Sands v The State of South Australia
[2013] SASC 202
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
SANDS v THE STATE OF SOUTH AUSTRALIA
[2013] SASC 202
Reasons for Decision of The Honourable Justice Stanley
23 December 2013
DEFAMATION - ACTIONS FOR DEFAMATION - DISCOVERY AND INTERROGATORIES - DISCOVERY - IN GENERAL
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - AT WHAT STAGE OF PROCEEDINGS
Application for a search order.
The appellant appeals from a judgment of this Court dismissing his claim for damages for defamation and breach of statutory duty against the State of South Australia. In preparation for the appeal the appellant brings an application for a search order against the Commissioner of Police pursuant to 6SCR 148.
The purpose of the search order is to obtain evidence that would disclose the nature of what were said to be 10 revisions disclosed by the evidence made by police to the witness statement of Ms Judy Morris. The appellant contends that the search order is necessary to obtain the evidence that the respondent failed to adduce at trial for the fair and proper determination of the appeal.
The respondent opposes the application for the search order.
Held (dismissing the application):
1. The appellant made a forensic decision at the critical point in the trial where he could have sought the exercise by the Court of the coercive power conferred by 6SCR 148 and chose not to do so (at [24]-[25]).
2. There is no reason on the evidence or otherwise to conclude that it is a real possibility SAPOL, its officers, or the State generally might destroy or make unavailable for use in evidence, whatever data might exist in the computer systems which might reveal changes made to the original witness statement of Ms Morris (at [29]).
3. A strong prima facie case has not been made out that there is a real possibility that the Morris witness statement was altered or edited in any sinister fashion (at [30]).
4. On the evidence as it exists, there is little more to be said for the basis of the application other than it is a fishing exercise (at [30]).
Supreme Court Civil Rules 2006 (SA) r 148; Crown Proceedings Act 1992 (SA) s 7; Telecomunications (Interception and Access) Act 1979 (Cth), referred to.
Jones v Dunkel (1959) 101 CLR 298, considered.
SANDS v THE STATE OF SOUTH AUSTRALIA
[2013] SASC 202Interlocutory Application
STANLEY J:
Introduction
The appellant appeals from a judgment of this Court dismissing his claim for damages for defamation and breach of statutory duty against the State of South Australia. The appellant alleged that he was defamed in a number of publications by the SA Police (“SAPOL”), which he alleged conveyed the imputation that he was the primary suspect in the investigation of the murder of Ms Corinna Marr. The trial judge dismissed the action, inter alia, on the basis that the State of South Australia had made out its defence of justification.
In preparation for the appeal the appellant brings an application for a search order against the Commissioner of Police pursuant to 6SCR 148. The search order sought is in the following terms:
TO: Commissioner of Police
This is a “search order” made against you on ________ by Justice […] at a hearing with notice to you after the Court was given the undertakings set out in Schedule B to this order and after the Court read the affidavits listed in Schedule C to this order.
THE COURT ORDERS:
INTRODUCTION
1.This order has effect up to and including Friday, [...] (“the Return Date”). On the Return Date at 9.00am there will be a further hearing in respect of this order in the Supreme Court, Victoria Square, Adelaide.
2.In this order:
(a) “applicant” means the Appellant;
(b) “Computer component” means any device, assembly of devices or infrastructure used to create, replace, update, delete, record, manage, edit, copy or migrate digital data. Such devices, assemblies and infrastructures include but are not limited to:
(1) Workstation Computers (PC) / Laptop computers.
(2) Servers.
(3) Mainframes.
(4) Databases.
(5) Business Systems.
(6) Shared Drives.
(7) Archives.
(8) Media Storage Devices.
(9) Document Management Systems.
(c) “Data Storage Device” means any primary, secondary, tertiary, on-line or off-line storage device, assembly of devices or infrastructure, used for the purposes of storing, facilitating the storage or managing the storage of digital data. Such devices, assemblies and infrastructures include but are not limited to:
(1) Cloud hosted storage.
