Bellino v Australian Broadcasting Corporation

[1995] HCATrans 172

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 MONDAY, 19 JUNE 1995, AT 2.29 PM

Copyright in the High Court of Australia

MR C.E.K. HAMPSON, QC:   If it please the Court, I appear with my learned friend, MR P.D.T. APPLEGARTH, for the appellant.   (instructed by Myles Thompson)

MR R.A. MULHOLLAND, QC:   If the Court pleases, I appear with my learned friend, MR D.K. BODDICE, for the respondent.   (instructed by Biggs & Biggs Francis & McGregor)

BRENNAN CJ:   Yes, Mr Hampson.

MR HAMPSON:   If the Court pleases, this is an appeal from an order of the Court of Appeal given on 13 May 1994 declining in a majority decision to set aside a judgment entered for the defendant in the trial after a Cairns jury gave answers to special questions that were submitted to them.  The plaintiff had sued for defamation in a telecast of 11 May 1987 of a programme called “The Moonlight State”.  The programme implied the plaintiff was involved in organised crime and corruption.  The respondent staked its claim for protection under section 377 of the Queensland Criminal Code.  The only defences were of qualified privilege;  there was no justification and the appellant’s case at trial and on appeal was that the parts of the broadcast which named him fell outside any such protection.

The action itself was commenced by a writ on 8 January 1991 in the Cairns registry and the trial commenced there on 2 November 1993.  The appellant relied on the words and the images broadcast.  The images included a dramatic reconstruction in which an actor purporting to be a Mafia-type character was apparently delivering what appeared to be drugs.  The video is available.  I am not asking the Court to look at all the video, but I would ask the Court, when I come to the conclusions of my submissions relating to the trial, to look at a few minutes of it which really relates to this reconstruction part because it is not possible, really, in words to demonstrate exactly what can be seen by the eye.

The appellant claimed that the words and images conveyed a number of defamatory imputations and particulars of the passages relied on are set out at length in pages 159 to 187 of the appeal record.  In the event, the plaintiff succeeded on three imputations which were pleaded in paragraphs 3(h), 3(k) and 3(p) of the amended statement of claim which appears at pages 4 to 5 of the appeal book and the jury’s answers in relation to those imputations were the answers to questions 2(e), (f) and (g).  The jury’s answers appear in the appeal book at page 295 to 296.

We invite the Court to look in particular at page 164 of the appeal book.  The passages that are in the appeal book continue over to 171 but 169 bears in really upon the plaintiff in relation to something that was called the Slade Report, and starting at page 169 the Court will see at line 10:

Four Corners has obtained a copy of this Queensland Bureau of Crime Intelligence Report, which summarised a detailed undercover operation into the drug trade in far North Queensland.

The telecast went on to give some information which purported to come from that report and the passage dealing with that is interleaved, going over on to page 171.  On page 170, about line 15:

It would be difficult for Queensland police administration to pretend ignorance of the Northern drug trade.  This further confidential report was written months later by one of Dickson’s colleagues, Detective Constable Jim Slade of the Bureau of Crime Intelligence.

Then there is a paraphrase of what is supposed to be said there.  There is a man called ““The Marble Man”” mentioned who engages in early morning meetings with a marijuana grower, that:

marijuana seeds would be handed over with instructions regarding their cultivation and ultimate distribution.

There is no denying the demand for hard drugs in the far North, Cairns has its own nasty little heroin scene ‑

There are some figures in there as to the value that can be obtained from this:

The Report tells of an alleged meeting at this Cairns hotel.  Because of the profits involved, the Italian group had moved to take over the heroin trade in Cairns and Townsville.  The Report refers to a meeting here by five Italians, stating they planned to exert pressure on known dealers to bring the dealers under their control.

This Report doesn’t pretend to be anything more than police intelligence, and as we know, police intelligence isn’t necessarily fact.  But our own research has backed up the Report.  I’ve spoken to people at the centre of the drug trade in far North Queensland and what they’ve told me closely reflects much of what’s contained here.

The Report names members of the Bellino family in connection with the alleged marijuana growing scheme.

The man referred to as “The Marble Man” is a senior member of the family ‑ Vincenzo Bellino.  Unlike his Brisbane based brothers, Vincenzo Bellino’s interests have remained in the North.  He is now involved in the mining and exportation of marble from this Chillagoe mine.

The reporter quoted extensively from that apparently leaked police document with references, as I have read, to the Italian group moving in to take over the heroin trade and so forth.  And it went on, as I have read, to name the plaintiff as “The Marble Man”, described him as a senior member of the family and it was our submission at trial that that defamation was reinforced by the video and the film of the actor playing the part in it.

The programme, the evidence was at trial, had a devastating effect on the appellant and we would submit this was reflected in the jury’s assessment of general damages at $750,000.  As we hope to demonstrate from an examination of the course of the trial, this was the only answer through which the jury could reflect its view of the naming and the depiction of the plaintiff.  As I have said, there is no plea of justification and by the time the trial commenced, the Fitzgerald Inquiry had concluded.  Although the appellant, as a result of the programme, was one of the four people named in its terms of reference, he was never called to give evidence at the inquiry.  That appears at page 76 of the appeal book, line 55.  He speaks of how, in fact, he was ready with 20 years financial returns to go and he did go to the inquiry but he was never called:

Were you actually called to give evidence?-- Never.  Since that day, they never call me.  They never return my paper.  They never - they treat me like a criminal.  You know, I got the other day a few piece of paper ‑

and on it went.  On the next page over, about line 10, having said what it cost him at the trial, he then said that he was never charged with anything.  He had been “waiting five and a half years to today” he said.  The evidence of the plaintiff starts in the first appeal book and is quite lengthy because a lot of time was spent on his claim for economic loss which failed.  That claim was put to the jury as special damages and the jury answered that question as to whether he was entitled to special damages, 5(c) in the negative.

The plaintiff’s life story then starts at page 31 of the transcript.  I do not want to take the Court through it in full but I wanted to refer to shortly just a few matters in it.  It is at page 70 that he gives evidence of seeing the programme.  All the references I give, incidentally, of course, are in the appeal book ‑ they are the ones in the bottom right‑hand corner.  At page 70, line 20:

One night I come back from Chillagoe, worked 24 hour, I have a bath and I sit down in the chair and watch this Four Corners.  I knew that my brother, Jerry, was in this Four Corners.  I never knew nothing about me.  I sit down and Four Corners come on.  When I saw my brother with Victor Conte I went angry ‑

and he deposed there to the effect that seeing the programme had upon him.  The description really continues over on to page 75, where he is dealing with the after‑events upon him and the present situation.  He was by this time a barber and he spoke of the effect, the contumely into which the programme had brought him.  He denied again any wrongdoing on the same page 75 at about line 30 to 35 and on pages 76 and 77 the questions went back to the Fitzgerald inquiry again at about line 30. 

The passage goes over on to 77, quite an emotional conclusion that he had in relation to the outcome of that programme, combined with his attempted participation in the Fitzgerald Inquiry.  The cross-examination starts then on that page and a lot of it deals with the economic loss which is, as I said, really a dead letter now.  At page 155, he speaks of the effect of the programme upon himself and his family.  He is asked by Mr Mulholland at about line 12 about the particulars he had given dealing with the health problems of his wife, as well as himself and he is asked about those particulars and the effect that it has had on him and on his family.

Another matter that was pressed in cross-examination at 157 was his knowledge of whether Mr Masters, the reporter, was trying to speak with him before the programme went to air and he denied that.  He said he had no knowledge of that.  There was no cross-examination of any involvement in criminal activities or anything to back up the programme’s research in any way to show that there could have been things that were consistent with some aspects of the research.

