Appeal, appeal and appeal again: Sands v State of South Australia [2011] SASCFC 136

The plaintiff alleged that members of the SA Police Force, in the course of investigating a suspicious death, made statements that were defamatory of him, including statements that the plaintiff was suspected to have murdered the deceased. The deceased was shot dead on 4 July 1997 and the plaintiff filed proceedings in September 2005. The application related to the defendant’s pleadings of justification and qualified privilege, and because it was about pleadings, the plaintiff needed permission from the Full Court to hear the appeal. Which was what this case was about.

They say that litigation takes a long time. Well the reason why the parties were still fighting about pleadings 6 years after the case was started was that the plaintiff actually issued another proceeding against a TV station, which ran first. In that case, the plaintiff lost at trial, lost in the Full Court on appeal and was refused leave to appeal to the High Court. But it takes more than that to discourage a person from wanting to appeal…. He went again with an appeal in this case, just on this preliminary point.Anyhow, the Full Court state that they were very cautious about granting permission to appeal at an interlocutory stage. The 4 points on which the plaintiff sought leave to appeal were:

  • The trial judge gave the defendant permission to file a 5th amended defence, with further particulars in support of a plea of justification. The plaintiff complained that this material could not support such a plea;
  • The trial judge should have struck out the plea of justification;
  • The trial judge refused to strike out the qualified privilege defence.
  • The defendant claimed public interest immunity and did not want to discover documents that the plaintiff says could show that other people were suspected of the murder.

On the first ground, the defendant relied on a police interview conducted with the plaintiff. Parts of that interview were redacted or excised and the plaintiff contended that the defendant could not rely on the interview without putting the whole thing in. The appeal justices held that there were still other particulars which made the justification defence arguable and so it was a matter for the trial judge to consider all of the material as a whole. Permission rejected.

On the second ground, the trial judge actually held that the material adduced was not sufficient to establish a case for the plaintiff to answer on a charge of murder. However, the Full Court held that this did not necessarily mean there were not strong grounds to suspect that the plaintiff had murdered the deceased, and so it was still reasonably arguable that a plea of justification could be made out. Permission rejected.

On the third ground, the defendant pleaded that a publication made by media release at a media conference was somehow covered by the reciprocal duty-interest qualified privilege. The plaintiff contended that publication to the public at large could not be covered by this qualified privilege. While the trial judge accepted that there were strong arguments in favour of that, the defendant’s position was “not unarguable”.

The Full Court accepted that this plea of qualified privilege “takes that defence a long way, perhaps into new territory. However the Court does not consider the matters relied upon to be unarguable.” Permission rejected.

On the fourth ground, once again, the Full Court determined that this was a matter for the trial. Permission rejected.

Onto the next appeal….