Sands v The State of South Australia (No 2) - [2010] SASC 340

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SANDS v THE STATE OF SOUTH AUSTRALIA (NO 2)
[2010] SASC 340
Judgment of The Honourable Justice Anderson
15 December 2010
DEFAMATION - ACTIONS FOR DEFAMATION - OTHER PROCEEDINGS BEFORE TRIAL - STAYING ACTION
EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PUBLIC POLICY - AFFAIRS AND DOCUMENTS OF STATE
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION
DEFAMATION - JUSTIFICATION - GENERALLY
Defendant seeks permanent stay of proceedings by reason of public interest immunity - defendant claims inability to plead defence of justification to new allegations - defendant claims pleadings would reveal privileged information relating to murder investigation and police policies and methodologies.
Action for defamation, misfeasance in public office and breaches of statutory duty against the State of South Australia for statements made by police in the course of murder investigation - defamatory imputations originally alleged that there are strong grounds to suspect plaintiff of murder, or that plaintiff is reasonably suspected, and that plaintiff lied to police - defendant pleaded defence to original imputations - statement of claim amended to include additional imputations that plaintiff is prime suspect, and that police had information placing plaintiff at scene of murder that plaintiff knew about and refused to challenge - amendments added misfeasance and breaches of statutory duty to statement of claim.
Whether information is protected by public interest immunity - whether new imputations substantially alter the claim - whether defendant can plead its defence - whether pleadings would require information protected by public interest immunity to be revealed - whether a stay should be granted in the exercise of discretion.
Held: Information is protected by public interest immunity and should not be disclosed into the public arena - defendant can plead its defence of justification to new alleged defamatory imputations - new imputations are a refinement or conclusion of original imputations - pleadings would not necessitate information protected by public interest immunity being revealed - defendant cannot plead to misfeasance and breach claims - that part of defence would require privileged information protected by public interest immunity to be disclosed - a stay would be granted if misfeasance claim is maintained by plaintiff.
Supreme Court Act 1935 (SA) s 17; Supreme Court Rules 1987 (SA) r 3; Civil Liability Act 1936 (SA) s 7; Police Act 1998 (SA); Criminal Law (Forensic Procedures) Act 1998 (SA) s 47 and s 48; Telecommunications (Interception and Access) Act 1979 (Cth), referred to.
Sands v State of South Australia [2010] SASC 244; Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 451; Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202; Alister v The Queen (1984) 154 CLR 404; Adelaide Brighton Cement v State of South Australia (1999) 75 SASR 209, applied.
Sankey v Whitlam (1978) 142 CLR 1; Rann v Olsen (2000) 76 SASR 450; Prebble v Television New Zealand [1994] 3 WLR 970; [1995] 1 AC 321; Carnduff v Rock & Anor [2001] EWCA Civ 680; [2001] 1 WLR 1786; Chief Constable of the Greater Manchester Police v McNally [2001] Crim LR 832; [2002] EWCA Civ 14, discussed.
Woodroffe v The National Crime Authority (1999) 107 A Crim R 382; R v Malesecca (1994) 74 A Crim R 210; Brennan v State of New South Wales [2006] NSWSC 167, considered.

SANDS v THE STATE OF SOUTH AUSTRALIA (NO 2)
[2010] SASC 340
Civil
ANDERSON J.
Introduction

In this matter the defendant, the State of South Australia, has applied for an order pursuant to s 17 of the Supreme Court Act 1935 and r 3 of the Supreme Court Rules 1987 that the action taken by the plaintiff against it be stayed until further order. The plaintiff has sued the defendant for alleged defamatory remarks made in the course of a murder investigation.
The alleged defamatory remarks were made at a press conference in 2004, in a media release posted online the same day, and in an affidavit sworn by Detective Sergeant Keane. The press conference was broadcast by television stations within South Australia.
The application is made at a stage in the proceedings when the plaintiff has further amended his statement of claim but when the defendant is yet to file its further defence. To that extent therefore the defendant’s application for a stay is possibly premature. It is really an argument as to whether it can plead a defence at this stage. I have, for the reasons which follow, decided that it can plead a defence with some possible restrictions.
The ultimate question, however, is whether there should be a stay of the proceedings because, although the defendant can plead a defence, it may be unable to comply with its obligations as to discovery and, in the course of a trial, to lead the relevant evidence. The defendant, of course, bears the onus of proof in its plea of justification but submits that it would be unable to plead that defence to the full extent because it would involve divulging matters protected by public interest immunity.
I have decided that the confidential information I have seen should not be made public. Some of this information is related to this murder investigation and some relates to general police policies and methods of investigation.
The first question is, however, whether that confidential information is required to be pleaded in the defence. The second question is whether, even if it can be pleaded, there should be a stay of the action.
Background
I gave a brief history of this matter when I dealt with an earlier application by the plaintiff to cross-examine on an affidavit filed by Deputy Commissioner Burns: see Sands v State of South Australia [2010] SASC 244. I refused that application.
For convenience I set out the opening paragraphs of my reasons in that matter which give a very brief overview of some of the issues in this matter.
[1]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.
[2]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.
[3]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.
[4]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.
[5]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.
[6]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.
[7]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.
[8]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 Procedures) 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.
[9]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.
As I have said, the defendant now seeks a stay in this action because it says it cannot plead in its defence of justification to the new imputations alleged by the plaintiff in [7](i)(d) and (e) above. These are new paragraphs in the further amended statement of claim, 24(d) and 24(e) respectively. The defendant claims that if it is required to plead its defence to these new imputations it would of necessity be required to plead the facts which it claims would be injurious to the public interest to disclose. That is because there is an ongoing investigation in relation to the person or persons responsible for the murder of Corinna Marr. It makes a similar claim in relation to the new allegation of misfeasance in a public office.
The history of the pleadings
The pleadings which have been filed are as follows:
·Statement of claim filed 19 September 2005 (FDN 6)
·Amended statement of claim filed 10 February 2006 (FDN 10)
·Defence filed 5 July 2006 (FDN 11)
·Amended defence filed 20 August 2008 (FDN 14)
·Further amended defence filed 27 April 2009 (FDN 19 - current)
·Further amended statement of claim filed 3 August 2010 (FDN 37 - current)
In the further amended defence (FDN 19) the defendant denied the plaintiff’s allegations that the words complained of were defamatory of the plaintiff and pleaded two defences relating to privilege and in addition a plea of justification.
The first defence was a claim of absolute privilege pursuant to s 7 of the Civil Liability Act 1936. The suggestion is that the matters complained of were published on an occasion of absolute privilege at the request of the Commissioner of Police. It is pleaded that that request was without malice. It is pleaded that the request consisted of both a general ongoing authorisation and a written direction provided in the general orders made under the provisions of the Police Act 1998.
In essence, it is alleged that police officers in charge of criminal investigations are authorised to release information relating to the investigations which in the opinion of the police officers address “legitimate public concern about crime and might assist police in those investigations”.
The second defence is one of qualified privilege. It is alleged that because of the intense public interest in the progress of the police investigation, the police, with the belief on honest and reasonable grounds that the plaintiff is the prime suspect in the investigation and in pursuance of a “legal, moral and social duty to keep members of the public reasonably informed about matters of public interest and matters requiring the information and co-operation of the public”, have released the information.
Apart from the two claims of privilege there is, of course, the plea by the defendant of justification.
The defendant had earlier pleaded to the imputations initially alleged in the amended statement of claim before the latest amendments were allowed by the master. In the amended statement of claim in relation to the press conference conducted by Detective Superintendent Symons, the plaintiff pleaded as follows:
24.The natural and ordinary meaning of the press statement on its own or in conjunction with the reading of the media release 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.
The plaintiff pleaded in paragraph 31 of the statement of claim (FDN 6) that the alleged breach of s 48 of the Criminal Law (Forensic Procedures) Act 1998 (“Forensic Procedures Act”) warranted an award of exemplary damages. In his amended statement of claim (FDN 10) he claimed an award of aggravated damages in addition to exemplary damages for the alleged breach of s 47 and s 48 of the Forensic Procedures Act. He also claimed that “the publications by the defendant were made in the knowledge that there were no reasonable grounds to suspect the plaintiff of murder and that the publications would do irremediable harm to the plaintiff”.
