Sands v State of South Australia - [2013] SASC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SANDS v STATE OF SOUTH AUSTRALIA
[2013] SASC 44
Judgment of The Honourable Justice Kelly
5 April 2013
DEFAMATION - PUBLICATION
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - REFERENCE TO PLAINTIFF - IDENTIFICATION
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION - CRIMINAL
DEFAMATION - PRIVILEGE - ABSOLUTE PRIVILEGE
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE
DEFAMATION - JUSTIFICATION
STATUTES - ACTS OF PARLIAMENT - ENFORCEMENT OF STATUTORY RIGHTS AND REMEDIES - BREACH OF STATUTORY DUTY
Action for defamation against the defendant - plaintiff alleges that a person within South Australia Police (SAPOL) published copies of an application naming the plaintiff for an order under the Criminal Law (Forensic Procedures) Act 1998 (SA) (“Forensic Procedures Act”) and supporting affidavit to the The Advertiser - in the alternative, plaintiff alleges that a person within SAPOL published the existence of those Court documents to The Advertiser - plaintiff alleges that, as a result of that initial publication, The Advertiser published stories on 28 February 2004 and 3 March 2004 - plaintiff further alleges that, following the hearing of the application under the Forensic Procedures Act, SAPOL made defamatory statements in a media release and in the course of a press conference - plaintiff alleges that those publications led to the publication of an article by The Advertiser on 4 March 2004 and to broadcasts and newspaper articles on and after 14 May 2004.
Whether plaintiff has proved that a person within SAPOL leaked the application under the Forensic Procedures Act and supporting affidavit or, alternatively, the existence of those Court documents, to The Advertiser - whether the plaintiff was identified in the media release and press conference publications - whether the media release and statements at the press conference convey the pleaded imputations - whether defendant can rely on defence of absolute privilege as it exists under common law and section 7 of the Wrongs Act 1936 (SA) in respect of the media release and press conference - whether the defendant can rely on the defence of qualified privilege in respect of the media release and the press conference - whether in publishing the statements in the media release and the press conference the police were actuated by malice - whether imputations, if they were conveyed, were justified.
Whether SAPOL owed a statutory duty to the plaintiff by reason of sections 47 and 48 of the Forensic Procedures Act to protect the anonymity of persons the subject of the such applications whether the Forensic Procedures Act gives rise to a duty of care, which was owed to the plaintiff personally - whether the defendant breached that duty, with the effect that he suffered loss - whether the defendant was under a duty to protect his privacy or anonymity as a person subject to an application under the Forensic Procedures Act - whether SAPOL and Crown lawyers breached provisions of the Telecommunications (Interception and Access) Act 1979 (Cth) (“TIA Act”).
Held: Plaintiff has not proved the initial publication - plaintiff was identified in the media release and statements at the press conference by reason of extrinsic facts, namely the hearing of the application under the Forensic Procedures Act - publication was limited to members of the police and media, and to the plaintiff’s family, friends and work colleagues, all of whom already knew that the plaintiff was a suspect - the words of the media release and press conference bear some of the pleaded imputations but not others - no reason of public policy to extend defence of absolute privilege to publications made by police in the execution of their duties - media release and press conference were not published following an implied request by members of the media - defence of absolute privilege not made out - statements in the media release and press conference were not required to be made at the time that they were and exceeded what was reasonably necessary to discharge the duty - defence of qualified privilege not made out - malice not proved - plaintiff has lied in relation to central and peripheral issues - victim’s husband and others were investigated and discounted after proper investigation - defence of justification made out - the Forensic Procedures Act does not give rise to a civil cause of action - even if the defendant breached the confidentiality provisions of the Act, the plaintiff did not suffer loss - plaintiff’s claim in breach of statutory duty dismissed - no duty of care can be imposed where it would lead to conflicting duties upon police and incoherence with the law of defamation - tort of privacy not recognised in Australian law - information published by police was not in the nature of material that could be expected to be kept confidential - the TIA Act does not give rise to a civil cause of action - communication of lawfully intercepted information in the context of the application under the Forensic Procedures Act was authorised by the TIA Act - plaintiff’s claim in breach of statutory duty dismissed.
Criminal Law (Forensic Procedures) Act 1998 (SA) s 19, s 20, s 47, s 48; Telecommunications (Interception and Access) Act 1979 (Cth) s 5, s 5B, s 6L, s 63, s 67, s 74, s, 75, s 75A, s 76, s 105; Listening and Surveillance Devices Act 1972 (SA) s 3, s 4, s 5, s 7; Bankruptcy Act 1966 (Cth); Wrongs Act 1936 (SA) s 7; Police Act 1998 (SA) s 5; Evidence Act 1929 (SA) s 34C, s 45B, referred to.
Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452; Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202; Sands v State of South Australia (No 2) [2010] SASC 340; Palmer Bruyn & Parker Pty Ltd v Parsons [2000] Aust Tort Reports 81-562; Webb v Bloch (1928) 41 CLR 331; Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173; Hird v Wood (1984) 38 SJ 234; Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234; Gibbons v Duffell (1932) 47 CLR 520; Mann v O’Neill (1997) 191 CLR 204; Adam v Ward [1917] AC 309; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Cush v Dillon (2011) 243 CLR 298; Papaconstuntinos v Holmes a Court (2012) 87 ALJR 110; Channel Seven Adelaide Pty Ltd v S, DJ (2007) 248 LSJS 452; S, DJ v Channel Seven Adelaide Pty Ltd (2008) 253 LSJS 468; Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; White v State of South Australia (2010) 106 SASR 521; Carmody v Phillips (1996) 68 FCR 265; R v Standen (2011) 80 NSWLR 428; Conway v Rimmer [1968] 2 AC 910; Alister v The Queen (1983) 154 CLR 404; Thomas v Nash (2010) 107 SASR 309, applied.
Doe v Australian Broadcasting Corporation [2007] VCC 281, distinguished.
Taylor v Director of the Serious Fraud Office [1999] 2 AC 177; Westcott v Westcott [2008] EWCA Civ 818; R v Calabria (1982) 31 SASR 423, not followed.
Ollis v New South Wales Crime Commission (2007) 177 A Crim R 306; Pearce v Hailstone (1992) 58 SASR 240; Deren v New South Wales [1998] Aust Tort Reports 81-463; Bento v Chief Constable of Bedfordshire Police [2012] EWHC 1525 (QB); Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; Walton v The Queen (1989) 166 CLR 283 ; Pollitt v The Queen (1992) 174 CLR 558; John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81; Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 549; Kizon v Palmer (1997) 72 FCR 409, discussed.
Sands v State of South Australia [2011] SASC 146; Sands v State of South Australia (2012) 269 FLR 296; Charleston v News Group Newspapers Ltd [1995] 2 AC 65; Draper v Channel Seven Adelaide Pty Ltd (2004) 90 SASR 160, considered.

SANDS v STATE OF SOUTH AUSTRALIA
[2013] SASC 44
Civil
KELLY J.
Introduction
History of proceedings
The plaintiff’s background
Corinna Marr
The murder of Corinna Marr
The police investigation
The Forensic Procedures application
The Draper affair
The Today Tonight promotion
The Publications
The pleadings
The plaintiff’s case
Was the defendant responsible for the leak to Mr Hunt?
The media release and the press conference on 3 March 2004
Nature and extent of the publication

“The third article” – The Advertiser article of 4 March 2004
“The further publications” – Newspaper articles and broadcasts on and after 14 May 2004
The Pleaded Imputations
“The initial publication” – The unauthorised leak
“The second and third publications” – The Media Release and the Press Conference
(a) – “Strong grounds ...”
(b) – “Reasonable grounds ...”
(c) – “The plaintiff had so conducted himself ...”
(d) – “Prime suspect ...”
(e) – “The police had information placing the plaintiff at the scene ...”

“The third article” – The Advertiser article of 4 March 2004
Findings – The imputations conveyed
Absolute Privilege
Wrongs Act 1936 (SA) section 7
Conclusion – Absolute privilege
Qualified privilege
General principles
The parties’ submissions
Conclusion – Qualified privilege

The Plea of Justification
The plaintiff
The All-Vac job sheet for 4 July 1997
The plaintiff’s evidence in the trial of the Channel Seven action
The plaintiff’s evidence as to his movements on 4 July 1997 in this trial
The plaintiff’s attempts to reconstruct his movements on 4 July 1997
The events of May 2004
Conclusion – Plaintiff’s evidence concerning his movements on 4 July 1997

The Plaintiff’s Work Colleagues
Andrew Faulkner
Ian Parrish
George Svigos
Nicholas Wrankmore

Peter Quinn
Inspector Crameri
Detective Sheridan
Detective Keane
Information available to police and the investigation into the plaintiff
Telephone intercepts
Conversation on 23 October 2008
Conclusion – Credibility of Detective Keane

The plaintiff’s case in rebuttal
Judy Morris
Colin Todd
Robert Sheehan – Admissibility of MFI P75 and P75A
Angela Hudoba
Margaret Betts
Nadine Halls
Paula Petrunic

Conclusion – Case in rebuttal
The Plea of Justification – Summary of findings
The Plea of Malice
Hearsay
The Extraneous Causes of Action
The alleged breaches of statutory duty: Criminal Law (Forensic Procedures) Act 1998 (SA)
The alleged breaches of statutory duty: Telecommunications (Interception and Access) Act 1979 (Cth)
Damages
Conclusion
Appendix 1 – Ruling concerning the Telecommunications (Interception and Access) Act 1979 (Cth)
Appendix 2 – Ruling on Public Interest Immunity
Appendix 3 – Admissibility of conversation between Detective Keane and Colin Todd on 23 October 2008
Appendix 4: Transcription of Press Conference – Exhibit P8A
Introduction

This is an action for defamation and breaches of statutory duty, duty of care, duty of confidence and duty of privacy brought by the plaintiff, Mr Sands, in respect of the conduct of the State, and particularly that of the South Australia Police Force (“SAPOL”), in the course of the investigation into the murder of Corinna Marr.
The claim for defamation is based on the allegation that a person within SAPOL published court documents concerning an application for an order under the Criminal Law (Forensic Procedures) Act 1998 (SA) (“the Forensic Procedures Act”) against the plaintiff. The plaintiff alleges that as a result of that leak, The Advertiser published stories on 28 February 2004 and 3 March 2004. In addition, the plaintiff alleges that SAPOL made defamatory statements in a media release and during a press conference following the hearing of the forensic procedures application.
The claims for breach of statutory duty arise out of the conduct of SAPOL officers and lawyers at the Crown Solicitor’s Office in relation to the forensic procedures application, media release, press conference and another action in which the plaintiff was involved from May 2004 until July 2009 (“the Channel Seven action”).
