his fingerprints was heard and determined by a Magistrate. The order was made by the Magistrate and Mr Sands complied. The hearing was attended by representatives of the media and was widely reported in South Australia that evening and the following day.

On 3 March 2004, Detective Superintendent Symons conducted a press conference. Before its commencement, he handed to the media representatives a media release, which was also published on the SA Police website.

In September 2005, Mr Sands instituted the action against the State of South Australia for, inter alia, defamation and breach of statutory duty arising from the Criminal Law (Forensic Procedures) Act 1998 (SA).

At trial, it was not disputed by the State that imputations were conveyed by the media release and at the press conference that there were reasonable grounds to suspect Mr Sands of having murdered Corinna Marr and that he had so conducted himself as to warrant that suspicion.  The State denied that three further pleaded imputations were conveyed, namely that there were strong grounds to suspect that Mr Sands had murdered Corinna Marr; that as there were such strong grounds, he was the prime suspect setting him apart from any other suspect; and that the police had information placing him at the scene of the murder which he knew about and refused to challenge.

Before trial, Mr Sands filed an interlocutory application seeking to strike out the State’s pleas of justification and qualified privilege on the ground that it was not open to the State to assert publicly that Mr Sands was a suspect and then to rely upon public interest immunity to prevent his challenging that assertion.  That application was dismissed by a Judge. Mr Sands renewed the application before the trial Judge and the trial Judge dismissed it at the commencement of trial.

The State pleaded justification, qualified privilege and privilege arising from section 7 of the Wrongs Act 1936 (SA).

Shortly before the commencement of trial, Mr Sands was made bankrupt. The State filed an interlocutory application contending that the action was stayed pursuant to section 60(2) of the Bankruptcy Act 1966 (Cth) until Mr Sands limited his claim to damages in defamation for loss of personal reputation excluding economic loss. The Judge dismissed that application at the commencement of trial.

Following a lengthy trial, the Judge delivered judgment dismissing the action. The Judge found that the three additional alleged imputations were not conveyed. The Judge found that the two imputations that were conveyed were justified, relying principally on findings that Mr Sands lied to police about and could not account for his whereabouts on the afternoon of the murder, lied to police in denying a sexual relationship with Ms Marr and lied to police about the timing of his last communication with Ms Marr. The Judge rejected the defences of qualified privilege and privilege under section 7 of the Wrongs Act 1936 (SA). The Judge rejected Mr Sands' contention that the State breached the Criminal Law (Forensic Procedures) Act 1998 (SA).

Mr Sands appeals against the dismissal of the action, contending that the Judge erred in finding that the additional imputations were not conveyed, that the defence of justification was made out, that the State was entitled to rely upon the defence of justification given the existence of material protected by public interest immunity and that the State did not breach the Criminal Law (Forensic Procedures) Act 1998 (SA).

The State contends under a notice of alternative contention that the Judge erred in finding that Mr Sands pleaded identification by reference to extraneous facts, in rejecting its defences of qualified privilege and privilege under section 7 of the Wrongs Act 1936 (SA) and in refusing to stay the action by reason of section 60(2) of the Bankruptcy Act 1966 (Cth).

Held (by the Court):

1. The Judge correctly concluded that no part of Mr Sands’ cause of action in defamation was stayed by section 60 of the Bankruptcy Act. Mr Sands had a single indivisible cause of action in defamation which was properly characterised as a right to recover damages for personal injury or wrong done to Mr Sands within the meaning of section 60(2)(g)(i). Sections 60 and 116 do not bifurcate a single indivisible cause of action such that some heads of damage remain in the bankrupt and other heads of damage are vested in the trustee (at [91-[95], [137]-[140]).

2.       The Judge correctly concluded that Mr Sands failed to demonstrate a basis for striking out the State’s pleas of justification and qualified privilege or precluding the State from relying upon those defences merely because of the existence of relevant material the subject of public interest immunity.  It is not sufficient for this purpose that there is a mere possibility that Mr Sands might have been deprived of evidence relevant to an issue in the case (at [159], [165]-[167]).

3.       The Judge correctly found that the three additional alleged imputations were not conveyed (at [193], [198]-[204] and [206]-[207]).

4.       Mr Sands sufficiently pleaded facts by reason of which he was identified by persons with extrinsic knowledge as the suspect the subject of the media release and press conference (at [223]).

5.       Imputation (e), if made out, would have been defamatory (at [225]).

6.       The Judge did not err in finding that the two imputations that were conveyed were justified (at [407]).

7.       The Judge correctly concluded that section 7 of the Wrongs Act 1936 (SA) had no application to the media release or the press conference because:

(a)     they were not a notice or report within the meaning of the section;

(b)     there was no request made to the media to publish them within the meaning of the section; and

(c)     the section only applies to publications by the media

(at [415]-[417]).

8.       The Judge correctly concluded that the defence of qualified privilege was not made out because, the defamatory imputations were not sufficiently connected to the occasion of privilege to attract the defence (at [437]-[438]).

9. The Judge correctly concluded that the State did not contravene section 48 of the Criminal Law (Forensic Procedures) Act 1998 (SA) because the media release and press conference did not constitute a report of proceedings under that Act (at [457]-[459]).

10.     Appeal dismissed (at [461]).

An Act to amend the Laws relating to Bankrupts 1825 (6 Geo IV, c 16) (Eng) s 63; Bankruptcy Act 1966 (Cth) (Cth) s 60, 116; Bankruptcy Act 1869 (Eng); Criminal Law (Forensic Procedures) Act 1998 (SA) ss 19, 20, 48; Defamation Act 2005 (SA) s 6, s 8; Supreme Court Civil Rules 2006 (SA) r 285(4); Wrongs Act 1936 (SA) s 7; Insolvency Act 1986 (UK) s 2A3, s 306, s 436, referred to.
Prebble v Television New Zealand Ltd [1995] 1 AC 321; Rann v Olsen [2000] SASC 83, (2000) 76 SASR 450, applied.
Millane v Shire of Heidelberg [1936] VLR 8; Re Linklater; Ex Parte  Mount Unreported, Federal Court of Australia 1991 (BC 9101907), not followed.
Barton & Anor v The Queen & Anor (1980) 147 CLR 75; Bashford v Information Australia (Newsletters) Pty Ltd Pty Ltd [2004] HCA 5, (2004) 218 CLR 366; Beaudesert Shire Council v Smith [1966] HCA 49, (1966) 120 CLR 145; Beckham v Drake (1849) 2 H.L Cas 579, 9 ER 1213; Bride and Bride v Peat Marwick Mitchell [1989] WAR 383; Briginshaw v Briginshaw (1938) 60 CLR 336; Bruce v Odhams Press Ltd (2008) 101 SASR 141; Bryant v Commonwealth Bank of Australia [1997] FCA 582, (1997) 75 FCR 545; Bullock v Goodluck and the Transport Commission (1983) 48 ALR 217; CDJ v VAJ (1988) 197 CLR 172; Cox v. Journeaux (No 2) (1846) 8 ER 1586; Cush v Dillon [2011] HCA 30, (2011) 243 CLR 298; Faulkner v Bluett [1981] FCA 3, (1981) 52 FLR 115; Flood v Times Newspapers Ltd [2012] UKSC 11, [2012] 2 AC 273; Fox v Percy [2003] HCA 22, (2003) 214 CLR 118; Grubb v Bristol United Press Ltd [1963] 1 QB 309; Harrison v Bush (1855) 5 E & B 344, 119 ER 509; Hodgson v Sidney (1866) LR 1 Ex 313; Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd (1984) 73 FLR 88; Howard v Crowther (1841) 8 M & W 602, 151 ER 1179; Lane v Channel 7 Adelaide (2008) 101 SASR 141; Lewis v Daily Telegraph Ltd [1964] AC 234; Mannigel v Hewlett Phelps & Ors Unreported, New South Wales Court of Appeal 1991 (BC 9101907); Merry v The Queen & Ors (1887) 13 VLR 264; Moss v Eaglestone [2011] NSWCA 404, (2011) NSWLR 476; Northern Territory v Mengel (1995) 185 CLR 307; Ord v Upton [2000] Ch 352; Papaconstuntinos v Holmes a Court [2012] HCA 53; Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [2009] 238 CLR 460; Re Dosanjh; Ex parte Duus (1995) 56 FCR 521; Rogers v Spence (1846) 12 Cl & Fin 700, 8 ER 1586; R v H [2004] UKHL 3, [2004] 2 AC 134; Secretary of State for the Home Department v MB [2007] UKHL 46; Ten Group Pty Ltd & Ors v Cornes [2012] SASCFC 99, (2012) 114 SASR 46; Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 141; Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69; Walton v Gardiner (1993) 177 CLR 378; Wenlock v. Maloney & Ors (1967) 111 Sol Jo 437; Williams v Spautz (1992) 174 CLR 509; Wilson v United Counties Bank Ltd [1918-19] All ER Rep 1035, [1920] AC 102, discussed.
Baltic Shipping Company v Dillon (1993) 176 CLR 344; Brunsden v Humphrey (1884) 14 QBD 141; Chase v News Group Newspapers Ltd [2003] EMLR 11; Daemar v Industrial Commission of New South Wales & Ors (1988) 12 NSWLR 45; Dearman v Dearman (1908) 7 CLR 549; Ex parte Vine; In re Wilson (1878) 8 Ch D 364; Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223; Rogers v Spence (1846) 12 CL & Fin 700, 8 ER 1586; Sands v Channel Seven Adelaide Pty Ltd & Anor [2009] SASC 215; Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202; Sands v The State of South Australia [2010] SASC 340; Sands v The State of South Australia [2011] SASC 146; Sands v The State of South Australia [2012] SASC 159; Sands v The State of South Australia [2012] SASCFC 136; Scott v Pauly (1917) 24 CLR 274; Shah v Standard Chartered Bank [1999] QB 241, considered.

SANDS v STATE OF SOUTH AUSTRALIA
[2015] SASCFC 36

FULL COURT:         Blue, Stanley and Nicholson JJ

1. This is an appeal by the plaintiff Derick John Sands from a judgment of a Judge of this Court dismissing the appellant’s action for defamation and breach of statutory duty.[1]  The action was brought in respect of the conduct of the defendant and respondent the State of South Australia, in particular the South Australian Police Force (SA Police), in the course of a murder investigation. 

   [1]    Causes of action for breach of duty of care, duty of confidence and duty of privacy were also dismissed. As there is no appeal against the dismissal of those causes of action, they can be ignored.

