Sands v State of South Australia - [2011] SASCFC 136

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
SANDS v STATE OF SOUTH AUSTRALIA
[2011] SASCFC 136
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Kelly and The Honourable Justice Stanley)
16 November 2011
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - IN GENERAL
Application for permission to appeal to the Full Court in private – a Judge gave the defendant permission to file a Fifth Amended Defence involving the pleading of further particulars in support of the defence of justification – (1) whether, as a consequence of the record being redacted or excised in parts, the record of interview cannot be used to support the plea of justification, and whether the effect of the Judge to permit the defendant to file a Fifth Amended Defence will result in a “trial by ambush” – (2) whether the trial Judge should have struck out the plea of justification as the material before the Judge was insufficient to establish a case for the plaintiff to answer on a charge of murder – (3) whether the trial Judge should have struck out the plea of qualified privilege – (4) whether the assertion of public interest immunity, coupled with the plea of justification, gives rise to a situation in which there cannot be a fair trial.
Held: the Court is cautious about granting permission to appeal on points relating to pleadings, when to do so will further delay the progress of a matter to trial – (1) the redacted or excised record of interview is but one of a number of matters relied upon in support of the plea of justification – it is not unarguable that the material in the statement relied upon is capable of contributing to or supporting a finding in the defendant’s favour on the plea of justification – allowing the amendment does not preclude the plaintiff from advancing his argument at trial – there is no basis for the submission that the Judge’s permission to allow the defendant to file a Fifth Amended Defence would result in a “trial by ambush” – (2) it is reasonably arguable that the matters pleaded are capable of sustaining the plea of justification – (3) the defence of qualified privilege is not unarguable – (4) at this stage of proceedings, it is difficult to make a decision in the plaintiff’s favour.
Application for permission to appeal to the Full Court refused.
Sands v State of South Australia [2011] SASC 146, discussed.

SANDS v STATE OF SOUTH AUSTRALIA
[2011] SASCFC 136
Full Court: Doyle CJ, Kelly and Stanley JJ