In its defence to that allegation in FDN 11 the defendant pleaded as follows:
The defendant denies that the plaintiff is entitled to the aggravated and exemplary damages claimed in paragraph 31 of the amended statement of claim and says that at all relevant times the police believe that they had reasonable grounds on which to suspect the plaintiff.
That plea remained the same in the amended defence filed by the defendant on 20 August 2008 (FDN 14). It should be noted that at that stage the plaintiff had not pleaded any alleged breaches of the Telecommunications (Interception and Access) Act 1979 (Cth) (“the TIAA”).
In its defence (FDN 11) to the allegation in paragraph 24 of the amended statement of claim above, the defendant pleaded the following detailed particulars of justification:
PARTICULARS OF JUSTIFICATION
(a)The plaintiff was at all relevant times a suspect in the Corinna Marr murder investigation.
(b)The Police believed that they had reasonable grounds to suspect the plaintiff of the murder.
Particulars of reasonable grounds:
(i)    the plaintiff had a prior sexual relationship with the deceased;
(ii)     the circumstances of the cessation of the plaintiff’s relationship with the deceased prior to her murder;
(iii)    the plaintiff had denied a sexual relationship with the deceased;
(iv)    information that the plaintiff had spoken to the deceased by telephone on the day of her death;
(v)     the plaintiff’s statement that he had last spoken to the deceased several days before her death;
(vi)    information that the plaintiff was not at his place of employment on Friday 4 July 1997 during the early afternoon;
(vii)   information that the plaintiff had returned to his place of employment sometime between 3.30 pm and 4.00 pm on Friday 4 July 1997;
(viii) the plaintiff’s statement that he was at his place of employment in a darkroom on Friday 4 July 1997 between 1.30 pm and 6.06 pm;
(ix)    the plaintiff’s failure when questioned by Police to provide an adequate explanation for the discrepancy between paragraphs (vi), (vii) and (viii) hereof;
(x)     the plaintiff’s statement that he was taking photographs for an advertisement for Messenger Press on the afternoon of Friday 4 July 1997;
(xi)    information that the photographs for the advertisement referred to by the plaintiff did not involve the plaintiff.
Those particulars were substantially amended in the latest further amended defence (FDN 19) as follows:
PARTICULARS OF JUSTIFICATION
(a)The plaintiff was at all relevant times a suspect in the Corinna Marr murder investigation.
(b)There were strong grounds, or in the alternative, reasonable grounds, to suspect the plaintiff of the murder.
Particulars of grounds:
(i)    On 30^th August 1997 the plaintiff was interviewed by Police in respect of the Corinna Marr murder (“the first interview”), and in the course of the said interview the plaintiff:
(a)denied ever having a sexual relationship with Corinna Marr;
(b)said that he had last spoken to Corinna Marr several days before her death; and
(c)said that on the afternoon of Corinna Marr’s death, between 1.30 pm and 5.50 pm, he was present in the darkroom at the offices of Messenger Press [in the city of Adelaide].
(ii)     On or about 24 January 2004, the plaintiff said to Police that, on the afternoon of Corinna Marr’s death, he was taking photographs for an advertisement for All-Vac Vacuum Cleaners for Messenger Press (which said advertisement subsequently appeared on page 84 of the 9 July 1997 edition of the News Review Messenger).
(iii)    In October 2002 the plaintiff was again interviewed by Police in respect of the Corinna Marr murder (“the second interview”), and in the course of the said interview the plaintiff:
(a)denied ever having had a sexual relationship with Corinna Marr;
(b)was unable to provide any, or any adequate, explanation for the discrepancy between his statement in paragraph 19(b)(i((c) above, and the information provided to Police (as pleaded in paragraph 19(b)(vi) below) to the effect that he (the plaintiff) was not present at the offices of Messenger Press on the afternoon of Corinna Marr’s death.
(iv)    The plaintiff had been involved in a sexual relationship with Corinna Marr for a period from about 1995 until some time known to the plaintiff but not known to the defendant prior to Corinna Marr’s death on 4 July 1997.
(v)     The plaintiff spoke to Corinna Marr by telephone on 4 July 1997.
(vi)    The plaintiff left his workplace on 4 July 1997 in his vehicle some time prior to 2.30 pm, was not present at his workplace at the time Corinna Marr was murdered, and returned to his workplace between 3.30 pm and 4.00 pm that day.
(vii)   The plaintiff did not have any involvement in taking the photographs for the advertisement referred to in paragraph 19(b)(ii) above.
(viii) In making the statement he made in the first and second interviews, as pleaded in paragraphs 19(b)(i) and 19(b)(ii) above, the plaintiff was not being truthful.
(ix)    In the alternative, the matters pleaded in paragraphs 19(b)(iv)-19(b)(viii) above constitute strong or reasonable grounds for believing or suspecting that the plaintiff was not being truthful in making the statements he made in the first and second interviews, as pleaded in paragraphs 19(b)(i) and 19(b)(iii) above.
(x)     The plaintiff’s conduct in denying that he had had a sexual relationship with Corinna Marr, in combination with the matters pleaded in paragraphs 19(b)(iv) above, constitute strong or reasonable grounds for believing or suspecting that the plaintiff had a motive to murder Corinna Marr.
(xi)    The plaintiff’s conduct in making the statement he made in the first and second interviews, in combination with the matters pleaded in paragraphs 19(b)(iv)-19(b)(x) above, constitute strong or reasonable grounds for suspecting the plaintiff of murdering Corinna Marr.
(c)The plaintiff had indeed conducted himself so as to warrant suspicion in relation to the murder of Corinna Marr and the defendant repeats the allegations contained in part (b) hereof.

As can be observed from the particulars given of justification, the allegations are both detailed and quite specific. As I have indicated, the defendant has since July 2006 been in a position to give considerable detail in its particulars of justification. There is a question in my mind as to why the plaintiff needed to plead the two further imputations, but that has been overtaken by the master’s decision to allow the amendments.
As I say later, the new imputations are really a subtle variation on the theme of the original alleged imputations and had the matter come before me I may not have allowed the amendments. I may have reasoned that the new alleged imputation, in paragraph 24(d) of the statement of claim, is merely a conclusion or refinement of the earlier alleged imputation.
The media release
The media release by SAPOL which led to the most recent amendments was posted on the SAPOL website on 3 March 2004. It was headed “Detectives continue investigation into Marr murder”. I will set it out in full.
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 (3/23 Howard Street) in the afternoon of Friday 4 July 1997.
Superintendent Symons said that officers of the Major Crime Investigation Branch will continue their inquiries 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.
An order had been sought in the Magistrates Court for the forensic procedure of taking fingerprints and handprints from the plaintiff. Detective Sergeant Keane filed an affidavit to support the request for the forensic procedure. The above media release was the response from the police after the order was obtained. I set out the contents of the affidavit of Detective Sergeant Keane.
1.The respondent Derick John Sands of 17 Sussex Street, Alberton, 34 years (DOB 24 August 1969) is not a protected person within the meaning of the Criminal Law (Forensic Procedures) Act 1998.
2.I am the investigating officer of an incident which, I suspect on reasonable grounds that the respondent has committed the criminal offence of murder, Section 11 of the Criminal Law Consolidation Act 1935.
3.I further suspect on reasonable grounds that a forensic procedure, namely the taking of finger and hand prints from the respondent in this matter, may produce evidence of value to the investigation of the suspected offence. The grounds for my suspicion are based upon the information set out in paragraphs 4 to 13 of this Affidavit.
4.The respondent is suspected of the murder of Corinna Joanne Marr which occurred on 4 July 1997 at Collinswood, South Australia. The respondent is a photographer employed by Messenger Press Newspapers.