   Background

2. On Friday 4 July 1997 Corinna Marr was murdered.  She was shot while in her Collinswood unit.  She had left her place of employment at Weeks & Macklin’s Firle office some time between 2.00 and 2.30 pm.  At 4.02 pm, her husband Robert Marr telephoned 000 to report that he had just discovered her body.  The pathology evidence gave an estimated time of death between 2.30 pm and 3.30 pm although it was conceded it possibly could have been as late as some time after 3.40 pm.   

3. No person has been charged with the crime.  No murder weapon was ever found.  The crime remains unsolved. 

4. At the time of the murder, Mr Sands was 27 years old. He had known Ms Marr since May 1995.  He met her through his employment as a photographer with Messenger Press.  They became friends.  Whether the friendship developed into a sexual relationship was an issue at the trial.  When Mr Sands met Ms Marr, she was engaged to Robert Marr.  She married Robert Marr in January 1996.   

5. Messenger Press publishes several weekly suburban newspapers for distribution in metropolitan Adelaide.  Mr Sands commenced employment with Messenger Press in 1988.  In July 1997 he was employed mainly at its Port Adelaide office but he also performed work from time to time at its Salisbury office.  He had available a work-supplied motor vehicle.  He also undertook freelance photography work. 

6. Ms Marr was employed as a receptionist at the office of the real estate agent Weeks & Macklin at Firle.  She also undertook part-time modelling.  Weeks & Macklin advertised through Messenger Press.  Ms Marr first met Mr Sands when he visited the Weeks & Macklin office to carry out a photographic assignment.    Mr Sands visited the Firle office on a number of occasions to see Ms Marr.  These visits were not work-related.  They also met on a number of occasions outside the Weeks & Macklin office and on at least one occasion at Mr Sands’ residence.  Mr Sands and Ms Marr went on photographic shoots together to various locations outside Adelaide.   

7. On the morning of 4 July 1997, Ms Marr attended work at the Firle office of Weeks & Macklin.  By arrangement with her manager, Colin Todd, she left work early between 2.00 and 2.30 pm to attend a modelling assignment at the Woodville Hotel.  She had arranged with Mr Todd that he would collect her from her home and accompany her to the Woodville Hotel.  The modelling assignment required her to wear an outfit that she collected earlier that day.  It was arranged that she would change into that outfit at home and Mr Todd would collect her sometime between 3.30 and 3.45 pm.  As it transpired, Mr Todd was running late.  He telephoned Ms Marr’s unit at about 4 pm.  He spoke to Mr Marr who told him that she was dead. 

8. Police investigating Ms Marr’s murder spoke to Mr Sands within a week of her death.  He was interviewed by police on 30 August 1997.  He was reinterviewed by police on 8 October 2002. 

9. On 24 January 2004, police conducted a search of Mr Sands’ house and he voluntarily supplied a DNA sample but declined on legal advice to supply fingerprints. 

10. On 25 February 2004, the Police filed in the Magistrates Court an application pursuant to sections 19 and 20 of the Criminal Law (Forensic Procedures) Act 1998 (SA) to compel Mr Sands to supply his fingerprints. The application was supported by an affidavit of Detective Keane outlining the basis of SA Police’s suspicions concerning Mr Sands (Detective Keane’s affidavit). 

11. The fact of the application was ascertained by members of the media.  An article revealing the fact of the application, but not Mr Sands’ name, appeared in The Advertiser on 28 February 2004.  Mr Sands alleged in the action that this was the result of an intentional leak of the application and/or supporting affidavit by an unnamed officer of SA Police (the alleged leak). 

12. On the afternoon of 2 March 2004, the application was heard by a Magistrate.  The hearing was open to the public and attended by representatives of the media.  The Police tendered Detective Keane’s affidavit.  The Police and Mr Sands made submissions whether the criteria in section 26 had been satisfied, which criteria included that there were reasonable grounds to suspect that Mr Sands had committed a criminal offence, and whether the Magistrate should make an order. The Magistrate ordered that Mr Sands supply his fingerprints to the police.  He did so. 

13. On the morning of 3 March 2004, The Advertiser published an article reporting the proceedings in the Magistrates Court.  The person the subject of the proceedings, while not named or ostensibly identified, was described as the prime suspect in the murder. 

14. On the afternoon of 3 March 2004, a press conference was held by SA Police.  SA Police handed to the media representatives a media release, which was also published on the SA Police website (the Media Release). 

15. The Media Release was in the following terms:

    Detectives continue investigation into Marr Murder

    Major Crime Detectives advise the finger prints taken from a nominated suspect under an order obtained under the Criminal Law (Forensic Procedures) Act DO NOT match finger prints found at the scene of Ms Marr’s murder.

    Detective Superintendent Symons said the finger prints obtained as a result of the order from the Magistrates Court have been compared against unknown fingerprints left at the murder scene.

    “The fingerprints of the suspect do not match those left at the scene,” he said.

    “However, it is important to appreciate that this finding, does not in itself, reduce the suspicion factor against the person nominated in the affidavit supporting the application for the order.”

    “The affidavit clearly outlined the reasons why this particular person is a suspect in the murder of Ms Marr,” he said.  “These reasons have not changed – the person is and will remain a suspect in this matter until it is cleared up.”

    Superintendent Symons said “The murder of Ms Marr was particularly cold blooded – the person who committed this murder had no feeling for her or for her family.”

    Ms Marr was murdered in her unit at Collinswood (3/24 Howard Street) in the afternoon of Friday 4 July 1997.

    Superintendent Symons said that officers of the Major Crime Investigation Branch will continue their inquiries into this murder.

    “It is important to us and to the family of any murder victim that we bring the offender before the courts,” he said.  “This helps the family in reaching some form of closure to a tragic event.”

    Police are still seeking any information in relation to this matter.  There is a reward of $100,000 for any information leading to the conviction of a person or person/s for the murder of Ms Marr.  Anyone with information is asked to ring Bank SA Crime Stoppers on 1800 333 000.

16. The press conference was conducted on behalf of SA Police by Detective Superintendent Symons.  Before the press conference proper commenced, Detective Symons made some preliminary remarks to the media representatives about the process for the press conference and foreshadowing what he would or would not address (the Preliminary Remarks). He said:

    [We made an application in the Magistrates Court under the] Forensic Procedures Act to take fingerprints from a person that we declared a suspect in the Corinna Marr murder of the 4th July 1997. 

    The process went its due course; we submitted an affidavit in that Court. I don’t know whether you’ve had a chance to look at that affidavit, had access to the affidavit at all, I don’t know whether it’s being produced, but obviously if you were in court yesterday or anyone who was in court there were certain matters raised in the Court by both the defence and by the prosecution, in relation to that matter.  I can’t go into that because it’s before the Court yesterday, so I can’t elaborate on what was said in court, you need to appreciate that and understand that what was said there is where you should’ve got it from, and I can’t go any further and I won’t be going any further on what was said there.

    However what I will tell you and in response to questioning I’ll say point blank is that, well basically the fingerprints that were taken do not match fingerprints or unknown prints we had at the scene.  And that let me tell you is no great surprise to us, no great surprise to me.  The situation with that is the actual murder of Ms Marr and I’m not going to go into the specific details we never have and we never will, except suffice to say that she was shot, and I won’t tell you how many times for operational reasons.  Nor will I tell you where she was shot and that’s in what part of the body she was shot for the same operational reasons and that’s becoming even more important now when you bear in mind the rationale behind this investigation.  But it’s important to appreciate the finding of the fact that the fingerprints did not match does not in any way move away from the information that was tendered in that affidavit.  That information was correct at the time of tendering the affidavit; it remains correct now; the person is a suspect and will remain a suspect until the matter is cleared up.

1. The press conference proper was recorded by the television media on videotape.  The press conference relevantly comprised the following statements by Detective Symons (the Press Conference):

   The fingerprints that we took yesterday as a result of an order under the Criminal Law Forensic Procedures Act do not match the fingerprints left at the murder scene in 1997.  However, it is important to note that the failure of the fingerprints to match in no way lessens our suspicions which are outlined in court documents in relation to the suspect that we took the fingerprints from. 

   This particular person has been a suspect for some time; he is aware that he is a suspect and he has been interviewed on a number of occasions.  The affidavit tendered in court yesterday outlined certain conflicting issues that we identified in the course of our interviews. 

   It is important to understand that the murder of Ms Marr was clearly cold blooded and deliberate.  For operational reasons I will not go into the specific details of the murder; suffice to say that the person who committed the crime as I said it was a cold blooded killing virtually on an execution style. Members of the Major Crime Investigation Branch will not stop investigating this matter. It is important to us, it is important to the family of Ms Marr and it is important to the community that we bring this matter before the courts and with that in mind we will continue to investigate and continue to apply resources until the matter is cleared up.  There is a $100,000 reward for any information leading to the conviction of the offender or offenders involved in the murder of Ms Marr.  If anyone has any information we’d like them to contact Bank SA Crime Stoppers on 1800 333 000 to help us to solve this very serious crime.

   Media:       What more can you do now in your investigation into this case?

   Symons:     We’ve had discussions with the suspect’s lawyer today, we have advised him of exactly what the proceedings will be in the future and where we will be going.  At the present moment there is a gap, a credibility gap that needs to be closed; the suspect is aware of that and if he can provide information that clearly removes him from the crime scene and from any time relating to the crime we would be prepared to examine that; until then he still remains a primary suspect in this investigation.

   Media:       Do you have any other suspects?

   Symons:     We have a number of other persons we’ve looked at and followed up a number of other inquiries in relation to it.  However, each of those inquiries at the present moment have not been as strong as this particular person, and we will continue to focus on this person. However that is not to say that if anything else came up that we wouldn’t follow that.  So, if anyone has any other information at all concerning the murder of Ms Marr we need to know about it.[2]

   [2]    At the conclusion of the press conference, an additional question was asked and answered but neither party relies upon this part of the press conference.  This part was as follows:

   Media:                  You obviously can’t comment on the claims by the defence.

   Symons:       The bottom line with that is we have various ways of investigating homicides, investigating murders; those comments are ones that would expect to come from the defence. Well I’m not commenting any further on that except to say what we are doing.

2. The Press Conference was televised or partially televised that evening by South Australian television broadcasters as part of their television news programs (the evening news programs).  Without naming the suspect, one of those programs described the suspect as a “34-year old professional photographer”.  The next day, on 4 March 2004 The Advertiser published an article based on the Media Release and Press Conference. 