In the trial, there were a number of rulings made by the trial judge and it is necessary to look at them.  We have handed up, because there is no specific index, page references relied upon by the appellant which pick out from the transcript the places where rulings were actually made.         The first one, at page 188, line 35, his Honour dealt with the submission that had been made by the defendant.  The Court will see there at line 40 the commencement of that:

Mr Mulholland has also submitted that there was no basis on which a jury could reasonably find absence of good faith.

His Honour said that:

There were three matters that need to be considered under this heading.  The first is was the matter published relevant to the matters the existence of which may exclude publication in good faith of defamatory material?

That involves a consideration of what are the matters ‑

He said:

Relevance was a question of fact under section 379.

Section 379 of the Code makes it clear it is a question of fact for determination.  The defendant, in his defence, relies on the three sections he names at 189.  Then he said, at about line 15:

It seems to me that there can be really no doubt about the relevance of what was said in relation to that small part of the evidence.

This was referring to something that had been said by a deceased member of Parliament in 1981, Mr Hooper.  Then he went on:

In relation to other heads of qualified protection, the particulars of matter that was not relevant were given.  Essentially the irrelevant matter is said to be references in the programme to the identity of the plaintiff and the members of his family.

He then said the matters which were relied on by the defendant, he set them in broad terms there.  Mr McCreanor was for the plaintiff.  He summarised his submission then at about line 30 and he then said:

As presently advised, I have some difficulty in seeing that identification of those involved is not relevant.  That is not to say that the issue of revealing the plaintiff’s identity may not need to be considered in relation to other aspects of section 377.

I would simply indicate at this point that, as the matter stands, I do not think that the first circumstance involved in negativing good faith can be established on the evidence as it stands.  If the evidence is not materially different at the end of the defence case, I will so rule then.

The second one is manner and extent; he then discussed that and he ruled, at the top of the page:

I am not satisfied that a reasonable jury, properly instructed, must find inevitably that the manner and extent of the publication was not excessive.

The third aspect was the ill‑will;  he said it:

was not actuated by ill will ‑

As the evidence stands, it is difficult to see any basis upon which the plaintiff could prove to the required standard that the plaintiff believed that the defamatory material was untrue.

So, they are the rulings, really, that were made at that stage.  He said, at line 30:

For these reasons I think that I cannot, at this point, rule that the issue relating to good faith cannot go to the jury.  I so rule.

At the end of the defendant’s case then, there were other important rules made;  that is page 192.  The questions of 377(3) do not really concern us and really one should go over to 198 then to find the relevant rulings of section 377(8) which was the only section that he held was applicable.  At 198, his Honour discussed the nature of the information at line 20 and he goes over to 199, line 7, the nature of the information that was there.                     He finally comes to 377(8) at the bottom of page 199:

the first question here is whether the publication of any defamatory matter concerning the plaintiff was made in the course of or for the purposes of discussion of some subject of public interest.

To a certain extent, he has discussed the background in those preceding rulings.  He said:

A subject of public interest was the essence of the programme.  In my opinion, there can be no doubt that the systemic ‑

the top of the line is chopped off.  It goes on:

I am satisfied that from time to time old allegations were gone over, and new allegations were made, often in conjunction with one another.  It does not overstate it to say that the subject was almost a perennial one.

Then he describes what he thought the publication was, the programme and he said:

The material ‑

The material in the programme, we take it to mean.  He is not talking about the actual material relating to the plaintiff:

The material, while not “new” in the sense that I spoke of in respect of section 377(3), had not been published in this coherent form before to the public and therefore introduced a new element into the store of public information about the operations of the Police Force.

The final element is that the public discussion of the subject is for the public benefit.

He said that is a matter for the jury.  Then he said, at line 25:

The right of a person to his reputation, and the damage to it if public discussion of the subject of public interest ensues, and the whole factual context in which the publication occurs must be weighed together with the right of the public to receive information on a subject of considerable public interest, the alleged corruption of its Police Force.

There is, as I said yesterday, the possibility that this balance may be struck differently by the jury from the balance struck by me in relation to sections 377(3) and (5).

Then, I drop down a paragraph:

The situation, therefore, is that I propose to leave to the jury in the context of an occasion of entitlements to qualified protection under 377(8) the issue of whether it was for the public benefit that public discussion of the subject take place.

Now, as the Court will see, as we will come to, there are, in fact three subjects formulated by the defence.  He says:

Those are the rulings in respect of those matters.

He said again at 220 that it was a serious matter ‑ that was in the summing up.  There were no other rulings made at that stage but in his rulings to that finding that he was making, he made no finding that there was any current discussion of the plaintiff’s affairs - indeed, there was no evidence of it on which he could have made such a finding - that the plaintiff was a public figure in May 1989, or that the allegation of the Slade Report had gained any acceptance among law enforcement agencies, let alone seen the light of day.  The references to what I said then are 198, line 20, 199, line 7. 

As we develop our submission, it is that section 377(8) did not permit the respondent to intrude into a discussion of general topics, which it particularised, the alleged involvement of the plaintiff.  The particulars of paragraph 5(c) of the defence ‑ that was a paragraph which set up 377(8) ‑ are contained in paragraphs 2(a), (b) and (c) as three separate subjects.  It might be useful at this stage to go to page 20 where the Court will see, in the middle of the page under 2:

As to paragraphs 5(b) and (c) ‑

5(c) was the one that dealt only with 377(8) ‑

the subjects therein referred to are ‑

(a), (b) and (c).  So, they are the three separate subjects that his Honour had been discussing.  The next movement in the matter is at page 202 ‑ ‑ ‑

BRENNAN CJ:   Where is this taking us, Mr Hampson?  What is the point that this is leading to?

MR HAMPSON:   Well, we say that, in fact, his Honour misconstrued section 377(8) because what he put to the jury was a balancing exercise and what he took from the jury were all aspects of good faith, other than what was described as recklessness in the preparation of the article.  And he got to that in a number of rulings, really, which cut down - by the time the summing up was reached, it had really cut short the possibility of putting to the jury the really important question, if there was a question to go to the jury at all, of whether or not the way the plaintiff was discussed in the particular programme was proper.

GAUDRON J:   What do you mean by “proper”?

MR HAMPSON:   Well, whether the plaintiff could demonstrate, as he contended he had done, that there was an absence of good faith in the way that he had been depicted in the telecast.  That was the jury question.  There was also a question for his Honour which, as these rulings show, his Honour had not appreciated, that he had to decide and put to the jury as an appropriate question what the subject of the discussion was for the purpose of 377(8).  And that involved an identification of whether the plaintiff’s affairs fell within the subject being discussed or fell outside it.  That could be ‑ ‑ ‑

BRENNAN CJ:   Fell within, or was relevant to?

MR HAMPSON:   Well, was relevant to.  Put it on the basis of what it was relevant to, yes, your Honour.  That would be the test, relevance.  What his Honour has done - as his Honour says, its only relevance is in relation to a balancing exercise to say whether or not the subjects, without the plaintiff’s involvement, the discussion of those subjects as formulated by the defendant, were for the public benefit or not.  That is the question the jury came to be asked.  They are not asked the question as to whether the subjects, including reference to the plaintiff being relevant, that either he ruled or he asked the jury to rule whether they were relevant to the subject, and then asked the question as to public benefit.

So, therefore, it is probably made quite clear if one looks at the jury’s answers.  One can see the very question that they are asked about the matter.  It appears in the ‑ ‑ ‑

BRENNAN CJ:   This is question 3, is it?

MR HAMPSON:   Yes, 296:

Was the public discussion of the subject or subjects of public interest ‑

that is to say one of the three, or all of the three ‑

for the public benefit?

BRENNAN CJ:   Was that question submitted by counsel?

MR HAMPSON:   Well, there was argument about it.  That was the form in which the defendant wanted it asked.  The plaintiff was trying to get into the question a reference to the plaintiff.  In other words, to get into the fact that the discussion included a reference to the plaintiff.  So, the jury were not asked a question such as that.  It was not submitted to them.  What was put to them really was that the defence has formulated certain matters of public interest, three of them and, in measuring public benefit, they were the way the public good of discussing these matters so formulated by the defendant against the harm it would do to an individual’s reputation.