THE COURT: The plaintiff in an action for defamation applies for permission to appeal against decisions by a Judge on certain applications relating to the pleadings in the action.
The plaintiff alleges that members of the South Australia Police Force, in the course of investigating a suspicious death, made statements defamatory of him. The plaintiff alleges that the statements meant that there were strong grounds to suspect that he had murdered the deceased, or, in the alternative, that there were reasonable grounds to suspect that he had murdered her. The deceased was shot dead on 4 July 1997. The plaintiff has not been charged with the murder of the deceased. The Judge commented that there was insufficient evidence, on the material before him, to make out a case to answer against the plaintiff on a charge of murder.
The defendant has pleaded a number of defences. The defences relevant to the application for permission to appeal are defences of justification and qualified privilege.
The application for permission to appeal has been considered by the Court comprising Doyle CJ, Kelly and Stanley JJ. The Court has considered the appellant’s summary of argument, and the detailed written summary of submissions provided to the Judge who decided the applications.
A Statement of Claim was first filed in September 2005. This action has taken second place behind another action in defamation by the plaintiff, against a television channel. That action raised similar issues. It has now concluded. The plaintiff failed at trial, on appeal to the Full Court and was refused special leave to appeal to the High Court. It is desirable that this matter now be brought to trial as soon as practicable.
In considering the application for permission to appeal, it is pertinent to bear in mind that the application relates to decisions relating to the pleadings in the action. The Full Court is reluctant to interfere with the progress of an action to trial, although in the present case the process of getting the matter to trial has already been protracted. The Court is cautious about granting permission to appeal on points relating to pleadings, when to do so will further delay the progress of a matter to trial.
The first complaint by the plaintiff is that the Judge gave the defendant permission to file a Fifth Amended Defence. The amendment involved the pleading in para 19(b) of further particulars in support of the defence of justification.
The plaintiff complains that the Judge did not consider his main submission in opposition to the defendant’s application for permission to amend. The plaintiff also argues that the material relied on by the defendant to support the additional particulars of justification, was not capable of supporting the plea of justification. The particulars in question are based on an interview of the plaintiff, conducted by investigating police officers. Parts of the record of interview have been excised or redacted. The complaint is that unless one knows the content of the excised or redacted portions of the statement, the material from the statement that is relied on cannot be used to support a suggested conclusion or finding in support of the plea of justification. The point is made that the portions of the interview relied upon are meaningless, or incapable of sustaining a relevant conclusion, unless one knows what is in the excised or redacted portions of the statement.
The Court does not agree that the Judge overlooked the submission, or misunderstood it. In his reasons at [20] the Judge refers to an assertion “… that the proposed amended particulars of justification cannot be made out by the available evidence and that the amendments should therefore not be made”: Sands v State of South Australia [2011] SASC 146.
The material in question is but one of a number of matters relied upon in support of the plea of justification. The submission by the plaintiff is not without some substance. But at trial it will be necessary for the trial Judge to have regard to all matters relied upon. It is not unarguable that the material in the statement relied upon is capable of contributing to or supporting a finding in the defendant’s favour on the plea of justification. Allowing the amendment does not preclude the plaintiff from advancing his argument at trial, and does not exclude a decision in his favour in relation to this particular, and in relation to the evidence relied on. To say this is not to say that the defendant can plead whatever the defendant wishes, all decisions being deferred until trial. But in a matter of this kind the Court, and particularly an appellate court, should be cautious about shutting out arguable material the effect of which cannot be fully assessed in isolation.
The plaintiff asserts that the effect of the decision in question, and of the other decisions complained of, is that the end result will be “trial by ambush” with unpleaded particulars being relied upon and pleaded particulars ignored or not the subject of evidence. The basis for this submission is not apparent. A trial Judge has wide powers that can be deployed to deal with matters about which the plaintiff expresses concerns. Whether they can be dealt with adequately or fully is another matter, but it is yet another thing to say, at this stage, that a fair trial cannot be conducted.
The Court refuses permission to appeal in respect of the first ground of complaint.
The second complaint is that the Judge should have struck out the plea of justification. The plaintiff submits that the particulars of justification, with or without the amendment just referred to, “could barely justify grounds for inquiry … and did not constitute reasonable grounds to suspect the plaintiff of murder … let alone ‘strong grounds’, and certainly not such as to render the appellant the ‘prime suspect’”. The plaintiff refers to an observation by the Judge that the material before the Judge was insufficient to establish a case for the plaintiff to answer on a charge of murder. The plaintiff submits that that should be sufficient for the Judge to have concluded that the plea of justification, in the sense outlined, was not reasonably arguable and should be struck out.
The Court does not accept that latter submission. To conclude that there was insufficient material to establish a case to answer on a charge of murder, is not to conclude that there were not strong grounds to suspect that the plaintiff had murdered the deceased, or that there were not reasonable grounds to suspect that the plaintiff had murdered her.
The Court has considered the plea of justification, in light of the plaintiff’s submissions. To some extent the plaintiff’s submissions are directed to the question of whether the defendant will or should make out the plea of justification, rather than to the relevant question, which is whether or not the plea is capable of being sustained on the basis of the facts pleaded, if those facts are made out.
The Court considers that it is reasonably arguable that the matters pleaded are capable of sustaining the plea of justification. In any event, this is not a proper case for a grant of permission to appeal, bearing in mind that the proposed appeal relates to a pleading point that would give rise to a further argument on the effect of facts pleaded in the Defence.
The third complaint is that the Judge’s refusal to strike out the plea of qualified privilege was wrong. The action by the plaintiff is based on two publications of allegedly defamatory material. The first is a publication to a journalist. The second is a publication by way of a media release and a media conference, and so to the public at large. The plaintiff alleges in relation to the first publication that it was made contemplating republication to the public at large. The plaintiff submits that qualified privilege cannot arise, having regard to the fact that the second publication was made to the public at large, or intended to be made to the public at large. The plaintiff denies that there could be any duty to make the relevant publication.
The Judge commented that there were strong arguments in favour of the plaintiff’s submission, but decided that the defendant’s position was “not unarguable”: at [67] and [69].
The Court has considered the relevant parts of the Defence. The Court accepts that the plea of qualified privilege takes that defence a long way, perhaps into new territory. However, the Court does not consider the matters relied upon to be unarguable.
The fourth complaint is based on the circumstance that the defendant has claimed public interest immunity in respect of a number of documents which would otherwise be discoverable by the defendant. As the Court understands, the defendant claims that it is obliged to make discovery of material only if it is relevant to the existence of grounds to suspect that the plaintiff is guilty of the murder of the deceased, and relevant to a plea of malice. The defendant claims public interest immunity in respect of other material which might assist the plaintiff to show that there are other persons who could equally be considered as suspects, and material that would enable the plaintiff to show that the material relied upon does not support the case of justification pleaded by the defendant. The plaintiff’s argument is that this means that the defendant is able to control the disclosure of evidence relating to the defences that it has pleaded, disclosing only the material helpful to it and refusing to disclose material that might be helpful to the plaintiff. The submission by the defendant has been successful, the Court understands, at the discovery stage and now in the argument relating to the relevant pleading.
A finding that the assertion of public interest immunity preventing the disclosure of certain material, coupled with the nature of the plea of justification advanced by the defendant, means that the trial will be unfair, is a finding to be made only in light of all the relevant circumstances. It is a finding that it is particularly difficult for a court to make satisfactorily at the pleading stage. It is not uncommon that a claim of public interest immunity or legal professional privilege will mean that the parties to litigation in the trial court will be denied the use of relevant material. That, of itself, does not make the trial in question unfair, even if the result is that one party is able to or duty bound to deny the other party access to material that might help the case of that other party. So far in the proceedings the assertion of public interest immunity has been sustained by another Judge in the course of other pre-trial proceedings. The issue before the Judge, in respect of whose decision the application for permission to appeal is made, was whether the assertion of public interest immunity, coupled with the plea of justification, gives rise to a situation in which there cannot be a fair trial, and so the defendant should not be permitted to maintain the plea of justification and, perhaps, the plea of qualified privilege. To put the matter that way is to expose the difficulty in making a decision in the plaintiff’s favour at this stage. Much will depend upon how the case unfolds at trial. In due course it might emerge that the defendant’s stance means that the trial cannot be conducted fairly. On the other hand, at trial the assertion of public interest immunity might not be sustained. The trial Judge will not be bound by the decision made at an earlier stage of the case. The assertion of public interest immunity might be limited. There are various things that the trial Judge might do which might mean that the plaintiff’s fears are not realised.
For all those reasons the Judge was right to reject the submission that the defendant should not be permitted to maintain the plea of justification. The Court accepts that this situation is an unusual one. The Court accepts, as a theoretical possibility, that the plaintiff may be denied access to material that would assist the plaintiff in relation to the plea of justification, and that would assist the plaintiff’s plea of malice relied upon to defeat the plea of qualified privilege. But the Court agrees that the defendant’s position is arguable, that the matters relied upon by the plaintiff can be dealt with satisfactorily only at trial, and that this is not a proper case for a grant of permission to appeal.
For those reasons the Court refuses permission to appeal.