Bellino v Australian Broadcasting Corporation

[1995] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B30 of 1994

B e t w e e n -

VINCENZO BELLINO

Appellant

and

AUSTRALIAN BROADCASTING CORPORATION

Respondent

BRENNAN CJ
DAWSON J
GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 20 JUNE 1995, AT 10.18 AM

(Continued from 19/6/95)

Copyright in the High Court of Australia

BRENNAN CJ:   Yes, Mr Hampson.

MR HAMPSON:   Thank you, your Honour.  If the Court pleases, I think yesterday afternoon I had ended on the note, really, that, in discussion on qualified privilege, under section 377(8), on this question of relevance, that you have a relevance, in a sense, which is a layman sense only; that the matter is relevant to discussion, it has something to do with it, but we were saying that there is something more here such as that, even though a judge might determine relevance in favour of the defendant, and that might make it more difficult, perhaps, to get a finding from a jury with relation to relevance on the good faith issue, nevertheless, there could be work for it to be done, for example in Mackie’s Case, which is on our list as one of the examples.

But one of things that is necessary in looking at section 377(8) is the identification of the discussion, in the course of which the publication of defamatory matter was made; a discussion of something that was currently going on, as was put in Uren’s Case, at 209.  Your Honour the Chief Justice asked yesterday, how did it arise here.  His Honour, the trial judge, had said that the subjects propounded ‑ or formulated, I think were the exact words ‑ by the defence were these three subjects from the particulars.  Now, his Honour Justice McHugh asked yesterday about the dossier.  What we have done in relation to that really consists of two parts.  There is the major dossier, which is exhibit 83.  The Court has all the original exhibits, the articles that are in that, and what I can do is hand up to the Court ‑ I have got five copies of the schedule of newspaper clippings that are enclosed in exhibit 83, together with one copy of the clippings themselves.  Unfortunately, some of the reproduction is not as good as it could be and I do not really know whether the exhibits are much better. 

If I could just pause there for a moment.  I will go to the second - the dossier, volume 2, which is exhibit 99, in a moment.  The titles are the titles in each particular case in the newspaper, and the Court will see that these were relied upon to demonstrate the nature of the discussion and some of them are very old indeed.  There are 55 newspaper articles dating from 1976 to 1987.  They start off in 1976 with the so‑called ‑ and well known here anyway ‑ as the Southport bookmaking case ‑ well known in this State, I mean ‑ and they go then up ‑ in fact, in the articles, the last couple there are subsequent to the publication of the article here in May 1987. 

In October 1981 one could see a blip on the screen constituted by some small furore about allegations by the late Mr Hooper in the House concerning illegal casinos in Brisbane; a number of articles there.  Then there is some further articles in 1982, which are really relating to a programme broadcast by the defendant, called “Nationwide” on 3 March 1982, in which two former policemen made claims of corruption against unknown senior police, and that videotape, I understand, is in evidence.  It is one of the exhibits.  Sorry, I do not understand;  I know it is in evidence and I understand it is in the custody of the Court here ‑ exhibit 79.

Then the next matter - it is slightly different from this - was in April 1983.  There was publicity concerning the police minister’s call for an all‑out ‑ was on vice ‑ that is document 31, and a Mr Bellino, Gerry Bellino, was named in Parliament, November 1983.  Then you have an article in the Sydney Morning Herald in June about Sergeant Dickson talking about drugs in far north Queensland.  Then in 1987 ‑ these are the most recent ones - one comes to a number of articles ‑ and this is really on page 3 of the index, and starting with the Courier Mail article ‑ probably about, say 45, on 13 January 1987, in the Courier Mail, “No Evidence of Prostitutes, says Minister”.  And then leading up to the publication of the article ‑ that is the last one there, document 52, immediately before the article ‑ are matters relating, really, to gambling, and, to a lesser extent, prostitution, in Brisbane.  That is the nature of the articles that are there.  And for any view of what is an ongoing public discussion, one would have thought that it is generous in the extreme to go back more than a couple of months before the actual article that one is concerned with, to decide whether it is in the course of an ongoing discussion, and no longer, because otherwise the matter falls into the nature of an expose, which was really the plaintiff’s case below, that, in effect, this was an expose of the plaintiff himself, as it were, rather than an  ongoing discussion, into which the defendant was making a contribution.

Now, those are the articles, up until 11 May in exhibit 83.  Exhibit 99 is a lot shorter, and again I can hand up multiple copies of the index, or schedule.  Now, all these are in the Cairns Post and they run from 1 January 1986 to 30 June 1987.  So they go back in time 18 months before the publication of this article.  Even from the index, without looking at the articles themselves, just from the descriptions, one can see that most of the material is not relating to Cairns at all.  Just going through the index there, the first article is really an editorial on the success of operation Noah; that is the operation where people are invited to ring in to the police and dob in a drug trafficker, that type of thing, and it is an article relating to that.

The next one is described as, “Cairns magistrate says heroin easy to obtain”, and he was making those comments when hearing charges against somebody in the court charged with possession of heroin.  The next one is, in fact, from Brisbane, and that is where the State Opposition Justice spokesman, Mr Wayne Goss, was said to have said Queensland was falling behind other States in the fight against drugs.  But nothing more about police protection or anything of that particular kind. 

The next one, 5 June, is from Sydney.  It is an AAP article from Sydney, stating that:

A campaign similar to the current Drug Offensive was urgently needed to prevent Australia becoming a major target for international cocaine dealers, according to the latest issue of The Medical Journal of Australia.

And then:

The Special Minister of State, Mr Mick Young ‑

commented in Parliament on:

a report prepared by the Federal Police and the Australian customs Service ‑

on it.  Again, that does not relate to police or corruption or, indeed, Queensland at all.  The next one is again Sydney.  That is, “Judge calls for new approach to drugs”.  And that is a statement attributed to Mr Justice Michael Kirby, saying that:

The present law and order approach to drug problems was a “failing battle strategy” and should be replaced by a radical new approach ‑

The next article that was relied on was in the same edition and it was, more customs staff were being employed, according to Labor Senator Gerry Jones, to crack down on operations in Queensland international airports, notably Cairns and Brisbane.

The next one is more of an human interest story by staff reporter, and she is writing a story about a girl called Jane ‑ or said to be called Jane ‑ in her mid‑20s, who, in fact, had become sentenced.  She was a local girl and so forth.  She had picked up the habit of moving with people involved in drugs and she had been raided that morning as she was about to administer her first dose of heroin for 10 months.  That is the whole nature of the article; nothing to do with police, or anything of that sort.            The next one, Saturday, 4 October, again is attributed to Sydney, and it marks the sittings in Sydney’s Central Criminal Court, Mr Justice Reynolds sentencing a Stephen John Brown in relation to an importation of cannabis into the country, which the judge said was one of the largest importations.  That basically was the tenor of that article.

The next one, coming closer in time to the article, 19 November, showed that, “Operation Noah lines” were to be open again “today”, and
“the officer‑in‑ charge of the Cairns Police District” was urging “the public to give information” during operation Noah, “about suspected drug importers, dealers” and so forth.  The phones would be open for 12 hours, and so forth, to receive those calls.  The next one, Monday, 19 January, is attributed to Sydney, and an AAP story.  There is an article on page 6, that I have in my copy here, which again is urging people to support Operation Noah.  The next one, document 10, is Sydney, and:

A former top figure in a Sydney crime syndicate says he has told the National Crime Authority the name of the killer of missing Sydney hit‑man Christopher Dale Flannery.

The claim was made in the Sydney Sun‑Herald newspaper yesterday ‑

and it talks about his murder and it does say Duggan said that he had supplied ‑ Thomas Francis Duggan, a protected NCA witness said, among other things, he had “supplied drugs to prisoners in New South Wales jails” and so forth.

BRENNAN CJ:   Mr Hampson, is this designed to show that the three items particularised at paragraph 5(c) of the defence were not, in truth, the subject of public interest, or is it designed to show that the extent of publication in this instance was excessive?