Of course, not surprisingly, the jury answered that question in favour of the defendant.  It was really, we would submit, a motherhood type of question.  It would be almost impossible, we would submit, when such grave matters as have been so widely formulated by the defence were put to the jury that they could possibly say that the damage done to one individual could outweigh, as a matter of public benefit, the discussion of those wide matters of interest.

So, your Honour, what I am really doing at the moment is trying to show the rulings which led up to that course being followed.  The Court will be relieved to know I have almost finished, in fact.

GAUDRON J:   Are you going to tell us then what rulings should have been made?

MR HAMPSON:   Could I postpone that until I examine the decisions in the Court of Appeal, your Honour, for the reason that their Honours there disagree also.  So, I think it is probably more advantageous to go through all the areas of disagreement before becoming positive so the Court has a complete view of how the case went.  At 202, his Honour merely confirms, at line 20, his original view:

I adhere to the view that I expressed earlier ‑

that is the aspect of good faith ‑

The provisional view that the references of which complaint is made are relevant if protection is otherwise made out is confirmed.

He went on then to deal with relevance and rejected ill-will or other improper motive.  Of course, what had been pleaded were manner and form.  So, the result was that the only thing that went to the jury on good faith was the ill‑will, improper motive, which is defined more clearly at 205, line 25.  Mr Mulholland asks him:

Can I just confirm from Your Honour’s ruling that the aspect of good faith that Your Honour proposes to allow to go to the jury is on the basis of ill will or, as it is put in the pleading, improper motives.

HIS HONOUR:  Yes, but.

MR MULHOLLAND:  That recklessness will be allowed to go on the basis of the qualities of research but not otherwise.

HIS HONOUR:  Yes.

MR MULHOLLAND:  And your Honour didn’t specifically say this, but we take it from the way your Honour’s ruled the manner and extent will not be allowed.

HIS HONOUR:  Manner and extent come into it in the circumstances.  I think if it’s otherwise within the protection that there’s nothing in the manner and extent that could reasonably be argued to be open I don’t think so in the circumstances I’d have to level that that was my view.

Then it came on to a question of looking at the questions.  At the top of 206, you can see that the draft prepared by the plaintiff was in the form, it says here:

was the public discussion of the plaintiff a matter of public interest, of a public benefit.

That, no doubt, was too narrow.  There would have to be a discussion of the plaintiff in the wider area and there is some discussion as to what should have been done.  Mr McCreanor is saying at 207, for example, at the bottom of the page, it would be necessary to indicate to the jury the question, for example, the question of whether:

it was necessary for the plaintiff to publish the plaintiff’s name, was that really necessary for the purposes of the discussion -

He was saying that.  Then, his Honour finally adopted the way in which the defence put forward the matter.  The summing up then ‑ ‑ ‑

BRENNAN CJ:   Where does Mr McCreanor advance his formulation of question 3?

MR HAMPSON:   His second formulation is at 211, your Honour.  I showed you his first formulation.  His first formulation comes in a hearsay matter; it is what Mr Mulholland read out.  The second formulation is at 211, at the top and there is something wrong with it, quite obviously:

Was the public discussion of the material published in suing the plaintiff a matter of public benefit?

Perhaps it is “concerning the plaintiff”, but it has “in suing”; obviously that cannot be right.  Presumably it is something like “concerning”.  Mr Mulholland then submitted the question should be:

Was the public discussion the subject or subjects of public interest for the public benefit?

And that was the form that question 3 took.  I mentioned the balancing exercise and I would just refer the Court to the summing up on public benefit in the summing up as it occurred at page 236 and following, in particular the passages at 237, lines 26 to 40.  At 236, it starts about line 35:

I direct you that if you find that the public discussion of a subject or subjects of public interest was for the public benefit in the circumstances of this case that an occasion of qualified protection would be made out by the ABC subject, of course, to a finding that they were not acting with an improper motive towards the plaintiff.

His Honour did not actually tell them which of the subjects or all of the subjects, if I can put it in that way ‑ on page 237 then, having quoted something from the address, he then went on and said:

Well, you will keep those passages in mind in your deliberations and give them the weight that you think they deserve.  The defence have formulated the subjects of public interest in three ways and you may think that that formulation is probably a way in which you can conveniently consider the matter.  The first is organised crime and corruption in Queensland and allegations related thereto.  The second was protection of illegal activities and allegations related thereto.  And the third was trafficking in illegal drugs and allegations related thereto.  Mr Mulholland says that the public discussion of those subjects was for the public benefit.

Then, at, 239, line 17:

The question for you is one of deciding, it seems to me, where the balance lies in this case.  You have to consider it in this way, you look at the effect of the making of most serious allegations against the plaintiff with its effect on his reputation and any other aspects of his life that you find have been affected and weigh that against the public’s interest in knowing that information exists that involves the plaintiff in organised crime, protection or illegal activities and trafficking in illegal drugs.  The ABC’s case is that there is public benefit in those allegations being publicly discussed.

Then he goes on to remind them of what the programme was about.

GAUDRON J:   That really does direct the jury’s consideration to the plaintiff’s involvement, that being the question to be determined in relation to the public benefit.

MR HAMPSON:   But as a weighing place.  That is not the question that is asked of them, your Honour, and the way they are told to look at it is they are supposed to weigh it.  They are supposed to really say, well, here are three subjects which I tell you are matters of public interest and what you have to do is weigh that fact that the discussion of them is of public interest against the fact that discussing them will damage the plaintiff.  So what you are really saying, the question of public benefit, is to whether the assassination of the plaintiff’s character is justified ‑ ‑ ‑

GAUDRON J:   That is not how I read it, Mr Hampson.  He says you take in the first instance the making of most serious allegations against the plaintiff and weigh that against the public’s interest in knowing that information exists that involves the plaintiff in organised crime, et cetera.  The focus is at all times on the plaintiff in that passage.

MR HAMPSON:   Well, with respect, it is only another way of saying what I am really saying, that you cannot name the plaintiff; it is impossible to name the plaintiff except in the context that you are saying that he is a wrongdoer, that he is involved in some way.  So, what his Honour in fact is saying, in my submission, is “You weigh the making of those allegations against the plaintiff and the harm to his character against the fact of the public’s right to know that information exists”.  We would submit that it is not in the proper ‑ if what his Honour was saying there had the meaning that your Honour said, it would have to be reflected in the question, that the discussion of the matter of public interest, “I am telling you is for the public benefit, including the fact that the plaintiff was these and these things”.

But the jury are only asked the question that was just answered here:  was the discussion of the matter of public interest for the public benefit?  The next one is at page 247, line 41:

This occurs if the public convenience and general welfare of society are, in all the circumstances of the particular case, to be preferred to the private interests of the individuals.  In the present case the question, it seems to me, is whether in all the circumstances the public convenience and general welfare of society, and having the allegations of the kind made against the plaintiff made to the general public on television is to be preferred to or outweigh the private right of the plaintiff to have his reputation preserved in tact.

So he is using very similar words, your Honour, but it still takes it no further, in our submission, without an appropriate question as when the jury get into the ‑ ‑ ‑

McHUGH J:   I just do not follow this.  It seems to me, with respect, it has got nothing whatever to do with the case discussing the plaintiff.  The issue here on this aspect of the case is whether the public discussion of a particular subject of public interest is for the public benefit and there is hardly a subject these days that would not answer that description.  At earlier times maybe contraception or something of that nature may have been a subject of public interest, the public discussion of which was not for the public benefit, but these days it is almost impossible to think of anything, and the effect on the plaintiff has got nothing to do with this issue.  It is a question as to whether the subject of public discussion of this subject of public interest is for the public benefit.