The plaintiff alleges that the Forensic Procedures Act imposed a duty on officers of SAPOL to protect the anonymity of persons the subject of applications under that Act, and further that the defendant owed a duty of care, duty of confidence and duty of privacy to the plaintiff, who had a legitimate expectation arising from that Act, to ensure that he was not identified as the subject of a forensic procedures application. The plaintiff contends that the defendant breached those duties by leaking the existence of the court documents to The Advertiser and by its conduct in relation to the media release and press conference.
The plaintiff alleges that the affidavit filed in support of the forensic procedures application made use of information lawfully intercepted under the Telecommunications (Interception and Access) Act 1979 (Cth) (“the TIA Act”), and that, by operation of that Act, such use constituted an offence. He contends that by alerting members of the media to the affidavit at the press conference, SAPOL contravened the Act. The plaintiff further alleges that during the course of the Channel Seven action, Crown lawyers contravened the TIA Act by including a reference to the lawfully intercepted information both in a draft version of an amended defence and in a letter to solicitors.
By way of defence to the claim for defamation, the defendant denies publication of the forensic procedures application and supporting affidavit. In the alternative, it argues that the imputations as pleaded by the plaintiff were not conveyed. In the alternative, the defendant pleads that if any of the imputations were conveyed, they were true in substance and in fact.
The defendant admits publication of the media release, but denies both that the matters complained of were published of and concerning the plaintiff and that those matters conveyed any defamatory meaning. In the alternative, it pleads absolute and qualified privilege.
The defendant admits the majority of the statements at the press conference, but pleads absolute and qualified privilege. It further says that regard must be had to the whole of the words spoken at that conference, and pleads justification.
With respect to the claims for breaches of statutory duty, duty of care, duty of confidence and duty of privacy, the defendant primarily denies that the relevant Acts create a personal right of action in the plaintiff or any of the duties referred to.
Further details of the pleadings appear later in these reasons.
History of proceedings
The plaintiff instituted proceedings against the State of South Australia on 9 September 2005. At that time, the plaintiff’s only claim was in defamation.
The plaintiff sought and was granted leave to amend his Statement of Claim by a Master of this Court in a decision delivered on 17 February 2010. Among those amendments, the plaintiff was permitted to plead material facts relating to new causes of action based on an allegation of misfeasance in public office and on alleged breaches of statutory duty, duty of care, duty of confidence and duty of privacy. The combined effect of the pleas of breaches of duty is that there is a claim for aggravated and exemplary damages.
This matter was on hold for some time awaiting the outcome of the Channel Seven action.[1] In a decision delivered on 27 July 2009, Bleby J dismissed the plaintiff’s claims. The plaintiff’s appeal to the Full Court against that decision was dismissed on 1 July 2010.[2] His subsequent application for special leave to appeal to the High Court was heard and dismissed on 11 February 2011.[3]
[1]    Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452.
[2]    Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202.
[3]    Transcript of proceedings, Sands v Channel Seven Adelaide Pty Ltd [2011] HCA Trans 20 (11 February 2011).
Since early 2010, this action has been subject to a number of applications by the defendant for a stay. On 25 March 2010, the defendant applied for a stay on the ground that it was unable to defend its claim to the full extent because that would involve divulging matters which were not in the public interest to disclose. On 15 December 2010, Anderson J ruled that while the defendant could plead a defence to the alleged breaches of duty, it could not plead to the new allegation of misfeasance in public office, as much of the evidence necessary to support that plea could not be disclosed according to the principles of public interest immunity.[4] His Honour held that if the plaintiff wished to maintain his allegation of misfeasance, the justice of the case would require a stay.[5] At a hearing on 22 December 2010, Mr Heywood-Smith QC for the plaintiff advised that the plaintiff would not be proceeding with the action based on misfeasance, a decision Peek J later described as flowing from “Anderson J’s delineation of the appropriate balance between the positions of the defendant and the plaintiff”.[6]
[4]    Sands v State of South Australia (No 2) [2010] SASC 340 at [115]-[124].
[5]    Sands v State of South Australia (No 2) [2010] SASC 340 at [126].
[6]    Sands v State of South Australia [2011] SASC 146 at [61].
On 31 March 2011, following an application by the plaintiff, Anderson J recused himself from further conduct of the matter. Peek J was subsequently appointed as the trial judge but he too recused himself later that year.
On 18 June 2012, the plaintiff was declared bankrupt. The defendant then applied for a declaration that the plaintiff’s action was stayed by operation of the Bankruptcy Act 1966 (Cth) and that the action would remain stayed until the plaintiff elected to limit his claim to damages for loss of personal reputation. On 16 August 2012, it was ordered that the plaintiff’s trustee in bankruptcy be joined as a second plaintiff to this action. However, on 5 September 2012, Mr Ryder for the trustee sought and was granted leave to withdraw. In a judgment delivered on 12 September 2012, I declined to grant the defendant’s application.[7]
[7] Sands v State of South Australia (2012) 269 FLR 296.
A day before the commencement of the trial, the defendant filed an application for a permanent stay of the plaintiff’s action on the ground that it would be an abuse of process to allow the claim to proceed. The defendant contended that this action involves issues that are so similar to those advanced in the plaintiff’s action against Channel Seven Adelaide Pty Ltd (“Channel Seven”) and the Australian Broadcasting Corporation (“the ABC”) that it raises the possibility of two Supreme Court judges litigating the same case but making inconsistent findings. After hearing argument, I dismissed the defendant’s application and allowed the trial to proceed. I shall publish reasons for that decision if necessary.
During evidence regarding a police attendance upon the plaintiff’s home on 24 January 2004, Peter Quinn, the plaintiff’s former solicitor, referred to a sheet of paper which was produced by the police on that occasion and which set out four extracts from transcriptions of intercepted telephone conversations involving the plaintiff. Mr Heywood-Smith then produced a document which Mr Quinn agreed “look[ed] very similar to the document that [he] was handed” on 24 January 2004. Mr Heywood-Smith asked that the document be marked for identification but advised that he did not propose to tender it. Accordingly, the document was marked MFI P7.
In the course of cross-examination, Mr Quinn agreed that MFI P7 was a copy of the document handed to him by the lead investigating officer, Detective Sergeant Keane (“Detective Keane”) on 24 January 2004 at the plaintiff’s home which set out extracts of intercepted conversations that Detective Keane wanted to put to the plaintiff. Mr Heywood-Smith immediately objected on the basis that the defendant was making use of information from a telephone intercept obtained pursuant to the TIA Act. I therefore heard argument as to the admissibility of MFI P7. The effect of the parties’ submissions and my ruling are set out in Appendix 1.

Issues relating to public interest immunity arose throughout the trial. Both parties argued that they were prejudiced in the conduct of their case by reasons of public interest immunity. I received confidential material from the defendant and on three occasions heard submissions in a closed court in the absence of the plaintiff. My reasons for upholding the defendant’s claims for public interest immunity appear in Appendix 2 of this judgment.
It emerged late in the trial that a witness had secretly recorded a conversation involving Detective Keane and that the plaintiff intended to rely on that conversation to attack Detective Keane’s credibility. The defendant objected on the basis of the Listening and Surveillance Devices Act 1972 (SA). I heard argument as to the admissibility of that recording and ruled that the recording and the transcript were not admissible in the trial. My reasons for that ruling are set out in Appendix 3.
The plaintiff’s background
The plaintiff was born on 24 August 1969. He has lived in South Australia all his life.
Towards the end of his secondary schooling, the plaintiff developed an interest in photography. After matriculation, he commenced a course at TAFE College for a Certificate in Commercial Photography. In 1988, when he was 18, he commenced employment with Messenger Newspapers Pty Ltd (“Messenger”) as a cadet photographer. He was later engaged as a photographer and was employed by Messenger until his employment was terminated on 5 July 2004.
Messenger publishes a number of weekly suburban newspapers for distribution in metropolitan Adelaide. The plaintiff was employed principally from the Port Adelaide head office of Messenger but with occasional rotations to the Christies Beach and Salisbury offices. He had the use of a company vehicle and travelled throughout the Adelaide metropolitan and outer metropolitan areas for assignments.
Between 1998 and 2000, the plaintiff was employed as a permanent photographer with the Sunday Mail, working one or two shifts per week. He also occasionally undertook photographic assignments for The Advertiser. In his spare time, he undertook private freelance photographic work for private and commercial parties, including local councils. In his work as a photographer, the plaintiff met “thousands” of people in the community. He engaged socially with his colleagues and, from time to time, with the people he photographed.
The plaintiff’s usual work pattern was to undertake photographic assignments during the week and to spend Friday afternoons processing the films he had taken that week in order to meet the Monday deadline for publication of the weekly newspapers.
In 1991, the plaintiff purchased a property in Valley View. In April the following year, he sustained injuries in a motorcycle accident and returned to live with his mother. The evidence is not entirely clear as to how long he lived with his mother after that accident. The plaintiff said that he continued to live with her for approximately seven years, but also that in 1995 he lived with Judy Southam at Valley View. At the time of Ms Marr’s murder in 1997, he was living with his mother in Kilkenny.
In May 1997, he commenced a relationship with Janelle Denley. They did not live with each other, but met during the week and spent most weekends together. That relationship ended in about March or April the following year.
In mid-1998 the plaintiff commenced a relationship with Kelly Nelson. By the date of the trial, she had changed her name to Kelly Hody, but for reasons of convenience, she will be referred to throughout these reasons as Ms Nelson. The plaintiff and Ms Nelson did not commence living together until 2003, after the plaintiff purchased a house in Alberton. Their relationship ended in May 2004. The pair continued to live together, although not on an intimate basis, until Ms Nelson moved out 12 months later.
Towards the end of 2005 the plaintiff began a relationship with Yvette Francis. That relationship ended after seven or eight months. He then met Bridgette Zander and formed a relationship with her in 2006. After his relationship with Ms Zander ended, the plaintiff met Jelena Mitrovic. The two commenced living together and had a child in October 2010. At the time of the trial, Ms Mitrovic was travelling overseas with their child and it was not clear whether she intended to return to Australia.
Corinna Marr
Prior to 1995, Ms Marr was the receptionist at the Walkerville Office of Weeks & Macklin, a firm of land agents. She was responsible for incoming phone calls and directed inquiries to the salespeople or property managers.
Colin Todd was a salesman employed by Weeks & Macklin at the Walkerville office. After approximately two years at the Walkerville office, he commenced his own franchise of Weeks & Macklin at Firle. Ms Marr went to work for him at that office and, at his suggestion, began a course as a trainee salesperson.
Mr Todd did business with Messenger. He wanted some business cards made and approached the plaintiff to carry out that work.
The plaintiff first met Ms Marr in May 1995 when he visited the Firle office of Weeks & Macklin to carry out the photographic assignment. A friendship developed. The precise nature of that relationship and whether it was a sexual one is an issue in these proceedings and will be addressed later. It is sufficient for present purposes to note that the plaintiff visited the office on a number of occasions to see Ms Marr, which visits were not work related, and spoke with her over the telephone. He also met Ms Marr outside the office, and on one occasion at his house at Valley View when he confided in her about his relationship with his then partner, Ms Southam.