3. On 14 May 2004, Channel Seven Adelaide broadcast a promotion for a story on its Today Tonight program in which it was alleged that a member of the House of Representatives, Trish Draper, was accompanied on a Parliamentary visit to Europe by her boyfriend who was a suspect in a murder investigation.  Mr Sands was not named, but a photograph of Corinna Marr was shown and separately footage of Mr Sands was shown.  A further promotion was broadcast by Channel Seven Adelaide the next day. 

4. In May 2004, Ms Draper brought an action against Channel Seven Adelaide in the District Court seeking an injunction to restrain it from broadcasting the Today Tonight program the subject of the promotions (the Channel 7 promotions).  An interim injunction was granted, but was discharged on appeal to a Judge of this Court.

5. The Australian Broadcasting Corporation broadcast reports on 19 May 2004 of the injunction proceedings in which it named Mr Sands as Ms Draper’s boyfriend and the suspect in the murder investigation (the ABC reports).

6. Later that year, Mr Sands sued Channel Seven Adelaide and the ABC in defamation for the publication of these reports (the Channel Seven action). 

   The proceedings

   History

7. Mr Sands instituted this action in September 2005 and amended his statement of claim in February 2006. 

8. Mr Sands alleged that he was defamed by the publication of the alleged leak to The Advertiser and by republication thereof, in the articles in The Advertiser on 28 February 2004 and 3 March 2004, being a natural and probable consequence of the initial publication.

9. Mr Sands alleged that he was defamed by the publication to the media of the Media Release and the statements made by Superintendent Symons during the Press Conference and by republication thereof, in the evening news programs and the article in The Advertiser on 4 March 2004, being a natural and probable consequence of the initial publications.

10. Mr Sands alleged that the Channel Seven promotions and the ABC reports comprised republications of the initial publications, being a natural and probable consequence of the earlier publications. 

11. Mr Sands pleaded that the Media Release and the Press Conference gave rise to the following imputations:

    (a)there are strong grounds to suspect that the plaintiff murdered Corinna Marr;

    (b)alternatively, there are reasonable grounds to suspect that the plaintiff murdered Corinna Marr;

    (c)the plaintiff had so conducted himself as to warrant the suspicion pleaded in sub-paragraph (a) and/or (b).

12. The parties acquiesced in  this action  generally awaiting the trial of the Channel Seven  action. In July 2009, that action was dismissed.[3]  An appeal to this Court was dismissed.[4]

    [3]    Sands v Channel Seven Adelaide Pty Ltd & Anor [2009] SASC 215.

    [4]    Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202.

13. After the dismissal of the Channel Seven action, Mr Sands sought and in February 2010 was granted permission by a Master to amend his statement of claim to plead two additional imputations:

    (d)as there were strong grounds to suspect that the plaintiff had murdered Corinna Marr, he is the prime suspect, setting him apart from any other suspect;

    (e)the police had information placing the plaintiff at the scene of the murder which the plaintiff knew about and refused to challenge.[5]

    [5]    See Sands v The State of South Australia [2010] SASC 340 at [8] per Anderson J.

14. In March 2010, the State applied for a stay of the action on the ground that public interest immunity prevented it from pleading facts and disclosing documents necessary to defend the claim.  In October 2010, the application was argued before Anderson J.  The State argued that the newly introduced imputations, particularly the reference to Mr Sands being the prime suspect, required a pleading of justification with far greater particularity than previously and these particulars could not be provided consistently with public interest immunity.  Mr Sands opposed the application for a stay and argued that there was very little difference between the previously pleaded imputation (a) that there were strong grounds to suspect him and the newly pleaded imputation (d) that, as there were strong grounds to suspect him, he was the prime suspect.

15. In December 2010, Anderson J dismissed the State’s stay application.[6]  His Honour considered that the State would not be significantly prejudiced by public interest immunity in relation to the newly pleaded imputation (d) because it only involved a subtle variation to imputation (a).[7]

    [6]    Sands v The State of South Australia [2010] SASC 340.

    [7]    At [23], [91], [107]-[109].

16. In March 2011, Mr Sands applied for an order striking out the State’s plea of justification on the ground that the particulars pleaded by the State were incapable of establishing that there were strong or reasonable grounds to suspect him and the State’s pleas of justification and qualified privilege on the ground that it was not open to the State to assert publicly that he was a suspect and then to rely upon public interest immunity to prevent him from challenging that assertion.[8] In September 2011, Peek J dismissed Mr Sands’ application[9] and permission to appeal against that dismissal was subsequently refused.[10]

    [8]    FDN 45.

    [9]    Sands v The State of South Australia [2011] SASC 146.

    [10]   Sands v The State of South Australia [2011] SASCFC 136 per Doyle CJ, Kelly and Stanley JJ.

17. On 23 April 2012, Mr Sands made a fresh application to strike out the State’s pleas of justification and qualified privilege on the ground that it was not open to the State to assert publicly that he was a suspect and then to rely upon public interest immunity to prevent him from challenging that assertion.[11]  This application was ultimately heard and rejected by the trial Judge at the commencement of the trial.

    [11]   FDN 86.

18. On 18 June 2012, Mr Sands became bankrupt by virtue of a sequestration order made by the Federal Magistrates Court and Greg Johnson became the trustee in bankruptcy (the trustee).  The State asserted that a number of Mr Sands' causes of action and an aspect of his cause of action in defamation[12] vested in the trustee pursuant to section 58, and the action was stayed pursuant to section 60(2), of the Bankruptcy Act 1966 (Cth) until the trustee elected whether to prosecute the action insofar as the causes of action vested in him. In respect of the cause of action in defamation, the State asserted that Mr Sands’ claims for special damages, loss of earning capacity and exemplary damages vested in the trustee.

    [12]   The whole of the causes of action for breach of statutory duty, duty of care, duty of privacy and the duty of confidence and the economic loss component of the cause of action for defamation.

19. On 25 July 2012, the State applied by interlocutory application for a declaration that the action was stayed pursuant to section 60(2) of the Bankruptcy Act until the applicant irrevocably limited his claim for defamation to damages for loss of personal reputation or alternatively a declaration as to  the extent to which Mr Sands was required to limit his case to allow it to go forward.

20. On 16 August 2012, the trustee elected to prosecute the action insofar as the causes of action vested in him. He was joined as the second plaintiff.

21. On 4 September 2012, the trial commenced. Most of the first eight days were taken up with hearing 11 interlocutory applications made by the parties.[13]  In general terms, the Judge made rulings on the interlocutory applications over the course of that eight days without providing reasons.

    [13]   Over those eight days, Mr Sands also opened his case and tendered several documents.

22. On 5 September 2012, the trustee informed the Judge that he now considered that none of the claims vested in him.  He sought and was granted permission to be removed as second plaintiff.

23. On 5 and 6 September 2012, the State’s July 2012 interlocutory application was re-argued.  On 6 September, the Judge dismissed  that application.  On 12 September, because the State had foreshadowed an intention to seek permission to appeal,[14] the Judge published reasons for the decision, holding that no part of the defamation cause of action vested in the trustee and the action was not stayed by operation of the Bankruptcy Act.[15]

    [14]   Ultimately, the State did not file an interlocutory appeal, but raises its contention on this appeal by way of alternative contention under rule 285(4) of the Supreme Court Civil Rules 2006 (SA).

    [15]   Sands v The State of South Australia [2012] SASC 159, (2012) 269 FLR 296.

24. One of the interlocutory applications heard and determined during the first eight days of trial was Mr Sands’ renewed April 2012 application to strike out the State’s pleas of justification and qualified privilege on the ground that it was not open to the State to assert publicly that he was a suspect and then to rely upon public interest immunity to prevent him from challenging its assertion that he was a suspect.  On 10 September 2012, the Judge dismissed that renewed application without giving reasons.

    The parties’ cases

25. Mr Sands’ case at trial was that the Media Release and the Press Conference gave rise to the following imputations:

    (a)there are strong grounds to suspect that the plaintiff murdered Corinna Marr;

    (b)alternatively, there are reasonable grounds to suspect that the plaintiff murdered Corinna Marr;

    (c)the plaintiff had so conducted himself as to warrant the suspicion pleaded in sub-paragraph (a) and/or (b);

    (d)as there were strong grounds to suspect that the plaintiff had murdered Corinna Marr he is the prime suspect, setting him apart from any other suspect;

    (e)the police had information placing the plaintiff at the scene of the murder which the plaintiff knew about and refused to challenge.

26. The State denied that Mr Sands was identified as the person in question.  It conceded that, subject to the question of identification, pleaded imputations (b) and (c) were conveyed. It denied that the other pleaded imputations were conveyed.  It conceded imputations (a) to (d) were defamatory but denied that imputation (e) was defamatory.  It denied that The Advertiser articles or the evening news programs in March 2004 were the natural and probable consequences of the initial publications. It denied that the Channel 7 promotions and the ABC reports in May 2004 were the natural and probable consequences of the earlier publications.

27. The State pleaded a defence of justification. Most of the evidence and submissions at trial was directed to this issue.

28. The State pleaded a defence of statutory privilege founded on section 7 of the Wrongs Act 1936 (SA).  Mr Sands contended that section 7 had no application to the statements by SA Police in the Media Release or during the Press Conference.

29. The State pleaded a defence of common law qualified privilege.  The defence was founded on the claimed existence of a duty on the part of SA Police to publish the impugned statements and a reciprocal interest in the general public to receive the impugned publications.  Mr Sands contended that the issue of the Media Release and statements by Detective Symons were not made on a privileged occasion and in any event the defamatory statements had no sufficient connection with any privileged occasion. He also alleged malice, in answer to which the State denied malice by the police officers and denied that any malice could be attributed to the State.

30. Mr Sands relied on a cause of action for breach of statutory duty. He alleged that various provisions of the Forensic Procedures Act collectively gave rise to a statutory duty by SA Police to take reasonable steps to protect his anonymity as a person the subject of an application under the Forensic Procedures Act and the State breached this duty by failing to request the Magistrates Court not to publish his name in the cause list, to close the court and adjourn the hearing to a date undisclosed to the media. Mr Sands also alleged that, by reason of references in the Media Release and during the Press Conference to Detective Keane’s affidavit, the State breached section 48 of the Forensic Procedures Act, which restricted publication in relation to information obtained pursuant to the Act or disclosed by an application pursuant to the Act.  He claimed a private right of action for the alleged breach of statutory duty. 

31. The State denied any breach of the Forensic Procedures Act.  In the alternative, it contended that any such breach did not give rise to a private right of action.

    The evidence

32. Mr Sands gave evidence.  He also called as witnesses his former solicitor Peter Quinn, The Advertiser journalist Nigel Hunt and Courts Administration Authority business analyst Marc Marshall.