MR HAMPSON:   That is so, your Honour.

McHUGH J:   Well, all this material you are pointing to in so far as it has any relevance at all is favourable to you.  You have an issue left that should never have been put.

MR HAMPSON:   Not in the terms of the question, your Honour.  You see, this was contended ‑ ‑ ‑

McHUGH J:   But can I just put this to you.  Your strongest case seems never really to have been put at any stage and that is that the extent of this publication exceeded what was reasonably sufficient for the occasion and it may be that the matter also is involved.  When the paragraph talks about a publication, it is talking about publication of defamatory matter, and by definition defamatory matter means defamatory imputation.

MR HAMPSON:   Yes.

McHUGH J:   So the issue is did it exceed what was reasonably sufficient for the occasion to publish that all the viewers of this programme throughout the nation that your client was involved in the sale, manufacture and possession of drugs and all the various imputations that the jury ultimately found?  Now, I would have thought myself that it was well and truly open to a jury to find that the publication of those imputations to the world at large exceeded what was reasonably sufficient.

MR HAMPSON:   And it was never put to them.  They were never allowed to answer such a question, your Honour, but the only reason that I seem to be going on to this, I am suggesting his Honour was wrong in this and members of the Court of Appeal said it was, but there seem at least in the judgment of one of them that somehow or other we had a favourable run with relation to this ‑ ‑ ‑

McHUGH J:   I think you did.

MR HAMPSON:   Yes, but that meant in some way that that was an excuse for not having the other questions on good faith put to the jury.  The respondents in fact argued that, your Honour, that because we - they conceded that his Honour was in error in this balancing exercise at this stage of the proceeding, but it was contended in the Court of Appeal but nevertheless we should not be able to complain that manner and extent had been taken by his Honour from the jury and I believe the same submissions in fact are in our learned friend’s submissions here in this Court, but that is the only reason that we are dealing with these.  Could I just give that ‑ ‑ ‑

BRENNAN CJ:    What do you say should have been put to the jury that was not put to the jury?

MR HAMPSON:   Questions on good faith, your Honour.

BRENNAN CJ:   What questions on good faith?

MR HAMPSON:   Certainly on manner and extent of the publication.  In the Court of Appeal - I dealt with how his Honour said that really there is nothing in manner and extent and that the only thing that was going to the jury on the issue of good faith was an improper motive which he characterised as in effect reckless research, insufficient research, and that was the only good faith question that went to the jury.

McHUGH J:   I have always thought that manner and extent went to these issues:  extent went to the circulation and manner went to get-up, and one of the difficulties we labour under is, if you are relying on manner, then we should see the telecast of the relevant parts because, if they have got actors portraying Mafia figures, it may well be that on that issue alone that the manner of the publication exceeded what was reasonably necessary.  I mean, you may have a story that you put on page 1 which is not justified being on page 1.  It all goes to the manner of publication.

MR HAMPSON:   That is correct, your Honour.  Could I refer you to page 24 of the appeal book where particulars of the manner and extent are given and at page 30 of the appeal book, if it please the Court, particulars were given - this was jury trial - on relevance.  It is really at page 29, the letter is, page 29 to 30.

McHUGH J:   But in practice is it not very difficult under 377(8) for a plaintiff to get up on relevance if the defendant gets up in the course of, because you do not get to good faith unless the defendant has made out the terms of subsection (8) and the authorities say that for something to be published in the course of the discussion it must be a contribution to the discussion and if it is a contribution to the discussion then it surely must have relevance to the discussion and whatever importance, relevance it may have in respect of other subsections in 377, it does not have much in practical terms in respect of 377(8), does it?

MR HAMPSON:   With respect, your Honour, it does in two ways.  First of all, so far as the judge is concerned in deciding whether there is that contribution, whether it is a discussion of a matter of public interest or something that has just been dragged in, and that is a finding that his Honour has to make and that was the basis of the Chief Justice’s dissent in the Court of Appeal.  He held that his Honour the trial judge was wrong in relation to this particular case in saying that on those widely‑framed particular subjects, the three subjects, that the references that were made to the plaintiff were in fact contributions to that as a public discussion.

So there is that first question, that the cases show that it is a question of fact for the judge, relevance comes in there, but otherwise what your Honour says I quite accept so far as the jury question is concerned.  The other letter I refer to, it ended up - on page 30 it said:

The Plaintiff says that removal of matter identifying individuals would do no violence to the point of the programme and the issues it sought to raise.  Anonymity of informants was protected and actors used to recreate their words in other sections of the programme.  Their allegations in a general way would have necessitated action on the part of the authorities which is the only proper interest that the public could have in the matter.

A request for redirection was made at pages 268 through to 294.  I was not proposing to read that at all to the Court, I just give the references, and also at 270 lines 30 to 35.  At 271 there was a further question sought with relation to relevance, direction with respect to identification of the subjects of public interest.  The defendant opposed that at page 280.  At 291 there is quite a significant but short passage in the application for redirection.  There is discussion of the two aspects of relevance by his Honour there and - it is 293.  Yes, he said at 293, he is asking there - his Honour says:

if they find that there was no public benefit.....in naming Mr Bellino‑‑‑‑‑

MR SUMNER‑POTTS:   That’s the problem.

HIS HONOUR:   Then they’ll answer-----

MR SUMNER POTTS:   They’ll answer “yes”.

HIS HONOUR:   Yes.

MR SUMNER-POTTS:   You see that is the problem that the answer yes does not resolve the question of what the subject is.  Now, they might say, right, the subject -within their confines of the jury room - presumably everyone’s talking about is the allegation about police corruption.  Well, obviously that’s for public benefit but we think it is irrelevant so this is no - they’re left without a question to answer.

That was the sort of point that was made more than once, that the jury was not being allowed to answer a question that would raise quite squarely what the plaintiff’s case was.  The plaintiff’s case was in fact that in this treatment of these particular subjects he, a completely innocent person, was in fact brought in, invested with a Mafia‑like persona - he was the head of the family and he was “The Marble Man” and things of this particular kind - and the jury were not asked anywhere to answer whether that was - I used the word “appropriate” before, I will not use it again - whether that was lawful, whether that was a lawful use bearing in mind the ambit of ‑ ‑ ‑

GAUDRON J:   You keep saying that, but that elides a number of things.  There were a number of decisions to be made by the trial judge and then there were questions for the jury.  It does not seem to me that you focus on the questions that either should have answered.

MR HAMPSON:   No, as your Honour said, I would like to come to that in a moment.  I have given the jury’s answers.  Would it be possible to show a short passage of the video - it has been lined up to do it - just dealing with this question.  It is a very short part of the ‑ ‑ ‑

BRENNAN CJ:   Before you do, Mr Hampson.  In a case under 377(8) is it for the defendant to identify the matters the discussion of which are said to be for the public benefit?  Is that the defendant’s prerogative?

MR HAMPSON:   No, that is a question for his Honour to decide that.

BRENNAN CJ:   What, what is the subject matter ‑ ‑ ‑

MR HAMPSON:   Yes.

BRENNAN CJ:   ‑ ‑ ‑ the discussion of which is for the public?

MR HAMPSON:   The defendant can submit what he says it is.

BRENNAN CJ:   The defendant in this case nominated three items and he tacked his flag to the mast of saying that the discussion of those items was for the public benefit and, as I understand it, you complain that that was a motherhood question and that of course the discussion of those items was for the public benefit.  Now, given that you do not cavil at the answer to that question - whether it should have been asked or not is another matter - why is it that the next question is, “Was the publication of the imputations of the plaintiff relevant to those matters?”.

MR HAMPSON:   It was not asked, your Honour.

BRENNAN CJ:   Maybe it was not asked.  Was that the next question that you say should have been asked?

MR HAMPSON:   That was the redirection that was being sought.