Ms Marr married Robert Marr in January 1996. The plaintiff’s visits to the office continued. On two occasions, the plaintiff and Ms Marr went unaccompanied on full day excursions, once to Sandy Creek and once to Port Elliot or Victor Harbor, for photo shoots to assist Ms Marr in developing a modelling career.
The murder of Corinna Marr
On the afternoon of Friday, 4 July 1997, Ms Marr was shot dead in her unit at Collinswood. She had been at work as usual that morning. By arrangement with Mr Todd, she left work early that afternoon, between 2.00pm and 2.30pm, to go home and change for the promotion. She had also arranged for Mr Todd to accompany her to the promotion and to pick her up from her unit sometime between 3.30pm and 3.45pm, because her husband could not do so.
The evidence suggests that Mr Marr arrived home at approximately 3.45pm. Mr Marr later told police that when he arrived home he walked into the bedroom, where his wife’s body was located, but did not see her. He walked about the house calling her name. He went outside to the post box, returned inside, and made two telephone calls concerning repairs to a refrigerator at 3.51pm and 3.52pm. It was not until after he made those telephone calls that he realised his wife was lying in the bedroom and telephoned 000, at 4.02pm.
Mr Todd was running late to pick Ms Marr up. When he arrived at the street where her unit was located at approximately 4.10pm, an ambulance and police were already present at the scene.
No one has ever been charged with Ms Marr’s murder.
The police investigation
The murder of Ms Marr attracted substantial media coverage at the time.
Police and a forensic team arrived quickly at the scene and commenced investigations. A forensic pathologist, Professor Byard, was part of the investigation team. At the scene and in a report dated 29 July 1997, he gave an estimated time of death of between 2.30pm and 3.30pm.
The Officer in Charge of the investigation from shortly after the murder until his retirement in 2012 was Detective Keane. He gave evidence that on entering the unit he observed that there was no sign of a forced entry, robbery or sexual assault. These factors tended to suggest that the murderer was a person known to Ms Marr. She had changed her clothes since coming home from work, and it is possible that she changed her clothes in the presence of her murderer.
Mr Marr was escorted to Holden Hill Police Station by members of the local CIB, Detective Senior Constable Marie Staffin-Gardiner (“Detective Staffin-Gardiner”) and Detective Senior Constable Peter Vincent (“Detective Vincent”). There he was interviewed, initially by Detectives Vincent and Staffin-Gardiner, and later by Detective Keane and Detective Doug Barr. During those interviews, Mr Marr stated that had been working with a man called Dennis Visvardis that afternoon and that he had left Mr Visvardis’ house at Mile End between 3.30pm and 3.40pm. Detective Keane caused inquiries to be made of Mr Visvardis, who verified Mr Marr’s account of his movements. Detective Keane gave evidence that he was satisfied with Mr Marr’s account on the evening of the murder, but did not discount him completely as a suspect.
The crime scene was searched both on the day of the murder and on the following day. No weapon has ever been located.
Statements were taken from a number of people shortly after the event. They included Mr Marr, Mr Todd, Susanne Mehendale, Tracey Westwood, William and Betty Westwood, Judy Ann Morris and Eva Torry. Detective Chief Inspector Crameri (“Inspector Crameri”) gave evidence that a number of people were considered suspects, of whom there were five main suspects. Detective Keane confirmed that 80 people were discounted in connection with Ms Marr’s murder.
On 4 July 1997, the plaintiff was working at the Salisbury office of Messenger. According to the plaintiff’s evidence, he went to the Salisbury Police Station to offer assistance to the police some time during the following week. No evidence of any such contact was led from the police, but Detective Keane did not deny that that contact could have occurred.
The plaintiff was formally interviewed at the Angas Street Police Station on 30 August 1997, and on that day signed a typed statement acknowledging the truth of the statement to the best of his knowledge and belief. It will be necessary in due course to refer to the details of that statement. For present purposes it is sufficient to note that he told police that on the afternoon of Friday, 4 July 1997, he was working in the Messenger office at Salisbury processing his week’s photographs.
The evidence suggests that Detective Vincent verified the plaintiff’s account with a journalist working at the Salisbury office of Messenger on that day, George Svigos. Mr Svigos apparently confirmed that the plaintiff had been in the office throughout the afternoon. As a consequence, the plaintiff was discounted as a suspect.
By May or June of 1998, police had eliminated all other persons of interest from the inquiry. Since they were not able to identify the person responsible for the murder of Ms Marr, the primary investigation team, consisting of Detective Keane, Detective Barr and Inspector Crameri, conducted a review of the case. Mr Svigos was spoken with a second time. During that conversation, he stated that, in fact, the plaintiff was not in the office for some part of the afternoon on 4 July 1997. The team then realised that the plaintiff may not have had an alibi for that afternoon and activated a series of inquiries.
A number of other persons were formally interviewed, including Ian Parrish, Messenger’s Pictorial Editor and the plaintiff’s immediate supervisor who worked at Port Adelaide. Andrew Faulkner, another journalist and work colleague of the plaintiff, was also interviewed. The statements given by those people tended to cast doubt on the plaintiff’s assertion that he had been at the Salisbury office of Messenger throughout the afternoon. Detective Keane gave evidence that at about the same time police seized job work sheets from Messenger, including photographic assignments that had been undertaken by Messenger staff during the week ending 4 July 1997.
Detective Keane gave evidence that between 1998 and 2002 he received information which heightened his suspicions of the plaintiff, but which he could not disclose by reason of public interest immunity.
On 8 October 2002, the plaintiff was interviewed at some length by police in a video-recorded interview. During that interview, he adhered to the alibi he had given to police in his statement of 30 August 1997, but added that he may have left the office during the afternoon to have lunch or to buy a drink. He also admitted to a further incident involving some sexual contact with Ms Marr.
The plaintiff gave evidence that following the police interview, when he was at the Messenger premises in Port Adelaide, he extracted from their usual storage place and took home all the job work sheets for the week ending 4 July 1997. He claimed that they were taken with the authority, if not the suggestion, of Ray Murray, the Acting Photographic Manager of Messenger at the time. Mr Murray has since passed away.
Detective Keane gave evidence that shortly after the interview, his suspicions of the plaintiff were heightened such that the plaintiff became a suspect. Inquiries into the plaintiff’s potential involvement therefore continued. Detective Keane said that, as a result of those inquiries, he received further information which heightened his suspicions but which, with the exception of telephone intercepts, he could not disclose on the ground of public interest immunity.
On 24 January 2004, police conducted a search of the plaintiff’s home at Alberton, during which search the plaintiff, through his solicitor, provided some of the work sheets to police that he had earlier removed from the office of Messenger, being work sheets which related to assignments carried out on 4 July 1997. On the same occasion, the plaintiff supplied, at the request of police, a sample of his DNA. He declined to supply any fingerprints.
The Forensic Procedures application
On 25 February 2004, a member of the police force applied to the Adelaide Magistrates Court in accordance with the requirements of ss 19 and 20 of the Forensic Procedures Act for an order authorising the taking of finger and hand prints from the plaintiff. The grounds for the application were that the plaintiff was “reasonably suspected of having committed the offence of murder”.
The application was heard in the Magistrates Court on 2 March 2004. The plaintiff did not attend but was legally represented.
At the conclusion of the hearing, the Magistrate made the order as sought. At the time, there was substantial media coverage of the application, which did not breach the statutory prohibition against publishing the identity of the suspect. On the following day, 3 March 2004, Detective Superintendent Mick Symons (“Mr Symons”), in his capacity as the Officer in Charge of Major Crime, held a press conference to reveal that the fingerprints obtained under the order did not match unidentified prints found at the crime scene. Mr Symons also said that the plaintiff, without naming him, “is a suspect and will remain a suspect” in the murder case.
Channel Seven and the ABC were plainly aware of the forensic procedures application. Both broadcasted news items relating to the application.[8] Channel Seven also broadcasted news items relating to the press conference.[9]
[8] Exhibits P4 and P5.
[9] Exhibit P6.
The Draper affair
Trish Draper was a member of the Federal Parliament representing the suburban seat of Makin. In 2000, the plaintiff accompanied Ms Draper on a taxpayer-funded trip to Europe. He said that he was asked by Ms Draper to make a photographic record of that trip. He travelled on a diplomatic passport which had been issued to him as Ms Draper’s spouse.
It will be noted that, at that time, the plaintiff was in a sexual relationship with Ms Nelson. He admitted in these proceedings that he was cheating on Ms Nelson with Ms Draper in 2000.
The Today Tonight promotion
The subject of the plaintiff’s claim against Channel Seven in the trial before Bleby J was a promotion for a story which was to be broadcast on its Today Tonight programme.[10] The promotion was broadcast on Friday, 14 May 2004 and Saturday, 15 May 2004.
[10] Tendered in these proceedings as Exhibit P10.
The plaintiff gave evidence in these proceedings that the promotion resulted in friends and acquaintances approaching and raising the matter with him. He said that made him feel “very, very upset”.
On Sunday, 16 May 2004, an urgent application was made by Ms Draper in the District Court for an injunction to restrain Channel Seven from broadcasting the advertised Today Tonight programme. The conduct and outcome of that application is discussed at length in Bleby J’s decision.[11] Its only relevance to this trial is that the plaintiff swore an affidavit in those proceedings on 29 June 2004 in which he referred to two telephone intercepts, the admissibility of which he challenged in this trial.
The Publications
[11] Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452 at [46]-[72].
The pleadings
The publications which give rise to the claim in defamation are pleaded in paragraphs 4, 5, 6 and 6A of the Statement of Claim (“the Claim”). The plaintiff alleges that the intentional leak by an unnamed officer of SAPOL of the application filed on 25 February 2004 and/or the supporting affidavit of Detective Keane constitutes the “initial publication”.
It is alleged that that leak led to the first article published in The Advertiser on 28 February 2004 (“the first article”), and that the first article is the natural and probable consequence of SAPOL conduct as alleged in paragraphs 5 and 6 of the Claim. It is further alleged that at the hearing on Tuesday, 2 March 2004, a number of people were present by reason of the publication of the first article.
In this regard, I note that the first article neither named the plaintiff nor described him by reference to his occupation or age. It included details contained within the application and affidavit, and reported that the application would be heard on the following Tuesday, that is, Tuesday, 2 March 2004.
It is further alleged in paragraph 8 of the Claim that, by reason of the naming of the plaintiff during the Magistrates Court hearing and/or in the documents lodged in the court and available to persons present, all of the persons in attendance at the hearing on 2 March 2004 were or became aware of the identity of the person the subject of the first article. Thus it is alleged that the publication of the name of the plaintiff during the hearing of the forensic procedures application and/or in the documents lodged in the court was the reason persons in attendance at the hearing became aware of the plaintiff’s identity.
