Sands v The State of South Australia - [2010] SASC 244

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SANDS v THE STATE OF SOUTH AUSTRALIA
[2010] SASC 244
Judgment of The Honourable Justice Anderson
10 August 2010
EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PUBLIC POLICY - AFFAIRS AND DOCUMENTS OF STATE
Defendant seeks a permanent stay of proceedings in the matter - defendant claims it is unable to plead a defence as pleadings would reveal confidential information - public interest immunity claimed - affidavit was filed in support of the stay application - plaintiff sought to cross-examine on the affidavit - confidential affidavit expanding on reasons provided to judge - whether leave should be granted for cross-examination on the filed affidavit.
Held: Leave refused. Cross-examination on the affidavit would lead to dissemination of the information on which public interest immunity is claimed.

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS - DEFENCES AND COUNTERCLAIM
DEFAMATION - PRIVILEGE
Criminal Law (Forensic Procedures) Act 1998 (SA); Telecommunications (Interception and Access) Act 1979 (Cth), referred to.
Pulic Transport Ticketing Corporation v Integrated Transit Solutions & Anor [2010] NSWSC 607; R v McKelliff (2004) 87 SASR 476; Woodroffe v National Crime Authority (1999) 107 A Crim R 384; Beneficial Finance v Commissioner of Australian Federal Police (1991) 31 FCR 523; Hilton v Wells (1985) 59 ALR 281; Attorney-General of New South Wales v Stuart (1994) 34 NSWLR 667, applied.
Young v Quinn (1984-85) 59 ALR 225, discussed.
Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452; Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202; Australian Securities Commission v Carro (No 2) (1992) 32 FCR 427; Sankey v Whitlam (1978) 142 CLR 1, considered.

SANDS v THE STATE OF SOUTH AUSTRALIA
[2010] SASC 244
Civil
ANDERSON J.
Introduction

The plaintiff in this matter alleges defamatory statements were made by members of the South Australia Police Force (SAPOL) in the course of investigating the murder of Corinna Marr.
Corinna Marr was shot dead in her home on 4 July 1997. Later in the course of the investigation the plaintiff was one of the persons interviewed by the police. The investigations by the police so far have not resulted in the charging of anyone in relation to the murder.
It is alleged by the plaintiff that SAPOL published information to The Advertiser or alternatively advised them of the existence of court documents as a result of which The Advertiser published stories on 28 February 2004 and 3 March 2004. In addition there was a press conference on 3 March in which the media were advised of an affidavit sworn by Detective Keane.
The articles and press conference relate to the actions taken by the police under the Criminal Law (Forensic Procedures) Act 1998 (SA) in the course of investigating the murder. At the press conference Detective Superintendent Symons made statements related to Mr Keane’s affidavit and referred to information which was subject to the Telecommunications (Interception and Access) Act 1979 (Cth) (“the TIAA”) and the Criminal Law (Forensic Procedures) Act 1998.
This matter has been on hold for some time awaiting the outcome of an action in which the plaintiff sued Channel Seven: see Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452. That decision was delivered on 27 July 2009. Bleby J dismissed the plaintiff’s claim for damages for defamation against Channel Seven.
That decision was appealed and the Full Court upheld the decision on 1 July 2010: see Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202.
The plaintiff sought and was granted leave to amend his statement of claim in this matter by a master of the court in a decision delivered on 17 February 2010. I will summarise the four substantive amendments which were allowed by the master:
(i)As to the natural and ordinary meaning of the press statements and/or the media release, the master allowed two further subparagraphs to be added as follows:
…
(d) As there were strong grounds to suspect that the plaintiff had murdered Corinna Marr he is the prime suspect, setting him apart from any other suspect; and
(e) The police had information placing the plaintiff at the scene of the murder which the plaintiff knew about and refused to challenge.
(ii)A claim of misfeasance in public office.
(iii)Breaches of statutory duty.
(iv)Breaches of duty of care, duty of confidence and duty of privacy.
The matters alleged in (ii), (iii) and (iv) above related to forensic procedures brought by the police against the plaintiff and alleged breaches by the police of the Criminal Law (Forensic Procedure) Act 1998 (SA). This in turn relates to the fingerprinting of the plaintiff and the alleged release of information contrary to the statutory duties imposed by the legislature.
Likewise it is alleged that Detective Keane, in his affidavit, and referred to by Detective Superintendent Symons, contravened the TIAA by his reference to lawfully intercepted information.