(2) Shared Drives.
(3) Shared Servers.
(4) Internal (PC/Laptop) hard drives.
(5) External (removable) hard drives.
(6) Floppy Disks.
(7) ZIP Disks.
(8) Tapes.
(9) Cassettes.
(10) CD.
(11) DVD.
(12) SD Card.
(d) “independent computer expert” means the person identified in Schedule A as the independent computer expert in the search party;
(e) “listed thing” means any thing referred to in Schedule A to this order;
(f) “premises” means the premises and any of the premises identified in Schedule A to this order;
(g) “Resources required to make a copy” means: any and all equipment (proprietary or other), software (proprietary or other), appropriate storage medium (proprietary or other), third party agents associated with the subject matter (during and since the relevant period), subject matter experts (including SAPOL Staff, contractors, original equipment manufacturer (OEM) vendors) or Agents of said vendors; capable of successfully physically executing the activity of data extraction, transfer and load of an exact duplicate image (copy) of any and all:
(1)“Computer Components” and their contents.
(2)“Data storage Devices” and their contents.
(h) “search party” means the persons identified or described as constituting the search party in Schedule A to this order;
(i) “search terms” means words, terms, phrases or numbers appearing in the table forming Schedule B to this search order;
(j) “thing” includes a document.
ENTRY, SEARCH AND REMOVAL
3. You must:
(a)Permit and assist the independent computer expert to locate any “Computer Components” and their contents and “Data Storage Devices” and their contents.
(b)Permit and assist the independent computer expert to gain access to and verify the identity of any “Computer Components” and their contents and “Data Storage Devices” and their contents.
(c)Decrypt “Computer Components” and their contents and “Data Storage Devices” and their contents and, supply all decryption keys, algorithm, access codes and passwords, pertaining to same.
(d)Permit the independent computer expert to search any “computer component” and its contents.
(e)Permit the independent computer expert to copy any “computer component” and its contents.
(f)Upon request of the independent computer expert: Provide the “resources required to make a copy”, and, ensure the requested copy is made without error, virus or malicious code associated with the target “computer component” and its contents.
(g)Permit the independent computer expert to search any “Data Storage Devices” and their contents.
(h)Permit the independent computer expert to copy any “Data Storage Devices” and their contents.
(i)Upon request of the independent computer expert: Provide the “resources required to make a copy”, and, ensure the requested copy is made without error, virus or malicious code associated with the target “Data Storage Devices” and their contents.
RESTRICTIONS ON ENTRY, SEARCH AND REMOVAL
4.Any thing the subject of a dispute as to whether it is a listed thing must promptly be retained by you for safekeeping pending resolution of the dispute or further order of the Court.
5.Before removing any listed things from the premises the applicant’s lawyer must supply a list of them to you, give you a reasonable time to check the correctness of the list and give you and the applicant’s lawyers a copy of the list.
6.The premises must not be searched, and things must not be removed from the premises, expect [sic] in the presence of you or of a person who appears to the applicant’s lawyer to be your agent or other person acting on your behalf or on your instructions.
7.The applicant’s lawyers must not allow the applicant in person to inspect or have copies of any thing removed from the premises nor communicate to the application [sic] information about its contents or about anything observed at the premises until 4.30pm on the return date or other time fixed by further order of the Court.
COMPUTERS
8(a) If it is expected that a computer will be searched, the search party must include a computer expert who is independently of the applicant and of the applicant’s lawyers (“the independent computer expert”).
(b) Any search of a computer must be carried out only by the independent computer expert.
(c) The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises.
(d) The independent computer expert may search the computer or the copy of digital copy of the computer hard drive at the premises or away from the premises for listed things and may copy the listed things electronically or in hard copy or both.
(e) The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the return date, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the Court, together with a report of what the independent computer expert has done including a list of such electronic and hard copies.
14.Until 4.30pm on the Return Date you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court.