BRENNAN CJ:   If that was the question, could it be otherwise than relevant?  If your client was in fact “The Marble Man”, et cetera, could it be otherwise than relevant to the discussion of those three matters?

MR HAMPSON:   No, your Honour, I would submit it is not relevant in a discussion of this particular type to make an expose.  You see, there is no build‑up, there was no discussion.  This is not an ongoing discussion about our client’s affairs.  What this is, is there ‑ ‑ ‑

BRENNAN CJ:   No, it is a discussion about the three items that the defendant nominated as the three items, public discussion of which he is prepared to say was for the public benefit.

MR HAMPSON:   Yes, your Honour, but in that discussion - that is perfectly true.  His Honour found it was a perennial subject of ongoing discussion, but if in fact it is correct to say that you can mention the plaintiff, you can mention anybody in it just on the basis of an allegation.  You can say there is an allegation that this particular man is a criminal and he is not the subject of any ongoing discussion, so it is necessary to be able to demonstrate, if one likes on this basis, that somehow he is relevant to that discussion, he is not dragged in, and our case was that he was dragged in.

McHUGH J:   I know everybody concentrated on in the course of, but is there also the second limb for the purposes of?  That could always be relied on when it is an initial discussion.

MR HAMPSON:   Exactly, your Honour, but this was not and it was not put up on the basis that this was an initial discussion of the plaintiff.  That was not the case and his Honour did not put it to the jury at all in that way.  It was not said, “Well, what we are really defending here is a subject,” and identify the subject as the plaintiff’s involvement in criminality and that would be, of course, the origination of a new debate perhaps, although probably one goes back to section 377(3) for that sort of case really because it is more a question of probably and more able to be defended on the basis of the public good and so forth, but the position really was that the important question, that is the connection of the plaintiff with the matter being discussed, was just never asked.

BRENNAN CJ:   But that is the difficulty I am having.  You are putting that question, the connection of the plaintiff with the matter discussed.  It is the matter which was published of the plaintiff, its connection with the matter that was discussed, is it not?

MR HAMPSON:   That is so.

BRENNAN CJ:   Now, if one for the purposes of subsection (8) limits the subject matter to those three paragraphs in 5(c) of the defence, I do not see if it is conceded once that the discussion of those subjects was for the public benefit that we need trouble ourselves any further about that issue, that element.  We are concerned then only with the question of whether it was in

the course of or for the purposes of that the publication was made and then we go to the question of the relevance.  Is that right?

MR HAMPSON:   Yes, that is so, your Honour.

BRENNAN CJ:   I come back to the question I asked you before:  given that the discussion of those matters was for the public benefit, why is it that the publication that was made about your client was not in the course or for the purposes of the discussion of that subject matter?

MR HAMPSON:   It could not be in the course of if in fact it was not relevant to it, your Honour.

BRENNAN CJ:   All right.

MR HAMPSON:   And that question was not asked of the jury.

BRENNAN CJ:   Was it not said that your client was involved in drug trafficking and so forth; those were the imputations found?

MR HAMPSON:   That was said, yes, in the article.

BRENNAN CJ:   And was not the subject matter drug trafficking in Queensland?

MR HAMPSON:   The jury found an imputation that the article said that we were in fact concerned in drug trafficking.

BRENNAN CJ:   Now, compare the imputations with paragraph 5(c) and if you compare the imputations with paragraph 5(c), is there any escape from the proposition that the imputations were in the course of or for the purposes of the 5(c) discussions?

MR HAMPSON:   Your Honour, it may be that the defendant published this material in the course of the discussion in the broad and the general sense, but when his Honour comes to rule whether it is an occasion of qualified privilege he has got to look at it in the legal sense.  Is it in the course of it if in fact it is not really relevant to it?  It is something that is brought in, as I put it, something that is - of course it must be relevant by the finding of the jury because in a sense they said, “The defendant said you were a drug trafficker.”  In effect they found that, but that does not answer the legal question of whether there was an occasion of qualified privilege because if a thing is wrongly brought in - if the media could make it as wide as possible, they formulate and they can get the trial judge to accept an extremely wide formulation of what the matter of public interest is, it would be possible in every occasion to make an allegation, an accusation against any member of the public and you say, “Oh, well, that is relevant to it in that sense.”  It is in the course - in a non‑legal sense, in layman’s terms, the point that is in the course of the discussion, but it should not be given qualified privilege because in fact it is something which is not in a legal sense within the course of the discussion but it is not relevant to it.

McHUGH J:   But the defendant always has a dilemma under this section as to how widely they state the subject of public interest.  If they define it broadly then the defendant runs the risk that the discussion of the publication will be held not to be in the course of the discussion of that wide subject.  If they narrow the subject matter then they often have a problem in respect of the public discussion issue or they have a problem in respect of the good faith component, but it is a dilemma that defendants face day in and day out pleading this section or its New South Wales counterpart.  Here they have elected to publish it widely and the question then is whether or not what was published about your client was a contribution to that discussion.  I must say speaking for myself I would have thought it plainly was and that your case, if you have got a case, is concerned with the good faith component.

MR HAMPSON:   I think I have given all the reference on this.  Would it be possible to see not the full video which takes quite a lengthy time, but there is just this part, a few minutes, which I have identified I think on ‑ ‑ ‑

BRENNAN CJ:   We should see it.

MR HAMPSON:   I think my learned friend is asking that the Court at some later time see the whole video and they have a whole transcript of it, but I am not asking that to happen at the moment.  It is just for the Court to be able to see the nature of this part and the Court has the transcript of it at pages 170 and 171 of the appeal book - that is the part that I am talking about - starting from line 15 on page 170 and going over only to line 20 on page 171.

BRENNAN CJ:   And that is all you want to show us at this stage?

MR HAMPSON:   Yes, your Honour.  My learned friend, as I say, wants at some later time the Court to see the ‑ ‑ ‑

BRENNAN CJ:   I suppose that will only take a couple of minutes, that part.

MR HAMPSON:   Yes, your Honour.

BRENNAN CJ:   Very well.  Have you got the equipment?

MR HAMPSON:   It is all programmed to go, I think.

(Video played to Court)

MR HAMPSON:   That is it, if it please the Court.  I would like to go, if I could, really to what we have given in our written submissions which relate to paragraph 3.  There is an analysis of the judgments.  It starts off with the learned Chief Justice and his judgment really contains these propositions that we set out there:  that prior to the telecast there was no relevant interest in establishing the affairs of the appellant; whether the respondent was justified in intruding into a discussion of the general topics which it identified in its particulars a reference to the alleged involvement of the appellant; particular references which were made to the appellant in any of the discussion of the topics particularised were not relevant to those topics since they, the topics, were of quite general character; and the trial judge should have held that no relevant privilege occasion had arose and that the defence of qualified privilege failed.

Now, that relates of course to the submission I was making before, the cases showing the twofold nature of the relevant test, the judge to make findings and then the jury to make sometimes a finding on the same point.  Now, Mr Justice Davies held that the judge confusingly and wrongly addressed the jury concerning the appellant’s alleged involvement in organised crime and corruption in the context of summing up on question 3.  That was the point that the Court has already seen in the summing up.  This may have contributed to the trial judge’s failure to consider whether identification of the plaintiff by name in a context in which others involved and known by name were not so identified was sufficient evidence to go to the jury on improper motive.

The appellant conducted the trial on the issue of good faith on the basis that the identification of him by name concerned the manner and extent of the telecast and the relevance of naming the plaintiff on the occasion of qualified privilege.  The naming of the appellant was a matter to be considered by the jury only as evidence of improper motive, given the exclusion from the telecast of the names of others, and could not have been considered by the jury in relation to issues of relevance and manner and extent.  Now, we disagree of course with what his Honour has said in relation to that and, as the Court has seen, the trial judge did withdraw questions of relevance and manner and extent from the jury, but his Honour there under (e) - we point out and we give the reference - held that he was entitled to withdraw those questions from the jury.