The present application
The present application is by Mr Sands seeking leave to cross-examine Deputy Commissioner Gary Burns on his affidavit, FDN 32, filed in these proceedings on 25 March 2010. The affidavit was filed in support of a stay application filed on 25 March 2010. The defendant seeks a stay until further order for the reason stated by Mr Burns in his affidavit at paragraph 4:
It is my belief that the pleading of the facts that I am advised are necessary to defend the plaintiff’s claim herein and the disclosure of the documents that will be necessary as a consequence of pleading such facts is contrary to public interest and the Commissioner of Police claims public interest immunity in respect of such facts and documents. Such facts and documents will disclose the information obtained by SAPOL to date in its investigation of the murder of Ms Marr, the details of ongoing and future investigation into her murder and the investigative methodology of SAPOL.
Mr Burns has provided to me by way of a confidential affidavit information justifying the basis of the claim of public interest immunity. The affidavit and its attachments have been provided to me in a sealed envelope and I have read the affidavit and contents for the purpose of hearing this application.
Topics for cross-examination
I asked the plaintiff to be more specific prior to the argument in nominating the topics upon which it is proposed to cross-examine Mr Burns. I have seen the correspondence which has passed between the parties relating to this aspect. It is fair to say that the plaintiff has had some difficulty in precisely identifying the topics. However, some broad topics have been provided by the plaintiff.
The topics fall into two main categories. I do not intend to analyse them in minute detail as the theme for the proposed cross-examination seems clear. An attempt is to be made, if cross-examination is permitted, to flesh out details of the material sought to be kept confidential. I will deal with the topics in a general way in considering the arguments advanced by the parties.
Argument in favour of cross-examination
The plaintiff argues that the claim to public interest immunity requires strict scrutiny. He points to the fact that the defendant has made “multiple and repeated disclosures of confidential information of the very kind to which public interest immunity ordinarily attaches”. The plaintiff points to the fact that the claim in defamation against the State was issued almost five years ago and that the defendant was able to plead, in an earlier defence, without any claim for public interest immunity. It is further pointed out that in the related proceeding against Channel Seven similar imputations were successfully defended by Channel Seven using “otherwise confidential information provided by the defendant”.
Mr Heywood-Smith QC for the plaintiff points out the unusual nature of this case. As he puts it, it is not a normal case where someone accused of a criminal offence is actually attempting to obtain evidence relevant to their defence. He submits that he is in the position of challenging the mere assertion by the defendant that the confidential information might assist in the defendant’s defence of these proceedings. He says public interest immunity is being used by the State as a sword, not a shield.
Mr Heywood-Smith acknowledges the overall discretion I have in relation to allowing cross-examination. He gave instances such as Australian Securities Commission v Zarro (No 2) (1992) 32 FCR 427 per Drummond J at 431 and Public Transport Ticketing Corporation v Integrated Transit Solutions & Anor [2010] NSWSC 607 at [14] where cross-examination was permitted to challenge the inconsistent manner in which the claim for public interest immunity had been made.
In Zarro Drummond J at 431 makes it clear that this was an exceptional course which he took in allowing cross-examination on part only of affidavits which had been filed. This was because of the way in which the Australian Securities Commission had gone about justifying its claim for immunity. There were doubts about the validity of the information because of inconsistencies. His Honour reiterated the general principle but allowed cross-examination on a limited basis on the facts peculiar to that case.
Public Transport Ticketing is a case involving arguments over the production of documents. In that matter an order was made allowing for cross-examination of witnesses who claimed immunity. Again it appears that there were reasons to doubt the veracity of the claim.
Clearly the general rule is that there should be no cross-examination: see Young v Quinn (1984-85) 59 ALR 225. Although the general rule is obviously subject to exceptions, those exceptions will relate to the peculiar facts of each case, and as illustrated above, in rare or exceptional circumstances.
It is further asserted that Mr Burns is relying on irrelevant matters if the confidential information obtained post-dates the relevant publications. That, of course, can only relate to the defamatory remarks and not to any confidential forensic information gained through criminal investigation subsequent to the publication. Mr Heywood-Smith submitted that the prior disclosure means that less weight should be given to the current claim for immunity on the basis of public interest. He relies on Sankey v Whitlam (1978) 142 CLR 1 at 64 for that submission.
Finally Mr Heywood-Smith points to Mr Burns affidavit in relation to his claim that pleading to the amended statement of claim would reveal “intelligence”, “forensic detail” or “investigative methodology”. The plaintiff wishes to challenge each of those topics and that is why permission ought to be granted to cross-examine Mr Burns in the submission of Mr Heywood-Smith.
The plaintiff suggests in its written submission that the aim of the cross-examination is to show that after all of the disclosures made by the defendant since 4 July 1997, there is little or nothing of any significance that is both relevant to the defence and which remains confidential (and capable of being subject to a claim to public interest immunity).