MR HAMPSON:   Well, it really, your Honour, is both.  It is two things that are involved in this, because, having given particulars with relation to what the items of public interest were, which were being discussed, for the purpose of section 377(8), having given that, his Honour then ‑ they were in support of that particularisation ‑ his Honour adopted the particularisation.  He said that is what the defendant said was the position.  We say his Honour was too easy, with relation to the defendants, to pick those three subjects on the basis of what was said here.  His Honour almost took judicial notice of  it.  He said, “Well this is a perennial subject, police corruption, and so forth”.  I am merely making the point here, first of all, that the evidence did not justify such a wide selection of the subjects, particularly when, of course, his Honour did not do more ‑ he did not even identify one subject ‑ he talked to the jury in terms ‑ the question asked, “a subject of public interest”.  The particulars gave three.  He summed up on the basis of three, and there was no finding from the jury with the question as to which one, even of those, was the one that, in fact, they were deciding upon.

But it also is relevant, your Honour, to the other point that your Honour makes, to the width:  if this is the nature of the discussion, it is relevant to see how far one, in entering in this discussion, as the defendant claims it did, can go.  And when one sees, for example, that there is really nothing in the discussions - what is relied on as the discussions - in Sydney about what is happening in Queensland.  That obviously is a matter that is quite relevant to the breadth and width of the discussion.  It tales off.  The last two are merely an editorial congratulating  the police - far from the discussion ‑ by the local superintendent, in relation to the way things had been done there, and finally, on Tuesday, 28 April - that is the closest one in point of time ‑ it merely recording complaints that had been made to the Chairman of the Licensing Commission, Mr Stubbins, who says that the commission is going to use its power to prevent any drug dealing taking place in licensed premises, hotels, in Cairns.

So, it is unfortunate that we do not have more copies for the Court, but that is why I read a little bit of what each of the articles are.  But the point that emerges, of course, is that there is no ongoing discussion at all of the police protection of drug dealers.  There had been no public discussion of the plaintiff at all since he had been mentioned in October 1981 newspaper coverage of Mr Hooper’s speech in Parliament and, of course, at that time the article published shows that he promptly denied any involvement at that time.  The closest discussion put forward in evidence ‑ in point of time I mean, that is the ones commencing in 1987, in Queensland ‑ related to prostitution rings in Brisbane and illegal gambling in Brisbane, and no mention of the plaintiff in this context, and no mention of any drugs or anything of that kind.

So, we submit that where section 377(8) requires definition of the participants in the discussion and subject matter, that really was not explored at all properly in this case.  The respondent did not set out, of course, maybe for obvious reasons, that its discussion fell within the contours of a discussion about the affairs of the plaintiff.  It says it sought to contribute to a general discussion about organised crime and corruption, but what it, in fact, did, in our submission, was that it recycled a lot of material that had been presently used before.  His Honour, the trial judge, said as much, that there was no new material.  Leaving aside the plaintiff, there is no new material in the matter.  It was just that it was put in a more coherent format, and only in that sense ‑ and I gave the Court that passage yesterday ‑ did it add anything to the debate.  So our submission is ‑ and it was the case made below really ‑ that it was in the nature of an expose, rather than a general discussion of any ongoing discussion which, in fact, have not been identified.

It cannot be the case that if one is dealing, in a general discussion in any event, with criminal activity ‑ in a general sense, the occurrence of criminal activity of a particular kind anywhere, that during the course of that discussion, one may make a statement, a defamatory statement about a person, and then automatically find, without a test of relevance, that that statement would be in the course of the discussion.  It cannot be that.  There obviously is a question of relevance for the judge, and a question also, once it comes to good faith, of relevance for the jury.  If an open‑ended interpretation like that were given to 377(8), then the wider the interpretation is given to 377(8) to allow limited relevance to bring the defamatory utterance within the discussion then ,we would submit, the more work has to be done by the jury in the test of relevance on the purpose of good faith.  For example, a jury should be able to find that it was not relevant to the discussion of such general topics to contribute to the debate merely unsubstantiated rumours which, in fact, that is all it was in the present case.  There was nothing higher, nothing more than that that was put in against the plaintiff, and, as at page 198, his Honour had said ‑ and I gave the Court the reference yesterday ‑ the material, he had said:

However, when the information is analysed, it did not add, it seems to me, anything of significance to the store of knowledge about the plaintiff that had previously existed.  The material collected at that point had not resulted in action against him, and while it was not unreasonable to be suspicious about the role of members of the Queensland Police Force in this state of affairs, the vast majority of the information was also in the hands of law enforcement agencies other than Queensland Police.  It is fair, I think, to say that there were no breakthroughs in the material.

BRENNAN CJ:   Where did the Slade Report come from?

MR HAMPSON:   The Slade Report was merely a report that this policeman, Slade, wrote and sent to the police headquarters in Brisbane, and how the defendant obtained a copy of it, they were not prepared to say.  My learned junior reminds me that the reporter had referred to a discussion he had had with a member of the Australian Bureau of Criminal Intelligence, some police officer, and I do not know that he actually swore that he actually got it from him or not.  But the point is that it was not an official document of which the defendant should have been in possession.

BRENNAN CJ:   That may have been so but the question is whether this was for the purposes of the discussion of a subject of public interest, and if the Slade Report nominated your client as being involved as a figure involved in drug trafficking, I wonder why it is that it would not be said that it was for that purpose.

MR HAMPSON:   That as a matter of public interest that the police had written in a confidential document that they had suspicions about Smith ‑ for argument’s sake ‑ that that is a matter of public interest, to publish on a national‑wide programme, that in fact Smith is whatever the type of criminality is.

BRENNAN CJ:   No, that is putting it in another way.  You see, the way in which, as I understand, it was put against you, is this:  the discussion of organised crime, protection of organised crime and trafficking in drugs, were matters, the public discussion of which is for the public benefit.  The attribution of involvement in those activities by Bellino was a publication defamatory of Bellino, made for the purposes of discussion of those subjects of public interest.  Now, that then fulfils the requirements of subsection (8).  One then goes to the “good faith” provisions in order to see what the implications are.  Involved in that, of course, is questions of ill will and not believing the defamatory matter to be untrue.

MR HAMPSON:   Yes, and the other matters.

BRENNAN CJ:   What I do not understand is, why it is that it is said that the publication of the matter, of which Bellino complains, is not to be said to be for the purpose of the discussion of the subjects listed in paragraph 5(c).

MR HAMPSON:   Well, I can only submit, your Honour, that without any material of it, other than a confidential police report, what has been put forward is as relevant as any statement ever will be, in the course of discussion of crime, about anybody.  It is as wide as that, your Honour.  It is as wide as saying that if we are discussing criminality, just generally, in Queensland ‑ and in the present case there was not that definition by the evidence of what his Honour said the discussions were.  He just merely took the defendant’s formulation of it.  That also added some confusion, as we have already pointed out.  But assuming that the subject, correctly identified, and that the evidence showed that there was an ongoing debate about the increase ‑ narrow to some extent, let us say, of crime violence against the person in Queensland, and that was the discussion, for somebody to say, “Jim Smith of Inala, in fact, also has been guilty of lots of crimes of violence against a person”, just to put that in, in our submission, is not a contribution to the debate, at all. 

It is not relevant to the discussion of the issue of the incidents.  It is an expose against John Smith, and it is shown to be, in this case, when one looks at the way, in the passage there, it mounts up.  I mean, there is a suggestion the Italians were involved ‑ I forget exactly the way it goes now, but then one comes to the ‑ there is a man called “The Marble Man” ‑ sort of built up in that particular way.  He is called “The Marble Man”.  Then we come to, “There’s the Marble Man”.  He is looking at the mine, and a photograph of him appears on the screen, and says, “The Marble Man is the plaintiff ”‑ is then spelt “Bellino”.  It is not done in any way of discussing the matter; it is done as an expose of the plaintiff and in that context, just like the man from Inala who has been convicted several times of crimes of violence against a person, to take him out of everywhere, as it were, as the only person, name him and put him in the middle of this debate, is a deliberate expose of him, and it is not something that is in the course of the ongoing discussion.  That is the way we would put it, your Honour.