SCHEDULE A
Premises
The premises located at 100 Angas Street, ADELAIDE SA 5000 and any other location or facility which is nominated or becomes identified, as a result of this search order, as a place which is believed to contain related “Computer Components” and their contents and “Data storage Devices” and their contents.
Listed Things
1The ten (10) file versions of the document, one version of which appears as Exhibit D73 (“the document”), and the ten (10) revisions appertaining thereto as referred to in Exhibit P67 in the within proceedings.
2Each version of the document, including but not limited to all copies of each version of the document, at each of the locations identified below, between 13 July 1997 and 31 December 1997 (“the relevant period”) on a daily basis, or on as many occasions as the system ‘backed up’ SAPOL computer records during that period.
(a) Workstation15G:\MAJCRIM\T_LEADER\INVESTIG\MARR\STATEMEN\MORRIS.DOC
(b) Workstation 1)G:\MAJCRIM\CASES\MARR\STATEMEN\MORRIS.DOC
3All emails and file attachments sent or received by any member of SAPOL Major crime, between 13 July 1997 and 31 December 1997, which contain one or more of the stated “search terms” either within the title, metadata or body text of the email or, within the title, metadata or body text of the file attachments.
4All files created, replaced, updated or deleted, by any member of SAPOL Major crime, between 13 July 1997 and 31 December 1997, which contain one or more of the stated “search terms” within the title, metadata or body text of the file.
5All records describing SAPOL’s Document Management System for the relevant period.
6All records defining SAPOL’s Data retention or Information Technology Backup regime, during and since the relevant period. This includes any and all regimes described in or performed as contractual agreements with third party vendors, or vendor agents, associated with the administration, management or custody of:
(a) “Computer Components” and their contents.
(b) “Data Storage Devices” and their contents.
7All records defining any Information-Technology-related SAPOL Data migration initiative, during and since the relevant period.
8 All records defining any Information-Technology-related contractual agreements with third party agents associated with the administration, management or custody of the data storage devices and their contents, during and since the relevant period.
Search Party
1 The applicant’s solicitor;
(a) Mr Peter Humphries of 66 Wright Street, ADELAIDE SA 5000
2 Other members of the search party;
(b) Mr Adrian John Panazzolo in the capacity of Independent Computer Expert.
SCHEDULE B
TABLE OF SEARCH TERMS
Reference Term 1. 104 2. 138 3. 221 4. 1980 5. 20868 6. 04/07/1997 7. 2 men 8. 4th July 9. Addendum 10. Cigarette 11. Crime 12. Crimestopper 13. Describe 14. Description 15. Ferraro 16. Ford 17. Fourth 18. Holden 19. Howard 20. Husband 21. July 22. Keane 23. Man 24. Marr 25. Men 26. Morris 27. Murder 28. North 29. Northern 30. Orange 31. Parked 32. Photo 33. Red 34. Rusty 35. Sedan 36. Sheridan 37. Smoking 38. South 39. Southern 40. StationWagon 41. Station Wagon 42. Stopper 43. Suspicious 44. Two men 45. Watkins 46. Zenkteler
SCHEDULE C
UNDERTAKINGS GIVEN TO THE COURT
Undertakings given to the Court by the applicant:
1.The applicant will not, without permission of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within on outside Australia, other than this proceeding.
2.The applicant will not inform any other person of the existence of this proceeding except for the purposes of these proceedings until 4.30pm on the Return Date.
Undertakings given to the Court by the applicant’s solicitor
1.The applicant’s lawyer will not, without permission of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
2.The applicant’s lawyer will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until 4.30pm on the Return Date.
Undertakings given to the Court by the independent computer expert
1.The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent.
2.The independent computer expert will not, without permission of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of an civil or criminal proceeding, either within or outside Australia, other than this proceeding.
3.The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4.30pm on the Return Date.