33. The State called witnesses including Mr Sands’ Messenger Press work colleagues Andrew Faulkner, Ian Parrish, George Zvigos, Nicholas Wrankmore and Tom Milosevic; Mr Sands’ former partners Janelle Denley and Kelly Nelson; Mr Sands’ mother Michel Woodward; Mr Marr’s work colleague Dennis Visvardis; Detectives Michael Symons, John Keane, Anthony Crameri and Marie Staffin-Gardner; and various other lay and police witnesses.

34. Mr Sands gave evidence in rebuttal on the issue of justification.  He also called witnesses including his Messenger press work colleagues Angela Hudoba and Margaret Betts; Ms Marr’s employer Colin Todd; Ms Marr’s friends Nadine Halls and Paula Petrunic; and the Marrs’ former neighbour Judy Morris.

35. The parties tendered various documents and DVDs.

    The Judge’s reasons for judgment

36. The Judge found that the State was not responsible for the alleged leak.  There is no appeal against that finding.

37. The Judge made an adverse credibility finding in relation to the evidence of Mr Sands.  Her Honour found that Ms Morris was an unreliable witness.  Her Honour generally accepted the evidence of Mr Todd but expressed reservations about some of his evidence given at the trial.

38. The Judge found that pleaded imputation (b) was conveyed by the Media Release and the Press Conference as conceded by the State.[16]  The Judge found that pleaded imputation (c) with respect to the imputation in (b) was conveyed by the Press Conference as conceded by the State.[17]  The Judge found that, while not named, Mr Sands was identifiable by persons with extrinsic knowledge and this had been sufficiently pleaded. The Judge found that pleaded imputations (a), (d) and (e) were not conveyed.

    [16]   The Judge found that the imputation was also conveyed by the Advertiser articles of 28 February and 3 March 2004.  As there is no appeal against the dismissal of the claim involving these articles, which was consequential on the plaintiff establishing the alleged leak, we do not refer further to them.

    [17]   The Judge found that the imputation was also conveyed by the Advertiser articles of 28 February and 3 March 2004.  As there is no appeal in relation to these articles, we do not refer further to them. 

39. The Judge acted on the State’s concession that the imputations conveyed by the Media Release and Press Conference, but not more, were likewise conveyed by the evening news programs of 3 March 2004 and The Advertiser article of 4 March 2004 by way of republication.  The Judge found that the Channel 7 promotions and ABC reports in May 2004 did not amount to republications.

40. The Judge acted on the State’s concession that pleaded imputations (a) to (d) were defamatory.  The Judge did not decide whether pleaded imputation (e) was defamatory given her Honour’s conclusion that it was not conveyed.

41. The Judge found that pleaded imputations (b) and (c) were justified.  The Judge rejected the defences of qualified and statutory privilege.

42. The Judge rejected Mr Sands’ claims for breach of statutory duty, breach of duty of care, breach of confidence and breach of privacy.  

43. Given the Judge’s conclusion on liability, there was no need to assess damages.  However, her Honour indicated that, if there had been an entitlement to damages, any award would have been small as the losses suffered by Mr Sands were substantially attributable to other causes. 

    The appeal

1. Mr Sands contends that the Judge erred in failing to find that pleaded imputations (a), (d) and (e) were conveyed by the Media Release and the Press Conference and contends that the imputation in (e) was defamatory. 

2. Mr Sands contends that the Judge failed to address his submission that the State was precluded from relying on the defences of justification or qualified privilege by reason of its claim for public interest immunity.  He submits that the Judge should have struck out those defences.

3. Mr Sands contends that the Judge erred in rejecting his contention that the State is liable for subsequent republications due to the “grapevine effect”.  This ground of appeal was not addressed during the hearing of the appeal.  It was deferred, to be dealt with after delivery of judgment on the appeal, if necessary, and in conjunction with the damages issues which were also deferred.

4. Mr Sands contends that the Judge erred in finding that the imputations that there were reasonable grounds to suspect that he murdered Ms Marr and that he conducted himself so as to warrant that suspicion were justified.  He complains of various findings made by the Judge, of a failure to have sufficient regard to evidence that was exculpatory and of a discounting of evidence that supported his case.  He contends that the State failed to justify the imputations in (a), (d) and (e) and the Judge did not find to the contrary.

5. Mr Sands contends that the Judge erred in finding that there was no breach of the Forensic Procedures Act and should have held that the breach gave rise to a private right of action.

6. There is no appeal against the dismissal of Mr Sands’ claims for breach of duty of care, breach of confidence and breach of privacy.

7. Mr Sands contends that if he is successful on appeal the assessment of damages should be remitted to another Judge.  He contends that the Judge erred in her assessment that any entitlement to damages would be modest because the substantial cause of his loss was extraneous publications and because he was already known as a suspect before the impugned publications.  He submits that he is entitled to substantial damages.  At noted above, the parties agreed that all damages issues not be argued in the first instance and be deferred until this Court determines the liability issues raised on the appeal.

8. The State seeks to uphold the judgment dismissing Mr Sands’ action on the grounds relied upon by the Judge and alternatively on grounds set out in its Notice of Alternative Contentions. 

9. The State contends that the Judge should have made a declaration that section 60(2) of the Bankruptcy Act 1966 (Cth) automatically stayed the action given Mr Sands’ failure to limit his claim for damages to non-pecuniary loss.

10. The State contends that the Judge erred in failing to find that Mr Sands was not entitled to prove by extrinsic evidence that he was identified as the subject of the impugned publications by reason of a failure to plead a true innuendo so as to attach the sting of the impugned words to him by extrinsic facts concerning his identity as the suspect.  As Mr Sands failed to plead a true innuendo, the Judge erred in considering the cause of action in defamation on the basis that a plaintiff in a defamation action is held to his or her pleadings.

11. The State contends that the Judge erred in rejecting its defences of qualified and statutory privilege and that Mr Sands’ claim in defamation should have been dismissed on these grounds in any event. 

12. The State seeks to justify the imputations in (a), (d) and (e) if found to exist and to be defamatory.

    Issues on appeal

13. The Notice of Appeal and the Notice of Alternative Contentions, as pursued at the hearing of the appeal, raise the following issues:

    1.Were pleaded imputations (a), (d) and (e) conveyed by the Media Release and the Press Conference?

    2.Was Mr Sands precluded by his pleading from proving by extrinsic evidence that he was identifiable as the unnamed suspect mentioned in the Media Release and during the Press Conference?

    3.     If conveyed, was pleaded imputation (e) defamatory?

    4.Was the State precluded from advancing the defences of justification and qualified privilege because public interest immunity denied Mr Sands access to relevant documents or information?

    5.Were the imputations established justified?

    6.Was the publication of the material containing the imputations protected by privilege under section 7 of the Wrongs Act 1936 (SA)?

    7.Was the publication of the material containing the imputations protected by common law qualified privilege?

    8.Did the State breach the Forensic Procedures Act and if so did it give rise to a private right of action for breach of statutory duty?

    9.Was the action stayed by section 60(2) of the Bankruptcy Act 1966 (Cth) unless and until Mr Sands abandoned his claim to damages for economic loss?

    Approach on appeal

14. The principles applicable to the approach to be taken by an appellate court on an appeal by way of rehearing in reviewing findings of fact is well settled.  The position was definitively stated by the High Court in Fox v Percy.[18] Gleeson CJ, Gummow and Kirby JJ said:

    [18] [2003] HCA 22, (2003) 214 CLR 118.

    On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance".  On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record.  These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share.  Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial.  Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

    …

    Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”.  In Warren v Coombes, the majority of this Court reiterated the rule that:

    “[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”

    As this Court there said, that approach was “not only sound in law, but beneficial in . . . operation”.

    After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.

    The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

    Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

    That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.

    …

    ... The appellant had to rely before this Court on the advantages that the primary judge enjoyed in seeing the parties, and Mr Murdoch, give their evidence and in preferring the evidence of the appellant and Mr Murdoch to that of the respondent.  The Court of Appeal was bound to make due allowance (as it did) for such advantages.  The trial judge sat through four days of trial before giving his decision.  He did so at a time when the impression made by the witnesses was still clearly in his mind.  The Court of Appeal was bound to afford respect to the endeavour of the judge to give the correct and lawful conclusion to the puzzle presented to him.  Clearly, the Court of Appeal was right to reject the respondent’s belated suggestion of bias, which should not, in our view, have been made.  No doubt, the Court of Appeal also took into account the unexpressed considerations that went into the judge's conclusion.  No judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another. [19]

    [19]   At [23], [25]-[29], [41].  (Citations omitted)

15. Subject to one exception, the issues raised by the parties on appeal involve issues of law or inferences to be drawn from uncontested evidence. This Court is in as good a position as was the Judge to determine those issues. We have performed our own review of the evidence and formed our own view in relation to those issues.

16. The exception relates to the defence of justification.  The Judge made credit and reliability findings concerning several important witnesses and gave reasons for those findings.  We have reviewed the evidence to determine whether those findings are inconsistent with uncontested testimony or incontrovertible facts, glaringly improbable or contrary to compelling inferences and whether there is a basis or reason to disturb the Judge’s findings in this respect.

17. The Judge made several findings of intermediate fact relevant to the justification defence.  Many of these are challenged by Mr Sands.  Subject to adopting the above approach to the Judge’s credit findings, we have conducted an independent review of the evidence to determine whether there is a basis or reason to disturb the Judge’s findings in this respect.

18. Based on her Honour’s review of the evidence and findings of fact, the Judge concluded that there were reasonable grounds to suspect Mr Sands of having murdered Corinna Marr and that he had so conducted himself as to warrant that suspicion. We have performed an independent review of this question in light of our conclusions on findings of intermediate fact.

    Preliminary issues

19. The State contends by way of alternative contention that the Judge erred in ruling that the cause of action in defamation did not vest, in part, in the trustee and that the action was not stayed by operation of the Bankruptcy Act.

20. Mr Sands contends that the Judge erred in declining to strike out the pleas of justification and qualified privilege in the State’s defence because he was denied access to documents and information in the State’s possession due to public interest immunity.

21. We address these preliminary issues before turning to the grounds of appeal and alternative contentions in relation to the trial and the Judge’s reasons for judgment in the action.

    Vesting of property in the trustee

22. As noted above, before trial the State filed an interlocutory application for a declaration that the action was stayed pursuant to section 60(2) of the Bankruptcy Act. The Judge dismissed the application, holding that no part of the defamation cause of action vested in the trustee.[20]

    [20] [2012] SASC 159, (2012) 269 FLR 296.