The trial judge’s direction on improper motive did not encompass the reference to the appellant by name, even though question 4 was wide enough to encompass it.  The direction in fact, as I have already pointed out, was limited to the question of the recklessness of the research work that was done.  His Honour also held that the jury should have been asked in specific terms whether in naming the appellant in the circumstances in which it did the respondent was actuated by an improper motive.  Because the appellant had particularised the naming as a matter going to manner and extent and had conducted the trial on the basis that naming him was not relevant to the matters the existence of which might excuse the publication and did not plead or conduct the trial on the basis that naming the plaintiff constituted an improper motive, no new trial should be ordered.

We submit that his Honour there takes an extremely narrow view of these compartments of good faith because he does concede that in fact the trial was conducted on the basis of relevance and manner and extent which were taken from the jury by the trial judge and he says therefore the trial judge did not have to put the naming of the plaintiff as a matter going to manner and extent and so on because the only way it could be put was that naming the plaintiff constituted an improper motive in itself as the sole ground.

BRENNAN CJ:   Am I right in what I saw there that Vincenzo Bellino was in the police report; his name was in the police report?

MR HAMPSON:   Yes, that is so, his name was in this leaked police report, yes.  I mean, it is not a public report, your Honour.  It is a report that they say themselves they managed to get hold of a copy of.

BRENNAN CJ:   Yes, but this was a police report which was said to have been ignored by the police administration.

MR HAMPSON:   No, your Honour.  There is a lot of other evidence - I did not want to go into it, but there was other evidence, the plaintiff called evidence from a senior policeman who had just retired, he said that that had all been reinvestigated and that in fact, according to him, there was nothing in it, that it had been proved that in that police report that it was full of material that just could not be substantiated and there was also that same report had been circulated to the National Bureau of Criminal Intelligence and the Federal Police Force and other law enforcement bodies throughout Australia.

BRENNAN CJ:   Was that knowledge sheeted home to the defendant?

MR HAMPSON:   I understand so, your Honour.  That is why in fact they say it is only police intelligence.  He says himself it is only police intelligence and the reporter did not purport to verify it by relation to any other enforcement body.  What he said was, “I have verified it by my own resources, my own investigations.”  But, your Honour, really, I mean, if somebody’s name gets into a computer or into an intelligence report written by some particular policeman, that, with the greatest respect, is surely not a sufficient reason to be able to say that you are entitled to disclose that on a nationwide television programme.

McHUGH J:   But that goes to manner and extent.

BRENNAN CJ:   Exactly.

MR HAMPSON:   Yes, your Honour, I quite agree.

BRENNAN CJ:   My question was directed to the 377(8) elements.  If the subject matter of the discussion was police cover‑up of drug information in Queensland, there is a police report which it is said was not acted on.  The police report that was not acted on contained the name of Vincenzo Bellino as “The Marble Man”.  Here is the picture of “The Marble Man”.  The question is whether or not that allegation upon which you fasten is an allegation which was made in the course of or for the purposes of the discussion of a police cover‑up, and I would have thought that it clearly was.

McHUGH J:   You see, in subsection (8) the first discussion that is mentioned in that section, it does not have to be a public discussion.  377(8) can be pleaded as a defence to a discussion between two people in a home where they defame somebody as long as the public discussion of that subject is for the public benefit and the protection - it is no doubt a far‑reaching section which is very favourable to defendants, but the plaintiff’s protection lies in the good faith provisions, manner and extent, relevance where it is appropriate, improper motive, ill‑will or belief in untruth.

MR HAMPSON:   I could not agree more with your Honour.  I could not agree more but, as I say, those questions were not allowed to go to the jury.

McHUGH J:   But you seem to be arguing that 377(8) should have been found in your favour.  As I say, speaking for myself at the moment anyway, it seems to me that there was a very strong case in favour of the defendant on the 377(8) point.

MR HAMPSON:   I do not want to take that any further.  His Honour the Chief Justice found that way and we would support his dissenting decision.  Now, minds obviously differ and in his judgment - I have not read it to the Court in full of course, but I have tried to set out the summary of it and that is in fact the steps by which he reached that decision.  He reached it on the basis of a public discussion - if the Court has read his judgment, he says if there is a public discussion about the incidence of murder or something of that sort and just to say “By the way, Bill Smith is a murderer” is no doubt a contribution to the discussion but it is not a relevant contribution.  That is the way he approached it and he took the view here that where there be no preceding investigation in the sense of a public discussion into the plaintiff’s affairs, that the reference to him was in the same sense dragged in and it was not relevant to the discussion.  It was a contribution in the same sort of sense as saying, “Bill Smith was a murderer”.

So I had reached in relation to (h) in the judgment of Mr Justice Davies on page 3 of our submission that in fact he adopted this view that it was correct that the judge should have said there was no evidence of manner and extent fit to go to the jury.  There was no question of any other matter on good faith other than the faulty research and although he thought that the naming of the plaintiff, bearing in mind that other persons were not named, might have furnished evidence of improper motive, that that was not sufficient; no new trial should be ordered on that ground because it was said that was not specifically pleaded.  But, again, we would respectfully submit that it is very much really tied up also in the manner and extent. 

It could equally be put under the manner and extent, if in fact one says naming me and naming nobody else and publishing that to a nationwide audience is as legitimate a way of putting the matter as just saying simply naming without naming anybody else being evidence of improper motive.  Finally, Mr Justice Demack’s judgment, we analyse that in (a) to (e).  He held in 1981 there had been that mention of the plaintiff by the late Mr Hooper in Parliament and he said the police report had referred to a “Marble Man”.  The respondent did not assert in its particulars the public discussion of the appellant’s involvement was for the public benefit, and that is true, and that while the allegation in Parliament had been made many years before the effect of the reference to the appellant in Parliament and the later police document was to emphasise that the alleged corruption was widespread in time and in region and was resistant to public exposure.  The naming of the appellant in the telecast was relevant to the particularised subject of public interest, the discussion of which was for the public benefit.

Now, we then go on to say, and I will say it only formally in view of what the Court said, it was relevant to the occasion of qualified privilege and should have found there was no occasion of qualified privilege, but 7 raises another difficulty because, although Mr Justice Davies - and we say incorrectly - held that the issues of relevance and manner and extent should have been withdrawn from the jury, that they were properly withdrawn from the jury, the other members of the court did not address the issue.

McHUGH J:   You cannot say that Chief Justice Macrossan was in error because it did not arise for him.  He held that there was no qualified privilege.

MR HAMPSON:   That is so, your Honour, yes, but it was in the notice of appeal and the court would have the benefit of another view.  I suppose when I say “err” here I do not mean erred in law, but there is a deficiency in the judgments in that only one of their Honours, that is Mr Justice Davies, considered the withdrawal of good faith from the jury.  Then we say that question 3 should have been put in accordance with our draft or, alternatively, as a simple - I do not read it out.

GAUDRON J:   When you come to that, when you say that, which I know you have laboured a lot already, I do not see why it should have.  Why should it have been put in another question, in another form?  Why was it not open to the trial judge to decide what the subject matter of the discussion was and to decide also that it was in the course of that discussion and that that discussion was a subject of public interest?

MR HAMPSON:   It was his duty to make a finding to that regard, yes.

GAUDRON J:   But that having been said, why do you say question 3 should have been put in some other way?

MR HAMPSON:   I think the only reason, your Honour, is to emphasise really the fact that in some way the jury should have been asked to adjudicate upon what really the plaintiff’s case was and, although we agree that in fact the trial judge did not do that properly so far as question 3 was concerned - and we have at least one justice of the Court of Appeal who agrees with that - probably two, I suppose; the Chief Justice as well - we still put that forward as a basis upon which there could have been a finding made by the jury as to whether they accepted that the plaintiff’s involuntary participation in the programme was in fact in the course of a public discussion.