If it is not taken that way, it can be, really, as the Chief Justice said in his judgment, introduced in the same way; a defamatory allegation against anybody at all, any member of the public, in that particular general discussion of criminality, some criminal offence that he was committed of, picked out, the only one, but it is relevant.  One can say, “Ah, but that’s relevant”.  We are talking here about crimes against a person.  He has been convicted against crimes about the person.  So, to name him is relevant to that discussion and, we submit, if it is put as wide as that, there clearly must be a jury question, if his Honour is correct to be able to find that as relevant, then clearly there has to be a jury question to discover whether, in the circumstances of this case, there is a real relevance, a relevance in the sense that the Code is using, as opposed to a relevance in the sense that the layman would use.

GAUDRON J:   But is that a question that goes to anything other than other improper motive?   For example, it is often put, “They simply seized this opportunity of a discussion to relate all this defamatory matter about somebody else”.

MR HAMPSON:   Your Honour, it really has a double meaning.  If one looks at the cases on our list, for example, it is seen that what the judges have said is there is two questions.  The trial judge, first of all, as a matter of law, has to find the requisite relevance in his finding of the existence of the occasion of qualified privilege, and if there are disputed facts, of course, he will have to take the finding from the jury on that but ‑ ‑ ‑

GAUDRON J:   I thought yesterday you came to the point where you said  it was open to the trial judge to find that it was in the course of public discussion of a subject matter.

MR HAMPSON:   Only in the layman sense, your Honour, I thought.  What I meant was you would say, “Yes, clearly it was relevant” because, as the Chief Justice put it, “After all the jury found that your client, the plaintiff, was, in fact, described as a drug trafficker”.  So it must have been relevant to the discussion, otherwise they could not have picked that out of the discussion.  What I was really saying was, “Yes, in a general, lay, sense, one might say, it has to be relevant to that, otherwise you wouldn’t get the imputation; there wouldn’t be defamation”.  But what I was saying, I think, was that when one looked at this particular case, his Honour erred, really, the trial judge ‑ and we said that in our written submissions ‑ in effect, finding there was an occasion of qualified privilege, and he erred on the question of relevance, we say, and we relied on the Chief Justice’s judgment with relation to that.  But if that argument was found against us, we still have the argument with relation to the relevance from the point of view ‑ and the other matters ‑ of good faith.  Of course, what was bad about this trial, where it seriously went wrong, with that question, was never entrusted to the jury at all.  They were never really asked to rule on good faith, except in the extremely limited sense of whether the journalist had been reckless in his research.

So that question never really came.  The jury question for relevance never came.  The statutory definition, the fact that it is in the Code, means that questions such as relevance, manner and extent, are really independent elements of good faith, unlike really at common law where they are probably completely overlapping, and they are not simply indicators of a defendant’s state of mind, or a defendant’s intention, and that follows from the way that good faith is defined.  It is defined in an extensive way at the bottom of section 377.

So, we would say that the respondent, quite advisedly, did not say that the discussion involved the plaintiff’s affairs ‑ did not say that that was what the public discussion was about ‑ because otherwise it would have had the difficulty of proving the telecast was in the course of an ongoing discussion.  So, what it did and naturally tried to do was make it as wide as possible but in doing that, in our submission, it in fact went beyond ‑ his Honour allowed the question to go beyond ‑ that is the question of the subject being discussed ‑ in fact what the material before him, put up by the defendant, showed that the discussion was, as one can see, just going through the material.

So, although we concede that once the judge, then ‑ getting on to the question of good faith ‑ has ruled that the defamatory imputations were relevant to the discussion, because they are in the course of, and which was the only contention made here ‑ it was not made that it was for the purpose of, it was in the course of ‑ once that ruling has been made, it may be more difficult to get a finding from a jury because one would think very often that the judge would be pretty right with relation to this and in conformity with what the jury’s views would be.  But, as we say, Mackie, on our list, is an example of such a case, and as the Code expressly provides that relevance is a question of fact for the jury, and therefore, that is where it should be open to the jury to find that the information which is false, flimsy, simply adds nothing to the discussion.  Even though technically it may be said to fall within the course of that discussion, it really is, when one looks at it properly, in the nature of an expose. 

We say that so far as manner and extent is concerned - that was debated also, yesterday - the judgment of the only judge who really considered the matter, Mr Justice Davies in the Full Court, ignored that - he ignored the amended reply, I should say, which fairly and squarely raised the question of extent.  He also said in his judgment there was no cross‑examination on this point.  How would you cross‑examine sensibly with relation to extent when you have the very video in front of the jury which shows, in fact, what happened?  It was admitted that publication had occurred right throughout Australia.  We would submit that the appellant’s case - it was reasonably sufficient for the occasion ‑ it was reasonable, it was submitted, for the occasion of qualified privilege, to telecast these matters to a national audience in a form which did not name him, which did not identify him, and dramatically portrayed him as a villain.  It was quite sufficient for the purposes of the discussion for that to have happened; not to have gone further. 

Equally, as it may be said that it would have been appropriate for the respondent to have named the plaintiff in other circumstances to other people; to a Member of Parliament, or to the National Crime Authority, or something of that kind, although, of course, as the evidence apparently showed, the National Crime Authority already had the material and had it for some years, because it had first been raised in 1981.  So the appellant’s case was first and last, the whole way through, was the way he had, in fact, been treated on the telecast; that, in fact he had been named, and we also, of course, have submitted the way he was named was excessive: the dramatic build‑up to which I would refer, The Marble Man, the actors in the white shoes and so on, and that is referred to again.  I think I gave the reference to the amended reply at the appeal book 23.

We would submit, therefore, that two things arise:  that, at the trial his Honour was incorrect, the way he formulated the matter of what the public discussion was, and he should have held that no occasion of qualified privilege, in relation to these matters involving the plaintiff, had been demonstrated and, as the Chief Justice would have done, removed the whole issue, all the factual issues from the jury on that very finding.  But on the basis that his Honour, the trial judge, was correct in doing that, he was incorrect in his treatment of good faith because that, the way he progressively ruled and, as it were, put himself into such a corner that at the end all he found, all he could see in the way of good faith, was this question of negligent reporting, he really prevented the jury from adjudicating upon the real point, the real matter of complaint that the plaintiff was trying to raise.  In so far as the plaintiff, in question 3 was introducing himself there ‑ his counsel was introducing himself there ‑ that was a case really, we would submit, where the plaintiff had nowhere to go.  It was characterised as a favourable way of treating it so far as the plaintiff was concerned but, nevertheless, we would submit that the answer was going to be inevitably, yes, in any event.  It was like, it was put, a motherhood statement.

Then we say the Court of Appeal was incorrect because the majority there were incorrect, in that ‑ it did not matter for the Chief Justice, as has been pointed out, because his decision went another way, but the two in the majority were incorrect in the good faith aspect:  Mr Justice Davies in holding that it was correct to have taken that from the jury; Mr Justice Demack, who really did not consider the matter.

GUMMOW J:   Against that background, Mr Hampson, what orders to you seek from us?

MR HAMPSON:   If the Court followed the decision of the Chief Justice, _ if the Court was of the view the Chief Justice was correct, a new trial limited only to damages, because we would not contend, contrary to what he had said, the damages were excessive.  On the basis that we were correct for the other view, so far as good faith is concerned, it would have to be a new trial, your Honour.  Yes, it would be limited to the questions of good faith and damages.

McHUGH J:   But the general rule in a defamation action is that you do not separate liability and damages, is it not?  It is impossible, in most cases, to segregate the two issues.

MR HAMPSON:   It would be, in our submission, a clear case that requires it.  We would submit this is a clear case, your Honour.  If there is a question

of law ‑ I mean the assumption that the Chief Justice was correct, and it is a clear case that his Honour was correct, the correct view, in my submission, is that that is really a ruling of mixed fact at law but mainly law that he has made, and it is an appropriate case for the separation of the two issues; that it should be limited to damages only.  That is not the case, of course, if in fact the alternative view were followed by the Court.

McHUGH J:   Mr Hampson, was a transcript of the broadcast, “The Moonlight State”, before the jury at all?  There seem to be sections of it in the appeal book, but there is just no total transcript.