5.Brief circumstances of the offence are that the body of Corinna Joanne Marr was found lying on a double bed in the bedroom at her home address at Unit 3, 24 Howard Street, Collinswood. The body was located by her husband, Robert Marr, at about 3.55 pm on Friday 4 July 1997. Marr had died as a result of gun shot wounds. The Forensic Pathologist estimated the time of death to be between 2.30 pm and 3.30 pm on Friday 4 July 1997.
6.Members of the police Physical Evidence Section examined the crime scene and along with other evidence collected, a number of finger prints were located on an object inside Marr’s Unit. These finger prints have been checked against the National data base and to date remain unidentified.
7.Preliminary investigation into this incident provided evidence from two independent witnesses, not known to each other, that the respondent had a sexual relationship with Marr. A third witness, known to one of the other witnesses, later provided a statement that the respondent had a sexual relationship with Marr. Early in the investigation, another witness contacted police and stated that the respondent had told this witness that he had spoken to Marr on the phone on the day of the murder.
8.Police investigators suspected that a possible motive for the murder of Marr was that she had broken off the relationship with the respondent and he was unhappy about this.
9.In August, 1997, the respondent gave a statement to the police in which he stated he has never had a sexual relationship with Marr and further stated that he last spoke to her on the phone several days before her death. He stated that between 1.30 pm and 5.05 pm on Friday 4 July 1997 he was in the dark room at the Messenger Press office at Salisbury.
10.Statements have been taken from two witnesses stating that the respondent was not in the dark room during the afternoon of Friday 4 July 1997, and that he was away from the office for the early part of the afternoon and returned sometime between 3.30 pm and 4.00 pm. These witnesses told police that they specifically looked for the respondent that afternoon and could not locate him. One of these witnesses stated that the respondent’s car was missing that afternoon. Another witness stated he tried to ring the respondent during the afternoon of 4 July 1997 but the respondent’s mobile phone was turned off. This witness rang the Salisbury office but the receptionist could not locate the respondent either.
11.On 8 October 2002, the respondent was interviewed by police in which he denied ever having a sexual relationship with Marr. When it was put to him about witnesses saying he was not in the office during the afternoon of Friday 4 July 1997, the respondent could not give a satisfactory account of his whereabouts during that afternoon. When asked in the interview to comment on why a number of witnesses stated he wasn’t in the dark room that afternoon, some of the respondent’s replies were, “Right, okay, well you know, fuck” and “Right. Well look, like, like I said, I can’t explain that because, you know, what people remember, what the case is I mean it happens often” and “Well if I wasn’t, I mean it’s like I said, you know, may have gone to get a drink or something, yeah.”
12.The respondent stated to police he had never been to the home address of Marr but when requested on 8 October 2002 to voluntarily supply a sample of his DNA and finger prints for elimination purposes, he declined to do so.
13.Since the interview on 8 October 2002, further suspicions have arisen in that investigators have ascertained that on 29 October 2003 the respondent told his step-father that he was at a particular premises during the afternoon of Friday 4 July 1997 and had the documents to prove it. Investigations by police have discounted his alibi by determining that the respondent can not substantiate being at the premises in any way.
14.As to the criteria established by Section 26 of the Criminal Law (Forensic Procedures) Act 1998, I say as follows:
(1)
a)The respondent is reasonably suspected of the murder of Corinna Marr as outlined in paragraphs 4 to 13 of this Affidavit.
b)A number of unidentified finger prints have been located on an object inside the crime scene at Unit 3, 24 Howard Street, Collinswood. The respondent has told police he has not been to the crime scene.
c)It is believed that the finger and hand prints from the respondent could produce material of value to the investigation of the suspected offence in that it may prove the extent of his involvement in this serious offence by confirming his presence at the crime scene.
(2)
a)Murder is a Major Indictable offence punishable by life imprisonment.
b)The requested procedure to obtain physical evidence is necessary to the extent that it represents an accepted and consistent practice of collecting evidence within the proper investigation of this serious offence;
c)As far as is reasonably foreseeable and in consideration of the respondent’s age, physical and mental health, cultural and ethnic background no likely adverse effects to the respondent are anticipated as a result of the forensic procedure sought;
d)There are no other reasonably practicable procedures available to obtain the required physical evidence from the respondent that are less intrusive;
e)The respondent has been asked on two occasions to supply his finger and hand prints but has declined to do so on both occasions;
f)This investigation has been on going for the past 6 years during which in excess of 170 statements have been taken and it has failed to provide a suspect or motive other than the respondent.
(3) A final order is being sought on the basis that:
a)the respondent, not being a protected person, was given an opportunity to give informed consent to the procedure on 24 January, 2004, and refused to give his consent without specifying a reason, and;
b)the suspected offence for which the non-intrusive procedure is sought is indictable.
15.I seek a final order from this Court pursuant to Section 26 of the Criminal Law (Forensic Procedures) Act, 1998, authorising the taking of finger and hand prints from Derick John Sands, the respondent in this matter.
The latest amendments
As a result of the order made by the master allowing the latest amendments, the further amended statement of claim was filed. The current version is FDN 37. The first of the amendments was the inclusion of a new paragraph 17A in the following terms:
17AAt the press conference Symons alerted persons present to the existence of the affidavit sworn by Keane, thereby encouraging those present to obtain a copy of it and/or to have regard to its content. That affidavit identified the plaintiff as the man police suspected of the murder of Corinna Marr; contained other information subject to the Criminal Law (Forensic Procedures) Act 1998; and also contained lawfully intercepted information subject to the Telecommunications (Interception and Access) Act 1979 (Cth) (“the TIAA”). By reason of the foregoing conduct Symons breached prohibitions on the disclosure of information, including the identity of the plaintiff, contained in both the Criminal Law (Forensic Procedures) Act 1998 and the TIAA. In the alternative, Symons’ conduct was inconsistent with the prohibitions contained in those Acts. In either event, Symons’ conduct constitutes malice relevant to paragraphs 29J and 29S below.
This was an amendment allowed to enable the plaintiff to plead the material facts relating to the new proposed causes of action related to alleged breaches of statutory duty both in respect of the Forensic Procedures Act and the TIAA.
The amended allegations related only to Detective Superintendent Symons and attributed malice to his actions. It was alleged that Detective Superintendent Symons’ conduct constituted malice relevant to new paragraphs 29J and 29S.
Paragraph 29J refers to the earlier allegations and says “further and in the alternative that as a member of the public under investigation by police the defendant owed the plaintiff a duty to exercise its powers lawfully, without malice towards him and for a proper purpose”.
Paragraph 29S relates to the allegations made against both Detective Sergeant Keane and Detective Superintendent Symons and pleads as follows:
29SThe conduct pleaded and/or referred to in paragraphs 5, 6, 6A, 14, 17, 17A, 18, 21, 29H, 29L, 29N, 29O and 29Q included the conduct of police holding public office, namely Keane and Symons for whose conduct the defendant was, by operation of Section 65 of the Police Act 1998, at all material times responsible, and the said conduct constituted misfeasance as that conduct:
a.     was a wrongful and conscious abuse of the defendant’s power;
b.    was, if not a conscious abuse of the defendant’s power, engaged in with reckless disregard of the means of ascertaining the extent of that power;
c.     was in conscious excess of the defendant’s power;
d.    was, if not in conscious excess of the defendant’s power, engaged in with reckless disregard of the means of ascertaining the extent of that power;
e.     was consciously unlawful;
and (combined with a, b, c, d and/or e above or any of those matters);
f.     was intended to cause harm to the plaintiff;
g.     was calculated in the ordinary course to cause harm to the plaintiff;
h.    was, if not intentional, engaged in with reckless indifference to the harm likely to be suffered by the plaintiff;
i.     constituted malice towards the plaintiff;
the state of mind relevant to the above was that held by officers Keane and Symons and that state of mind was also held by the defendant by operation of the doctrine of agency and/or Section 65 of the Police Act 1998.
