Sands v State of South Australia

The applicant, the State of South Australia, sought special leave to appeal to the High Court of Australia from a decision of the Full Court. The dispute concerned a defamation action brought by Mr Sands against the State, arising from a police statement alleging reasonable grounds to suspect Mr Sands of murder. The State pleaded justification for this statement, but simultaneously sought to rely on public interest immunity to withhold crucial investigative material.

The central legal issue before the High Court was whether a claim of public interest immunity, properly made and upheld, could render a plea of justification in a defamation case impossible to fairly try, thereby necessitating the strikeout of that plea. The applicant argued that when public interest immunity prevents the disclosure of material central to the justification defence, the administration of justice is compromised, as the plaintiff is unable to access or challenge the evidence underpinning the alleged defamatory imputation. This, it was contended, creates an unresolvable tension where the State, as the author of the material, is privy to it while the plaintiff is not, and the court is placed in the position of making adversarial judgments vicariously for the plaintiff.

The High Court refused special leave to appeal. Their Honours determined that the applicant's conduct of the case in the courts below made it an unsuitable vehicle for considering the public interest immunity issue. Furthermore, concurrent findings of fact by the lower courts regarding the reasonable suspicion meant that the prospects of success on the issue were not sufficient to warrant the grant of special leave. Consequently, special leave was refused with costs.