MR HAMPSON:   I do not know that the total transcript - they had a transcript.  We do not have a copy of it, so I cannot answer your Honour’s question as to say whether they had the total transcript or not.  But Mr Mulholland, undoubtedly ‑ he was at the trial, he should be able to tell the Court that, and he has given us a copy of what he says is a full transcript, and if he says that the full transcript was made ‑ that was the one before the jury - well, that is it, so be it, although we have not been able to find it in the exhibits, that is the only thing.  So I just do not know how it was there if it was not put in as an exhibit.  It might have been put in as that custom grown up of giving the jury a written document, in the nature of a transcript, to assist them to follow the video.  Maybe that is the way they had it.

I do not know that there is anything I can add.

BRENNAN CJ:   Thank you, Mr Hampson.  Mr Mulholland.

MR MULHOLLAND:   Could we hand up first, with the Court’s leave, a copy of the transcript of the programme.  I say in doing that, your Honours, that that copy of the transcript was before the jury when the watched the relevant telecast, the relevant video of “The “Moonlight State”.  It was then taken back from the jury at the end of it, really on the basis that it was better that the jury see the programme itself, if they wanted to see it, rather than actually then concentrating on the transcript.  So that was by consent.  It was given to them during the course of watching the video and then returned.  The other document which we would seek to hand up is a document showing the imputations with the passages which were particularised by the appellant.

McHUGH J:   That is in the appeal book, is it not?

MR MULHOLLAND:   No, your Honour, not this particular document.  This is a document which has, first of all, the imputation, and then the passages.  And these are the imputations which went to the jury.  There is a document, I think, which refers to all of the imputations, but this particular document that I have just handed up now is a document that was actually placed before the jury during the addresses and the jury ‑ I do not think it was ever formally tendered, but it was placed before the jury and they had that, and the page that is shown on it, page (3a) can then be connected up ‑ it is a little bit confusing perhaps, but it can be connected up to the transcript.  so that, for example, (3a), that passage appears on that page of the transcript.

BRENNAN CJ:   Whose document was this?

MR MULHOLLAND:   The document headed “Imputations” was produced by the appellant, our recollection is, your Honour, and the transcript I think was prepared by the appellant as well, we understand, but it was by consent that those documents went before the jury.        There is a correction in relation to the transcript.  I understand that was prepared by us and given to the appellant and that was then placed before the jury.

Your Honours, we would ask - although obviously not now - the Court at some time to view the whole of the programme to see the context in which the passages complained of appeared.  Those passages in relation to the appellant commence at the foot of page 14 of the transcript and then through to page 17.  Those three pages are where there is reference to the appellant by name, although they are not the only passages, of course, that the appellant complained of.  Those can be found by reference to the imputations.  The programme itself, without asking your Honours at this stage to view it, was established by evidence called through defence witnesses and the programme was intended to be a programme about the structure of corruption in Queensland.  It was intended to be a chronological account, because it dealt with the period from Bischof to Lewis, that is police commissioners.  There was a vertical dimension to it, that is to say it started from Commissioner Lewis down to Parker, who was an Assistant Commissioner and named in the programme, and to the police below, and that it was geographical as well, because it showed corruption which existed on the Gold Coast, Brisbane, and extended to Cairns. 

There were shown on the programme people who actually worked in the areas of prostitution and gambling, who spoke about the way in which the system was constructed.  The programme showed that there were two groups operating in Brisbane, referred to as the Bellino/Conte group or the syndicate and the Hapeta/Tilley group, but that group had illegal activities going on, not only in Brisbane, but other places such as on the Gold Coast, and that in relation to the syndicate, that is to say the Bellino/Conte group, that there was an illegal casino that was operating in Cairns.

Now at the point of where the mention of the appellant by name is - that is starting on page 14 - immediately prior to that the programme has a number of people speaking about the connection between drugs and this illegal activity, and on page 14 your Honours will see a person shown as John Stopford - - -

BRENNAN CJ:   Can we just identified this page 14 that you are speaking about?

MR MULHOLLAND:   It is also (3n), your Honour, and it should have a page number.  I am told that, unfortunately, the page number 14 has been cut off on the copies that your Honours have.  Now on that page there is a reference to a person, John Stopford, speaking about how drugs were involved in these premises - this is prostitution premises - and how the people who are controlling these premises, the operators, are also involved in the distribution of the drugs, and that is the point made by the person named as a prostitute, and then there is a brothel keeper referring to that as well, and then the reporter goes on immediately after that, two-thirds of the way down page (3n), to say:

So were you confident that the people who profited most at all from prostitution, ie, the organisers of the trade, also profited from the sale of drugs?

And the brothel keeper agrees with that.

And then there is the connection with the north, and the reporter goes on:

What is clear is that just as there is a connection between the flesh trade and the drug trade there is also a connection to that same network of protection.

Now, apart from what is said then in the following pages in relation to this report, referred to as the “Slade Report”, there is an interview with a Ross Dickson - that is on (3o).  Ross Dickson was a former police officer - and this was part of the evidence - who was stationed in the first half of the 1980s on the Atherton Tableland, and first of all, half‑way down the page, he refers to there being an “organised people in the North” who “stick together”. Two-thirds of the way down the page he says that:

We were just told straight out that there were to be no further drug investigations, that was in April 1984.  We reported that to the Commissioner, Terry Lewis, and he ignored it.  You know, we never got any reply.  I had the confidential report -

this is not the “Slade report” he is speaking about here -

hand delivered to him by a senior police officer who was up in the North at the time, saying that we’d been instructed there was to be no further drug investigations -

And then after further reference to the “Slade Report” it continues then with Dickson, at the foot of (3p), and the raid that he describes there as wanting to carry out, was on what he describes as “a big mining camp” which was stopped, and then on to (3q), the reporter asks:

What was the business?

He said:

It was a marble mine at Chillagoe.

This is a mine run by the Bellino family is it?

He says:

Yes, ‘cause that never....the connection there never hit me for at least a half a second.

Well then, immediately following that is a discussion of what happened in relation to the Slade Report.  What happened, as explained at that point, is that within a few months there was several bribe attempts made on the undercover officer who prepared the report, that is on Slade, by a superior officer, and that the bribe offers were made in the name of Gerry Bellino, that is to say, the brother of the appellant.  I might say that when looking at the circumstances in which this publication occurred, and taking up something that was referred to by our learned friend, the evidence was to this effect that the reporter said he had spoken to an officer within the Australian Bureau of Criminal Intelligence that the report or its contents were placed on the data base of the Australian Bureau of Criminal Intelligence and there was subsequently - this is what the reporter was told - what was described as “an unprecedented attempt” to remove that information from the data base and, furthermore, there was questioning of the person who supplied that information to the reporter, there was a direction that he would be interviewed by Mr Parker.

Now, Mr Parker is the Assistant Commissioner I mentioned earlier referred to in the programme by a former police officer, Nigel Powell, in this connection, that he took some of his concerns to Mr Parker, who was at this particular time in the early 1980s in charge of the licensing branch, and Mr Parker told him basically not to worry about it.  Then at the foot of page (3q) another police office, shown here in a reconstructed interview so his name does not appear - and in fact his name was given by the reporter when he gave evidence - says:

The end result was that the officer...the senior officer who had in fact supplied the money never was charged, and in fact, the only discipline that was metered out...he was transferred to a western town and since then, he’s been promoted to commissioned rank.

So he describes that as one incident; connects it then to Mr Slade.  He said:

that’s the incident I’m talking about, yeah.

He then goes on to say:

Yes, it’s a well-known incident in the police force, and it’s just regarded as an everyday occurrence, not so much in terms of somebody speaking out, but it’s certainly an everyday occurrence that someone is getting paid off for activities which are going on around the State.