Argument against cross-examination
Mr Trim QC for the defendant points to the general principle that no cross-examination is allowed on an affidavit claiming Crown privilege. The defendant relies on the decision of the Full Federal Court in Young v Quinn and in particular Bowen CJ at 227 to 228. In that same case the defendant relies also on the comments of Shepherd J at 230 to 231. See also Hilton v Wells (1985) 59 ALR 281 for a general discussion on public interest immunity by Wilcox J.
Young v Quinn has been cited with approval in several decisions. They include Burchett J in Beneficial Finance v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 553, Hunt CJ in Attorney-General of New South Wales v Stuart (1994) 34 NSWLR 667 at 681, Mansfield J in Woodroffe v National Crime Authority (1999) 107 A Crim R 384 at 393 (upheld on appeal by the Full Federal Court) and Perry J in R v McKelliff (2004) 87 SASR 476 (this was a decision of the Full Court).
Mr Trim, in a schedule, has analysed the topics proposed by the plaintiff in some detail. He makes two points in relation to the topics generally. First, that it is obvious from the topics when they are examined closely that the matters in which the claim for public interest immunity has been made would be revealed by the proposed cross-examination. He says that makes it a “fishing expedition” and therefore the cross-examination is impermissible.
His second point is that cross-examination on some of the topics identified by the plaintiff would achieve nothing and that the points to be made by the plaintiff in relation to its defence of the application for a stay can be simply made by submission with no cross-examination necessary. This aspect is accepted to a degree by Mr Heywood-Smith.
Consideration
I have taken into account what the plaintiff says about the topics it has identified for cross-examination of Mr Burns. I have read the correspondence in which the parties have attempted to crystallise the issues and I have examined the schedule produced by Mr Trim to compare it with the arguments put by Mr Heywood-Smith. The topics were identified by numbers. I will refer to the numbers for simplicity.
I am satisfied from having performed that exercise that in relation to topics 1, 2, 3, 4 and 5 that the stated purpose of cross-examination on those topics reveals that, once allowed, cross-examination is likely to lead to disclosure of material which Mr Burns claims is confidential.
The plaintiff claims in topic 6 that matters of “investigative methodologies” have already been revealed. This includes the use of telephone intercepts and listening devices, the use of undercover police officers and the use of DNA and fingerprint sampling. If that is so, those matters can surely be dealt with by submission and there is no need for Mr Burns to be cross-examined on them.
Topic 7 is also directed at cross-examination which would likely lead to the disclosure of the confidential information sought to be protected. It relates to the new allegations of breaches of the statutes covering telecommunications and forensic procedures.
As to topic 8, these matters only arose as a result of the latest amendments to the statement of claim and relate to alleged inconsistencies with the approach in the Channel Seven action. It is not helpful to compare them with the matters previously argued in the Channel Seven action. I do not consider them to be legitimate topics of cross-examination.
Topics 9 and 10 relate to a suggestion by the plaintiff that the claim for public interest immunity is unrelated to the causes of action pleaded. These are matters, in my view, which can appropriately be dealt with by submission and there is no need for cross-examination.
Topic 11 relates to a delay point which in my view is not relevant in any event as the stay application was taken out promptly following the making of the amendments to the statement of claim.
Conclusion
The plaintiff suffers from the disadvantage which all parties in this position encounter, namely, that they are required to speculate entirely as to what information might be disclosed in the confidential information provided to the judge. That has been dealt with in many of the authorities cited to the extent that it has been pointed out by Bowen CJ in Young that the court itself “may be obliged to prevent the disclosure of a document even though no claim for public interest immunity has been made, if it is clear to the court that there may be serious injury to the national interest”.
Mr Trim submitted that it must first be determined whether the plaintiff has been able to establish any need for cross-examination on the affidavit claiming public interest immunity. In my view it has not. The topics revealed show that exploration of those topics would indeed lead to the dissemination of the information which is sought to be protected. In addition the matters referred to by the plaintiff in relation to the topics related to the forensic procedures and alleged statutory breaches illustrate how these matters can be dealt with in the absence of evidence and by submission.
Mr Heywood-Smith suggested, by way of compromise, that cross-examination could be allowed in a closed court. This would still result in disclosure, and for the reasons discussed by Wilcox J in Hilton at 293, I do not regard that as appropriate in this matter.
I have not found it necessary to go specifically to the confidential affidavit. I do, however, have a broad overview of the information sought to be protected. Should it have been necessary I would have been satisfied on the basis of the information contained in the confidential affidavit that there should be no cross-examination on the affidavit. This is not a case where I would seek more information in further confidential affidavits. That is not necessary because the confidential affidavit and the attachments are in sufficient detail.
For those reasons I refuse the application of the plaintiff to cross-examine Mr Burns. The parties should now prepare to argue the question of a stay of these proceedings. I will hear the parties as to the timing of that hearing and any related matters.
In my view the costs of this application should be reserved.