GAUDRON J:   Yes.  Why does that go to the jury?

MR HAMPSON:   I really must confess it probably should go to the jury under the question of good faith.  I mean, that is where the jury questions are; where, here, there does not seem to be any disputed question of fact on the qualified privilege aspect to the matter.  It would be otherwise if there was some disputed questions of fact, but there do not appear to be any here, so it was really a matter for his Honour to make that particular finding.  But it was probably the way that his Honour treated the question 3 that distracted him from the failure to ask any question of the jury along the - I mean, having taken away manner and extent as the trial went on, having taken that from the jury and putting this question - the way he treated question 3 for the jury, it seemed to distract him.  Indeed, Mr Justice Davies sort of suggested that, I would have thought, that that particular - distracted him from the way that Mr Justice Davies would have seen - very, very limited basis upon which he would have seen good faith being open.  We submit that that probably is the case and it really probably is a question of good faith.

McHUGH J:   You do not seem to ever put what seems to me to be your strongest argument on manner and extent and Justice Davies deals with it at 327 when he deals with the way you relied on manner and extent.  At page 327, line 24, he says

The appellant’s argument in the court below that the manner and extent of the publication was excessive because the appellant was named misunderstood the meaning of the words “manner and extent”.

And then his Honour goes on and says what manner is:

construed as being concerned with the form of language and print, including any violence.....while “extent” has been construed as addressing the breadth of the publication.

You can have a situation where two people may be discussing something and one says, “Look at Jack Smith, he’s another person rorting the welfare system”.  Now, prima facie, that comes within 377(8) and if it is just said to one person there may be no evidence of lack of good faith to go to the jury but if it is said to a hundred people, there may be.  Likewise here, I would have thought it was open to you to argue that to publish these imputations to the world at large exceeded what was reasonably necessary for this discussion.  They did not have to do this.  If they wanted to make these imputations, they could have gone along and complained to some authority.

MR HAMPSON:   That was a case that was made over and over again below, your Honour, before the trial judge and it was the way the things developed that he had ruled out at an early stage - he had ruled out the questions of good faith.  He did not, at the end, accept the application for a redirection.  We make the point, in fact, going ahead a little bit, your Honour, in our submissions in paragraph 20, if the respondent wished to bruit abroad allegations of criminal conduct, this could have been done in a form which did not name the plaintiff.  I mean, it is quite so; it could have been done in a form which did not name him at all on the national programme and it could have been perhaps done in a more effective way by going to some other appropriate people.  There were other law enforcement bodies that were supposed to be interested in the matter and had briefs in it.  It is well known that the Australian Federal Police have a brief in heroin and so on.  So we, in effect, say that and that was said in the trial below at considerable length in those arguments.

It seemed naming the plaintiff was given a very narrow meaning by Mr Justice Davies.  “Just the very fact of naming the plaintiff” is the way he speaks about it and that is why he says that the authorities on manner and extent do not cover it.  With respect, we would submit they do when you are talking here, not about some people in a room just talking about it, you are talking about somebody who is putting it on a nationwide programme throughout Australia.

In paragraph 9 - now I come back to that question.  I did spend time on it, I know, before about the direction on balancing.  They should have held it was not an appropriate substitute for a properly formulated question, and so on.  Now we come to 10.  We say that the Court of Appeal should have found, in formulating question 3 or, alternatively, in misdirecting the jury on question 3 and leaving question 3 to the jury in the manner in which the only reasonable answer was “yes” and, more importantly, in withdrawing issues of “relevance” and “manner and extent” from the jury and in not providing an adequate summing up or even providing an inadequate summing up and misdirection on good faith and in the confusing manner in which the issues of naming the plaintiff either alone in conjunction with other matters were ruled upon and summed up, the trial judge deprived the appellant of the opportunity to obtain answers from the jury entitling him to judgment and left no question to the jury through which it could effectively communicate its decision.

When one goes to the answers and looks at the answers, one can see that really that is the case.  Counsel for the plaintiff really had nothing to run with.  He had nowhere to go by the time the trial judge had indicated that the only aspect of good faith that could go to the jury was the question of whether the reporter had been reckless in his researches in putting the story together again.  We submit that in the context of a programme of this kind, that was quite wrong.  Certainly, the test is:  would any reasonable jury have inevitably found that it was quite right?  In other words, would they have inevitably found for the defendant on the issue of good faith, put that way?  It just was not done.  No such question was put to them.

We submit that the way in which the trial developed may have been the reason for that; that it was something which, in the particulars, in the course of argument, the applications for redirection and so forth - it was continually adverted to - that there was no need to do this on this nationwide programme in that way.  We deal particularly with relevance in 12 and I think I have already made orally the submissions that are there.

BRENNAN CJ:   What is meant by the words “reasonably sufficient for the occasion” in the good faith section?  Reasonably sufficient for what purpose?

MR HAMPSON:   For the occasion which in fact is the occasion of qualified privilege.

BRENNAN CJ:   And is that occasion to be defined in terms of the course of or the purposes of the discussion of some subject of public interest?

MR HAMPSON:   One has to find an occasion of qualified privilege and for the purpose of section 8 one has to find, within the words of the Code, that that occasion exists.

BRENNAN CJ:   To make a publication something which is not excessive to what is reasonably sufficient for the occasion of qualified privilege, is there any question to be asked other than whether or not the circumstances of the publication, its manner and extent are excessive, having regard to the course of or discussion of the subject of public interest?

MR HAMPSON:   Yes, your Honour.  I would submit it is wider than that.  It is the way in which it is done; the manner in which it is done.  Your Honour is speaking of good faith?

BRENNAN CJ:   Yes.  I am speaking of what is the test of reasonable sufficiency for the occasion.

MR HAMPSON:   Taking the situation - and getting away from this one - taking the simple situation:  I come into possession of knowledge that my neighbour’s gardener is stealing money or something from him.  I would fall in one of the earlier situations where he has an interest in knowing the truth and I am able, in an occasion of qualified privilege, to tell him.  So, in that occasion I say, “Well, these are the facts that I’ve got.  I saw your gardener take money” or whatever it happens to be, of telling the facts, and if I adhere to what is sufficient for the occasion of the protection that I am given.  I am given a protection for the purpose of giving him knowledge which I believe that he has an expectation and a right to hear and I go no further than that.  The privilege is not abused.

BRENNAN CJ:   That is right.

MR HAMPSON:   But if I do something that goes beyond - - -

BRENNAN CJ:   I understand that in relation to the other paragraphs of section 377.  I am having some difficulty in applying that notion of what is reasonably sufficient to 377(8).

MR HAMPSON:   The difficulty I think, your Honour, probably occurs because of the use that media make of the particular section.  At the time when these words were drafted one would have been thinking, first of all, of qualified occasions and people speaking but you would be thinking probably of the printed word and it is something, I suppose, that is a bit easier of limiting or seeing a limit as to what is sufficient for the occasion.  Nowadays, one has with the electronic media stories which go around, nationwide and so forth.  So, it throws that up in saying your occasion here of qualified privilege is to tell people - this is what the subject is supposed to be anyway - I expect, in Queensland, citizens in Queensland who have votes and complain to members of Parliament or something or other of these ongoing police problems.  I would have thought,  taking it at its widest, that is what the occasion is supposed to be.  It would hardly be an occasion, for example, to telecast it to New Zealand, one would have thought.

McHUGH J:   The first thing relating the good faith provision is, in this context, you have to define the discussion and, in this particular case, if the defendant alleges the discussion was going on throughout the whole of Queensland in respect of these subjects of public interest, every man, woman and child, then you may have some problem about saying that this publication exceeded.  If, on the other hand, you would take a narrower view, then to publish this to the whole world might exceed the occasion, go beyond what is reasonably sufficient for the occasion.  The first question of ‑ I keep saying 17(h) because that is the New South Wales provision - 377(8), you have to define “discussion”, so you have to define what the “subject of public interest” is and whether it is in the course of or for the purposes of such a discussion.