The master then dealt with and allowed paragraph 18 to be amended to include three additional quotes from Detective Superintendent Symons at the press conference as follows:
The man, whose fingerprints were taken, is still the main suspect and investigations will continue
…
Until then, he still remains the primary suspect in this investigation.
…
... and with that in mind we will continue to investigate and continue to apply resources until the matter is cleared up.
The plaintiff was allowed by the master to plead the following new imputations in paragraphs 24(d) and 29(d) 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.
In addition the master allowed paragraph 24(e) as follows:
(e)The police had information placing the plaintiff at the scene of the murder which the plaintiff knew about and refused to challenge.
The thrust of the amendments
The allegations relating to the forensic procedure and the alleged breaches of the Forensic Procedures Act were part of the allegations made by the plaintiff in the amended statement of claim filed (FDN 10). The defendant pleaded in its defence (FDN 11) as follows:
22.The defendant denies that the plaintiff is entitled to the aggravated and exemplary damages claimed in paragraph 31 of the Amended Statement of Claim and says that at all relevant times the Police believed that they had reasonable grounds on which to suspect the plaintiff.
The same plea appears in the amended defence (FDN 14).
The allegations related to the forensic procedure of fingerprinting the plaintiff, the hearing in the Magistrates Court, the newspaper reports of the procedure and the alleged “grapevine effect” leading to speculation as to the identity of the plaintiff. As I have said, the defendant has already answered these allegations in its existing defence. It is a denial plus an assertion that at all relevant times the police believed that they had reasonable grounds on which to suspect the plaintiff.
I have set out the new paragraph 17A alleging the breaches of both the Forensic Procedures Act and the TIAA. Detective Superintendent Symons’ conduct is now alleged by the plaintiff to be malicious.
Paragraphs 29E to 29T were added to cover a conglomerate or rolled up plea of misfeasance in a public office, and breaches of statutory duty, duty of care, duty of confidence and duty of privacy.
The alleged breaches of duty are said in paragraph 29H to include the circumstances of the initial publication, the press conference, the media release and the failure to control the listing procedures for the hearing in the Magistrates Court. This includes an allegation of a failure to close the court and a failure to seek suppression orders.
The affidavit from Detective Sergeant Keane is raised in the new paragraph 29L of the statement of claim. The complaint made by the plaintiff is that the affidavit contains intercepted information and should not have been disclosed.
In paragraph 29S the plaintiff pleads the conduct said to constitute misfeasance as being conduct which was intended to cause harm to the plaintiff or conduct which was reckless. The sting is in paragraph 29S(i) in which malice is alleged.
The combined effect of the pleas of breaches of statutory duty and duty of care, together with the allegation of misfeasance, is that there is as a result a claim for aggravated and exemplary damages. As part of that plea, the plaintiff alleges in paragraph 31(3):
The publications by the defendant were made in the belief that it could assert that the plaintiff was the “prime suspect” in the murder of Corinna Marr and prevent any challenge to that assertion by claiming public interest immunity over information in its possession capable of establishing that the plaintiff “was not the prime suspect”.
Other information in the public arena
Apart from the pleadings and the information made public by both the press conference and the affidavit of Detective Sergeant Keane, there is a large amount of further information in the public arena. Much of this derives from the Channel Seven action both in the pleadings and the evidence as revealed in the detailed reasons of Bleby J: see Sands v Channel Seven Adelaide (2009) 104 SASR 452.
(i) Channel Seven action
In a comprehensive review of the evidence, Bleby J dealt with a wide range of the relevant factual issues. The matters he dealt with included the following:
·The fact of statements taken from neighbours of the deceased.
·A detailed and critical analysis of the alibis put forward by the plaintiff.
·Video records of interviews with the plaintiff.
·The removal of job sheets by the plaintiff from his employer.
·His refusal to submit for fingerprints.
·The evidence of the witnesses to support Channel Seven’s plea of justification to similar imputations as in this matter.
·The time of death.
·The circumstances of the murder.
·The relationship between the deceased and the plaintiff.
·The plaintiff’s telephone call to the deceased on the day of her death.
Having regard to all of the evidence including that summarised above, Bleby J was able to conclude that the plaintiff’s attempts to explain his whereabouts around the time of the murder were false. His Honour found that the plaintiff lied to the police regarding his movements and that he did so to frustrate the police investigations. His Honour found that the plaintiff had a romantic attachment to the deceased which included a sexual relationship.
As Bleby J pointed out, in relation to the plaintiff being a suspect, there is therefore a possible motive. The plaintiff lied to the police, he had no valid alibi, and moreover he was in a class of persons who could have been allowed into the deceased’s house and allowed to remain while she was changing her clothes.
(ii) Newspaper reports

In addition, much information was released into the public arena by the newspapers, which followed this murder investigation very closely.
The information in the newspapers included the fact that the deceased had been shot several times in the head and chest. It was suggested that a handgun was used. The time of the deceased’s return to her unit and her activities on the day she was murdered were disclosed in some detail.
It was revealed that there was no sign of a forced entry and no indication of any robbery or assault.
It was revealed that when she went home to the unit she had a shower and changed into a new set of clothes to enable her to undertake a promotional commitment which she had later in the day.
It was also revealed that the deceased’s husband was cleared as a suspect in the investigation. This was in The Advertiser newspaper of Tuesday 6 July 1997. The article indicated that police were focusing their inquiry on the deceased’s background, including people who she had met through her work both as a model and a real estate agent. The police indicated that they were looking at places she had modelled and her relationships over the years.
The investigation also revealed that police were looking for a particular vehicle fairly early in the course of the investigation.
It was also revealed that the police videotaped the mourners at the deceased’s funeral. Detective Sergeant Keane indicated to the press that this was normal procedure.
The Sunday Mail on 13 July 1997 ran a detailed story relating to the investigation, including the fact that the killer may have waited for his victim. It detailed in a chronological fashion what the deceased did during the course of the day, including her return home, her showering and changing clothes. One of the scenarios being investigated by the police was that it was someone that the deceased knew who confronted her and shot her.
In The Advertiser of 26 July 1997 it was revealed that the police had interviewed and discounted twelve people over the murder of Corinna Marr. The chronology of the events of the day of the murder was further analysed in detail by The Advertiser on 2 August 1997, including fairly precise details of what happened on the day of the murder between the time when the deceased arrived at work to when she returned home and got into the shower. The police estimated that she got into the shower at about 3.00 pm. It was revealed that a neighbour heard her hairdryer being used in her bedroom at about 3.15 pm.
It was further revealed that there were no defence wounds on the deceased’s body to indicate that she fought with the intruder or tried to protect herself from danger. The article said, “It was almost as though she knew the killer, or he or she took her by complete surprise”.
Although those matters appearing in the press are not exclusive, I have mentioned them to show the detail of the information which is in the public arena.
In broad terms, there is therefore an abundance of information in the public arena as to a former sexual relationship between the plaintiff and the deceased and there is information as to the termination of that relationship and therefore a possible motive.
Then there is the information as to false alibis provided by the plaintiff at the time of the murder. There is information showing the inconsistent nature of those alibis.
It is known that the police suspect the plaintiff as the murderer of Corinna Marr. It is known that the police have conducted exhaustive forensic examinations related to the murder scene and have gathered various information as a result. It is known that fingerprints in the deceased’s house are not those of the plaintiff.
The police have also interviewed numerous witnesses, some of whom have come forward in response to appeals by the police for information. It is also known that the investigations relating to the plaintiff include telephone intercepts.
Counsels submissions
(i) Submissions of the defendant
Mr Trim QC, counsel for the defendant, suggested that the new imputations required a plea of justification with far greater particularity than that which was required to answer the earlier imputations prior to the amendments. He referred in his argument to the suggestions of how such particulars would be given by his reference to a confidential document provided to me. His submission was that those particulars could not be given in the public interest. That confidential document, provided only to me at my request, illustrates what the defence pleas would be if there were no claim for public interest immunity.