So that is then the context in which that appears, your Honours;

In addition to the various articles which have been referred to, which were placed before the jury in the public discussion of the subject of public interest, there were the videos.  They appear as exhibits 79 to 82.  Also there were Hansard reports.  They appear as exhibits 82 and 83.  In addition to that, the respondent proved at the trial that these various people who are named in the programme were actually involved in corruption during this period, and this was done by certificates of conviction.  They appear as exhibits 89 to 95 and 101.  So that they showed that Commissioner Lewis was corrupt during a period of 10 years between 1976 and 1986 or thereabouts; that Bellino and Conte had been convicted; Hapeta and Tilley had been convicted; furthermore that Hapeta had been convicted of trafficking in drugs relating to a period about six months which commenced approximately six months after the programme.  That is from early 1988.

There was also evidence that various other people in the police force were corrupt during the relevant time.  It was proved that Farrer, who at the time that the reporter, Mr Masters, went to Cairns in relation to this broadcast, that he was the Far North Region Superintendent at the time, that he admitted his corruption at the Fitzgerald Commission of Inquiry, that various other police officers within the licensing branch during the relevant time had also admitted their corruption.  So that was also a body of evidence that was before the jury.

His Honour, the trial judge, attempted a summary of the matters, the existence of which may excuse the publication on qualified privilege at page 189 of the appeal book.  This was done at the end of the appellant’s case, commencing at line 21:

If one had to formulate the matters, the existence of which may excuse the publication of defamatory matter, they would be, in broad terms, that organised crime was involved in prostitution, unlawful gaming and drugs, and corruption of police and possibly politicians for the purpose of ensuring that those activities could continue without disturbance and that it was in the public interest that those matters should be exposed.

It is convenient, your Honours, if ‑ ‑ ‑

McHUGH J:But what does that mean?  I just do not understand what relevance that statement has got to 377(8).

MR MULHOLLAND:   Well, that is describing the subject of public interest, your Honour.

McHUGH J:But his Honour says it was in the public interest that those matters should be exposed.  I mean a subject is either a subject of public interest already or it is not.  One does not talk about if it is in the public interest that it should be exposed.

MR MULHOLLAND:   Well, his Honour, however, appears to be saying that these are obviously subjects which ought to be publicly discussed.

McHUGH J:One difficulty I have about your defence in this case is as to whether or not it is a 377(8) case at all, and it really seems rather specious to try and say that this publication was in the course of some discussion that is currently going on.  When you read it, it looks like it is a new discussion started by your clients about certain matters.  I must say, speaking for myself, I would have thought that 377(5) was your real defence rather than 377(8).

MR MULHOLLAND:   Well we put that, your Honour.

McHUGH J:Well, I appreciate that you did.

MR MULHOLLAND:    It was ruled against us.  However, it is not just simply the articles, it is also important that the earlier interviews, which are shown in that video material that I mentioned, are seen.  I mean, that shows that, for example, a press conference of the outgoing Mr Whitrod, the police commissioner before Mr Lewis, in which he basically is not able to answer questions or says that he is unable to answer questions in relation to the incoming police commissioner.  There is also shown Police Commissioner Lewis saying that he does not know where these stories about him being a “bag person” come from.  There are allegations that are subsequently made in the earlier 1980s by two police officers, Fancourt and Campbell, concerning corruption going on in the Valley and being protected by senior police, and then immediately following that, the next day, there is the Police Commissioner shown in an interview in which he ridicules the persons making the allegations and makes criticisms, in personal terms, of the people, just ridiculing the allegations.  There is also another interview in which the same police minister says that if there are casinos in the Valley he knows nothing about them.

So the situation is that allegations are being made over the years and nothing is occurring, and it is in that context that his Honour says that the subject is almost a perennial one.  So that when it comes to ‑ ‑ ‑

McHUGH J:I know, but in Uren’s Case, Mr Justice Windeyer took the view that it was not sufficient that you relate your discussion to some topic of public interest.  It is in 117 CLR at page 209.  About half-way down the page he says:

that subject must necessarily be determined with some exactness.  As Mr Justice North, speaking for the Court of Appeal of New Zealand, said, “There is no principle of law, and certainly no case that we know of which may be invoked in support of the contention that a newspaper can claim privilege if it publishes a defamatory statement of fact about an individual merely because the general topic developed in the article is a matter of public interest.

He said:

A matter is, I think, published in the  course of the discussion of some subject of public interest when, as the learned trial judge in the present case said, a discussion of that subject is currently going on.  This accords with what Chief Justice Latham said -

et cetera.  But when you look at this material of yours, it seems to me that it is initiating a discussion of particular matters and although logically you may be able to relate it in some way in a broad general sense to what has been said on other occasions about corruptions, it is really a fresh publication.  It is not, for example, as though someone today made a defamatory statement about French nuclear testing, that there is a current discussion going on, and you can relate to it, but this seems to me to be new matter that has got to be defended under 377(5) rather than 377(8).

MR MULHOLLAND:   Well, your Honour, to that we would submit that what is shown by the material is that there was endemic corruption in the police force.

McHUGH J:Well that may be.

MR MULHOLLAND:   And the complaints that had been made - and this is the connection, if you like, to what is being said in “The Moonlight State”‑ but there are allegations being made of this endemic corruption and nothing is happening about it, and then one comes to this particular programme and the programme seeks to draw all of these aspects together, but one cannot say, with respect, that this is a start of a subject.  This is a subject that, as ‑ ‑ ‑

McHUGH J:I appreciate that in one sense, but that is not the way this section has been understood, has it, hitherto?  I mean, for example, if I say, “Look, there is Tom Smith; he’s been getting welfare money, although he has got a job.  That is another example of dole bludging”, et cetera, et cetera, I am not entitled to rely on 377(8) simply because there is a discussion about welfare, am I?

MR MULHOLLAND:   Your Honour, that depends on whether there is a sufficient nexus or not, and you need to have a look at the defamatory matter and consider it against the discussion, the public discussion of which is for the public benefit.

DAWSON J:   A nexus between what and what?

MR MULHOLLAND:   A nexus, your Honour, between the defamatory matter and the discussion of a subject of public interest, the public discussion of which is for the public benefit.

DAWSON J:   The trouble is you can define the subject narrowly or broadly; it could be corruption in the police force, it could be the plaintiff’s family’s involvement in the corruption of the police force or it could be the plaintiff’s involvement in the corruption of the police force.  How do you decide where you draw the line?

MR MULHOLLAND:   Here, of course, the appellant chose not to simply sue on the parts of the programme that referred only to himself; he sued on a the whole of the programme.

McHUGH J:I notice it is in your submissions to that effect.  That means nothing, does it?  The plaintiff sues on the imputations that affect him, but to get the meaning of the imputation you go and look at the whole programme.  You have to put the whole of the document in and if he did not put the whole of the document in you would be entitled to put the whole of the telecast in.

MR MULHOLLAND:   Well it depends in relation to that however, your Honour, on what the imputations were, and the imputations here - of course, only the three imputations (e), (f) and (g) were found by the jury.

McHUGH J:I know but, Mr Mulholland, it is very important in relation to this Act, as it was in relation to the old New South Wales Act, to remember that it is the imputation which is central.  That is what you have got to defend.  It is not the article, not the contents, not the words, it is the imputation, and the plaintiff gets damages for the imputation.  You have to defend the imputation, either under justification, qualified protection, fair comment, as the case may be.

MR MULHOLLAND:   Yes.

McHUGH J:So, it does not matter that the plaintiff has put the whole of the telecast in, it is the imputation which is critical.

MR MULHOLLAND:   Yes, but I was addressing the question as to why the subjects were particularised.  The subjects were particularised in the light of the fact that appellant sued on the whole programme.

McHUGH J:It would not have made any difference if he had.  It does not matter what he sued on, you have to relate that - you have to defend.  When (8) says, “If the publication” ‑ that is the publication of the defamatory imputation ‑ “is made in good faith in the course of.....the discussion of some subject of public interest”, you have to identify the subject of public interest and say that was published in the course of that discussion.

BRENNAN CJ:   Mr Mulholland, I understand from your responses to Justice McHugh that you say that the subject, which you particularise as the subject of public interest,  the public discussion of which was in the public interest, is a subject of enduring concern to the community.  Now, that is a question of fact.  What I do not understand for myself at the moment is why it is that one has to have an existing discussion  - coming back to what Justice Windeyer said - when the words are “for the purposes of”, as well as, “in the course of”?  Why is it that one cannot have, though I do not understand your argument, presently to go to this, “for the purposes of the discussion of some subject of public interest”, and then you have got the present tense, “the public discussion of which is for the public benefit”?