23. The State relies upon an alternative contention that the Judge erred in dismissing its application.[21] Mr Sands takes no point that, the State’s application having been interlocutory, the State cannot rely upon the point on his appeal against the final judgment.[22]

    [21]   Notice of Alternative Contentions, 12.

    [22]   Compare Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22, (2002) 209 CLR 478 at [6] per Gaudron, McHugh and Hayne JJ.

24. Section 60 of the Bankruptcy Act relevantly provides:

    (2)An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.

    (3)If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.

    (4)Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:

    (a)     any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or

    (b)     the death of his or her spouse or de facto partner or of a member of his or her family.

    ...

    (5)In this section, action means any civil proceeding, whether at law or in equity.

25. Section 60 operates in conjunction with section 116(1)(a) and (2)(g) of the Bankruptcy Act which provide:

    (1)Subject to this Act:

    (a)     all property that belonged to, or was vested in, a bankrupt at the commencement of the bankruptcy, or has been acquired or is acquired by him or her, or has devolved or devolves on him or her, after the commencement of the bankruptcy and before his or her discharge; and

    …

    is property divisible amongst the creditors of the bankrupt.

    (2)Subsection (1) does not extend to the following property:

    …

    (g)     any right of the bankrupt to recover damages or compensation:

    (i)for personal injury or wrong done to the bankrupt, the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt; or

    (ii)in respect of the death of the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt;

    and any damages or compensation recovered by the bankrupt (whether before or after he or she became a bankrupt) in respect of such an injury or wrong or the death of such a person;

26. The State contended before trial and contends on appeal that, by operation of the Bankruptcy Act, Mr Sands’ cause of action in defamation was bifurcated upon his becoming bankrupt: part remained with Mr Sands and part vested in the trustee under section 116(1)(a) and was stayed by section 60(2) of the Bankruptcy Act.  The part that remained was the heads of general damages for injury to feelings and loss of reputation.  The part that vested in the trustee was the heads of special damages for loss of wages and earning capacity as a result of loss of his employment with Messenger Press and loss on the sale of six real properties as a result of costs orders in the Channel 7 action.  The State does not contend that Mr Sands had more than a single indivisible cause of action in defamation before his bankruptcy.

27. The Judge rejected the State’s contention, holding that the entire cause of action in defamation remained with Mr Sands and the heads of damages for pecuniary loss were not severed from the balance of the cause of action so as to vest in the trustee.

    Common law causes of action

28. At common law, there is a single indivisible cause of action for all damage suffered as a result of a tort such as negligence, conversion or defamation.[23] Heads of damage are merely convenient classifications of the entire damage recoverable for the tort.  A plaintiff does not, for example, have one cause of action for economic loss and a separate cause of action for non-economic loss.

    [23]   Marlborough Harbour Board v Charter Travel Co Ltd(1989) 18 NSWLR 223 at 230-231 per Hope JA (with whom Clarke and Meagher JJA agreed).

29. There is a qualification to, or corollary of, the common law principle referred to in the previous paragraph that applies to causes of action for breach of duty of care and arguably for some other torts such as trespass.  This qualification is that one cause of action arises in respect of bodily injury to a person caused by a defendant’s negligent (or wrongful) act or omission and a separate and independent cause of action arises in respect of damage to property owned by that person caused by the same negligent (or wrongful) act or omission.[24]  For present purposes, it does not matter whether this is an historical or pragmatic anomaly[25] or follows because it is merely coincidental that the property damaged happens to be owned by the person suffering the bodily injury rather than someone else. This qualification needs to be borne in mind when examining cases addressing the rights of bankrupts vis a vis trustees.

    [24]   Brunsden v Humphrey(1884) 14 QBD 141. See also Rogers v Spence (1846) 12 CL & Fin 700, 8 ER 1586 addressed below.

    [25]   See Marlborough Harbour Board v Charter Travel Co Ltd(1989) 18 NSWLR 223 at 231 per Hope JA (with whom Clarke and Meagher JJA agreed).

    Bifurcation of indivisible cause of action?

30. We first address the question whether sections 116(1)(g) and 60(4)(a) of the Bankruptcy Act bifurcate what at common law is an indivisible cause of action according to separate characterisations of different heads of damage applying principles of statutory construction to those provisions.

31. Before his bankruptcy, Mr Sands had a single cause of action for defamation in relation to the publication of the Media Release and a single cause of action in relation to the publication of the words spoken by Detective Symons during the Press Conference.  While distinct, those two causes of action can be treated for present purposes as if they were one single cause of action and for ease of reference we so treat them.

1. Upon his bankruptcy, that single cause of action remained with Mr Sands and was not stayed if it is properly characterised as a “right of the bankrupt to recover damages for personal injury or wrong done to the bankrupt” within the meaning of sections 116(1)(g) and 60(4)(a) of the Bankruptcy Act.  It vested in the trustee and was stayed if it was not properly so characterised.

2. This conclusion accords with the plain meaning of the words used in sections 116(1)(g) and 60(4)(a) of the Bankruptcy Act.  Those provisions use expressions taken from the common law including “action” and “right to recover damages or compensation.”  There is no suggestion in the wording or structure of those provisions of an intention to bifurcate an indivisible cause of action.

3. This conclusion accords with the operation of the Bankruptcy Act to vest the bankrupt’s physical property in the trustee for the benefit of the creditors.  It is consistent with this operation that a cause of action for loss of or damage to the bankrupt’s property and the proceeds of such a cause of action should vest in the trustee.

4. Some torts involve injuries or wrongs done to the person. Examples are assault, battery, trespass to the person and false imprisonment.  Other torts involve injuries or wrongs done to property of a person.  Examples are trespass to goods, conversion and detinue.

5. Torts involving injuries or wrongs done to the person such as assault can give rise to damages for non-economic loss such as pain and suffering, distress and loss of amenities of life; but they can also give rise to economic loss flowing from the wrong to the person such as loss of wages or earning capacity.  The mere fact that they also give rise to economic loss does not detract from their proper characterisation as wrongs to the person.  Conversely, breaches of contract involving injuries or wrongs done to the property or economic interests of a person might in special circumstances give rise to damages for distress.[26]  The mere fact that they give rise to such non-economic loss does not detract from their proper characterisation as not being wrongs to the person.

   [26]   Baltic Shipping Company v Dillon (1993) 176 CLR 344.

6. We now turn to consider whether decided authorities support or are contrary to the construction of the statutory provisions we would adopt based on their text, context and evident purpose.

   Authorities suggesting no bifurcation

7. In various cases in England and Australia, defamation (formerly slander and libel) is given as a paradigm example of a cause of action which does not pass to the bankruptcy trustee.

8. English legislation historically provided that the personal estate of the bankrupt vested in the assignees. For example, An Act to amend the Laws relating to Bankrupts 1825 (6 Geo IV, c 16) (Eng) by section 63 vested in the assignees, inter alia, “all present and future Personal Estate of the Bankrupt.”  The Act did not expressly provide for the retention by the bankrupt of rights of action for damages for personal injury or wrong done to the bankrupt, but this was implied by the courts because it was held that such causes of action did not form part of the personal estate vesting in the assignees.  The English courts, when addressing this issue, looked to the characterisation of the entire cause of action. Caution must be exercised in relation to the English cases because the legislation under consideration did not address the issue expressly as does the Bankruptcy Act.  Nevertheless, the reasoning in the English cases can be instructive.

9. In Howard v Crowther,[27] the Court of Exchequer held that the cause of action for seduction did not vest in the assignees in bankruptcy.  Lord Abinger CB (with whom Gurney and Rolfe BB agreed) said:

   Nothing is more clear than that a right of action for an injury to the property of the bankrupt will pass to his assignees; but it is otherwise as to an injury to his personal comfort. Assignees of a bankrupt are not to make a profit of a man's wounded feelings; causes of action, therefore, which are, as in this case, purely personal, do not pass to the assignees, but the right to sue remains with the bankrupt.[28]

   Alderson B (with whom Gurney and Rolfe BB also agreed) said:

   Assignees can maintain no action for libel, although the injury occasioned thereby to the man's reputation may have been the sole cause of his bankruptcy.[29]

   [27] (1841) 8 M & W 602, 151 ER 1179.

   [28]   At 604. (Emphasis added)

   [29]   At 604.

10. In Rogers v Spence,[30] Spence claimed that the defendants had broken and entered his land, damaged his house, damaged his goods and disturbed his enjoyment of the house.  Spence became bankrupt after the alleged events but before instituting the action against the defendants.  The defendants demurred to the entire action without distinguishing between different causes of action.  The House of Lords considered that the pleading gave rise to multiple causes of action, some of which vested in Spence’s assignees in bankruptcy and some of which, if recognised as separate causes of action, would remain in the bankrupt.  The Lord Chancellor said:

    It may be that there are circumstances connected with that transaction which would give a right of action that would pass to the assignees; and there may be causes of action that would certainly pass to them… It is impossible, after the argument which we have heard at the Bar, to say that there may not be a cause of action arising previous to the bankruptcy, which may be a good cause of complaint by the bankrupt himself, notwithstanding his bankruptcy, but of which the assignees could not take advantage. If that be the case (and it is possible that it might be the case), it is quite clear that the plea does not cover any such cause of action, and therefore that the plea is no answer to the action, and is, consequently, bad.[31]

    Lord Campbell said:

    The plea is pleaded to the whole declaration; and it is incumbent on the defendant below to show that all the causes of action that are set out in the declaration passed to the assignees, and that none of them can be maintained by the bankrupt; for if any of them can be maintained by the bankrupt notwithstanding his bankruptcy, the plea is bad.

    Now, if your Lordships look to the declaration, and see the causes of action that are there specified, certainly there are several of these that the assignees could not maintain.  They could not be entitled to recover damages for the injury done personally to the bankrupt, as that injury is alleged in this declaration, from the taking possession of the house, and the remaining in it, and the disturbing the plaintiff in the possession of his dwelling-house.[32]

    [30] (1846) 12 Cl & Fin 700, 8 ER 1586.

    [31]   At 718.

    [32]   At 719. See also the passage from the judgment of Parke B in Beckham v Drake extracted in the following paragraph explaining this decision.

11. In Beckham v Drake,[33] the Judges who provided opinions to the House of Lords referred explicitly to the right or cause of action either remaining with the bankrupt or passing to the assignees in bankruptcy. Platt B (dissenting as to the result but not as to the general principle) said:

    [33] (1849) 2 H.L Cas 579, 9 ER 1213.