…
The application was supported by an affidavit of Peter John Humphries sworn 7 June 2013 and an affidavit of Adrian John Panazzolo sworn 12 November 2013. Objection was taken to parts of Mr Panazzolo’s affidavit. After argument I admitted some of his affidavit. The appellant applied to call Mr Panazzolo to give viva voce evidence to supplement the contents of his affidavit. I dismissed this application.
The respondent opposed the application for the search order. It sought to rely upon an affidavit of Ms Tina Tomaszewski sworn 31 October 2013. The appellant objected to some parts of Ms Tomaszewski’s affidavit. I disallowed those objections. The appellant applied to cross-examine Ms Tomaszewski on her affidavit. I dismissed this application.
Submissions of the parties
Mr Heywood-Smith QC appeared for the appellant. He submitted that the purpose of the search order was to obtain evidence that would disclose the nature of what were said to be 10 revisions disclosed by the evidence made by police to the witness statement of Ms Judy Morris.
For the purpose of the disposition of this application it is necessary to understand the background to this submission. Ms Marr was murdered in her unit at Howard Street, Collinswood, on 4 July 1997. She had been shot. Her body was discovered by her husband, Robert Marr, some time before 4:02 p.m. when he telephoned 000. There was evidence that he had made two earlier phone calls from the unit at 3:51 p.m. and 3:52 p.m. The evidence was Ms Marr had left her place of employment at Firle somewhere between 2:00 p.m. and 2:30 p.m. that day. The pathology evidence gave an estimated time of death as between 2:30 p.m. and 3:30 p.m. The crime scene was searched both on the day of the murder and on the following day. No murder weapon was ever located.
The appellant first met Ms Marr in May 1995. They became friends. There was an issue as to whether their relationship was sexual. At trial the appellant’s case was that it was not reasonable on the evidence to treat him as the prime suspect in the murder of Ms Marr as the husband could not be excluded as the prime suspect. In this regard the appellant placed considerable weight upon the evidence of Judy Morris. At the time of Ms Marr’s murder, Ms Morris lived with her children at 12 North Street, Collinswood. Her house was around the corner from the Marr’s residence.
At the trial Ms Morris gave evidence that on 4 July 1997 she saw a car parked outside her home. When she first observed the car there were two men in the vehicle. The car had been at that location from about 2:30 p.m. Some time before 2:50 p.m. she noticed one of the men getting out of the car and walking off down North Street in the direction of Derlanger Avenue. The other man remained in the car. The man who remained in the car stepped out of the car at one stage and appeared to smoke a cigarette. Ms Morris left home at 2:50 p.m. to collect her children from school. She returned at approximately 3:15 p.m. When she returned home the car was still in the same position. A short time after she returned home, the man who had walked off down towards Derlanger Avenue returned from that direction. She continued to check on the vehicle about every five minutes, and noticed the vehicle leave at about 3:45 p.m.
At trial Ms Morris said that four days later she saw the husband on television. She immediately recognised him as one of the two men she had seen in the car outside her home. She said she telephoned Crime Stoppers the following day. Her evidence was that after she heard nothing from Crime Stoppers she telephoned the crime department at SAPOL and informed them of Mr Marr’s presence outside her house on the day of the murder. After that, two uniformed officers attended at her house but they were doing a regular check on everybody in the area and not attending specifically in response to her calls. Ms Morris said that she informed the two officers that she had identified the man on television as the same man she saw in the street waiting in the car. She gave evidence that she rang Crime Stoppers again a few days later and soon thereafter a plain-clothed police officer attended at her home. He took a handwritten statement from her which she signed. Quite some time later he returned with a typed statement. It appears she made a further call to Crime Stoppers on 2 December 1997. After that, the same plain-clothed police officer who had taken her earlier statement returned. He produced a typed statement which she read through, corrected and then signed. That signed statement formed part of Exhibit D68. D68 also includes a number of Crime Stoppers’ case running sheet reports of 7 July 1997, 27 July 1997, 2 December 1997 and 11 September 2012.