The next publication relevant on the plaintiff’s pleading is an article published in The Advertiser on Wednesday, 3 March 2004 (“the second article”). That article is alleged to be the natural and probable consequence of the initial publication.
The name of the plaintiff is not mentioned in the second article. He is described as the prime suspect in the murder but is not otherwise identified by reference to age, occupation or suburb. The article contains a report of the proceedings in the Adelaide Magistrates Court on the day before, that is, 2 March 2004 at 2.15pm, and a quote from Inspector John Venditto which ended with the words “welcome to homicide”. It is alleged that the meaning of the second article is the same as the first.
The next publication relevant on the plaintiff’s pleading is the media release published on the SAPOL website on 3 March 2004 (“the media release”) and distributed to members of the media at a press conference on the same day (“the press conference”). That media release refers to the “the person nominated in the affidavit supporting the application for the order”. The publication does not otherwise name or identify the plaintiff.
It is alleged that, by reason of the reference in the media release to the affidavit sworn by Detective Keane, the defendant breached the provisions of both the Forensic Procedures Act and the TIA Act. Those allegations are dealt with elsewhere in these reasons.

The plaintiff’s allegations as to what Mr Symons said orally at the press conference on 3 March 2004 were never substantially in dispute. A transcript of most of the press conference was tendered.[12] Both parties acknowledged that the transcript is a substantially accurate record of what was said at the press conference. The plaintiff alleges that the televising of the press conference on the evening news on 3 March 2004, in which he was described as a “34 year old professional photographer”, is the natural and probable consequence of Mr Symons’ press conference.
[12] Exhibit P8A. The full transcript, for convenience, is set out in Appendix 4.
It is alleged that, by reason of the news broadcasts, The Advertiser articles or the media release on the SAPOL website, the plaintiff would have been identified by an unidentifiable number of people in South Australia and that the plaintiff was so identified as a result of the initial publication.
The Advertiser published an article on Thursday, 4 March 2004 (“the third article”) about the press conference. The plaintiff pleads that by reason of the “grapevine effect” those people who read the third article, some of whom were included among “the first, second and third body of persons”, identified the person referred to in the third article as the plaintiff.
There is a further allegation that the publication of the third article was the natural and probable consequence of the press conference. A further allegation relates to the publication on and after 14 May 2004 of further articles and broadcasts throughout Australia in which the plaintiff was named. These further publications occurred in the context of stories about the plaintiff’s taxpayer-funded trip overseas with Ms Draper. In those further articles and broadcasts, the plaintiff is named as a suspect in a murder case. It is alleged that these further publications are a natural and probable consequence of the earlier publications. By these means it is alleged that the defamatory publications of and concerning the plaintiff were conveyed to an even wider body of persons.
The plaintiff’s case
It is necessary to identify with precision which publications the plaintiff relies on. As I understand the plaintiff’s case as finally formulated, the plaintiff relies on three acts of publication. The initial publication is the alleged leak by an officer of SAPOL of the application of 25 February 2004 and/or the affidavit of Detective Keane, both of which name the plaintiff.
The second publication relied on by the plaintiff is the media release on 3 March 2004. It is convenient to reproduce the media release in full:
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 inquires 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 any information is asked to ring Bank SA Crime Stoppers on 1800333000
The third publication on which the plaintiff relies is the press conference on the same date.[13]
[13] The full transcript, for convenience, in set out in Appendix 4.
The two articles which appeared in The Advertiser on 28 February 2004 and 3 March 2004, respectively, are alleged by the plaintiff to be republications of the initial publication, namely, the leak. The article which appeared in The Advertiser on 4 March 2004 is alleged to be a republication of the defamatory publications constituted by the media release and the press conference.
The plaintiff also pleads other republications on and after 14 May 2004 (“the further publications”).
The defendant denies that there was any unauthorised leak from any officer within SAPOL to The Advertiser. The contents of the media release and the oral record of the transcript of the press conference are both admitted. The defendant does not admit, however that the second and third publications, or any subsequent republication, identified the plaintiff. The defendant denies that any of the publications conveyed any of the defamatory meanings as pleaded.
Was the defendant responsible for the leak to Mr Hunt?
The first issue which arises is whether there was an initial publication as alleged by the plaintiff in paragraphs 6 and 6A of the Claim.
The evidence concerning the alleged leak to The Advertiser in February 2004 came from a number of sources including Mr Hunt, Mr Symons, Senior Sergeant Manfred Wojtasik (“Sergeant Wojtasik”), Superintendent John Bruhn (“Superintendent Bruhn”), Chief Superintendent John Venditto (“Superintendent Venditto”) and Detective Keane.
Mr Hunt is a journalist who has been employed by News Limited for over 30 years. He gave evidence that, prior to the publication of his article on 28 February 2004, he was given information concerning the existence of the application by the police under the Forensic Procedures Act.
Mr Hunt confirmed that the first article, which was written by him, was the result of information received by him from a number of sources, including one unnamed informant as well as the father of Ms Marr, Mr Symons and court documents. Mr Hunt declined to name his informant. He went on to explain that his informant was a person with whom he had a longstanding arrangement that the informant’s identity would remain confidential. On the topic of when he received the information from his unnamed source, Mr Hunt said:
Q.On what day did you obtain it from the Magistrates Court registry.
A.From memory the date prior to publication, February 27.
Q.That's a Friday.
A.Correct.
Q.What prompted you to attend at the Magistrates Court registry and obtain that document.
A.From information I received prior to the day that the application had been lodged.
Q.That's the Thursday, 26th.
A.Correct.
The application was filed on Wednesday, 25 February 2004. If the witness, by those answers, was intending to convey that he received the information the day prior to the application being lodged, then he would have received that information on Tuesday, 24 February 2004, and not on Thursday, 26 February 2004. This ambiguity in Mr Hunt’s evidence was never clarified. The effect of the failure to clarify Mr Hunt’s evidence is that there is a distinct possibility that the source of the leak to Mr Hunt was someone not associated with SAPOL.
I have taken into account the submissions of both counsel about the true import of Mr Hunt’s evidence on this topic. The importance of the issue is that if Mr Hunt was given the information from his unnamed source the day before the application was lodged in court, that fact would militate against any person other than one associated with SAPOL being the source of the leak. That is because, prior to its lodgement in the court, no one other than members of SAPOL and the victim’s family knew of the impending application. On the other hand, if Mr Hunt received the information on Thursday, 26 February 2004, then the likely source of the information broadens somewhat to include court sources. It is a curious fact that although prior to giving his evidence Mr Hunt indicated through his counsel that he would, if asked, confirm that his unnamed source was not anybody from SAPOL, neither counsel ever sought to confirm that with the witness.
Mr Trim QC argued that, on a proper construction of the whole of his evidence, Mr Hunt has excluded any person associated with SAPOL as his source. I accept that, on the view of Mr Hunt’s evidence for which Mr Trim contended, there was no need for the defendant to confirm that Mr Hunt’s source was not a person within SAPOL. On the whole of Mr Hunt’s evidence I have concluded that it is more probable than not that he received the information from the informant on Thursday 24 February 2004 as he agreed, and promptly acted upon it.
While Mr Hunt denied ever reading or seeing the affidavit of Detective Keane, he did recognise the application as the same document he obtained from the court registry on Friday, 27 February 2004 after receiving the tip-off. Mr Hunt said that when he received information from the informant he was given the name of the plaintiff, a name which he recognised immediately because, as he put it, it was “common knowledge” in the media industry at the time that the plaintiff had been questioned by police and was regarded as a suspect in the investigation into the murder of Ms Marr.
Mr Hunt attended the court hearing on 2 March 2004 and the press conference on 3 March 2004. The very next day he reported on the hearing and the press conference in the third article.
Prior to publication of the first article on Saturday, 28 February 2004, Mr Hunt said he telephoned Mr Symons on the evening of Friday, 27 February for comment. He described his conversation with Mr Symons as short and abrupt. Mr Symons indicated that he did not wish to comment because the matter was sub judice. Mr Hunt confirmed that it was not Mr Symons who prompted him to approach the court to obtain a copy of the forensic procedures application.
The evidence concerning the filing and serving of the forensic procedures application came from both court witnesses and SAPOL officers. Marc Marshall, the principal business performance analyst for the Courts Administration Authority, gave general evidence about the procedure when such an application is lodged. I accept that one copy of the application was filed and remained on the court file and that one copy was given back to the police for service.
The court file remained in the court registry until it was transferred to the Magistrate for hearing on 2 March 2004. Mr Marshall said there were a number of employees involved in that process, namely, a person at the counter and in the listings area, one or two people who would take and create the file, and another person who actually prepared the list for hearing. Prior to the matter going to the Magistrate for hearing, the file remained in a secure area.
Mr Hunt confirmed that when referring to “court sources” in the article on 28 February 2004, he was not referring to anybody from the court registry. I also infer from his evidence as a whole that his source was not a person from the court registry.
A number of police officers were aware of the impending application. Superintendent Venditto confirmed that he was involved in discussions with the investigating officers about the application. It was Superintendent Venditto who instructed the investigating officers to prepare the necessary affidavit and to keep the affidavit confined to matters essential and necessary to obtain an order under the Forensic Procedures Act. He personally selected Superintendent Bruhn to prosecute the application on behalf of the police. Both Superintendent Venditto and Superintendent Bruhn said that they did not speak to anyone from the media prior to the hearing on 2 March 2004.
Detective Keane said he swore the affidavit in the Magistrates Court registry on 20 February 2004. The affidavit, as appears on its face, was sworn in front of a Justice of the Peace at the court. He then gave the sworn affidavit to Sergeant Wojtasik to prepare the summons and file the documentation. After the filing of the application in court, Detective Keane served the summons and affidavit on the plaintiff at the Messenger reception area on Thursday, 26 February 2004. Detective Keane did not speak to any member of the media about the application. He was well aware of the need for confidentiality. Likewise, Sergeant Wojtasik did not discuss the matter with anyone.
Mr Symons, now a consultant living and working in New South Wales, was at the relevant time the Officer in Charge of Major Crime. He said that in that role he became aware early in 2004 of the impending forensic procedures application. He could not remember the actual details but was able to recall that Mr Hunt made contact with him either before or after the hearing in the Adelaide Magistrates Court. Mr Symons did not make any request of Mr Hunt to refrain from publication as he considered it was not within his power to make such a request. Apart from the telephone call with Mr Hunt, he did not discuss the matter with anyone from the media. He acknowledged that it would have been improper if he had attempted to use the occasion of the forensic procedures application to seek publicity for the ongoing investigation.
I accept the evidence of each of the witnesses Venditto, Bruhn, Wojtasik, Keane and Symons that they did not speak to anyone, let alone a member of the media, about the impending application.