He submitted that if the latest amendments had not been made the defendant would have been content to run the trial on the basis of the earlier particulars of justification. He submitted that the only cause of action pleaded up until the amendments was that of defamation, with three specific imputations as follows:
[24]The natural and ordinary meaning of the press statement on its own or in conjunction with the reading of the media release is:
(a)     There are strong grounds to suspect that the plaintiff murdered Corinna Marr the plaintiff having so conducted himself as to warrant that suspicion.
(b)     Alternatively, the plaintiff is reasonably suspected of the murder of Corinna Marr the plaintiff so conducting himself as to warrant that suspicion.
(c)     The plaintiff lied to police.
Mr Trim submitted that the new imputations have significantly “raised the stakes”, as he put it, thus requiring the more detailed particulars which, he submitted, could not be provided consistently with the claim for public interest immunity. He made the point that, were it not for the new imputations and also the new claim of misfeasance in public office, the defendants would be able to defend the balance of the allegations, including the new allegations relating to alleged breaches of statutory duty.
Mr Trim argued that, with the new imputation relating to the plaintiff as “the prime suspect”, it would be necessary for effectively the whole of the police file to be disclosed because the whole file would be potentially relevant. He referred to the Channel Seven action as illustrating how that trial was run on the more limited imputations, but he submitted that course was no longer possible in this matter.
Mr Trim dealt with the written submissions of the plaintiff relating to the suggested illegality of the police action by way of alleged breaches of both the Forensic Procedures Act and the TIAA. As Mr Trim pointed out, the raising by the plaintiff of these alleged statutory breaches does not impinge on the defendant’s claim for public interest immunity in the direct sense but it is relevant because the plaintiff has submitted that if there is an illegality then that becomes relevant in the exercise of the discretion as to whether the defendant should be excused from pleading because of public interest immunity. As Mr Trim conceded, defences under both the statutes and generally can be pleaded to those alleged statutory breaches. Mr Trim of course disputed that there is any illegality but accepts that defences can be pleaded.
Mr Trim submitted that even if the acts were illegal, there would be a limited carry-on effect based on the decision of Mansfield J in Woodroffe v The National Crime Authority (1999) 107 A Crim R 384. On that authority, even if illegality was made out, its only relevance would be in respect of the actual documents involved in the illegal conduct, and would not affect the balance of the claim. That means there would be a very limited effect in this matter. However, as both counsel agree, the alleged breaches of the statutes are not directly relevant to the question of whether a stay should be granted.
Mr Trim then submitted that the tort of misfeasance in public office, added by the latest amendments, involves an allegation of malice. He submitted that to be able to defend that allegation it would be necessary to plead all of the relevant steps taken by SAPOL in the course of its investigation to show that there was no malice and that the investigation was conducted appropriately and that all available lines of inquiry were in fact pursued. In other words, the whole investigation would need to be revealed to show the plaintiff was not maliciously singled out by the police as the prime suspect. It would involve revealing all lines of inquiry into other suspects to show why they were eliminated as suspects.
Mr Trim’s submission overall amounted to the fact that it was not possible for the defendant to plead to the allegations of misfeasance and run a substantive case because one key aspect of the defence could not be advanced. He put it that the new alleged imputations, together with the claim for misfeasance, meant that there was no effective defence which could be raised because of public interest immunity. Apart from the specific disclosure of information relating to the investigation in this particular matter, Mr Trim also referred to general police methods of operation and detection which should, in the public interest, not be disclosed.
In relation to the balancing exercise required, assuming the threshold question of public interest immunity was established, Mr Trim referred to Gibbs CJ in Alister v The Queen (1984) 154 CLR 404 and Adelaide Brighton Cement v State of South Australia (1999) 75 SASR 209 where Debelle J analysed what was required in the balancing exercise.
In Alister at 412, Gibbs CJ discussed the general principle emerging from Sankey v Whitlam (1978) 142 CLR 1 in relation to the balancing exercise. He said:
Sankey v Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process – the balancing exercise – can only be taken when it appears that both aspects of the public interest do require consideration – i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and the importance of the documents in the particular litigation.
In this case of course, the situation is reversed in that it is the defendant which seeks to rely upon the information which it claims is protected and cannot be disclosed. However the principle is to be applied in exactly the same way.
Debelle J at [9] of his judgment in Adelaide Brighton Cement recited twelve propositions emerging from the public interest immunity cases listed at [7]. With respect, I adopt and I apply those, where relevant, to this case. They are:
[9]…
(1)     The general rule is that a court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it: Sankey v Whitlam at 38.
(2)     However, the court recognises that there are two aspects to the public interest which may conflict. They were described by Lord Reid in Conway v Rimmer at 940 in these terms: “There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. …
(3)     It is the duty of the Court, not the privilege of the executive, to determine whether a document will be produced or may be withheld: Sankey v Whitlam at 38, 58-59, 95-96. As Stephen J said in Sankey v Whitlam at 58, a claim to Crown privilege has no automatic operation; it always remains a function of the court to determine that claim.
(4)     The Court determines whether a document should be produced or withheld by deciding whether the public interest which requires that the document should not be produced outweighs the public interest that a court in performing its functions should not be denied access to relevant evidence: Sankey v Whitlam at 38-39. …
(5)     When carrying out this balancing task, the Court will give weight to the Minister’s opinion that the documents should not be produced but will form its own opinion whether the public interest will be the better served by production or non-production: Sankey v Whitlam at 44-45, 96.
(6)     Those who urge privilege on the ground of public interest immunity for classes of documents, regardless of particular contents, carry a heavy burden: Sankey v Whitlam at 62 per Stephen J; see also Lord Reid in Rogers v Home Secretary [1973] AC 388 at 400. …
(7)     As decisions made by executive government concern such a wide variety of issues, there can be no single rule of thumb by which to determine whether a document should be produced for inspection: Attorney-General v Jonathan Cape Ltd [1976] QB 752 at 767; Sankey v Whitlam at 41. In other words, it is impossible to lay down broad and general rules: Glasgow Corporation v Central Land Board [1956] SC at 25-26 quote with apparent approval by Stephen J in Sankey v Whitlam at 60. The fundamental principle is that documents may be withheld from production only if, and to the extent that, the public interest renders it necessary. In this respect it must be noted that the categories of public interest are not closed and are not confined to strict and static classes: Sankey v Whitlam at 60; D v National Society for Prevention of Cruelty to Children [1978] AC 171 at 230.
(8)     It is a corollary of the general rule stated in proposition (1) that a court may intervene and prevent disclosure of a document whose production would be contrary to the public interest even if no claim is made by a Minister or other high official that its production should be withheld. The court has a duty to prevent disclosure without the intervention of any Minister if possible serious injury to the national interest is readily apparent: Sankey v Whitlam at 44, 58-59. However, it would be exceptional for the court to intervene where the Minister had considered the question and decided that no objection should be taken: Sankey v Whitlam at 44-45.
(9)     It is now beyond question that the Court has power to inspect the document or documents privately: Sankey v Whitlam at 46. There is, however, a question whether the court should look at the documents for assistance in the balancing exercise, that is to say, when weighing the two conflicting aspects of the public interest. In some cases, the Court might be able to determine that the public interest requires that the documents be withheld from production without inspection of the documents: see Commonwealth v Northern Land Council where it was held that documents recording the deliberations of Cabinet on topics which were current and controversial would not be disclosed except in quite exceptional circumstances. It was unnecessary in that case to inspect the documents to determine the claim for privilege. …
(10)   Once a court has decided, notwithstanding the opposition of the Minister, that on balance the document should probably be produced, it will sometimes be desirable, or indeed essential, to examine the document before making an order for production: Sankey v Whitlam at 46 approving Conway v Rimmer. …
(11)   If inspection of documents is necessary, it ought to be carried out by the Court and not by any other person before ordering production for inspection. …
(12)   In some cases inspection may indicate that it is appropriate to order disclosure but that part of the document should be masked so as not to disclose something which the public interest requires should not be published. The practice was approved in Conway v Rimmer by Lord Reid at 943-944, 946-950 and by Lord Pearce at 988 and in Sankey v Whitlam by Gibbs ACJ at 48 and by Aickin J at 109-110.
