Sands v The State of South Australia (No 2)

Case [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

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AGLC
Sands v The State of South Australia (No 2) [2010] SASC 340
Case
[2010] SASC 340
Decision Date

CaseChat Overview and Summary

Sands v The State of South Australia (No 2) involves an action for defamation, misfeasance in public office, and breaches of statutory duty against the State of South Australia. The plaintiff, who was investigated for the murder of Corinna Marr, claims that police statements during the investigation were defamatory. The defendant sought a permanent stay of proceedings on the basis of public interest immunity, arguing that the proceedings would require the disclosure of privileged information related to the murder investigation and police policies and methodologies. The court considered whether the information was protected by public interest immunity, whether the new allegations substantially altered the claim, and whether the defendant could plead its defence without disclosing privileged information.

The court held that the information was protected by public interest immunity and should not be disclosed. The defendant could plead its defence of justification to the new defamatory imputations, which were refinements or conclusions of the original imputations. The court found that the pleadings would not necessitate the revelation of information protected by public interest immunity. However, the defendant could not plead to the misfeasance and breach of statutory duty claims as that would require disclosing privileged information. The court granted a stay of the proceedings if the misfeasance claim was maintained by the plaintiff.

The court reasoned that the new imputations were a subtle variation on what was already implicit, that the plaintiff was the culprit. The defendant should be able to plead to the new imputations in the same way it had already done in the earlier defence. The court also noted that much of what was included in the defendant's confidential draft pleadings, which only the court had read, was considered potential evidence and not merely statements of material facts. Therefore, the court found that the defendant should be able to plead to the new imputations without revealing privileged information. However, the court granted a stay of the proceedings if the misfeasance claim was maintained by the plaintiff.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J

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Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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 OlsenConsideration 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.