The full court of the Supreme Court of South Australia recently considered an action for defamation brought by Derick Sands (Sands) against the State of South Australia.

BACKGROUND FACTS

In 2004 South Australian Police were investigating a murder. Sands had been interviewed by police in relation to the murder on a number of occasions and due to his refusal to provide his fingerprints the police made an application to the court seeking that Sands be compelled to do so. The hearing of the application was attended by representatives of the media resulting in the matter being widely reported.

Following proceedings in court, police conducted a press conference and provided a media release. The conference was subsequently televised on news programs and the media release was uploaded to the SA Police website. Sands was not named or ostensibly identified, but was described as the prime suspect in the murder.

In 2005, Sands instituted proceedings alleging that he had been defamed by the publication of the media release and statements made during the press conference.

Specifically, Sands pleaded that the media release and press-conference imputed that:

  1. there were strong grounds to suspect that he committed the crime;
  2. alternatively, there were reasonable grounds to suspect that he committed the crime;
  3. his conduct warranted the suspicion of police;
  4. he was the prime suspect; and
  5. the police had information placing him at the scene of the murder which he refused to challenge.

Sands also plead that SA Police had breached their statutory duty to take reasonable steps to protect his anonymity.

FINDINGS OF TRIAL JUDGE

In dismissing the action for defamation, the trial judge, held that imputations (a), (d) and (e) were not conveyed in either the Media Release or the Press Conference. The trial judge did, however, accept that imputations (b) and (c) were conveyed and that these imputations were defamatory. The trial judge then turned to the State's defence of justification finding that that there were reasonable grounds for the State to make imputations (b) and (c) and therefore the defence of justification applied.

APPEAL

Sands' appeal was based on 2 main issues:

  1. that the judge erred in finding that imputations (a), (d) and (e) were not conveyed; and
  2. that the judge erred in finding that the defence of justification applied to imputations (b) and (c);

Imputations

In regard to the finding that imputations (a), (d) and (e) were not conveyed, the full court referred to the principles distilled in Ten Group Pty Ltd & Ors v Cornes [2012] SASCFC namely that the meaning of the words is to be determined by the sense in which fair-minded ordinary reasonable persons in the general community would understand the words.

In regard to imputation (a) that there were strong grounds to suspect that Sands committed the crime, the full court agreed with the trial judge who found that neither the media release nor the press conference referred to the strength of the grounds of which the person in question was suspected of murder. Thus it was held that the ordinary average listener to the press conference would not have understood the police to be saying anything about the strength of the grounds on which they suspected the person, rather the court found that the press conference conveyed the opposite, namely that the credibility gap of the suspect might be able to be closed by further information coming to light.

In relation to imputation (d) that Sands was the prime suspect, the full court concurred with the decision of the trial judge who found that imputation (d) was pleaded as being dependent upon imputation (a) and as imputation (a) was not conveyed, nor was imputation (d).

Police stated during the press conference that "if he [Sands] can provide information that clearly removes him from the crime scene and any time relating to the crime we would be prepared to examine that". It was on this basis that Sands claimed that imputation (e) that the police had information placing him at the scene of the murder which he refused to challenge, was conveyed. The trial judge held that this was simply not the meaning of what was said. Conversely, police contemplated and implied that Sands may have been able to provide information that absolved him from involvement in the crime. As such the trial judge concluded and the full court agreed, that imputation (e) was not conveyed.

Defence of justification

In regard to imputations (b) and (c) that there were reasonable grounds to suspect that Sands committed the crime and that his conduct warranted the suspicion of police, the trial judge held that the imputations were defamatory however allowed the State to rely on the defence of justification.

In agreeing with the trial judge's determination the full court noted that when pleading justification the defendant bears the onus of proving on the balance of probabilities that the imputation pleaded by the plaintiff was, at the time of publication, substantially true. Relating this to the current matter the State had to prove that the primary facts and matters gave rise to reasonable grounds to suspect that Sands committed the murder of Ms Marr. The trial judge considered in detail the evidence as a whole including Sands' conflicting statements, relationship with the victim, opportunity he had to commit the crime, witness testimony and Sands' credibility, and on this basis concluded that there were reasonable grounds to suspect that Sands committed the murder, thus the defence of justification was made out.

Defence of qualified privilege

It is worth noting that the State also plead the defence of common law qualified privilege. The trial judge held, and the full court agreed, that the issuing of a media release and the holding of a press conference were occasions that had the potential to attract qualified privilege. Police have an interest or duty to communicate with the public to illicit the flow of information which may assist them in investigating serious crime and this has the potential to attract the defence of qualified privilege. However, it was determined that the information that Sands was a suspect and that he had conducted himself so as to warrant suspicion, was additional information that fell outside of the interest to illicit further information from the public and as such the defence of qualified privilege was not available.

Breach of statutory duty

The full court also held that Sands' claim of a breach of statutory duty, pursuant to section 48 of the Forensic Procedures Act, could not be made out as the State did not publish a report of proceedings containing the name of the appellant, nor did they publish information that tended to identify the appellant.

IMPLICATIONS

It is clear that when determining whether an imputation is made out the full court will refer specifically to the words published and the meaning of those words as to be determined by the ordinary fair-minded person.

To rely on a defence of justification it is necessary to ensure that what is being said at the time of publication is substantially true and a court will require evidence to this effect.

A defence of qualified privilege may be available for police in relation to the issuing of media releases and conducting press conferences, however information which falls outside the classification of that which is necessary to seek assistance from the public, will not attract the defence of qualified privilege.

There will be no breach of statutory duty if a report of proceedings does not name the suspect or contain information that tends to identify them.