The allegation that there was an unauthorised publication to The Advertiser in the manner pleaded in paragraphs 5 and 6 of the Claim is a grave one. It would, if proved, almost certainly amount to serious conduct warranting, if not serious criminal charges, at the very least disciplinary charges which could lead to the police officer’s dismissal. Clear proof of such a leak would be necessary before any finding could be made.
The plaintiff has not proved that there was such an unauthorised leak. On the whole of the evidence I find that it is far more likely that the source was a person associated with the Courts Administration Authority. However, it is not my task to determine where the leak came from. It is my task to determine whether, as pleaded, the leak emanated from SAPOL. I find that the plaintiff has not proved that it did.
In my view, the police were not responsible for the listing arrangements of the application made under the Forensic Procedures Act or for arranging any adjournment of that application. On the contrary, as will be seen, it was within the power of the plaintiff and his advisers to negotiate with Superintendent Bruhn with a view to adjourning the application or dealing with the application by consent and thereby avoiding publicity.
It follows that the defendant is not responsible for the initial publication. It also follows that the defendant cannot be held responsible for the first and second articles in The Advertiser on 28 February 2004 and the article on 3 March 2004. Neither the first nor the second article found any cause of action by way of republication against the defendant, nor do they provide any basis for concluding that the grapevine effect worked to convey any initial publication to the wider public community in South Australia. Even if that grapevine effect were proved, the defendant cannot be held responsible, as it has not been proved that anyone associated with SAPOL was the source of Mr Hunt’s information.
The media release and the press conference on 3 March 2004
I turn now to consider the issues which arise in respect of the media release and the press conference held on 3 March 2004.
The fact of the media release and the press conference are admitted. It is not admitted, however, that either of the publications identified the plaintiff. In this respect it is necessary for the plaintiff to prove that he was identified by reference to extrinsic facts not in the publication itself. Here the allegation is that the persons at the press conference were, by reason of the first and second articles, together with the application in the Adelaide Magistrates Court on 2 March 2004, readily able to identify the plaintiff as the subject of Mr Symons’ media release and his remarks at the press conference.
One of the members of the media present during both the Adelaide Magistrates Court hearing and the press conference was Mr Hunt. However, Mr Hunt was the author of the first and second articles, and his source of information was the informant. Nevertheless, I am prepared to draw the inference that at least one of the members of the media present at the press conference identified the plaintiff as the subject of Mr Symons’ remarks by reason of their attendance at the hearing of the application on 2 March 2004. To that extent the plaintiff has proved the second and third publications. However, it is still necessary to consider the nature and extent of the publication.
Nature and extent of the publication
Mr Hunt said he recognised the name of the plaintiff immediately when that name was mentioned by his informant. According to Mr Hunt, it was common knowledge within the media industry at that time that the plaintiff had been spoken to by Major Crime detectives about the murder of Ms Marr and was regarded as a suspect.
Mr Hunt was not the only witness to say that he was aware prior to 2004 that the police had made inquiries as to the plaintiff’s whereabouts at the time of the murder. Graham Archer, a journalist from Channel Seven who was called by the defendant, said it was common knowledge amongst those within the media who were interested in these events and who knew of the plaintiff and had worked with him that he was a person of interest in the police investigation into the murder of Ms Marr. Mr Archer confirmed that he used the term “person of interest” and “suspect” interchangeably. Colleagues of the plaintiff, namely Mr Parrish, Mr Svigos and Mr Wrankmore, were all spoken to in 1997 and specifically questioned about the plaintiff’s movements on 4 July 1997.
Ms Nelson, who was sharing a house with the plaintiff in 2004 and was present when the police attended at those premises in January, was well aware of the reasons for the police attendance. Although Ms Nelson claimed to be unaware of anything being said publicly by any friends or colleagues about the plaintiff’s involvement in the investigation prior to January 2004, I infer that Ms Nelson was aware at least by 26 November 2003 that the police regarded the plaintiff as a suspect in the murder. The telephone intercept makes that clear.
The evidence concerning the hearing of the application for an order under the Forensic Procedures Act establishes that the majority, if not all, of those present were either media representatives or police officers. As it was common knowledge within the media industry at the time that the plaintiff had been questioned by police in connection with the murder, I infer that those present already knew that the plaintiff was a suspect. Certainly that was the case in respect of Mr Hunt.
The names of those members of the media who were present at the press conference on 3 March 2004 appears in the record of the Police Media Unit for that day.

Those members of the media who attended at the hearing on 2 March 2004 and again at the press conference on 3 March 2004, including Mr Hunt, were well aware of the obligations of confidentiality arising out of s 48 of the Forensic Procedures Act. The name of the plaintiff was not published in any of the media articles in February and March 2004 relied on by the plaintiff.
By reason of the fact that the plaintiff was known to be a suspect within media circles as well as within his own family and work colleagues, I infer that those people would have understood the articles in The Advertiser of 28 February 2004, 3 March 2004 and 4 March 2004 to refer to the plaintiff.
Mr Quinn gave evidence that he was contacted by the plaintiff on the morning of 28 February 2004 and that the plaintiff informed him that he had been spoken to by someone who had seen the article and had recognised the plaintiff as the person described in the article. The plaintiff himself said that, in the week following the news coverage on 2 March 2004, he was contacted by friends and acquaintances who said they recognised him. He said that questions were directed to him as to the nature of his involvement with Ms Marr.
Leaving aside for a moment the hearsay nature of the evidence on this topic, there is no evidence about the knowledge of these people prior to 28 February 2004 regarding the plaintiff’s involvement in the police investigation. There has been no evidence from any witness who claims to have been informed that the plaintiff was a suspect in the murder of Ms Marr via any of the publications in February and March 2004. In the absence of a single witness called to attest to that fact I am not prepared to draw the inference that the publication by the informant to Mr Hunt resulted in the plaintiff’s status as a suspect becoming known to the general public. On the contrary, there is no evidence to suggest that an ordinary reasonable reader of the newspapers on 28 February 2004, or any subsequent date prior to May 2004, knew that the plaintiff was a suspect in the murder of Ms Marr.
In the absence of evidence that anybody, specifically any ordinary reasonable reader of the newspapers, who read the first or second article made a connection with the plaintiff as the subject of those articles, I conclude that there is no foundation for the submission that the grapevine effect worked at that time to convey the defamatory publications to the general public. The grapevine effect, as Heydon JA observed in Palmer Bruyn & Parker Pty Ltd v Parsons,[14] is not a doctrine of law or some phenomenon of life which operates independently of evidence. Some evidence is needed to support the inference which the plaintiff submitted should be drawn, namely, that either the publication to Mr Hunt or the publications on 3 March 2004 reached a wider body of people than the representatives of the media and the police at the court on 2 March 2004, who already knew of the plaintiff’s status as a suspect and who were each bound by the obligation of confidentiality under the Forensic Procedures Act.
[14] [2000] Aust Torts Reports 81-562.
In these circumstances, the plaintiff has not laid the necessary evidentiary foundation to support his submission that the relevant fact was transmitted to the general public at that time by way of the grapevine effect. There is no evidence that the identity of the plaintiff as a suspect in the murder was published beyond that limited group before the Channel Seven promotion in connection with the Draper affair in May 2004.
I turn now to consider the issues raised in connection with the third article and the publications in connection with the Draper affair on and after 14 May 2004 (“the further publications”).
“The third article” – The Advertiser article of 4 March 2004
The plaintiff relies on a third article which appeared in The Advertiser on 4 March 2004 and is titled “Marr Murder: Suspect’s Prints do not Match”. The article on its face purports to be a report of the press conference the day before, however, there are several gratuitous misquotes from the press conference, such a description of the man at the focus of the murder inquiry as “the prime suspect”. It is also plain from the body of the article that the sources for the article were not confined to the matters revealed in the press conference. There was no evidence led at the trial that anybody who read the third article was possessed of the necessary knowledge of the extrinsic facts by which the plaintiff could be identified. There has been no evidence at all on this topic. For reasons which I have already explained, the plaintiff cannot call in aid the grapevine effect to make good this deficiency.
The plaintiff also relies on the broadcasts on the evening of 2 March 2004[15] and 3 March 2004.[16] In some of the broadcasts, the man at the focus of the inquiry was described as a “professional photographer”. Mr Symons at no stage described the suspect either by reference to his occupation or his age. There has been no evidence that anyone who viewed those broadcasts was able to identify the plaintiff by reference to Mr Symons’ remarks the day before.
[15] Exhibits P4 and P5.
[16] Exhibit P6.
I turn now to consider the allegations with regard to the subsequent publications which appeared in interstate newspapers on and after 14 May 2004.
“The further publications” – Newspaper articles and broadcasts on and after 14 May 2004
The plaintiff claims damages by way of republication in respect of the publications on and after 14 May 2004, all of which are concerned with the Draper affair. The plaintiff’s case in this respect is based on the evidence of Mr Archer. The plaintiff contends that the effect of Mr Archer’s evidence is that if not for the identification of the plaintiff as a suspect in the media release and the press conference, Mr Archer would never have described the plaintiff as a suspect in the Today Tonight promotion in May 2004. It is necessary to examine Mr Archer’s evidence on this topic.
Mr Archer said that he received information in January 2004 about Ms Draper’s overseas travel. At the time he received this information he was already aware that the plaintiff was a person of interest in the murder of Ms Marr. He said it was common knowledge amongst the media at that time that the plaintiff had been questioned about the murder. He knew that from working with associates of his in the media who had spoken with the plaintiff himself. It is significant that Mr Archer ignored the events of March 2004 even though he knew about them. The effect of Mr Archer’s evidence was clearly that he would not have published the broadcast in May 2004 in the absence of any story about Ms Draper. The purpose of the publication was to expose what Channel Seven perceived to be the fraud by Ms Draper in taking the plaintiff on a taxpayer funded trip as her spouse. Mr Archer said he did not rely upon the press conference and the media release when deciding to publish the allegation that the plaintiff was a suspect in the murder case. He already knew of it independently.
Mr Archer’s evidence accords with the history of the matter. There was in fact no publicity between 4 March 2004 and the Today Tonight promotion in May 2004 exposing the Draper affair. That fact alone gives strong support to Mr Archer’s evidence. It is also in my view fatal to the plaintiff’s claim that there is a causal connection between the events of March 2004 and the publications associated with the Draper affair in 2004. The very nature of the interstate publications proffered by the plaintiff in this matter reveals that their dominant concern is the scandal of a politician travelling overseas while falsely declaring her companion to be her spouse. The evidence contained within the diplomatic passport creates an irresistible inference that the plaintiff was party to that deception. I conclude later in these reasons that the plaintiff’s evidence on this topic has not been truthful. In my view, the reason for the plaintiff’s dishonesty in that regard is that the plaintiff has attempted both in this trial and in the trial of the Channel Seven action to distance himself from Ms Draper’s deception. The only point which needs to be made in this context is that the plaintiff has not proved any causal connection between the actions of the defendant on 3 March 2004 and the further publications.