Mr Trim submitted that when the balancing exercise is undertaken, the scales should come down in favour of the defendant because of the gravity of the unsolved crime, the prejudice that disclosure would cause the ongoing police investigation and the prejudice to the public interest generally if police investigative methods were publicly disclosed.
Assuming that the balancing exercise was in favour of the defendant, Mr Trim then submitted that a stay was necessary. He relied on the decision and discussions in Rann v Olsen (2000) 76 SASR 450. He pointed out that the reason a stay was not granted in Rann v Olsen was because it was premature to grant such a stay at the time it was claimed. Mr Trim compares that situation with the situation here and submitted that I am in possession of all of the relevant information that the defendant could rely upon if it were in a position to file a defence. He submitted that if there were no stay the court would in effect be determining the matter without the ability of fully considering significant issues in the defence, namely, its plea of justification. In other words, a trial on the issues would take place without the defendant being able to argue a key plank of its defence.
In Rann v Olsen, the plaintiff issued proceedings against the defendant for slander arising from statements made by the defendant that the plaintiff was a liar. That followed from the plaintiff making statements in proceedings in Parliament that the defendant had leaked confidential information to the Opposition. Due to the operation of s 16(3) of the Parliamentary Privileges Act 1987 (Cth) the defendant was precluded from relying upon the defence of truth and prevented from leading evidence concerning his defence. Counsel for the defendant sought a stay of the action because the effect of s 16(3) prevented him from conducting his defence in the usual manner.
The court by majority considered a stay was premature and therefore refused the application. It was held that a stay required a determination of the action between the parties without making any enquiry as to the truth of the plaintiff’s statements, would be inconsistent with the administration of justice, and would allow the court processes to be converted into instruments of injustice or unfairness. It was held that the impact of s 16(3) upon the trial was uncertain, and that the court could not predict with any precision the course of the trial. Further, the operation of s 16(3) did not mean that inevitably the trial would be an unfair one: see Doyle CJ at [205], [207], [209] and [212]. It was also held that the factors relevant to granting a stay had not been identified with precision by the parties, and that a stay could not be granted without a finding as to relevant facts and a clear statement of the aspects of the anticipated trial that would make a stay appropriate: see Doyle CJ at [213].
Doyle CJ said in Rann v Olsen at [40]:
[40]The inherent jurisdiction of the Court to impose a stay to prevent injustice is a wide power. However, it is one to be exercised with care. There is no suggestion in the cases that it is exercised on the basis of a broad or subjective assessment of whether the outcome of a case will be regarded as fair by most people. The jurisdiction is more confined than that, although the relatively few cases do not enable one to state with any precision the scope of the jurisdiction.
His Honour then said:
[42]However, generally a court will not stay proceedings on the basis that the Court considers that the outcome of those proceedings, if heard according to law, will be unfair or unjust in the popular sense of that term. It is unusual for the application of the law to produce a result that a court recognises as unfair or unjust, but it is conceivable that this could occur.
Later at [207] His Honour said:
[207]The grant of a stay involves the exercise of a discretion, and it is to be exercised with considerable care and by reference to all aspects of the case.
And then:
[213]If the Court were to grant a stay, that should be done on the basis of a finding as to any relevant facts, and a clear statement of the aspects of the anticipated trial that make it appropriate to grant a stay. If that is not done, two problems would arise. First, should the High Court entertain an appeal from this Court’s decision, the High Court would find it difficult to identify the precise basis upon which the stay was granted. Secondly, an application can always be made to discharge a stay on the basis of a change of circumstances. If the basis of a stay is not identified clearly and with reasonable precision, one would never know whether there was a basis to approach the Court to discharge the stay.

Mr Trim referred also to a Privy Council decision in Prebble v Television New Zealand Ltd [1994] 3 WLR 970; [1995] 1 AC 321. In that case, the plaintiff, a member of the legislature, made a claim against the defendant for libel. The statement of claim alleged a number of defamatory imputations arising from a television program that the defendant transmitted. The defendant sought to use some parliamentary material in aid of its defence of truth. That material was protected by parliamentary privilege. However, in its defence in the particulars of justification, the defendant relied upon a significant amount of information which was not protected. The plaintiff applied to strike out the particulars of the defence which infringed parliamentary privilege. Those allegations were struck out. The defendant appealed and the Court of Appeal upheld the trial judge’s decision. The Court of Appeal then, in the interests of justice, ordered a stay of the proceedings unless and until privilege was waived. The plaintiff appealed the order for the stay.
The Privy Council held that there was sufficient material that could be relied upon by the defendant to enable it to mount a defence. It was held that while some of the allegations had been struck out, the majority of the allegations against the defendant remained open to be ventilated in court. The allegations struck out were held to be comparatively marginal. The Privy Council upheld the appeal against the stay granted by majority in the Court of Appeal.
Their Lordships said in Prebble:
Their Lordships are of the opinion that there may be cases in which the exclusion of material on the grounds of parliamentary privilege makes it quite impossible fairly to determine the issue between the parties. In such a case the interests of justice may demand a stay of proceedings. But such a stay should only be granted in the most extreme circumstances. The effect of a stay is to deny justice to the plaintiff by preventing him from establishing his good name in the courts.
That case was not considered by their Lordships to fall into that extreme category which would warrant a stay.
I consider that the factual scenario in Prebble has some similarities to the case which I am to decide.
Mr Trim then referred to two English decisions, Hamilton v Hencke: Greer v Hencke 21 July 1995 and Allason v Haines 14 July 1995 (both referred to in United Kingdom Parliament, Joint Committee on Parliamentary Privilege, First Report, Parl Paper HL 43-I, HC214-I (1999) [62]-[63]). Mr Trim’s submission is summarised in his argument as follows:
If an injustice will result if a matter was to proceed and a defendant is precluded by force of law from adducing evidence that is available to it, then the public interest should dictate a stay.
It is clear to me that each case of this kind must be decided on its facts.
As can be seen from Mr Trim’s overall approach in his submission, he relied almost entirely on the information which has been provided to me in confidential material. That is the information Mr Trim says could be pleaded if it were not for the consideration of public interest immunity, and that being the case, a stay should be ordered.
(ii) Submissions of the plaintiff
Mr Heywood-Smith QC, counsel for the plaintiff, in his opening oral submissions said:
The plaintiff says that the police cannot make an allegation that there are strong grounds to suspect a private citizen of murder, maintain that allegation, as they have done, leave the accusation as a status quo and as a matter of public record, and then contrive by asserting public interest immunity in respect of all of the investigation evidence that they had before making the accusation to disable themselves from proving that very allegation, or looked at in the alternative, from denying the plaintiff the opportunity of testing that allegation.
Mr Heywood-Smith pointed out that the stay is sought in respect of all causes of action but that it is not necessary, for instance in relation to the alleged statutory breaches. As I have pointed out, there is really no dispute on this aspect.
In relation to the misfeasance claim, he submitted that the defendant can plead. The plaintiff’s case is that Detective Superintendent Symons made the decision to embark upon the press conference and then proceeded to act in breach of his duty. He submitted that the pleadings do not require all of the documentation going to the investigation occurring over the seven years prior to the press conference. He submitted that the defendant can and should easily plead to the allegation of misfeasance, if it has a defence. He pointed out that in the trial the plaintiff would call the evidence of the details of the press conference, how it was organised, who was present and what Detective Superintendent Symons said. It would then be up to Detective Superintendent Symons to give evidence to justify the actions he took. He would not be required to go into the details of the investigation but would simply have to justify, first, his decision to convene the press conference, and second, his statement involving the strong grounds to suspect the plaintiff.
In his argument when addressing questions from the bench, Mr Heywood-Smith in relation to the plea of misfeasance said:
If the defence did simply deny that the actions were intentional and deliberate then the plaintiff would not be justified in seeking discovery for the whole of the investigation file.