MR MULHOLLAND:   Your Honour, that was what we did rely upon, and what his Honour found was that it was in the course, or for the purposes of the discussion of the subject of public interest.

McHUGH J:I do not think you are answering the Chief Justice’s question, with respect.  That was a question I was going to ask you:  I know for 30 years the view has been taken that “the discussion” means that there should be a current discussion going on, but do you accept that is right, for the reasons that the Chief Justice has put to you?

MR MULHOLLAND:   That there is necessarily one going on at the time of the ‑ ‑ ‑

McHUGH J:   There has got to be one going on.  On one reading of it it can be just “the discussion”.  I can be discussing a subject of public interest with Mr Hampson and claim to come within the section, not withstanding that there has been no prior discussion.  I know all the cases following Justice Windeyer take the view that there must be a current discussion going on, but it has always seemed to me that it is arguable that there is another view.

BRENNAN CJ:   You do not get a starting point for the exposure of ill doing.

MR MULHOLLAND:   We would submit, your Honours, that there can be an initiation as well as a continuance of a discussion already going on. 

McHUGH J:You have to depart from what Justice Windeyer said in Uren.

MR MULHOLLAND:   However, in Uren’s Case, as Mr Justice Windeyer pointed out at that point, they did not plead “or for the purposes of”.  So, it does not really directly deal with that, your Honour.

BRENNAN CJ:   So, what you are saying is, the cases which have assumed that it did plead the whole section have followed Uren’s Case, per incuriam?

MR MULHOLLAND:   Well, we would say that Uren does not constitute an authority for that proposition, your Honour. 

McHUGH J:In any event, I cannot recollect off the top of my head any case where “for the purposes of” has ever been regarded as relevant in this particular area.  I mean, this subsection which promised so much for defendants has delivered very little.  This case must be one of the very few cases where a defendant has succeeded under it, is it not?

MR MULHOLLAND:   Well, it may not have delivered much in the way of results of reported cases, but it certainly, in the way in which it has been dealt with in this State, it has delivered, your Honour.  It has been recognised, in the way in which litigation has been conducted, as a very wide provision.

BRENNAN CJ:   It was always trotted out but I do not know that it ever got very far, did it?

MR MULHOLLAND:   So far as the way in which the programme proceeded then - and it is convenient if I take your Honours to the outline - we deal with that in paragraph 1.  Some of this I need to dwell on.  Paragraph 2, there is just a correction that we would make to the reference to, in the last line, “at the conclusion of the appellant’s evidence”, that should be, “at the conclusion of the appellant’s case”.

Paragraph 3, in the penultimate line, refers to the way in which the appellant’s case was put in cross‑examination, and the point we wish to make here, your Honours, is that there were really three areas of cross‑examination of the defence witnesses.  The witnesses who were called ‑ there were four witnesses called, but one only related to proving some articles. 

Your Honours, the three main witnesses were the reporter, the executive producer and the presenter, and the cross‑examination of those witnesses covered essentially three areas, first of all, what was investigated in relation to the Slade Report.  So, the reporter, for example, was taken to what was said in the Slade Report and asked whether he investigated that allegation, whether he investigated another allegation, and so on.  The second area was: what attempt was made to contact the appellant before the programme went to air, and the third was the point made about referring to the plaintiff by name.

Now, the way in which that was put is not that the cross‑examiner was seeking to say that the activities should not have been referred to, but while the activities could have been referred to, the reference to the appellant could have been done anonymously.  In fact, it was said at one point that it could have been dramatised in the same way that the dramatisation occurred concerning other unnamed people in the programme, without mentioning him by name.  So, it was not the activities and we submit that that is an important aspect of this.  It was a mention of the appellant by name, because, we would submit that once it is conceded that the activities of the appellant are relevant to the matters which attract the qualified privilege, then it could not be said that it is irrelevant to name the appellant, nor could it be said that the manner and extent was excessive. 

Our outline goes from there to refer to the other question, question 4, that went to the jury.  That is in paragraph 4.  Paragraph 5 and 6, I think, I can pass over.  Then we deal with what the Court of Appeal decided.  Now, this has already been referred to by our learned friends.  There is, however, one matter that we want to touch upon.  The effect, we would submit, of what Justices Davies and Demack found was that “relevance” and “manner and extent” were correctly withdrawn from the jury, although Mr Justice Davies said that the direction was deficient in relation to question 3 so far as the subject was concerned because each of the subjects ‑ a specific question should have been asked in relation to each subject.  But his Honour went on to say that even if the jury had been correctly directed, they must inevitably have found in favour of the respondent.

The way in which Mr Justice Demack put that was that the factual issues were left to the jury.  That is at the appeal book, page 338, lines 8 to 10, and his Honour treated the appeal as turning on the question whether it was relevant to the subject discussed in “The Moonlight State” to name the appellant.  We deal with this in paragraph (b) on page 5.  I think our learned friend said that the Chief Justice did not deal with this question of relevance and extent of publication, however, at page 312, lines 38 to 41, the Chief Justice accepted that the learned judge, quite correctly, did not abandon to the jury the decisions on relevance and extent of publication.  So, even though it was unnecessary for the decision, his Honour did say that he did not abandon those decisions for the jury, except that his Honour would have found that the plea was not made out. 

Paragraph 8 comes to the question as to whether there was an occasion of qualified privilege here, and there is reference to Bedford’s Case in the last line of that paragraph, in it being necessary to examine the whole of the surrounding circumstances.  That is a phrase taken from what Mr Justice Evatt said in Bedford, the relevant pages being at pages 657 and 658 of the report and, in addition to that reference, could we also give your Honours, in the judgment of Mr Justice Starke, pages 646 and 647, where his Honour quotes from James v Baird.

That was, of course, said in relation to the section 377(3) for the public good but it is the approach which would be suggested as applying to all of the paragraphs in section 377 as Mr Justice Mason, as his Honour then was, said in Calwell’s Case.  So the way in which the matter is approached at common law has been suggested as an appropriate way of looking at these questions of whether the occasion is one of qualified privilege or not. 

What Earl Loreburn said in James v Baird in that famous passage was that all of the circumstances should be examined including by whom, to whom, when, why and in what circumstances the publication was made.  Of course, in this particular case, it was explained that this particular segment in relation to the appellant was seen as very important because of its illustration of the corrupt system in operation and how it worked and what it provoked - provoked bribe attempts within a few months; it went to the ABC and so on.  Parker ‑ I should have mentioned this earlier ‑ was named as the corrupt assistant commissioner.  He was the liaison officer at the time, for the Australian Bureau of Criminal Intelligence and also for the National Crime Authority.  There was reference in the respondent’s witnesses to the fact that there was an attempt to stop an investigation by the NCA or obtaining a reference in relation to organised crime in Queensland. 

So, all of the circumstances, we submit, should be examined, and that was the way in which his Honour the trial judge approached it.

We go on, in paragraph 9 to look at what his Honour did in relation to whether the conditions set out in section 377(8) had been met, and his Honour concluded that a subject of public interest was the essence of the programme.  The passages in which his Honour deals with this in the summing up have been referred to.  Can I just quickly take your Honours to those passages again?  At page 223 the relevant passage commences at line 38 through to 42 and then on page 237 lines 27 to 38.  Then, in putting question 3 at page 247, line 33 to page 248, line 11.

Your Honours, we go on from there to deal in paragraph 10 with aspects of the defence under section 377(8), and we submit that the argument of paragraph 8 of the appellant’s outline assumes that the subsection requires that the public discussion of the defamatory matter be for the public benefit whereas the words “public benefit” in the subsection, we submit, clearly qualify public discussion rather than defamatory matter.  It is the public discussion of the subject of public interest which must be for the public benefit.  In that regard, the draft question proposed by the appellant, “Was the public discussion of the plaintiff a matter of public interest for the public benefit?” was not an appropriate question.  The question that was put was the question in the terms of section 379 of the Code, said to be a question of fact.