The evidence at trial was that the witness statement signed by Ms Morris was prepared by Detective Sheridan. It read:[1]
I live at 12 North Street, Collinswood. I arrived home at about 2.50 p.m. on Friday the 4th of July 1997. I was home for about twenty minutes and left at about 3:10 p.m. to go pay some bills and collect the kids from the school.
As I was leaving I saw a Rusty red not orange medium size sedan possibly a 1980s model. I can not describe it any more than that. It was parked outside my house on the northern side of the road. There were two males in the vehicle. They appeared suspicious to me as I had not seen them in the area before.
When I returned at about 3.40 p.m. on the same day, I saw the vehicle was still there. The driver of the car smiled at us as I drove into my house. I kept an eye on the vehicle checking it every five minutes until it left. I did see the driver get out of the vehicle at one stage and walk around to the passenger side of the vehicle and appeared to have a cigarette. I did not see either of them walk away from the vehicle at any time. I did not see anyone else approach the vehicle.
I noticed the vehicle had left at about 4.00 p.m. I would describe the driver as male, mid twenties, 5 feet 10 inches in height, dark short wavy collar length hair, fair complexion, medium build, black top and blue jeans. The passenger had darkish hair. Detective Sheridan has shown me a photograph of an orange vehicle. This is not the vehicle I saw.
On Monday 1st December 1997, I watched Crime Stoppers on Channel Nine. During the segment on the murder of Corinna Marr I saw her husband interviewed. Her husband looked similar to the driver of the above vehicle.
[1] Exhibit D68.
Detective Sheridan gave evidence at the trial. He gave evidence that all but the last paragraph and the last two sentences of the penultimate paragraph set out in that statement were recorded by him in his interview with Ms Morris on 12 July 1997, and the last part of the statement was added in or about December 1997 shortly before he attended on her for the purpose of her signing the statement. The combined statement appearing as a Word document was tendered as Exhibit D73. In his evidence Detective Sheridan referred to a document being a screen dump. Objection was taken to the tender of that document through Sheridan. Subsequently an IT specialist within SAPOL, Robert Taylor, was called to give evidence in relation to the contents of the screen dump. It is this document that records a revision number of 10 in relation to the Morris statement. The screen dump was admitted as Exhibit P67.
Exhibit P67 also includes a raw data document, described as an ASCII code, that records the statement and metadata relating to the preparation of the statement. This apparently records that the document was prepared at two distinct workstations, Workstation 1 and Workstation 15. The screen dump further records that the content of the document was created on 13 July 1997 at 8:32 p.m. and was last saved on 31 December 1997 at 2:33 a.m. The total editing time is recorded as 12 minutes.
The trial judge was not prepared to rely upon the evidence of Ms Morris that she had observed the husband outside her house at Collinswood in the period between 2:30 p.m. and 3:45 p.m. on 4 July 1997. She was not prepared to do so in part because of inconsistencies between the evidence she gave and the witness statement which she signed and which formed part of Exhibit D68.
Mr Heywood-Smith submitted that the evidence at trial of Detective Sheridan failed to explain the apparent discrepancy between his description of how the witness statement was prepared, and the screen dump which Mr Taylor acknowledged indicated that the document had been revised 10 times. He pressed the application for a search order in order to obtain evidence from the SAPOL computer records which might explain the 10 revisions to the Morris witness statement.
Mr Heywood-Smith submitted this was crucial because if Ms Morris did identify the husband in the vicinity of the murder scene from 2:30 p.m. to 3:45 p.m. on the day of the murder, the so-called “watertight alibi”, accepted by the investigating police officers for excluding the husband as a suspect, collapses.
In the course of submissions Mr Heywood-Smith contended that this was the only material that was the focus of the application for the search order. He complained that this material had not been discovered by the respondent pre-trial. It was only disclosed after the appellant called Ms Morris to give evidence in the appellant’s case in rebuttal. He submitted it should have been discovered earlier on the basis that the appellant’s plea in reply that the husband arrived at the Collinswood unit up to three-quarters of an hour before the ambulance arrived at 4:07 p.m. made directly relevant all material relating to the Morris statements.