As to the new imputations, Mr Heywood-Smith submitted that if the defendant was able to give the extensive particulars of justification in relation to the “strong grounds to suspect” imputation, they would be the same in the case of the plaintiff being “the prime suspect”. He submitted that there was very little difference in the imputations. I have already indicated that I generally agree with that proposition.
From the point of view of discovery, in relation to the imputation pleaded in paragraph 24(d) of the statement of claim, Mr Heywood-Smith submitted that there was not effectively any difference in terms of any obligation to discover, the defendant having already pleaded to the earlier imputation and given discovery. Again in terms of the allegation in paragraph 24(e), Mr Heywood-Smith submitted that in terms of the obligation to discover, the new imputation did not add anything.
Mr Heywood-Smith submitted that if it is the case that the defendant cannot adduce all of the evidence that it possesses to establish “strong grounds to suspect” the plaintiff of having murdered Corinna Marr then it had no business in stating that publicly. He submitted that it is of significance that the imputations alleged in 2006 were answered by the defendant after it clearly considered the question of public interest immunity. The earlier defence filed by it raised the question of a stay but nevertheless it filed a defence pleading significant details of the investigation.
Mr Heywood-Smith also referred to Rann v Olsen. He referred then to a decision referred to by Mr Trim, namely, Carnduff v Rock & Anor [2001] EWCA Civ 680; [2001] 1 WLR 1786 which he said was distinguishable. He also referred to the decision of Chief Constable of the Greater Manchester Police v McNally [2002] Crim LR 832; [2002] EWCA Civ 14 and submitted that any prejudice which the defendant now suffers has come about as a result of its misconduct.
Carnduff was a decision of the Court of Appeal which involved a contractual claim by a registered police informer against an Inspector and the Chief Constable of police. The claimant sought payment for information allegedly supplied to the police pursuant to a contractual agreement. The contractual liability was denied in the pleadings and when it came time for disclosure, the defendants claimed public interest immunity in relation to the information supplied by the claimant and its value. The defendants then sought to have the claim struck out.
The trial judge refused to strike out the claim. The Court of Appeal, by majority, upheld the appeal and struck out the action. It was held that the public interest in withholding the evidence from discovery outweighed the public interest in having the claim litigated on what evidence was not protected by immunity.
Laws LJ observed in that case:
[31]On an application to strike out a claim, where the court is not invited to form any judgment about the evidence, the court ordinarily proceeds on the footing that the facts alleged by the claimant in his pleading are true: or, more accurately I think, that the claimant may establish the facts alleged. It is plainly no departure from that principled approach to treat the contents of the defence pleading as no less relevant, where the question is - as it is here - whether the disputed issues disclosed on the pleadings can be tried without injury to the public interest: injury, I should at once accept and indeed emphasise, which outweighs the public interest in the doing of justice between the parties by holding a trial of the action.
…
[34]In short, the very business of trying this claim would transfer the difficult and delicate business of tracking and catching serious professional criminals… from the specialist and confidential context of police operations to the glare of the public arena of a court of justice.
Jonathan Parker LJ observed:
[49]In my judgment, [counsel for the respondent] was right to recognise an overriding public interest in not requiring the police to disclose information or material for the purposes of a civil trial where such disclosure would be contrary to the public interest. It seems to me to follow that if a fair trial of the issues in the case would necessarily involve the disclosure by the authorities of information or material which is sensitive or confidential and the disclosure of which is not in the public interest, and if that in turn means that it would be contrary to the public interest that the trial should take place, then the case should not be allowed to proceed. As soon as it becomes apparent that that is the position, then in my judgment it is open to the court, in the exercise of its inherent jurisdiction, to strike the action out.
Mr Trim had submitted in relation to Carnduff that there is no material distinction between the order striking out the plaintiff’s action in Carnduff and the order for a stay which is sought by the defendant in this action.
McNally, referred to by Mr Heywood-Smith, was another decision of the Court of Appeal in which public interest immunity was claimed by the police. The facts were that the claimant, who had been charged with murder, sought damages from the defendant, the Chief Constable of Police, for wrongful arrest, false imprisonment and malicious prosecution; during the trial the defendant was ordered to reveal if a person “X” was at any material time a police informer; the defendant refused and claimed that information was protected by public interest immunity; upon application by the claimant, the trial judge ordered the defendant to disclose the information; the defendant appealed against the order.
The Court of Appeal unanimously dismissed the appeal and upheld the order of the trial judge. It was held that it was open to the trial judge to balance the competing interests in the way that she did, and that there was no basis on which the court should interfere. The factors which led to the decision were: the serious risk of a miscarriage of justice if the information were not disclosed; the judge considered that the information was of litigious importance with considerable forensic impact on the case; the judge considered that the information could be decisive of the case; that the claimant was seeking redress for wrongful deprivation of liberty for 10 months; the public interest in the exposure of serious misconduct by police officers; that the scope for protecting ‘X’ was limited by the fact that both sides already knew who he was.
Auld LJ said in McNally:
[25]The fact that exclusion of relevant and important evidence in a civil claim could result in an unfair trial is not necessarily decisive against the public interest where a question as to the protection of an informer arises. However, where, as the Judge plainly considered here, it could have been decisive of the outcome of the case, she was, in our view, entitled to give it the significant weight that she did in the balance of interests that she rightly undertook.
Mr Heywood-Smith then asked me to bear in mind the distinction between the balancing act required in deciding whether there is first a valid claim for public interest immunity and then the next decision as to whether to grant a stay.
Mr Heywood-Smith submitted that I should find that there was no material difference in the imputations pleaded, that full discovery has already been given and in addition evidence has now been adduced in the Channel Seven matter. He submitted that I should compare the information which I have in the confidential information provided to see whether there is in substance such a material difference of information still not available in the public arena which would justify a stay. He said it was significant for me to examine whether there was any likely result of the continuing police investigations one way or another because, if there was not, then any stay was effectively the end of the action so far as the plaintiff was concerned. He submitted that if there was an imminent breakthrough in the investigation, it would be a different consideration.
Mr Heywood-Smith submitted that there was no Australian decision to support the proposition contended for by Mr Trim, namely, a stay in these circumstances. There is no doubt that the claim for a stay in the circumstances of this matter is unusual in that it is the reverse situation which has been discussed in many of the cases referred to, including Rann v Olsen
Consideration of the new imputations
(i) Paragraph 24(e)
As I said earlier, I am not sure what the additional imputations have added to the plaintiff’s case. Dealing with paragraph 24(e) first, which I set out at [33] I can see how that is a new imputation but I am not sure it adds much. However, I would not have thought it necessary for the defence to do anything more than deny that the words complained of bear the meaning suggested in the statement of claim. That would, in my view, be an appropriate defence to that alleged imputation. Even though the master has found material capable of supporting the imputation, that will not be the test applied at trial in deciding whether there is such an imputation from the words complained of. I cannot see how the defendant is prejudiced in pleading a mere denial along the lines I have suggested.
(ii) Paragraph 24(d)
I turn to paragraph 24(d) and the move from “There are strong grounds to suspect that the plaintiff murdered Corinna Marr” to “as there are strong grounds to suspect that the plaintiff murdered Corinna Marr he is the prime suspect, setting him apart from any other suspect” (my underlining). It is a subtle variation. The question is whether it makes any significant difference to the defendant’s ability to plead.
It must be borne in mind that in his affidavit Detective Sergeant Keane left nothing to be inferred. He stated that he suspected on reasonable grounds that the plaintiff had committed the murder. The same goes for Detective Superintendent Symons and his comments at the press conference on 3 March 2004 about the plaintiff being the “primary suspect”.
It is my view that the defendant should be able to plead to the new imputations in the same way it has already done in the earlier defence. Therefore in relation to the imputations alleged to have arisen out of the press statements and/or the media release, I am of the view that there is no support for the claimed inability to plead.