    But these injuries, contracts, and breaches of contracts respectively bear a direct relation on the moveable estate of the bankrupt and differ wholly in that respect from injuries to the bankrupt’s person or reputation, …in which case, although the right of action may have vested before the bankruptcy, it would not pass to the assignees because the cause of action relates immediately to the person, and not to the estate of the bankrupt.[34]

    [34]   At 601. (Emphasis added)

    Erle J said:

    The right of action does not pass where the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind, or character, and without immediate reference to his rights of property. Thus it has been laid down that the assignees cannot sue for breach of promise of marriage, for criminal conversation, seduction, defamation, battery, injury to the person by negligence…[35]

    [35]   At 604. (Emphasis added)

    Wrightman J said:

    In cases where the personal estate is only affected through some wrong or injury to the person or the feelings of the bankrupt, and the loss or gain to the personal estate would be greater or less according to the compensation given for such injury, whether by breach of contract or otherwise, the right of action would not pass to the assignees. Rights of action for breach of promise to marry, for torts to the person, for libel or slander, are instances of exceptions to the general rule.[36]

    [36]   At 617. (Emphasis added)

    Rolfe B (dissenting as to the result but not as to the general principle) said:

    The general rule is, that all rights of action in respect of injuries to the bankrupt’s estate pass to his assignees. They take the estate, and as incident to it, all rights of action relative to the estate, whereby it may be increased or improved… On the other hand, they do not take (so to say) the person of the bankrupt, and so neither can they maintain actions whereby his person is to be compensated for injuries it may have sustained.[37]

    [37]   At 619-620. (Emphasis added)

    Maule J said:

    [T]he question of his right to judgment depends on whether such a cause of action passes to the assignees of a bankrupt. There is no doubt that the right to bring an action for an injury to the person, character or feelings of a bankrupt, does not pass to the assignees, and that the right to bring an action for the payment of money agreed to be paid to the bankrupt does pass.[38]

    Parke B said:

    The words “personal estate” clearly comprise all chattels, chattel interests…and they also comprise some rights of action which are not properly debts and would not pass under the word “debts” but do pass under the description of “personal estate”.

    For instance, some actions for torts do pass.  Actions for injuries to personal chattels, whereby they are directly affected, and are prevented from coming to the hands of the assignees or come diminished in value, undoubtedly pass.  The action of trover for a conversion before the bankruptcy is a familiar instance of this.

    On the other hand, rights of action for injuries to the person, or reputation, or the possession of real estate do not pass.  Actions of assault, for example, and for defamation, actions on the case for misfeasance, doing damage to the person, for trespass quare clausum fregit (Rogers v Spence...), actions for criminal conversation with the wife, for seduction of the servant or daughter of the bankrupt, are not transferred to the assignee, even though some of those causes of action may be followed by a consequential diminution of the personal estate, as where, by reason of a personal injury a man has been put to expense, or has been prevented from earning wages or subsistence; or whereby the seduction the plaintiff has been put to expense...But with respect to contracts; rights of action for the breach of such as directly affect the personal estate, where by the assignee is prevented from receiving part of it, or its value is diminished, are certainly transferred...[39]

    Lord Brougham said:

    I agree that you are to draw the line, and not to give damages for injuries which are merely personal to the bankrupt, in which the cause of action moritur cum persona, and would not pass to the executors, that you are not, for instance, to give damages to the assignees under bankruptcy for loss of character sustained by the bankrupt, by slander, or for the loss of service by seduction of a servant or daughter, or for criminal conversation with the wife.[40]

    [38]   At 621-622. (Emphasis added)

    [39]   At 625-626. (Emphasis added)

    [40]   At 639-640. (Emphasis added)

12. In Hodgson v Sidney,[41] Hodgson sued Sidney for damages for false representation, claiming £2,000 paid as a result of the representation together with unliquidated damages for annoyance, inconvenience and injury to his character and credit.  Upon Hodgson becoming bankrupt, Sidney pleaded a demurrer to Hodgson’s claim for £2,000 on the ground that it passed to his assignees but excepted from the demurrer the other heads. The Court of Exchequer held the demurrer good and the other heads too remote, in any event, to be recoverable by Hodgson. Bramwell B said:

    [A]ssuming that there was special damage recoverable, I do not think that the cause of action can remain partly in the bankrupt to recover such damage, and partly can pass to the assignees to recover the pecuniary and ordinary damage. If two several torts had been committed there would be no reason why the bankrupt should not recover in respect of one, and the assignees in respect of the other, But where, as in this case, there is but one single cause of action resulting in direct pecuniary and in special damage, the bankrupt cannot say that enough of it remains in him to enable him to recover the special damage.[42]

    [41] (1866) LR 1 Ex 313.

    [42]   At 315-316.

13. The Bankruptcy Act 1869 (Eng) contained a new definition of property that expressly included “things in action.”  In Ex parte Vine; In re Wilson,[43] the Court of Appeal held that causes of action in defamation were still excluded from property that vested in the assignees in bankruptcy.

    [43] (1878) 8 Ch D 364 at 366-367 per James LJ (with whom Cotton and Thesiger LJJ agreed).

14. In Wenlock v. Maloney & Ors,[44] Wenlock sued his former partner and accountant for conspiracy to deprive him of his 50 percent interest in a water bottling business, claiming amongst other things mental distress and loss of reputation.  The Court of Appeal held that the entire cause of action passed to Wenlock’s bankruptcy trustees.  Denning MR (with whom Harman and Salmon LJJ agreed) held that:

    [I]n bankruptcy all the property of the bankrupt vested in the trustee…save for…- at common law - claims for personal injuries, libel or slander or matters of that kind which remained his…Looking at the whole case, it was really a claim for damages for conspiracy to injure the plaintiff in his business and property, in line with the fraud cases...[45]

    [44]   (1967) 111 Sol Jo 437.

    [45]   At 437. Not a verbatim report.

15. A similar approach, that is, rejecting bifurcation of a cause of action, has been taken in Australia when construing sections 60 and 116 of the Bankruptcy Act and their predecessors.  In Merry v The Queen & Ors,[46] Higinbotham CJ said:

    Personal wrongs, within the meaning of sec 77, are wrongs or injuries done to the reputation or person, such as libel, slander or assault; these do not affect his estate in any way.[47]

    [46] (1887) 13 VLR 264.

    [47]   At 267.

16. In Faulkner v Bluett,[48] Faulkner sued the Commonwealth for damages for negligent misrepresentation.  Lockhart J expressly refrained from deciding “whether a right of action passes to the trustee where one and the same cause of action results in substantial damage to the property of the bankrupt as well as substantial injury to his person or annoyance to his feelings.”[49] However, his Honour formulated the test as a matter of characterising the predominant nature of the action and in the following terms:

    The rationale of the distinction between earnings of a bankrupt personal to him and those derived from a business carried on by him underlies also the distinction between rights of action that vest in the trustee of a bankrupt's estate and those that do not.  Although rights of action generally pass to the trustee of a bankrupt's estate, exceptions have been created by decisions of the courts, including the following: a right of action for slander, for seduction of a servant; for trespass to land or goods in the plaintiff's actual possession, at least where the only substantial damage is for the annoyance and personal inconvenience to him; for breach after bankruptcy of a contract for personal service made before bankruptcy; for personal injuries arising out of certain breaches of contract such as a contract of marriage.

    The common thread running through these cases is that where the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt, the right to sue passes to the trustee notwithstanding that it may have produced personal inconvenience to the bankrupt. Where the essential cause of action is the personal injury done to the person or feelings of the bankrupt the right to sue remains with the bankrupt.[50]

    [48] [1981] FCA 3, (1981) 52 FLR 115.

    [49]   At 119.

    [50]   At 119. (Citations omitted) (Emphasis added)

17. In Mannigel v Hewlett Phelps & Ors,[51] a claim by bankrupts for damages for professional negligence by their solicitors causing property loss was held to be indivisible and to pass to the trustee, including heads of damage for loss of credit and reputation, inconvenience, mental distress and strain.  Handley JA (Kirby P generally agreeing and Meagher JA agreeing) said:

    The plaintiffs’ claims for damages for loss of credit, for mental distress, inconvenience and for injury to their physical and mental health therefore were not claims “without reference to their rights of property” within the principle stated by Dixon J. On the contrary those claims were consequential on damages to the plaintiff's financial and property interests as a result of alleged breaches of professional duty by the solicitors.

    The plaintiffs in the present case sue on indivisible causes of action in tort and contract. Those causes of action formed part of the property of the plaintiffs which vested in the Official Receiver on their bankruptcy. No separate cause of action to recover damages for any personal injury or wrong has been pleaded or exists in the circumstances. Accordingly the proceedings in the Common Law Division of this Court were stayed by the operation of s60 subs(2) on 3 December 1979 and remained stayed throughout the bankruptcy.[52]

    [51]   Unreported, New South Wales Court of Appeal, 1991 (BC 9101907).

    [52]   At 5-6.

18. In Re Dosanjh; Ex parte Duus,[53] Dosanjh settled a claim for personal injuries, arising out of a motor vehicle collision, for $300,000.  Of the total, $30,000 was allocated to out of pocket expenses. Dosanjh’s bankruptcy trustee sought a declaration that virtually all of the sum of $30,000 vested in the estate. Kiefel J dismissed the application. Kiefel J quoted the second paragraph extracted above from the judgment of Lockhart J in Faulkner v Bluett and said:

    The decision of the New South Wales Court of Appeal in Mannigel v. Hewlett Phelps would seem to me to accord with that view. The substantial claim was for damages for breach of professional duty in relation to the purchase of land and a contract for the construction of a house on it. Whilst there were also claims for damages for mental distress, inconvenience and injury to mental health, these were regarded as merely consequential on damages to financial and property interests. It was, as the Court pointed out, the cause of action which formed part of the property vesting in the Official Receiver. There were not separate causes of action with respect to personal harm. Those claims could not be said to be claims "without reference to their rights of property" within the principle stated by Dixon J in Cox v. Journeaux. I consider this to be consistent with the description in s.116(1)(b) of the proceedings being "in respect of property". Consistently, the same would apply to the right to recover moneys or compensation in fact received "in respect of" personal injury or wrong in s 116(2)(g).[54]

    [53]   (1995) 56 FCR 521.

19. Kiefel J distinguished the observations by Lord Atkinson and Viscount Finlay in Wilson v United Counties Bank Ltd[55] (addressed below) because they regarded the claims in that case, in any event, as separate causes of action in contrast to Mannigel in which the claims were held to be indivisible.[56]

    [55] [1918-19] All ER Rep 1035, [1920] AC 102.