Mr Heywood-Smith submitted that the appellant did not press any application for further and better disclosure at trial after Exhibits P67 and D68 were produced because the appellant took the position that, in accordance with the rule in Jones v Dunkel,[2] it was incumbent on the respondent to recall Detective Sheridan to explain the 10 revisions once Exhibit P67 had been tendered through Mr Taylor, or risk the Court drawing an adverse inference.
[2] [1959] HCA 8, (1959) 101 CLR 298.
Mr Heywood-Smith contends that the search order is necessary to obtain the evidence that the respondent failed to adduce at trial for the fair and proper determination of the appeal. If the order sought is considered by the Court to be too wide he submitted that it could be confined to the listed things in paragraph 2 of Schedule A.
The respondent submits the appellant’s application should be dismissed for the following reasons:
1.The appellant seeks to utilize the wrong procedure, and consequently the application is an abuse of process. The correct procedure was to seek an order for extended discovery prior to trial, or in the alternative a Search Order during the trial;
2.The appellant is bound by a considered forensic decision at trial not to pursue the issue;
3.Because a Search Order could have been pursued at trial, any evidence to be derived from it has no utility, because it could not be admitted as “fresh evidence” in the appeal;
4.In any event, there is no evidentiary material that the appellant does not already have, that can properly be obtained from the proposed Search Order;
5.The application is plainly an impermissible fishing expedition;
6.The sought Search Order is not available, by reason of section 7(2) of the Crown Proceedings Act 1992 (SA);
7.The Search Order that is sought, places oppressive burdens upon the respondent and gives overly broad access to information, and any discretion as to its grant, should be exercised against the appellant for those reasons;
8.If granted the Search Order would give access to the appellant, to material which it has already been ruled neither he nor his advisors are entitled to access, by reason of public interest immunity;
9.If granted the Search Order would give the appellant access to other material which is the subject of public interest immunity or protected by the Telecommunications (Interception and Access) Act 1979 (Cth) or potentially by other legislation;
10.The proposed Search Order does not comply with the Practice Directions for Search Orders – in particular it does not provide for an independent solicitor to supervise the conduct of the search.
Consideration
In my view, the application for a search order cannot succeed.
Pursuant to 6SCR 148(2), the court may make a search order for the purpose of securing or preserving evidentiary material and requiring a respondent to permit persons to enter premises for the purpose of securing the preservation of evidentiary material which is, or may be, relevant to an issue in the proceedings.
The requirements for the grant of a search order are prescribed by 6SCR 148(3). It provides that the court may make a search order if it is satisfied that the applicant has a strong prima facie case on an accrued cause of action, and the potential or actual loss or damage to the applicant would be serious if the search order is not made, and there is sufficient evidence that the respondent possesses important evidentiary material and there is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence in a proceeding before the court.
The object of the search order is to preserve evidence in order that it may be available at trial. It is, as the learned author of Freezing and Search Orders, Peter Biscoe QC describes it, an extreme form of discovery at the limit of the court’s civil jurisdiction.[3]
[3] Freezing and Search Orders: Mareva and Anton Piller Orders 2nd ed. p 283.