Even if these imputations do raise the bar somewhat I do not agree that there is a need to reveal all the police intelligence to enable a proper plea to be made. As I have said earlier, I regard the new imputation as a subtle variation on what was already implicit, namely, that the plaintiff was the culprit. My view is that if the police had reasonable grounds to suspect the plaintiff of the murder, the key word being “reasonable”, then this would make him the primary suspect, the investigation having reached that stage. In any case, much of what was included in the defendant’s confidential draft pleadings, which only I have read, I consider to be potential evidence and not merely statements of material facts and so therefore should not be pleaded: see r 98(2)(b) of the Supreme Court Civil Rules 2006.
In view of my later decision in relation to the plea of misfeasance there is one possible consequence which might follow if the plaintiff elects to proceed in the action by withdrawing his claim for misfeasance, and proceeding with the remaining allegations in the statement of claim.
On that scenario, if I am wrong in relation to my views about the new imputations and the defendant’s ability to plead to those imputations, I consider that the defendant would not be prejudiced in any event in the leading of its evidence to meet those allegations. It has been shown by the Channel Seven action that this is possible even though the allegations are not identical.
In my view it would not require the defendant to go to the minutiae of the investigations. The reason for that is that there is in the public arena already an abundance of evidence, which I have set out earlier, which the defendant would no doubt point to in justifying any comment that the plaintiff was the prime suspect. The logic of the plaintiff being the prime suspect, for all the reasons now in the public arena, is inescapable.
I make it clear that, although much of the confidential information which I have seen might be relevant for pleading the defence, and in some cases a refinement or elaboration on what is already pleaded, the defendant can proceed on the existing pleas more or less as they are.
The new allegation of misfeasance in public office
This new plea is allied with allegations of breaches of duty of care, duty of confidence and duty of privacy. Collectively the alleged breaches arise out of the disclosure of information which the plaintiff alleges was prohibited by both the Forensic Procedures Act and the TIAA.
The plaintiff alleges that it was the conduct of senior police officers, namely Detective Sergeant Keane and Detective Superintendent Symons, which resulted in breaches of their statutory duties and constituted misfeasance. The allegation is that the conduct alleged was a wrongful and conscious abuse of power. It is further alleged that the conduct was intended to cause harm to the plaintiff and constituted malice towards the plaintiff.
It is those allegations which raise the need, as submitted by the defendant, to answer them by pleading all of the relevant steps taken by SAPOL in the course of its investigation. This would be directed at showing that at all material times the officers pursued all available avenues of inquiry without malice. I have of course seen the information in confidential affidavits which would be used in defending the allegations of malice. The information is sensitive and not in the public interest to disclose. The defendant says that it is hamstrung. The defendant submitted that these allegations should be withdrawn so that the matter can proceed and the plaintiff can have his day in court, or a stay would have to be granted.
Some of the confidential information I have seen goes to the core of the murder investigation and some of it may be necessary to fully answer the new allegations of malice in the further amended statement of claim (FDN 37). However, the gist of the allegation is that the actions taken by the police officers were a deliberate and conscious abuse of power. That allegation of itself can be defended by a denial and a plea as to why the actions were taken without the need to plead the minutiae of the investigation. So from a strict pleading point of view, the matter is probably manageable.

Apart from the specific information relating to the investigation of this murder there is much available in the confidential material to illustrate police patterns of investigation and methodologies which I consider should not be made public. This information falls into a category which has been protected by public interest immunity on other matters: see R v Malesecca (1994) 74 A Crim R 210 and Brennan v State of New South Wales [2006] NSWSC 167 (suppressed).
I heard confidential submissions from Mr Trim in the absence of Mr Heywood-Smith and those instructing him. I have as a result been able to form views as to what matters could be pleaded by the defence and in what manner and also what matters are deserving of protection under public interest immunity.
I have contrasted some of the confidential information with the draft confidential document in which Mr Trim addressed possible defences. It is my conclusion that, as I have said earlier, whilst there are some matters relating to the ongoing investigation which should not be released in the public interest, on balance the defendant should be capable of filing a sufficient defence to comply with pleading requirements. So the question comes down to whether, even if the defendant can plead, it is so disadvantaged in adducing the evidence it needs to support its plea, that in the interests of justice, a stay should be ordered.
As a pragmatic decision it would seem to me to be pointless to rule that the defendant can plead its defence whilst at the same time acknowledging that the defendant would not be able to adduce all of the evidence necessary to support the plea at trial because of public interest immunity. In the circumstances of this matter I have held that there is a valid claim for public interest immunity. The defendant is, however, able to plead to the allegations without revealing that information. In the balancing exercise to which I have referred, involving my knowledge of the extent of the information which the defendant cannot lead as part of its evidence, there is in my view a sufficient risk of a miscarriage of justice if the protected material is revealed. In those circumstances the question of a stay has to be seriously considered.
Those new allegations, including malice, raise the dilemma of how the matter should be dealt with at this stage. The choices are, it seems to me, either to require a defence to be filed and leave any sensitive issues arising from issues of public interest immunity to be dealt with at trial, or the alternative is to grant a stay. In the case of the former option, if objection is taken in the trial when the defendant’s witnesses are cross-examined, the objection can be ruled on in much the same way as Bleby J did in the Channel Seven matter: see Sands at [467]-[474].
However, that does not answer the defendant’s position from the point of view of leading its evidence as part of the discharge of its onus to lead evidence of all the relevant background of its investigation in negativing the allegation of malice. The defendant, on my assessment of the confidential material, clearly will not be able to lead all the evidence it would want to lead if it had an unrestricted choice. I consider that large parts of the investigation, and in particular the way in which any potential suspects have been investigated and assessed, must be relevant to a consideration of whether there has been any malice in relation to the plaintiff. In my view that information should not be placed in the public arena. It is proper to protect it by way of upholding the claim for public interest immunity. Therefore the defendant is in a position where it cannot run its complete defence. This is relevant as to whether on balance I should grant a stay of the whole action. I have to consider whether the trial would be fair in my balancing exercise and whether there is a risk of a miscarriage of justice.
Should a stay be ordered
In relation to the new imputations, there is, as I have already stated, an ability for the defendant to plead in much the same way as it has done in the existing defence. Evidence supporting the plea of justification can be led by the defendant. Therefore there is no need for a stay on that aspect. Likewise it is my view that in relation to the new allegations of breach of statutory duty and breaches of duty generally, the defendant can plead to those allegations, and lead the necessary evidence.
However, in relation to the allegation of misfeasance in a public office, the position is different. If the plaintiff wishes to maintain his allegation of misfeasance, it is my view that the justice of the case would require a stay. The plaintiff may choose to proceed to trial by not proceeding with that allegation. It is, in my view, not an essential part of his claim, given the broad allegations which have been made. The plaintiff can choose to have his day in court on the basis of his allegations of defamation and the imputations which he alleges. The defendant can defend those imputations along the lines of the existing defence. The plaintiff can proceed on all aspects of his claim save for the plea of misfeasance.
I have examined what I have called the conglomerate plea which includes the allegation of misfeasance. The plaintiff can allege the same matters, except for malice, in his claim for breach of duty of care. If he succeeds in his claim for a breach of duty, he will be entitled to damages. These damages would include, if appropriate, an award for either or both of exemplary and aggravated damages. To that extent therefore the plaintiff would not be prejudiced in relation to his claim for damages.
I would imagine that the proof of the alleged breach of duty, suggesting that the actions of the police officers were either negligent or reckless, would be somewhat easier than proving malice.
I can think of no other respect in which the plaintiff would be prejudiced by proceeding in his claim for a breach of a duty of care as distinct from his plea of misfeasance. I imagine that the evidence to be led and the arguments to be mounted on a breach of duty of care would be very similar to those involved in establishing malice. The same set of facts would be relevant.
It seems to me that it is simply the case that if the plaintiff wishes to raise the stakes by alleging malice, he must face the reality that his whole action would be placed in jeopardy because it is my conclusion that a stay is the only appropriate answer if the allegations are maintained. That is because the defendant would be deprived of a key plank of its defence on the basis of my finding that there is information in the possession of the defendant which cannot be disclosed according to the principles of public interest immunity.
I will hear the parties as to how this matter should proceed.