    [56]   (1995) 56 FCR 521 at 524.

1. Section 7 refers to a notice or report issued by a Government office or department, Minister of the Crown or the Commissioner of Police with a request to the media to publish the notice or report. This is apt to refer to formal notices and reports or, as the Judge observed, to the issue of material such as an identikit picture accompanied by a request to publish it for the information of the public. The statements made by Detective Symons at the Press Conference did not comprise a notice or report within the meaning of the section, nor was there any request made to the media to publish a notice or report. The same applies to the Media Release.

   Derivative privilege

2. The State’s contention that section 7 confers a secondary or derivative privilege on the original speaker is not tenable.  Section 7, when it applies, offers protection to a fair and accurate report published by newspaper, radio or television or to the publication by newspaper, radio or television at the request of certain entities of certain types of notice or report.  We leave aside the question how widely “newspaper, radio or television” might be construed today in the context of the greater variety of publishing media that exists now compared to when section 7 and its predecessors were enacted.  Section 7 serves to protect a media outlet and not the source of such an outlet’s “fair and accurate report” or “publication”.

3. Acceptance of the State’s contention would entail that any defamatory statement by a person at a shareholders meeting, school board meeting or public meeting would be protected by section 7, dependent on the happenstance whether the proceedings were published by a newspaper, radio or television and the further happenstance whether the published report was fair and accurate. Moreover, the protection of statements at such meetings and of notices and reports issued by Government officers would depend on whether the publication by a newspaper, radio or television was malicious. If it had been the intention of the legislature to confer a privilege on the primary speaker or author, it would have done so expressly and identified conditions apposite to the existence of any such privilege.

   Common law qualified privilege

4. The State contends by way of alternative contention that the Judge erred in concluding that the Press Conference and Media Release were not protected by qualified privilege.[246]

   [246] Notice of Alternative Contentions, 6.

5. The common law protects defamatory statements made on an occasion of qualified privilege. The test for determining whether a particular occasion is so privileged is as stated by Lord Campbell CJ in Harrison v Bush:[247]

   A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter which, without this privilege, would be slanderous and actionable.[248]

   [247] (1855) 5 E & B 344, 119 ER 509.

   [248] At 512. The High Court formulated the test in more or less these terms in Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 at [62] per Gaudron, McHugh and Gummow JJ.

6. In Papaconstuntinos v Holmes a Court,[249] French CJ, Crennan, Kiefel and Bell JJ said:

   The defence of qualified privilege at common law has been held to require that both the maker and the recipient of a defamatory statement have an interest in what is conveyed. This is often referred to as a reciprocity of interest, although "community of interest" has been considered a more accurate term because it does not suggest as necessary a perfect correspondence of interest. The interest spoken of may also be founded in a duty to speak and to listen to what is conveyed.[250]

   [249] [2012] HCA 53.

   [250] At [8]. (Citation omitted)

7. However, not everything that is communicated on an occasion of qualified privilege will be afforded protection.  In Cush v Dillon,[251] French CJ, Crennan and Kiefel JJ said:

   Adam v Ward confirms that there may be limits to what may be said upon a subject on an occasion of qualified privilege and that those limits are to be tested by the connection of the statement to the subject. In that case Earl Loreburn observed that the fact that an occasion is privileged "does not necessarily protect all that is said or written on that occasion" and that anything "not relevant and pertinent" to the discharge of the duty or the safeguarding of the interest which creates the privilege will not be protected. Where such a question is raised it will be necessary for the trial judge to consider the matter of the duty or interest and rule whether the defendant has published something "beyond what was germane and reasonably appropriate to the occasion". Lord Dunedin spoke of a statement "quite unconnected with and irrelevant to the main statement"; Lord Atkinson to "foreign and irrelevant" matter and Lord Shaw of Dunfermline to matter which was "not in any reasonable sense germane" to what was being conveyed in the discharge of duty or the protection of an interest.

   …

   It is not necessary to determine whether the descriptions given of irrelevant material in Adam v Ward vary as to the stringency with which relevance ought to be tested. The passage from Toogood v Spyring suggests that no narrow view should be taken of the pursuit of a duty or interest in what was said. To do so may unduly restrict the operation of the defence. More recently an issue of the kind here in question was stated in the joint judgment in Bashford v Information Australia (Newsletters) Pty Ltd to be "whether the matter which defamed the appellant was sufficiently connected to the privileged occasion to attract the defence".[252]

   [251] [2011] HCA 30, (2011) 243 CLR 298.

   [252] At [19], [22]. (Citation omitted)  Gummow, Hayne and Bell JJ at [32] referred to the test articulated in Bashford. Heydon J at [57] referred without comment to the test applied by the Court of Appeal whether the defamatory remarks were “relevant and sufficiently connected to the privileged occasion”.

8. The task of determining whether a particular communication falls within the bounds of that protected by qualified privilege is not always an easy one.  In Bashford v Information Australia (Newsletters) Pty Ltd,[253] Kirby J observed that the application of judicial formulae so as to delimit the defence did not allow for scientific exactitude and that the extent of the protection afforded by the defence will depend on the particular circumstances of the occasion concerned:

   Various judicial formulae have been propounded to mark out the boundaries of the protection given by the relevant privilege…

   All of these formulae are attempts to define the boundaries of a discussion that is truly within the scope of the matter of public interest, so as to exclude the introduction of extraneous, irrelevant or marginal and gratuitous imputations that unacceptably do harm to the reputation and honour of an individual. Scientific precision is impossible by the use of such formulae. In every case, a judgment is evoked.[254]

   [253] [2004] HCA 5, (2004) 218 CLR 366.

   [254] At [193]-[194].  (Citations omitted)

9. In order to determine whether the defence of qualified privilege is available, the State must establish, first, that the matter of which Mr Sands complained was published on an occasion of qualified privilege and secondly, if so, that the part of the matter which defamed Mr Sands was sufficiently connected to the occasion to attract the defence.[255]

   [255] Being the questions formulated by Gleeson CJ, Hayne and Heydon JJ in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at [7].

10. A defence of qualified privilege, if otherwise made out, will fail if the publication was actuated by malice.  

    Findings at first instance

11. The Judge acknowledged that, as a matter of general principle, it was in the public interest for police to communicate with the public in the course of an investigation into a serious crime so as to encourage the flow of information which might assist them to fulfil their duty to investigate and solve the crime. Her Honour noted that, in this regard, the role played by the program “Crime Stoppers” had been very successful. 

12. The Judge was prepared to proceed on the assumption that SA Police had a duty and interest to keep the public informed of the investigation, to reveal that the suspect’s fingerprints did not match those found at the crime scene and to seek out further information.

13. However, the Judge considered that:

    [T]there are substantial portions which, in my view, went beyond anything which could be said to be necessary to discharge any duty Mr Symons had. I do not accept the defendant’s submission that the width of the publications furthered the objectives of the occasion. For these reasons I do not consider that the holding of the Press Conference and the Media Release attract the defence of qualified privilege.[256]

    [256] [2013] SASC 44 at [216].

14. Her Honour concluded:

    There was no public interest to be served by police going into the details of the crime or the state of their investigation or the fact of their suspicions at that time in relation to the suspect.[257]

    [257] [2013] SASC 44 at [217].

    The parties’ submissions on appeal

15. The State contends that the Judge erred in the approach to determining whether what was communicated in the Media Release and Press Conference was protected by qualified privilege. Specifically, the State complains that her Honour conflated two inquiries: first, whether an occasion of privilege existed, and secondly whether what was communicated was sufficiently connected to that occasion.

16. The State submits that the Judge employed the wrong approach in considering whether the publications were consistent with the occasion of privilege. In particular, her Honour erred in finding that certain aspects of the publications went “beyond anything which might be required” and “beyond anything which could be said to be necessary to discharge any duty”. That approach was contrary to the approach identified by the High Court in Bashford v Information Australia (Newsletters) Pty Ltd and Cush v Dillon and took too narrow a view of the manner by which pursuit of the duty may be undertaken. The proper test is whether there was established a sufficient connection between what was communicated and the occasion of privilege.

17. The State submits that the Judge erred in finding that aspects of the publications were not necessary to achieve the ends of the privileged occasion. Detective Symons’ statements as to the circumstances of the murder were directed to the purpose for which the privilege existed; namely to elicit a response from members of the public and to generate the necessary ongoing publicity in the media to increase the likelihood of valuable information being received. In this respect, her Honour overlooked the totality of the evidence that a bland publication or one separate from the forensic procedure application would have been completely ineffective. Further, her Honour discounted the evidence as to the nexus between police media releases and information received through Crime Stoppers.

18. Mr Sands submits that the defence of qualified privilege rightly failed because the police have no duty to make statements of the type found in the Media Release and Press Conference. More specifically, the police have no duty to “out” the names of suspects they do not intend to charge, nor does the public have an interest in having one of its member’s reputation wrongly tarnished.  To the contrary, the police have a duty to refrain from making such statements, consistent with the confidentiality obligations under section 47 of the Forensic Procedures Act. 

19. Mr Sands submits that, irrespective of whether such a duty did exist, the defence of qualified privilege does not extend to protect publications of this nature as they were made to too wide an audience. SA Police could have adequately discharged any duty it may have had without revealing his identity. The publications should have been limited to communicating that the fingerprints did not match, the investigation was continuing, there was a reward, and inviting people to contact Crime Stoppers to provide information.

20. Mr Sands contends that, in any event, the defence of qualified privilege was defeated because both publications were actuated by malice. The State takes issue with this and also contends that any malice by Detective Symons, if found, could not be attributed to the State.

    Sufficient connection

21. In the circumstances identified by the Judge,[258] we are satisfied that the issuing of the Media Release and the holding of the Press Conference was an occasion that had the potential to attract the defence of qualified privilege.

    [258] [2013] SASC 44 at [211].

22. The real question is whether each of the two defamatory imputations, as found at trial and upheld on appeal, was sufficiently connected to the occasion of privilege to attract the defence.  Those defamatory imputations were that there were reasonable grounds to suspect Mr Sands and that Mr Sands had so conducted himself as to warrant that suspicion.

23. The Media Release and Press Conference were occasions for the police to enlist the assistance of the public in terms of obtaining any information in public hands that may assist them with their intractable and long running murder investigation.  It was this that underpinned the potentially privileged nature of the occasion.  It was gratuitous for the police, in advancing that purpose, to inform members of the public that they had reasonable grounds to suspect Mr Sands and that he had conducted himself so as to warrant that suspicion.  This information fell wholly outside the interest or duty of the police to provide information necessary to obtain such assistance from the public as may potentially be available and outside the interest of members of the public to receive such information.  The wider information disclosed as identified by the Judge served only to emphasise that the police had stepped outside the occasion of privilege. 