It follows, then, that although the plaintiff has proved publication in relation to both the media release and the press conference, the plaintiff has not proved that the publication went beyond those members of the media who were present at the press conference and who were under a clear obligation of confidentiality with regard to the plaintiff’s identity by virtue of s 48 of the Forensic Procedures Act. That members of the media were aware of their obligations is evident from the fact that none of the publications relied upon named the plaintiff. It follows too that the extent of publication in this matter is very limited and the publication was to people who already knew from other sources that the plaintiff was a suspect. These findings are plainly relevant to the extent of any damage suffered by the plaintiff to his reputation.
The Pleaded Imputations
I turn now to the issues which arise in respect of the pleaded imputations.
As appears from the foregoing, the plaintiff relies on three publications by SAPOL: the alleged leak to Mr Hunt (“the initial publication”), the media release (“the second publication”), and the press conference (“the third publication”).
In addition to these three publications, the plaintiff also seeks to recover damages for the alleged consequences of the original publication by way of the republications of the initial publication and the second and third publications. The plaintiff pleads that the defendant is responsible for the republications because SAPOL intended that the initial publication be republished and because the republications were the natural and probable result of the second and third publications.
The defendant made no concession that any of the republications alleged were the natural and probable consequence of either the initial or the second and third publications from which they were said to flow. I assess the issues which arise in respect of the alleged republications in the context of a discussion of the issues which arise on the initial publication and the second and third publications.
I turn now to the imputations alleged to arise from the initial publication.
“The initial publication” – The unauthorised leak
Although I have concluded that the defendant was not responsible for the initial publication, I assume for the purpose of this discussion that the initial publication has been proved.
Two questions arise. The first is what is the content of the publication? The second is whether any of the imputations alleged to have been conveyed by the initial publication were in fact conveyed.
I was referred to a number of authorities which discuss what conduct amounts to publication. In the seminal authority of Webb v Bloch,[17] Isaacs J said:
To publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle ...
The meaning of "publication" is well described in Folkard on Slander and Libel, 5th ed. (1891), at p. 439, in these words: "The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him." In Starkie on the Law of Slander and Libel, 1st ed. (1830), vol. ii., at p. 29, it is said: "The declaration generally avers, that the defendant published and caused to be published; but the latter words seem to be perfectly unnecessary either in a civil or criminal proceeding; in civil proceedings, the principal is to all purposes identified with the agent employed by him to do any specific act" &c. In Parkes v. Prescott Giffard Q.C. quotes from the second edition of Starkie: "All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected." In R. v. Paine it is held: "If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty: so that murdering a man's reputation by a scandalous libel may be compared to murdering his person; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide."
[footnotes omitted]
[17] (1928) 41 CLR 331 at 363–364.
[emphasis in original]
In more recent times, Hunt J in Toomey v Mirror Newspapers Ltd[18] said:
At common law, it consists of the communication of an imputation defamatory of the plaintiff to some person other than the plaintiff himself: Pullman v Hill & Co Ltd [1891]1 QB 524 at 527. At common law, the cause of action is based upon the publication of the vehicle by which that imputation is communicated: Webb v Bloch (1928) 41 CLR 331 at 363. The vehicle may consist of a document, or an effigy, or an action, or the spoken word. Publication by the defendant is the foundation of the action for defamation: Powell v Gelston [1916] 2 KB 615 at 619.
[18] (1985) 1 NSWLR 173 at 177.
The facts of an even older authority, Hird v Wood,[19] are perhaps closer to those alleged in this matter. In Hird, the English Court of Appeal held that evidence that a man who sat near a placard containing defamatory material, and continually pointed at the placard so as to attract the attention of passersby, was evidence capable of amounting to publication by the man who pointed at the placard. By parity of reasoning, if the alleged leak to Mr Hunt is characterised as, in effect, an invitation to the journalist to go to the court registry and look at the application, it follows that the initial publication must include the copy of the application to which the journalist was referred.
[19] (1984) 38 SJ 234 (CA).
Whether or not an unauthorised leak to Mr Hunt in the manner alleged could amount to a publication for present purposes is not necessary for me to finally resolve because I have found that the plaintiff has not proved that the defendant was responsible. However, I am inclined to agree with the plaintiff’s submission that the leaking of the information in the manner alleged in the pleadings would be sufficient to prove an act of publication.
I deal now with the second question whether any of the imputations alleged to have been conveyed by the initial publication were in fact conveyed.
The plaintiff pleads three imputations which were said to flow from the initial publication. Those imputations are:
6B.The natural and ordinary meaning of the initial publication is:
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 subparagraph a) and/or b) hereof.
It is necessary to consider whether any of those imputations were conveyed by the initial publication and then, if they were, whether they were defamatory of the plaintiff.
The defendant conceded quite properly that if any of the imputations alleged by the plaintiff in respect of the initial publication were in fact conveyed they would be defamatory.
The principles which determine the approach to these questions have been authoritatively decided.[20]
[20] See Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234; Charleston v News Group Newspapers Ltd [1995] 2 AC 65.
The imputations are the meaning which an ordinary reasonable reader or viewer would impute to the publication.
In Rubber Improvement Ltd v Daily Telegraph Ltd[21] it was said:
There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs. ...
What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning. ...
Ordinary men and woman have different temperaments and outlooks. Some are unusually suspicious and some are unusually naive. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question.
[21] [1964] AC 234 at 258–259 per Lord Reid.
Taken at face value, the allegation that the name of the plaintiff was leaked to Mr Hunt in connection with an impending application under the Forensic Procedures Act, would not, without more, convey any of the imputations in paragraph 6B(a) to (c) of the Claim. If, however, the initial publication is and includes the information which was contained in the application filed in the Magistrates Court to which Mr Hunt was referred, then an imputation that the plaintiff is suspected on reasonable grounds of murder is clearly conveyed. The application expressly states that the plaintiff is so suspected. While it is true that Ms Marr’s name is not mentioned at all in the application, Mr Hunt already knew that the plaintiff had been questioned by police in connection with Ms Marr’s murder. In those circumstances, I would have little difficulty in concluding that the publication conveyed the imputation that the plaintiff was suspected on reasonable grounds of murdering Ms Marr.
It would be difficult to conclude that either of the imputations in 6B(a) and 6B(c), namely, that there were strong grounds to suspect that the plaintiff murdered Ms Marr, and that the plaintiff had so conducted himself as to warrant that suspicion, were conveyed. In the application filed in the Magistrates Court there is nothing other than a bare assertion that the plaintiff is suspected on reasonable grounds of murdering Ms Marr. While the supporting affidavit details the basis of the police grounds, there is no suggestion that Mr Hunt was ever shown or ever read that affidavit. Mr Hunt did not receive any information from his informant other than the name of the plaintiff in connection with the application filed in the Magistrates Court. In these circumstances, I do not conclude that the initial publication conveyed any imputation other than that the plaintiff was suspected on reasonable grounds of the murder of Ms Marr.
It follows from my conclusion that the defendant was not responsible for the initial publication that it could not be held responsible for either of the alleged republications of that initial publication, being the first and second articles in The Advertiser dated 28 February 2004 and 3 March 2004.
The plaintiff is on much firmer ground with respect to the second and third publications, namely the media release and the press conference on 3 March 2004.
“The second and third publications” – The Media Release and the Press Conference

The plaintiff relied upon these comments in the present proceedings. I note, however, that the Court went on to determine that the material sought to be used by the applicant was not subject to any prohibition under the TIA Act because the information contained within it had been available to and read by both parties. In order to prevent manifest absurdity of prohibiting an applicant from using material which had previously been made public, Lindgren J construed s 63 as not applying to material already within the public domain.
Those authorities were decided prior to amendment to the legislation in the form of s 5B(1)(eb) between ss 5B(1)(ea) and 5B(1)(f). Subsection 5B(1)(ea) makes explicit that proceedings in relation to termination of employment or appointment of certain officers of the Australian Federal Police are exempt proceedings for the purpose of s 5B. Similarly, amendment s 5B(1)(eb) provides that proceedings for the purpose of s 5B also include disciplinary or legal action in relation to eligible staff members of the Australian Federal Police and the Australian Crime Commission.
Contrary to the plaintiff’s submission, in my view the ambit of “any other proceeding” is not necessarily constrained by the definition in s 5B(1)(e) even though subsections (ea) and (eb) are obviously related to s 5B(1)(e).
I see no difficulty in reading the words “any other proceeding” in s 5B(1)(f) as taking their colour, not from the preceding paragraphs, but from the connecting words “in so far as it relates to”. A proceeding will fall within the ambit of the subsection if, not being a proceeding by way of a prosecution for an offence, or a police disciplinary proceeding of the kind referred to in ss 5B(1)(e), 5B(1)(ea) and 5B(1)(eb), it relates to “alleged misbehaviour or alleged improper conduct” of an officer of the Commonwealth or of a State.
The question which thus arises is whether the current proceedings are to be properly characterised as proceedings which relate to misbehaviour and/or improper conduct of an officer of the State.
The factual and legal issues for resolution in these proceedings are not as clear cut as the issues in Marsden and the other authorities to which I was referred. While it is true that the plaintiff brings a claim in defamation seeking general and exemplary damages, he also pleaded breaches of statutory duty, confidentiality and privacy. The essence of the plaintiff’s claim, whether framed in defamation or breaches of statutory duty, is that the police have acted improperly, and indeed maliciously, in leaking the facts and contents of an affidavit and application under the Criminal Law (Forensic Procedures) Act 1998 (SA) to a journalist, Nigel Hunt. The pleadings allege that the police have improperly and maliciously focused on the plaintiff as the only suspect in the murder of Corinna Marr, in circumstances where there was no objective evidence to support any reasonable suspicion against the plaintiff. Further allegations have been made that the police maliciously conspired to deflect the course of the investigation away from Ms Marr’s husband, Robert Marr, the person in respect of whom there was allegedly grounds to suspect because of some improper relationship between SAPOL and Mr Marr’s father, who was then the police chaplain.
The allegations in this trial made by the plaintiff go far beyond an assertion that all the police did was publish an allegation that the plaintiff was the prime suspect in the murder of Ms Marr. To succeed the plaintiff must establish that the police have breached their duty of confidentiality.
The foundation of the defamation claim is an allegation that individual police officer or officers acted unlawfully, maliciously and in breach of their statutory duties. The allegations, if proved, could hardly be more serious. Those allegations could lead to disciplinary charges, if not criminal charges, against the offending police officer or officers.
The defendant sought to use the telephone intercept material in support of its defence of justification to demonstrate not only that the police did not act maliciously, but that there was objective evidence to found the suspicion that the plaintiff was the only suspect in the murder of Ms Marr.