The question, we submit, is whether the defamatory matter published of the plaintiff, is whether that published matter is in the course of, or for the purposes of, the discussion of a subject of public interest, one can go on to say the public discussion of which must be for the public benefit.  It is submitted that the test is not whether it is wholly within the subject of public interest but whether there is shown to be a sufficient nexus.  We have referred to Justin’s Case, and the particular passages, and I do not think it is necessary to take your Honours to it, but the particular passage occurs in the judgment of Mr Justice Walsh at page 40 in the last paragraph, and page 46 point 8.  There is also a discussion of this in the judgment of Mr Justice Jacobs at page 51 point 8 of the report.

Our submission is that the way in which the question was put to the jury was too favourable to the appellant and certainly the appellant cannot complain about it.  In the end, the appellant got precisely what he wanted because whether the subjects were of public benefit, we would submit, was always going to be answered, as indeed, is submitted on the other side, was indeed, always going to be answered “yes”.  The whole focus of the question became, at the request of the appellant, as to whether or not the naming of the plaintiff in these activities was for the public benefit, having regard to the balancing exercise which his Honour suggested that the jury should perform. 

We submitted below, and submit here, that that was a balancing exercise which should have been performed by the judge not the jury, in relation to following the approach that Earl Loreburn suggested should be followed in deciding whether an occasion was one of qualified privilege or not.  It certainly was not a question which should have been decided by the jury but it was certainly not something, in our submission, that the appellant can complain about.  In paragraph 11 we have referred to what the Court said in Pervan in relation to section 377(8) and we have given in Part B of our list some of the cases and one article that were written before the preparation of the Act in 1889 by Sir Samuel Griffith.

We have said that the argument at the trial ‑ and this is dealt with in the middle of paragraph 12 ‑ that the arguments of the appellant concerning manner and extent and relevance were based on the identification of the appellant by name in a context where other persons were not named.  This appears in a ruling that the trial judge made at the end of the appellant’s case; it is page 189 of the appeal book and it commences at line 30:

He, in effect, submitted that the purposes of ensuring the public good, giving information to the public and contributing to the discussion of matters of public interest for public benefit could have been satisfied by identifying the facts alone without revealing identities.

This is the point that I made about the cross‑examination, and likewise in the submissions that it was actually a mention by name of the appellant that was being complained about.  It is put in the same way as that in the application for redirections by the appellant’s counsel at the trial at page 269 commencing at line 37:

It is my submission that one of the main thrusts of the plaintiff’s case is that it was totally unnecessary for the ABC to name, identify, in direct terms, the plaintiff.

That is consistent with the approach which had been taken, that the activities could be mentioned, but not the name.  Paragraph 13 of the outline ‑ ‑ ‑

GUMMOW J:   Before you do that, Mr Mulholland, this reference to the Legislative Assembly Debates in 1889, do they throw any light, do you know, on this phrase “for the purposes of the discussion”, as distinct from “in the course of”?

MR MULHOLLAND:   No, your Honour.  Those references relate to what Sir Samuel Griffith said in the course of the Debates in introducing it.  He went through them and what he really said was that, it came to this, I think, that it represents what the law was at the time, or if it was not, what in his opinion he thought the law ought to be.  That is the way he expressed it.

GUMMOW J:   Yes.

MR MULHOLLAND:   There is a reference by him to one of the earlier cases, and this is mentioned in Pervan’s Case.  I think it was to Henwood v Harrison.  I think one of the pages that we have given to your Honours refers to the whole thrust of the modern law, is a way Sir Samuel Griffith put at the time, was towards the freedom of discussion of matters of public interest.  In our submission, on the ‑ ‑ ‑

GAUDRON J:   But do you go so far as to say, though, that questions as to manner and extent were effectively abandoned by the plaintiff at trial other than - any other question other than the naming of the plaintiff was effectively abandoned in relation to manner and extent?

MR MULHOLLAND:   No, I could not say that, your Honour.  The way in which it was put, however, both in relation to manner and extent and relevance was really the same point that it was unnecessary to name the plaintiff.  The activities were all right, but it could have been done anonymously.

GAUDRON J:   But other matters which would go to those issues were not abandoned?

MR MULHOLLAND:   Other matters were not abandoned.  I cannot say that they were abandoned, but your Honour, the evidence did not suggest - perhaps I could take your Honours ‑ ‑ ‑

GAUDRON J:   Presumably there was evidence that it was a nationwide telecast?

MR MULHOLLAND:   Yes, that was accepted, that it was a nationwide telecast.  So, the circulation of the programme was relied upon.  None of the other matters, however, which were particularised were established.

BRENNAN CJ:   Relied upon for what purpose?

MR MULHOLLAND:   Relied upon to suggest that in the sense that - perhaps I should go to the particulars, your Honour.  The way it is put on page 24 of the appeal book in paragraph(b)(v) is:

Publishing the allegations concerning the Plaintiff throughout Australia.

Again, that should be understood in the context in which it was not the activities that were being complained about, it was the mention of him by name.  Just dealing with those at the moment:  (i) there was no evidence at all given in relation to that.  (ii) it was not established; it is perhaps a little bit difficult to understand precisely what that means.  This document, I might say, actually came into existence finally at the end of the appellant’s case.  I am sorry, this was the second day of the trial.  It is a bit misleading because it has a date on it - 3 November 1992.  The sources, I might say at this point, relied upon by the reporter were not challenged in the sense that there was no dispute, that all of the persons that the reporter claimed to have spoken to, were spoken to.  There was no cross‑examination at all of what was said in the programme in the sense that at no time were any of the witnesses taken to parts of the programme.  What they were taken to was the Slade Report.  (iv) was not established and (vi) the evidence showed that raising any complaint with anyone within the police force at the time, in relation to matters like this, was a complete futility.

In our submission, in relation to paragraph 13 it was really an all or nothing case, which is the way his Honour Mr Justice Walsh expressed it in Justin’s Case.  If the activities were relevant to the matters which attracted the privilege then there can be no question, in our submission, of the mention of the appellant by name.  Paragraph 14 looks at manner and extent, and in relation to this we submit that manner is concerned with the form of language and print.  There are various cases, if I could quickly go to these in the appeal book in the judgment of Mr Justice Davies ‑ ‑ ‑

GUMMOW J:   I am not sure this is controversial, is it?

MR MULHOLLAND:   It probably is not, your Honour, but there are different expressions used in those cases that his Honour referred to, such as prominence, presentation, language and so on.

GAUDRON J:   Which would translate in something like the way particular (b)(ii) reads in relation to a television programme, would it?  That is at page 24 of the appeal book.

MR MULHOLLAND:   Depending on what the evidence was, your Honour, what one could, some of the authorities say raised a question as to recklessness or deceit within this particular phrase.  So that if one claimed that, for example, there was a source and there was no source or something of that kind, then the authorities would suggest it could come within this particular phrase.

In our submission, the subjects were clearly of national importance and interest and we should make the point that there was no ground of appeal to the Court of Appeal and the grounds appear in the appeal book that manner and extent had been wrongly taken away from the jury.  Furthermore, there was no redirection sought in relation to manner and extent.  The redirection that was sought was under the heading of relevance.  Those are our submissions, your Honours.

BRENNAN CJ:   Thank  you, Mr Mulholland.  Mr Hampson.

MR HAMPSON:   May it please the Court.  On the statement about the notice of appeal, the amended notice of appeal which I have before me at the moment, page 300 of your Honours’ book, does, in paragraph 4, take the grounds that his Honour:

failed to direct the jury adequately.....
(a) generally;
(b) on the “relevance” issue; and
(c) on the “excessiveness” issue

It does, it is true, go on to say he:

erred in withdrawing the “relevance” issue from the jury.

But, the fact that the excessiveness issue was failed to be directed implicitly means that it should have gone to the jury.  I would submit that that was still a live matter and was argued in the Court of Appeal, as appears from Mr Justice Davies judgment.

BRENNAN CJ:   I am sorry, I am not with you there, Mr Hampson.  Which page?