24. The Judge was correct to find that the defence of qualified privilege was not available.

    Malice

25. The Judge dealt with the issue of malice having considered the entirety of the evidence in relation to the SA Police murder investigation.  Her Honour found Mr Sands’ argument that the police investigation was actuated by malice to be without foundation.[259] With respect to the Press Conference and Media Release, the Judge accepted the evidence of Detective Symons that he was “motivated by the need to keep the public informed of the latest developments in the investigation, to disclose, in fairness, that the suspect’s fingerprints did not match those at the scene and to obtain further information from members of the public.”[260]

    [259] [2013] SASC 44 at [576]-[596].

    [260] At [584].

26. Mr Sands submits that the Media Release and Press Conference were published for the foreign purpose of inciting positive publicity for the police during the murder investigation. Further, they were published in the knowledge that there were no reasonable grounds to suspect Mr Sands of murder and that the publications would do irreparable harm to him. As the publications were made in the knowledge that they were false and defamatory, an improper motive could be inferred without the need to identify the exact nature of the motive itself.

27. It was open to the Judge on the evidence, particularly that of Detective Symons, to find that malice had not been proved.  We would go further: on our review of the evidence, there is no basis for a finding that Detective Symons or Mr Keane knew or believed that the published defamatory imputations were incorrect; and no improper motive is to be inferred.  The Judge was correct to find that malice had not been proved.

    Breach of statutory duty

28. Mr Sands contends that the Judge erred in finding that the Forensic Procedures Act was not contravened. He contends that it was contravened and it afforded him a private right of action.[261]

    [261] Ground of appeal 7.

29. Section 48 of the Forensic Procedures Act, as at March 2004,[262] relevantly provided:

    [262] The 1988 Act was repealed in 2007 and replaced by the Criminal Law (Forensic Procedures) Act 2007 (SA).

    48—Restriction on publication

    A person must not intentionally or recklessly publish by newspaper, radio, television or in any other way, a report of proceedings under this Act containing the name of a person under suspicion, or other information tending to identify the person, unless—

    (a)    the person consents to the publication; or

    (b)    the person has been charged with the suspected offence or a related criminal offence; or

    (c)    the appropriate authority, in proceedings for an order under Part 3, authorises the publication.

    Maximum penalty: $5 000 or imprisonment for one year.

30. At trial, Mr Sands’ principal case of breach of statutory duty was that various provisions of the Forensic Procedures Act collectively gave rise to a statutory duty by SA Police to take reasonable steps to protect his anonymity as a person the subject of an application under the Forensic Procedures Act. His case was that SA Police breached this duty by inaction, that is, by:

    ·failing to request the Magistrates Court not to publish Mr Sands’ name in the cause list;

    ·failing to seek an order closing the court;[263] and

    ·failing to seek an adjournment of the hearing to a date not disclosed to the media.

    [263] Under the Evidence Act 1929 (SA) s 69.

31. The Judge rejected the contention that any such statutory duty arose. This contention is not pursued on appeal and need not be further considered.[264]

    [264] Mr Sands also argued at trial that he had a cause of action for breach of statutory duty in respect of alleged breaches of the Telecommunications (Interception and Access) Act 1979 (Cth). The Judge rejected this claim. While Mr Sands complains on appeal of this conclusion, he does not make any substantive submissions in support of that complaint and has not established any basis for this Court to overturn the Judge’s conclusion.

32. Mr Sands advanced a subsidiary case that, by the references in the Media Release and during the Press Conference to the affidavit filed in the Magistrates Court in support of the forensic procedures application, which in turn named Mr Sands, the State breached section 48 of the Forensic Procedures Act by publishing “other information tending to identify the person [under suspicion]”. The Judge rejected this contention and found that there was no such breach. 

33. Mr Sands advances a construction of section 48 that would prohibit publication of two types of information: first, a report of proceedings under the Forensic Procedures Act containing the name of a person under suspicion and secondly, other information tending to identify that person. If the subject matter of the publication falls into the second category, it need not be a report of proceedings. Mr Sands contends that the section should be construed as if it read:

    A person must not intentionally or recklessly publish by newspaper, radio, television or in any other way:

    (i)a report of proceedings under this Act containing the name of a person under suspicion, or

    (ii)other information tending to identify the person,

    unless—

    (a)    the person consents to the publication; or

    (b)    the person has been charged with the suspected offence or a related criminal offence; or

    (c)    the appropriate authority, in proceedings for an order under Part 3, authorises the publication.

34. The State takes issue with this construction of the section. The State contends that in any event the type of publications referred to in section 48, being “newspaper, radio, television or in any other way”, narrows the “publication” caught by the provision to mass media (which includes the internet) and does not embrace the broader form of publication meaning disclosure to any person.

    Publish

1. The word publish is protean. At one extreme, it refers to any communication of information by one person to another, whether private or public (this is the meaning of the element of the cause of action in defamation that the defamatory matter be published), At the other extreme, it refers to a communication to the public or the world at large. In Tom & Bill Waterhouse Pty Ltd v Racing New South Wales,[265] Palmer J said:

   The word “publish” has two meanings: the ordinary or common meaning which the layman would use, and the technical meaning which a defamation lawyer would use. To a layman “to publish” ordinarily means to make generally known, declare or report openly, proclaim, bring something to public notice, or make information generally accessible or available: see e.g. New Shorter Oxford English Dictionary. The word derives from “publicus” and connotes making something known or available to the world at large.

   [265] [2008] NSWSC 1013.

   [266]  At [22]-[23]. (Emphasis in original)

   To a defamation lawyer, however, “to publish” has a highly specialised meaning – some would say, indeed, a meaning which includes the very opposite of its meaning outside defamation law. In defamation law “to publish” is to communicate defamatory material to a person other than the person defamed. One person will suffice.[266]

2. It is necessary to consider the context and purpose of section 48 to ascertain the meaning of “publish” in that section.

3. Section 48 needs to be read in conjunction with Part 8 Division 2 of the Evidence Act 1929 (SA) which takes as its starting point the fundamental principle that court proceedings should be conducted in public and open to publication by the mass media.[267] Section 69 empowers a Court to order all but specified persons to absent themselves from the courtroom, but only if desirable in the interests of the administration of justice or in order to prevent hardship or embarrassment to any person. Section 69A empowers a court to make an order forbidding publication of the name of or information tending to identify certain persons or of certain evidence but only to prevent prejudice to the proper administration of justice or to prevent undue hardship to certain persons.

   [267]  Channel Nine SA Pty Ltd & Anor v Police & Anor (No 2)[2014] SASCFC 119 at [4] per Kourakis CJ, Blue and Parker JJ.

4. The Forensic Procedures Act does not provide for closed court hearings and accordingly under section 69 of the Evidence Act the hearing of an application under the Forensic Procedures Act will be in open court unless the criteria in section 69 are satisfied and the court makes an order closing the court. However, section 48 of the Forensic Procedures Act governs publication of reports of proceedings under that Act and, to this extent, applies to prohibit such publication without depending on the making of an order by the court. Section 48 of the Forensic Procedures Act applies to publication to the public or the world at large. It does not prohibit individual or private disclosure of the relevant subject matter and it would be unworkable if it did.

5. This construction of section 48 is fortified by the different wording and nature of the provision contained in section 47 which forbids the disclosure of information. The word “disclosure” refers to any communication and is used in contradistinction to “publish” in section 48.

6. The Media Release was placed on the SA Police website and was available to the world at large. It was published by SA Police within the meaning of section 48.

7. The Press Conference was, to the knowledge of Detective Symons, recorded by audio and audio visual means by representatives of the media for broadcasting purposes. What Detective Symons said during the Press Conference was published by SA Police within the meaning of section 48.

8. The Introductory Remarks were made privately to the six representatives of the media present for the forthcoming Press Conference. They were not intended by Detective Symons to be communicated to the world at large. They were made on the understanding that the media could not publish the name of the suspect. They were made on the understanding that the six media organisations represented at the Press Conference had been present by their representatives in the Magistrates Court and were already aware of the existence of the affidavit. In these circumstances, it may be that the Preliminary Remarks, insofar as they referred to the affidavit, were not published within the meaning of section 48. However, we do not need to resolve this question in light of our conclusion that the Media Release and the Press Conference were published within the meaning of section 48 and our conclusion below that Detective Symons did not in any event publish or communicate a “report of proceedings”.

   Report of proceedings

9. We turn to the construction of the section advanced by Mr Sands. In neither the Media Release nor the Press Conference was Mr Sands named. For this reason alone, there can be no suggestion that the State, in any way, published a report of proceedings under the Act containing the name of a person under suspicion. However, as counsel for Mr Sands during oral submissions rightly conceded, the references in the Media Release and during the Press Conference to the affidavit naming Mr Sands did not constitute the publishing of a report of proceedings under the Act.

10. In our view, this is a complete answer to Mr Sands’ complaint based on section 48. The plain (and conceptually logical) reading of the opening words is that section 48 is directed only to publishing a report of proceedings under the Act. In particular, it targets publishing a report containing the name of a person under suspicion or containing other information tending to identify such a person.[268] Mr Sands’ contention that section 48 prohibits the publication of any information tending to identify the person under suspicion simpliciter, that is, independently of a “report of proceedings”, is a misreading of the text and falls outside the intended scope of the provision. It would not be rational to confine the prohibition of publication of a suspect’s identity directly by name to the context of a report of proceedings but to prohibit absolutely publication of a suspect’s identity indirectly by some other means.

    [268] In this respect, section 48 has a clear analogue in the definition of suppression order in section 68 of the Evidence Act 1929 (SA), which refers to forbidding the publication of the name of a certain person and of any other material tending to identify any such person.

11. The proper reading of section 48 is to recognise that “other information tending to identify the person” is simply an alternative to the direct naming of the person, but, as a matter of syntax, it still attaches to the publishing of a report. That is, section 48 only prohibits the publishing of a report of proceedings under the Act that names the person suspected directly, or the publishing of a report of proceedings under the Act that contains information that tends to identify the person suspected. At no time did the State publish such a report.

12. Section 48 was not engaged. It is unnecessary to deal with the issues whether the reference to the affidavit tended to identify Mr Sands or whether any failure to comply with section 48 would give rise to a private cause of action for breach of statutory duty.

    Conclusion

13. We dismiss the appeal. We will hear the parties as to consequential orders.

    
    

[54]   At 523.