The appellant seeks, by this application, in appellate proceedings, to investigate whether some evidence exists bearing upon the reliability of the evidence given at trial by the appellant’s witness, Ms Morris, and evidence given by the respondent’s witnesses relevant to Ms Morris’ evidence. The proper place for the gathering of such evidence was at the trial. No application for a search order was made to the trial judge. It appears that the appellant made three forensic decisions during the trial. Initially the appellant made a forensic decision to await an application by the respondent at trial to recall Detective Sheridan to give further evidence in the light of the evidence of Mr Taylor and the admission of Exhibit P67. Further, once it became apparent to the appellant at trial that the respondent did not intend to seek the recall of Detective Sheridan to give further evidence by way of explanation of the 10 revisions of the Morris statement, the appellant made a forensic decision not to apply for the recall of Detective Sheridan for further cross-examination in the light of the admission of P67 and the evidence of Mr Taylor. Instead, the appellant made a further forensic decision to rely on an adverse Jones v Dunkel inference from the failure of the respondent to recall Detective Sheridan. It appears the appellant wishes to contend on the appeal that the trial judge erred in failing to do so. If so, there is no reason the alleged error cannot be agitated on appeal without the need for the Court to make the coercive order now sought.
In these circumstances, where the appellant apparently made three distinct forensic decisions at the critical time in the trial where he could have sought the exercise by the Court of the coercive power conferred by 6SCR 148 and chose not to do so, it is too late to do so now.
But that is not the only basis upon which I would dismiss the application.
The relevant test imposed by 6SCR 148(3) imposes upon an applicant for a search order the obligation to demonstrate a strong prima facie case and sufficient evidence that the respondent has in its possession important evidentiary material, and there is a real possibility that the respondent might destroy or make unavailable for use in evidence that material as a result of which the applicant will suffer serious loss or damage in the proceedings if the search order is not made.
In my view the appellant cannot meet these tests.
There is no reason on the evidence or otherwise to conclude that it is a real possibility SAPOL, its officers, or the State generally might destroy or make unavailable for use in evidence, whatever data might exist in its computer systems which might reveal changes made to the original witness statement prepared by Detective Sheridan after taking a statement from Ms Morris.
In any event, I do not consider a strong prima facie case has been made out that there is a real possibility that the Morris witness statement was altered or edited in any sinister fashion. Detective Sheridan gave evidence of one significant addition to the statement. Mr Taylor said that an explanation for the 10 revisions might be that the computer system records a revision every time the document is saved. In any event, the terms of Exhibit D68, which includes the signed witness statement of Ms Morris dated 31 December 1997 with her hand-written corrections, refers to the driver of the vehicle looking similar to Mr Marr, whom Ms Morris had seen interviewed on television. That statement is consistent with the record of her telephone call to Crime Stoppers on 2 December 1997 where she told Crime Stoppers that she had seen a program about the murder of Ms Marr the previous day and that she believed the husband was the person she saw sitting in a vehicle outside her home address on the day of the murder. She stated that the husband was similar in appearance to the male who was sitting in the vehicle. Needless to say there is no evidence that the record made of the Crime Stoppers call on 2 December 1997 was made by Detective Sheridan. There is no reason to believe there is a strong possibility that the Morris statement was altered or edited in any way to obscure or conceal the effect of Ms Morris’ recollection of her observations on 4 July 1997. Consequently I am not persuaded that the appellant will suffer serious loss or damage if the search order is not made. On the contrary, I accept the respondent’s characterisation of the application as fishing. On the evidence as it exists, there is little more to be said for the basis of the application other than it is an attempt by the appellant to trawl through the SAPOL computer record in relation to the preparation of the Morris witness statement in the hope that something turns up.
These conclusions relieve me of the need to decide the interesting question whether the terms of s 7(2) of the Crown Proceedings Act 1992 (SA) preclude the making of an order against the Crown pursuant to 6SCR 148. It also relieves me of the difficult technical exercise in deciding whether, by reason of the provision to the appellant’s solicitors of Exhibit P67 in electronic form, it has available to it the means of identifying what changes were made to the witness statement of Ms Morris in D68. Finally, I do not need to determine whether the terms of the search order can be crafted so narrowly as to avoid making an order so oppressive in its terms that the Court should shrink from making it by reason of the burden it would impose upon SAPOL in compliance, or which should not be made because it would permit the appellant to gain access to documents and information which attract public interest immunity because they constitute the results of an ongoing murder investigation.
Conclusion
I would dismiss the application. I will hear the parties as to costs.
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