MR HAMPSON:   Yes.  That, of course, is really a question for the judge because he is the one who is ruling whether it is an occasion of qualified privilege or not and he has to make that differentiation.  In so far as it was a discussion, if one put it this way, about the heroin trade in the north, it would have - the occasion may be of bruiting that about in the northern Queensland cities; less significant as one comes south and possibly of very little interest to anybody by the time you came to New South Wales and Victoria.  But that is a judgment, really, that the judge has to make as to whether it is sufficient for the occasion or not.

We say, on any view of it, it is insufficient to the occasion.  They stepped outside the legitimate discussion of the particular matter by the introduction, as I have said before, of the plaintiff’s matter.  The same thing really occurs, as we deal with it under 14, when protection is claimed, the subject of public discussion must be determined with some exactness, and that is Mr Justice Windeyer there in Australian Consolidated Press v Uren to which we refer.

Under paragraph 15 we point out that Mr Justice Davies did not discuss how the trial judge or the jury should have undertaken their respective functions on the relevance issues, or the test to be applied.  Indeed, certain matters were said to have entitled the trial judge to withdraw that question from the jury.  Mr Justice Demack addressed whether the trial judge was entitled to determine whether naming the plaintiff was relevant to the discussion but did not address whether this required the trial judge to also withdraw the relevance issue from the jury.  We say that undue weight was given to that comment in Parliament made some six years earlier.

We deal in a little more detail with the significance of that.  The repetition by the media or a contribution, we would submit, does not attract the defence under 377(8), and I do not think there is any point in dealing orally with that.

We say the intention of the respondent to contribute to a discussion of the general topic of police corruption did not bring the references to the appellant within the course of that discussion.  Even an intention to refer to the appellant by name in order to suggest a connection between criminal activity in North Queensland and Southern Queensland would not suffice if, objectively, the reference to the plaintiff fell outside the bounds of the discussion which was protected by 377(8).  Again, that is a matter that was dealt with in Justin’s Case.

In 18 is the way we put the relevance matter comes up or should come  up as an ingredient of good faith.  Just because the judge has decided that the matter is relevant, that is to say, the defamatory matter dealing with the plaintiff is relevant, to the discussion, that does not mean that a jury might not form the view that with relation to its manner and extent, its relevance and all the other ingredients of good faith, that it should be protected.  In other words, they are entitled to say, “No, in these circumstances”.  What in fact was happening here was that the defendant wanted to make a lot of money out of a very good story on a nationwide broadcast and that is really what was behind the idea of being able to throw in something - - -

GAUDRON J:   You are talking about the ABC, are you not, Mr Hampson?

MR HAMPSON:   I am.  It is the defendant, your Honour, yes.

GAUDRON J:   I am just querying your suggestion that they wanted to make a lot of money.

MR HAMPSON:   Well, they get ratings, your Honour, I understand.  It is a thing that even the ABC have been known to, as it were, lower themselves to chase.

GAUDRON J:   Was there any evidence of that?

MR HAMPSON:   As to what the ratings were?

GAUDRON J:   No.  I mean, there has to be some evidence to go to the jury.  Was there evidence about that?

MR HAMPSON:   That in fact they did - the manner and extent or - - -

GAUDRON J:   Is there evidence on which they could have found, for example, that the purpose of this broadcast was to further its ratings as an improper purpose rather than to further the public discussion, as it were?  That may not be the exact test either but - - -

MR HAMPSON:   Your Honour, they had evidence before them of the telecast.  They had evidence before them of the researches and whatever had gone into its production, and they are supposed to be the guardians in all this of the public with relation to what the public feels about it; whether they think such things are in good faith or not.  Now, I would have respectfully submitted that it was quite possible to look at it and say where you have a production in which, in fact, you promoted widely as a national broadcast and you introduce actors to reconstruct parts and make up fictitious parts and things at that particular time, that you are doing more than merely informing the public.  You are in the field of entertainment.  I would submit that the jury are entitled to take that into consideration.

McHUGH J:   Did the defendant prove the discussion in this case?  In New South Wales, for example, the defendant would tender what the late Mr Evatt, QC, used to call the “dossier” and it contained maybe hundreds of newspaper articles and transcripts of broadcasts to show what the discussion had been of a particular subject matter over a period of time.

MR HAMPSON:   There were certainly some, your Honour, newspaper articles and there was one earlier videotaped programme that had been put to air but I do not believe it could have been regarded as a very large dossier.

McHUGH J:   It is difficult to determine a question in the course of a particular discussion.  You have to identify what the discussion was without having that evidence before us.

MR HAMPSON:   Yes.  His Honour, as I said, accepted the formulation that the defendant had made of what those subjects were and I am not really familiar with - and I am sure they are not in the book - the weight of material that was there.

McHUGH J:   The question is under 8, is this a contribution to a discussion that is going on?  Now, is it the ABC’s discussion?  Is it a widespread community discussion?  What is the discussion that this was to be a contribution?

MR HAMPSON:   What his Honour said it was a perennial matter of public interest, I think.  I read the passage to the Court before.

McHUGH J:   It may be but the question is what discussion was this a contribution to?  And you have to identify that.

MR HAMPSON:   Yes.  I appreciate quite well your Honour’s point, with respect.  The complaint was made that it had not been properly identified.  I cannot put it further than that.  I have read passages where counsel for the plaintiff was saying that is not good enough to be identified in that way but they do not really know.  His Honour did not refer to any material, I must say.

I have been given an exhibit that is not in the book which seems to deal with 12 articles but they are quite disparate.  Some of them are from reports of drug effects in Sydney and things of this kind.  Maybe overnight junior counsel could just try to answer that question, your Honour, because I must say that I have not gone into it.

I have dealt with paragraph 18, I think, and the references there and also Mackie’s Case.  The real question is, of course, whether the plaintiff was entitled to get the jury to answer a question of good faith, a question that is sufficiently wide, having regard to the terms of the article.  We would say, as we do in paragraph 19, that the matters that Mr Justice Davies referred to as justification for the trial judge withdrawing the question of relevance from the jury - that is at 327, lines 1 to 20 - at the best provide a basis upon which the jury may have decided the issue of relevance in the respondent’s favour.  But, really, the question is:  can it be said that no reasonable jury could arrive at the other conclusion?  That is the real test and that point is made in the judgment of Mr Justice Reynolds in Mackie’s Case.

So, we say it clearly was not one where the issue was so clear as to entitle the trial judge to withdraw it from the jury and withdrawing it from the jury also in the context of the way in which it was done.  These matters do overlap:  manner and extent and relevance, the actual naming and then how far the naming goes and the circumstances in which the naming takes place.

I have already referred to paragraph 20 which deals with the manner and extent and the fact that there was only one judge in the Court of Appeal who addressed that question.  The point was made in the amended reply to which I have referred the Court that the publication was excessive in that allegations concerning the “published throughout Australia”.

Paragraph 21 then, to a certain extent, repeats what has been said before but this time specifically in relation to the issue of good faith.

GAUDRON J:   Can I just take you back, Mr Hampson.  Do you still put that as a proposition?  Do you still complain that it was a national broadcast rather than a broadcast to the whole of Queensland, for example?

MR HAMPSON:   Yes, your Honour, yes.  The truth of the matter may well have been that the issues dealing with the plaintiff would have been

more defensible if it was a telecast, for example, made at Townsville or Cairns but that is a matter for the jury to decide that.  You do not need a geographer or some expert on television to give evidence of it.

GAUDRON J:   No, but it does rather link up with your identification of the public in whose interest the public discussion is.

MR HAMPSON:   Yes, your Honour.

BRENNAN CJ:   The Court will adjourn now until 10.15 am tomorrow morning.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 20 JUNE 1995