In light of the foregoing I consider that these proceedings are to be properly characterised as proceedings involving allegations of serious misbehaviour if not criminal conduct on the part of the police. Even on the narrower construction preferred by the Court in Kizon, the allegations made against the police in this case bring these proceedings within the definition of “any other proceeding” in s 5B(1)(f).
It is for these reasons that I consider that the proceedings before me are exempt proceedings within the meaning of s 5B(1)(f). To hold otherwise would, especially in light of the amendments to the legislation in 2002 and 2012 leave s 5B(1)(f) with very little work to do. It is for this reason that I ruled that the evidence of the telephone intercepts, as well as the extracts from the transcriptions of those intercepts, was admissible at the trial.
There is another reason why, in the context of this case, I consider the telephone intercepts would be admissible in any event.
It is plain from the TIA Act that lawfully intercepted material which has come into the public domain is not subject to the prohibition is s 63(1). Section 75A makes that clear. The absurdity referred to by both Merkel J in Carmody and James J in R v Standen[87] would apply equally here if the police were not able to rely on the telephone intercepts to defend allegations of malicious and improper conduct.
[87] (2011) 80 NSWLR 428.
The police went to speak with the plaintiff about these intercepts as long ago as 24 January 2004.
Furthermore, in the course of intervening in Draper v Channel Seven Adelaide Pty Ltd[88] and particularly in the appeal in relation to the lifting of a suppression order in that matter,[89] the plaintiff swore an affidavit in which he referred specifically to those intercepts. Annexed to his affidavit was the affidavit of Detective Keane sworn on 20 February 2004 in which explicit reference to the content of one of the telephone intercepts is made. The plaintiff subsequently instituted these proceedings claiming, amongst other things, damages for breaches of statutory duty relating to those very intercepts.
[88] DCCIV-04-792.
[89] Channel Seven Adelaide Pty Ltd v Draper (2004) 90 SASR 160.
I have already explained why, in my view, the adducing of that evidence is an integral and necessary part of the defendant’s defence of justification. The fact is it is information which has been known to both parties since 2004 and has been utilised by both parties in various contexts since that date.
For these reasons I ruled that the intercepts were no longer subject to the prohibition in s 63(1) of the TIA Act.
Appendix 2 – Ruling on Public Interest Immunity
The issue of public interest immunity initially arose in the context of an application by the plaintiff for further discovery. The plaintiff sought discovery of documents which he said were relevant to establishing the time of Corinna Marr’s death. Following argument as to the relevance of the documents, I heard submissions from the defendant in closed court as to why public interest immunity prevented their discovery. The issue was resolved without the need for formal orders when the defendant undertook to provide documents to the plaintiff which it conceded were relevant to the issues at trial and could be redacted where their contents intruded into areas protected by public interest immunity.
Notwithstanding that initial resolution, further issues relating to public interest immunity during the cross-examination of Professor Byard, Detective Keane, Inspector Crameri and Kim Williams. Those witnesses were asked a number of questions to which the defendant objected on the grounds of public interest immunity.
By consent, and to obviate the necessity for argument on each occasion when objection was taken, argument on the question of public interest immunity was deferred until the conclusion of cross-examination of the witnesses Byard, Crameri and Keane. I then ruled. The following are my reasons.
The following questions were asked of Professor Byard:
●Did you ascertain whether or not the body had been moved - ? (T2132)
●Did you ascertain whether or not the victim had blood, make-up to her face? (T2134)
●Can you indicate whether the blood loss would have been substantial or - ? (T2135)
●Did the autopsy indicate as to whether or not the deceased had sexual relations in the preceding 24 hours? (T2135)
●At the time of the autopsy, were you able to ascertain whether or not the deceased had recently washed her hair? (T2136)
The following questions were asked of Inspector Crameri:
●You weren't aware of any major developments in that period of time [from 2005 to 2008]? (T2214)
●Can you give any conceivable reason why [the plaintiff was not interviewed until four and a half years after he first provided a statement to police]? (T2226)
●Can you think of any possible justification from the point of view of a criminal investigation as to why police would wait 12 years before asking Mr Sands for that diary? (T2226)
●[Were inquiries made into whether the plaintiff had any association with guns] by you? (T2364)
●It was the case at the time you ceased to be involved in the investigation that you were aware of no evidence of Mr Sands being in the vicinity of the unit on the afternoon of 4 July. (T2366-67)
The following questions were asked of Detective Keane:
●[Between October 2002 and March 2004, were the two telephone intercepts] the only difference or additional material [that Keane had in relation to, and that gave him reason to suspect Mr Sands]? (T2493)
●What are they? [referring to the matters other than the two telephone intercepts which Detective Keane became aware of between October 2002 and March 2004 that led him to suspect the plaintiff] (T2494)
●Is that the extent of the evidence that you – or the material you sought to rely upon to suggest a sexual relationship? (T2495)
●Can I suggest this to you: that you were aware of no evidence which suggested any acrimonious conclusion to any relationship? (T2497)
●Did you believe that Mr Sands had a motive - ? (T2526)
●At any stage prior to March 2004 did you direct your mind to what, if any, motive Mr Sands might have had to murder Corinna Marr? (T2526)
●What was that item? [referring to an item produced to Detective Keane by Robert Marr a couple of days after the murder] (T2546)
●Who do you say was [Mr Y’s] employer? (T2550)
●Did that occur? [referring to the reinterviewing of all witnesses spoken to since the 1997 shooting as reported in an article entitled “Police hunt new clues on Corinna” by Doug Robertson on 8 August 2009] (T2599)
●When you gave that answer in 2009 all you knew, correct me if I am wrong, was that Mr Sands had given some answers in cross-examination indicating that he whilst having lunch had made two, performed two errands? (T2951)
In the cross-examination of Ms Williams, Mr Trim objected to any questions that might tend to show when the DNA sample taken from Mr Sands on 24 January 2004 was tested. At the time I ruled that Mr Heywood-Smith was to confine his questioning to a period between 28 January 2004 and 3 March 2004.
In support of the claim for public interest immunity I received an affidavit from Mark Gordon Trenwith dated 9 October 2012.
I was also referred to confidential affidavits sworn in previous proceedings and invited to read that material. I have done so.
The confidential affidavits which I have read indicate that if the witnesses were required to answer the questions identified above the disclosure of that information might well interfere with the proper and efficient conduct of the operations of the South Australian Police. Those affidavits further indicated that the effectiveness of both this investigation and ongoing investigations into other serious crimes may be compromised by disclosure of that information. For those reasons, the confidential material which I was invited to read was sealed in envelopes which I ordered were not to be opened except at the direction of a Judge of this Court. I further ordered that the Registrar store all of the confidential material contained within the envelopes in a secure place and separately from the file relating to this action.
The questions sought to be asked by the plaintiff’s counsel relate to the investigation of a serious crime. I am satisfied that this investigation is ongoing. I am further satisfied that if the witnesses were required to answer questions outlined above, the integrity of the investigation may be compromised. It would necessarily reveal aspects of police methodology and processes used in the investigation of serious crimes and it may put at risk the safety and security of informants.
The principles to be applied when determining a claim of public interest immunity are well established.[90]
[90] See, eg, Conway v Rimmer [1968] AC 910; Alister v The Queen (1983) 154 CLR 404.
It is my duty in determining the claim for public interest to balance two competing aspects of the public interest. The first is the public interest in ensuring that the integrity of police investigations into serious crimes is maintained, to ensure the safety and security of informants, and to protect police methodology and processes used in the investigation of serious crimes. The second is the public interest in ensuring a just and fair resolution of the issues between the parties on the basis of all relevant and admissible evidence.
In this case, having considered the confidential material and heard submissions from both counsel, I am satisfied that the public interest in maintaining the integrity of the investigation into the murder of Ms Marr outweighs the public interest in ensuring that, so far as possible, all available relevant and admissible evidence is disclosed to each party in the course of litigation to determine their private rights.
It is for these reasons that I upheld the defendant’s claim to public interest immunity in respect of each of the questions asked above.
Appendix 3 – Admissibility of conversation between Detective Keane and Colin Todd on 23 October 2008
On 19 November 2012, I ruled that the recording by Colin Todd of a conversation between himself and Detectives Keane and Roberts on 23 October 2008 was unlawful and that, accordingly, both the recording and any material derived from the use of that recording was inadmissible in this trial. My reasons follow.
Background
On Sunday, 18 October 2008, Detective Keane went to Mr Todd’s home at Reynella. It is common ground that prior to that date Mr Todd had not spoken to Detective Keane for some years. The circumstances in which Detective Keane went to Mr Todd’s home on 18 October 2008 as well as the conversation which took place were a matter of dispute between the parties.
A subsequent visit by Detective Keane on Thursday, 23 October 2008 was also in dispute. On that date, Detective Keane, in company with Detective Roberts attended at Mr Todd’s home a second time. It was during this visit that Mr Todd recorded part of a conversation which he had with the detectives in the kitchen of his home.
During the course of cross-examination of Detective Keane, the plaintiff applied to tender the tape recording of the conversation. The plaintiff submitted that the recording was relevant both to the issue of the duration of any alleged sexual relationship which the plaintiff had with Corinna Marr and to Detective Keane’s credibility.
The defendant objected to the tender of the tape recording on the basis that the recording was in breach of s 4 of the Listening and Surveillance Devices Act 1972 (SA) (“the Listening Devices Act”) and that any attempt to use the recording was prohibited by s 5 of the Act.
Discussion
The determination of the lawfulness of the recording must begin with s 4 of the Listening Devices Act. Section 4 of the Act states:
4—Regulation of use of listening devices
Except as provided by this Act, a person must not intentionally use any listening device to overhear, record, monitor or listen to any private conversation, whether or not the person is a party to the conversation, without the consent, express or implied, of the parties to that conversation.
Maximum penalty: $10 000 or imprisonment for 2 years.
For completeness, s 5 of the Listening Devices Act states:
5—Prohibition on communication or publication
(1)A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device in contravention of section 4.
Maximum penalty: $10 000 or imprisonment for 2 years.
...
A private conversation is defined in s 3 of the Listening Devices Act as “any conversation carried on in circumstances that may reasonably be taken to indicate that any party to the conversation desires it to be confined to the parties to the conversation”.
The first issue which arises for consideration is whether the conversation was a private conversation within the meaning of the Act. In considering this issue, I have been assisted by a number of authorities, the most recent of which is the judgment of Doyle CJ in Thomas v Nash:[91]
The definition of "private conversation" indicates that a conversation is private if the conversation, as it takes place and progresses, is intended to be confined to the parties to the conversation, or known participants in the conversation.