MR HAMPSON:   Page 300, I think it is, in the appeal book.  In paragraph 1.  Sorry, it is:

And take further notice that the grounds ‑

you have to go over the page to page 2:

His Honour the learned trial Judge failed to direct the jury adequately.....
(a) generally;
(b) on the “relevance” issue; and
(c) on the “excessiveness” issue

And then, although it is true as it says:

His Honour erred in withdrawing the “relevance” issue from the jury.

and does not expressly complain of withdrawing the excessiveness issue.  I merely state that the failure to redirect on the excessiveness issue was a matter that was argued - the manner and extent - in the Court of Appeal on that notice of appeal without any objection, and it appears clear in Mr Justice Davies’ judgment that that was the case because he expressly dealt with it.

The other matter that I would like to just say something about was the question of section 377(8), “in the course of” or “for the purposes of”.  The matter has not, in fact, received any considered judicial attention on the question of whether, “for the purposes of”, could be relied on, as it were, to initiate a discussion because the context, the way it has been read, has been in terms of that there must be a debate.  That is the whole idea of the privilege, that it was at common law.  There was a public discussion and then if you entered into it and you made probably some defamatory statement about somebody in the course of that, or for the purpose of it, then you could have the protection.

McHUGH J:   I think the words, “for the purposes” have generally been thought tougher, an advertisement or something of a public meeting about an ongoing discussion rather - so, that although the statement itself is not made in the course of the discussion, it is made for the purposes of ‑ ‑ ‑

MR HAMPSON:   I was going to submit that, in fact, “for the purposes of” relate to collateral and antecedent publications which could not be said to be in the course of, and therefore it is necessary to get some slightly wider words which the cases say must be considered objectively.  It is just not my subjective view of whether I am doing it for “the purpose of”, but it must be an objective action by me for “the purpose of”, in this collateral ancillary sense  It might be writing drafts and publishing for people of what I am going to put in the paper, or something of that kind.  The only judge that I know of that, in the cases that really looked at it, is in Justin’s Case.  Mr Justice Walsh, at the bottom of page 40 said:

Let it be assumed in favour of the defendant that it would have been open to the judge to rule (or to the jury to find)  that, at the time of the publication, some subject of public interest was being discussed or, or of par (h) -

I am sure that is a mistype:

if par (h) applies to the first statement originating a discussion, was then to be discussed.

He leaves it, as it were, for another day; whether such an argument was put, I do not know, but he obviously does not say that that is open and the more obvious interpretation of the provision is the way in which your Honour Justice McHugh just put it.  That is the way it seems to have been interpreted, and that sits more consistently with the actual words used.

BRENNAN CJ:   But does it?  I mean, the actual words used is that “it must be for the purposes of a discussion”.  It does not say anything about whether the discussion has taken place or not.  It says the discussion of some subject of public interest is not for the public good.  In terms of temporality, the only indication is that there must be some subject that is a notion, a concept, a thing.  Then the public discussion of that concept or notion is for the public benefit.

MR HAMPSON:   Yes.

BRENNAN CJ:   Now, if it is for the purpose of that notion, what else does one need?

MR HAMPSON:   With respect, you start with the discussion of some subject of public interest.  That is what first of all has to be defined, as it were ‑ the discussion of some subject of public interest.  Then you say, now, with this publication made, in the course of the discussion of that matter of public interest; that is the first question.  But there could be other matters; for example, the preparation of drafts that are going to be published but which are published beforehand or in the way of advertisements or something of that particular kind, and the words “in the course of”, it could be said, they are not published “in the course of” because you have not actually reached the discussion of some subject of public interest.  You are moving up to it, as it were, and though the words “or for the purposes of” are appropriate to catch all those antecedent and collateral steps ‑ ‑ ‑

BRENNAN CJ:   I appreciate that they are appropriate for it, but does it not involve reading the subsection as though the words “existing” or “current” were introduced before discussion where that word first appears in the subsection?

MR HAMPSON:   No, with respect.  It is not necessary.  The way it is put, in effect, has no real temporal connotation one way or another.  It is just that we know there is a discussion and in the course of the discussion that gives the temporal connotation of the beginning of the discussion and the end of the discussion, so anything within the course of.  But then for the purposes of the discussion is something which some activity or step which is directed in an objective sense towards that discussion.  So that the publication is made for the purpose of allowing that discussion slightly wider words than just “in the course of”.  That is something different to, we would submit, having really to say there is no discussion, and that is why, perhaps, Mr Justice Walsh made that caveat, really - if paragraph (h) is the New South Wales legislation corresponding this was - if, as he said, it was capable of - I read the passage - initiated one, as it were.

BRENNAN CJ:   Put it in practical terms, Mr Hampson.  Let it be assumed that a journalist discovers that there is a widespread practice of corruption involving, let us say, the grant of licences for a particular thing.  Nobody has ever dreamt that this existed; the persons involved are persons who appear to the public to be of the most upright character, but it is a matter which is of great public concern in the sense that if it goes on, then there is corruption, not only in high places but in matters of great interest to the public.  Does this argument mean that that article exposing that misdeed cannot be published?

MR HAMPSON:   No, but what it means is the article cannot get protection ‑ ‑ ‑

McHUGH J:   You can rely on public good.  Subsection(3) or ‑ ‑ ‑

MR HAMPSON:   If you want a qualified defence you have got to have justification, but if you wanted a qualified defence - that is, you want to come to section 377 and get qualified protection - you cannot come under section 377(8) because that pre-supposes that there is a public discussion into which, in the course of, you intrude your defamatory statement or for the purposes of that, you make a defamatory statement.  Therefore you have to come to one of the others, and it will depend upon the facts of the case, but on your Honour’s case, he could find protection under subsection(3).  He could say, “I have made the publication in good faith for the public good”. 

Taking your Honour’s case, it would seem to fit - I am not suggesting that his Honour the trial judge here was wrong in rejecting (3) or (5) as subsections that could have been availed of here - but, nevertheless, your Honour’s case goes further than that; goes much further than the article in the present case.  I would have thought, with respect, that (3) was probably the home that the journalist could find for his defence of qualified privilege.

BRENNAN CJ:   Yes, that is probably right.

McHUGH J:   Can I just put this to you, which is against you, I suppose, but in (8) you have the discussion juxtaposed with the public discussion, and the fact that the public discussion of that subject must be for the public interest seems to indicate that the discussion that one is talking about is a private discussion, or could be a private discussion.

MR HAMPSON:   With respect, your Honour, I would submit that the better view would be that it is not necessary to repeat the word “public” twice.  In other words, you say we just have the discussion.  First of all, the first element is the discussion of some subject of public interest, but then there is added by the words onto it, the further requirement that the public discussion of that is for the public benefit.  So, in other words, the assumption behind the section ‑ and there was a common law analogue, of course ‑ is that, in fact, there is a public discussion; that that is what one is talking about.

McHUGH J:   Yes.  The definite article means, what has always supported Justice Windeyer’s interpretation.  It is not in the course of a discussion or not in the course of discussing a subject of public interest, it is in the course of general discussion.

MR HAMPSON:   It would be rather clumsy if you tried to use words to get it more clear than it is there, in the way in the sense that I submit it should be read.  You would have to read it in some way such as “If the publication was made in good faith in the course of or for the purpose of, the public discussion of some matter of public interest, the public discussion of which”.  That is not really necessary because the second public, where you say “the public discussion” quite clearly adds an element to the discussion where it is used without public before.  You are really saying you have got the discussion of some matter of public interest, and then you heap on that the further requirement that its public discussion of that, the discussion, is for the public benefit. 

In our submission, the correct way of interpreting it is the traditional way in which it has been looked at for many years.  Also, I know it is not a great matter when one is construing a code, but one has some comfort from the fact that there was a common law - a broad equivalent - to the matter and it was in the terms of public discussions rather than private ones.  The private ones, of course, fall, more obviously, within other subsections of

section 377 - giving information to a person who is believed to on reasonable grounds, and those sorts of things.  Unless the Court has anything else, there is nothing I can add.

BRENNAN CJ:   Thank you, Mr Hampson.  The Court will consider its decision in this matter.  It will reserve its decision.

AT 12.19 PM THE MATTER WAS ADJOURNED