A conversation can be private even though the participants are at liberty to tell others about it later. In the Act, "private" is used not in the sense of "secret" or "confidential", but in the sense of "not public". A telephone conversation with a friend is a private conversation, even though the friend is at liberty later to tell another about it. On the other hand, a telephone conversation on talkback radio is not a private conversation.
There is no reason to give a narrow meaning to the concept of "private conversation", bearing in mind the objects of the Act. There is no need to trace the precise limits of the concept of a private conversation ...
[91] (2010) 107 SASR 309 at [36]-[38].
Mr Heywood-Smith QC submitted that it cannot have been the intention of Parliament to provide protection for police officers in carrying out their usual duties. He argued that, because it was Detective Keane’s intention to obtain a statement from Mr Todd on 23 October 2008, the conversation could not have been private within the meaning of the Listening Devices Act.
I do not accept that submission. Even if one of the purposes of the attendance of Detectives Keane and Roberts upon Mr Todd was to obtain a statement from him, it does not follow that everything said in the conversation could not be part of a private conversation.
It is plain from the suggestions put to Detective Keane in cross-examination that the topics raised in the conversation between the two men on that date covered a number of matters, some of which were directly raised by Mr Todd himself. The fact that Detective Keane later prepared a statement dealing with the particular topic of the plaintiff’s relationship with Ms Marr does not preclude a finding that the conversation was private.
One can readily appreciate that police officers in the course of an ongoing investigation into a criminal offence may wish to discuss a number of matters with witnesses and potential witnesses, particularly a witness in the position of Mr Todd. It is also likely that a witness in Mr Todd’s position may wish to raise a number of matters with investigating police officers which he or she never intends to be made public. As it happened, Mr Todd did wish to raise a number of matters with the police officers that day.

Furthermore, the definition of a private conversation in the Listening Devices Act is very wide. That a private conversation may later become public does not detract from my conclusion that on this occasion it was Detective Keane’s intention that the general conversation between himself and Mr Todd be confined to the parties.
In my view, there is a distinct public interest in police and members of the public being able to communicate frankly and freely in the course of police investigations into serious crimes. I do not suggest that every conversation a police officer has with a witness, potential witness or member of the public is necessarily a private conversation. However, in these circumstances, I find that the conversation between Mr Todd and Detectives Keane and Roberts on 23 October 2008 was a private conversation.
The next issue which arises for consideration under the Listening Devices Act is whether the recording was made for any lawful purpose as defined in s 7(1)(b) of the Listening Devices Act.
Section 7 states:
(1)Section 4 does not apply to or in relation to the use of a listening device by a person (including a person to whom a warrant is issued under this Act) if that listening device is used—
(a)to overhear, record, monitor or listen to any private conversation to which that person is a party; and
(b)in the course of duty of that person, in the public interest or for the protection of the lawful interests of that person.
...
(3)A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device under this section except—
(a)to a person who was a party to the conversation to which the information or material relates; or
(b)with the consent of each party to the conversation to which the information or material relates; or
(c)in the course of duty or in the public interest, including, in the case of information or material derived from the use of a listening device in the course of an investigation by an investigating agency, for the purposes of a relevant investigation or a relevant proceeding; or
(d)being a party to the conversation to which the information or material relates, as reasonably required for the protection of the person's lawful interests; or
(e)if the information or material has been taken or received in public as evidence in a relevant proceeding.
Maximum penalty: $10 000 or imprisonment for 2 years.
Mr Todd gave evidence about the circumstances in which the recording was made. He said that he decided to record the conversation because he was concerned for his safety after the visit by Detective Keane on 18 October 2008. He said:
The way John Keane came on the 18th on his own, unannounced, insistent he came in, the questions that were passed between us and how he wanted to virtually have enough to arrest or do Derick for the murder, then there wouldn't be a defamation case, he highlighted that a couple of times to me, that concerned me. The other thing is I just didn't trust John Keane and I was frightened, actually, him being there on his own. When he wanted to come back, yeah, that played on me.
…
Well, No.1; he wouldn't pass my statements over so that put doubt in my mind about him straightaway. Just other comments he's made over the time frame, during the whole course of the investigation. The trust factor certainly was building in regards to him not being totally honest with me in the Corinna case. Just his - the way he was conducting himself when I actually asked him questions about the investigation, he got very standoff-ish and I had my doubts about what he was getting up to. In regards to me, if I gave statements to him in good faith, wanting her murder to be resolved and over the time frame it just dragged on and on and he's come back to me on occasions and said 'Well, we haven't got anyone really to look at bar Derick'. That was when I was living at Modbury and that's when he came to my place with a detective called Brown, I think his name was, Jeff Brown. Over the time frame, yeah, the trust factor was gone and basically, as I said, him rocking up at my place on his own, that certainly put doubts in my mind about him overall.
Mr Todd went on to say that he was concerned because someone had told him how “they”, being the police, could actually fabricate evidence or frame someone:
Eg myself. That was laid in the back of my mind. As I keep saying, the lack of performance in regards to the investigation and with what he wanted to do with Derick, the statement he wanted from me in regards to Derick, that put doubts in my mind about his credibility, you know, John Keane's credibility.
Mr Todd said that he was concerned to ensure that any statement that he was asked to sign was accurate. He said he was further concerned that the real purpose for the statement was for use as evidence in the trial of the Channel Seven action.
After the visit by Detective Keane on 18 October 2008 and as a result of his concerns, Mr Todd engaged a private investigator. He asked that person to attend and wait about 200 to 300 metres away from his house when the police returned to his house on 23 October 2008. Mr Todd explained that he had a speed dial number pre-recorded in his phone to call the private investigator if the police gave him any trouble. He recorded the conversation by placing a small digital recorder concealed in a fruit bowl in the kitchen. He did not tell the police he was recording the conversation.
Detective Keane also gave evidence about the circumstances in which he went to Mr Todd’s home in October 2008. On 18 October 2008, he was concerned in the main to ascertain whether in fact Mr Todd was living at that address, as he wished to take a further statement from him. He had also received information via Crime Stoppers about a firearm that Mr Todd allegedly had in his possession and believed that a search of the property was necessary. He did not speak with Mr Todd about that on 18 October because he wanted to go back with one of his colleagues the next week after an appointment was arranged.
Detective Keane was cross-examined extensively about the topics of the conversations on 18 October 2008 and 23 October 2008 before it was revealed that Mr Todd had recorded the conversation. Understandably, Detective Keane could not recall many of the matters which were put to him in cross-examination. He did, however, deny that his main reason for attending was in connection with the plaintiff’s action in the Channel Seven proceedings and that he had had any conversation with Mr Todd about the defamation case involving Channel Seven. Detective Keane also maintained that he had not discussed with Mr Todd the provision of any of Mr Todd’s previous statements. He said that was done through one of his colleagues, namely Detective Ganley, at a later time.
Mr Todd said that he had watched closely the media releases in relation to the murder investigation and believed that they were inaccurate. He formed the view, on the basis of the media releases, that the police were not properly investigating the matter or following up leads which he had provided. For these reasons, he became increasingly frustrated with the investigation.
Conclusion
I was not impressed with Mr Todd’s explanation for why he recorded the conversation. I formed the view that he was not entirely frank with the court on a number of topics. His explanation for handing over the tape to a colleague of his, who was probably Mr Sheehan, and his attempts to distance himself from the handing over of this material to the plaintiff’s solicitors prior to the commencement of the trial, in particular appeared to me to be quite disingenuous. His answers in cross-examination revealed, perhaps unwittingly, his real motive for taping the conversation and for later handing over the tape to the plaintiff’s advisers. He wanted to expose what he perceived to be a botched police investigation and, as he put it, to uncover the truth about the incompetence, or worse, of Detective Keane.
His explanation for why he did not have an independent person present when the police came to visit him on 23 October 2008, notwithstanding his claimed fear about his own safety in the situation, was illogical. His explanations confirmed that his real motive was to covertly record the police as he thought they would be more candid if an independent observer was not present.
I do not accept that Mr Todd was wholly truthful in his evidence. I find that the tape recording made by him of the conversation on 23 October 2008 was not made to protect his or anyone else’s lawful interests. Moreover, I find that he was not genuinely in fear of the police. He was disgruntled and unhappy with the efforts of the police and was annoyed that, in circumstances where he believed the police had not followed up other more pertinent leads, he was being asked to provide another statement about the plaintiff’s sexual relationship with Ms Marr. Moreover, the conversation was recorded without the consent of either Detective Keane or his partner Detective Roberts. I conclude, therefore, that the recording was not made for any purpose defined in s 7(1)(b) of the Listening Devices Act. It follows that the recording was not lawful and was in breach of s 4 of the Listening Devices Act.
I do not consider that there is any residual discretion to admit the evidence.[92] Even if I am wrong about that, I would decline to exercise that discretion. There was no public interest in admitting the evidence at this trial. It was relevant only to the credit of Detective Keane, and even then could only have marginal relevance to that issue, as it was a conversation which occurred years after the relevant events in 2004. To permit the tender of this evidence would, in my view, be to encourage other disgruntled members of the public to illegally record private conversations with members of the police force which might then later be widely disseminated. That consequence, as Doyle CJ pointed out in Thomas, would undermine the very purpose of the protection in s 4 which lies at the heart of the Listening Devices Act.
[92] See Thomas v Nash (2010) 107 SASR 309 at [56] per Doyle CJ.
For these reasons I ruled that the recording of the conversation and any material derived from the use of that recording was inadmissible in these proceedings.
Appendix 4: Transcription of Press Conference – Exhibit P8A
Transcription of press conference held by Det/Supt Symons on 3/3/04.
Tape commenced at about 3.33pm.
Symons:     ...Forensic Procedures Act to take fingerprints from a ah person that we declared a suspect in the Corinna Marr Murder of the 4^th July 1997. The uh 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 its being produced, but obviously if your 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. Um, however what I will tell you and in response to questioning I’ll say point blank is that, the uh well basically the fingerprints 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 ah 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 ah for the same operational reasons um and that’s becoming even more important now when you bare in mind the rationale behind this investigation. But the ah its important to appreciate the finding of the fact that the fingerprints did not match does not in anyway move away from the information that was tendered in that affidavit. That information was correct at the time as to tending the affidavit it remains correct now, the person is a suspect and will remain a suspect until the matter is cleared up. Alright, so ah that’s just to give you a bit of a rough idea where we are going from and what I will be saying and ah, without much a do I’ll run into that for you is that okay.
Media:      Yep.
Symons:     Okay. The fingerprints that we took yesterday as a result of a ah 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 who 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 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 Crimestoppers 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 ah had discussions with the ah suspect’s lawyer today, the ah 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. Okay, done.
Media:      You obviously can’t comment on the claims by the defence
(inaudible)
Symons:     The bottom line with that is we have various ways of investigating homicides, investigating murders um those comments are one that would expect to come from the defence, um well I’m not comment any further on that expect to say what we were doing.
Media:      .................
Tape finishes.