Burton, George Westbrooke v Parker, Ronald and Sparrow, John and Galloway, John
[1998] TASSC 104
•28 August 1998
104/1998
PARTIES: BURTON, George Westbrooke
v
PARKER, Ronald (Dr),
SPARROW, John (Dr)
GALLOWAY, John
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M125/1997
DELIVERED: 28 August 1998
HEARING DATE/S: 30 June, 1 and 2 July 1998
JUDGMENT OF: Evans J
CATCHWORDS:
Defamation - Privilege - Qualified privilege - Statements made in respect of a duty or interest - Particular statements - Other matters - Application for leave to institute private criminal prosecution - Defamatory statements as to applicant's drug history - Whether criminal defamation - Whether publication in good faith for public good and for information of interested persons - Effect of Criminal Code, s208 - Judicial discretion - Whether civil remedy - Whether need for punishment and public interest requires intervention of criminal law.
Goldsmith v Pressdram Ltd [1977] 1 QB 83; Gouldham v Sharrett [1966] WAR 129; Spautz v Williams [1983] 2 NSWLR 506; Shapowloff v Fitzgerald [1966] 2 NSWR 244; Holmes v Goodyear Tyre and Rubber Co (Aust) Ltd (1984) 55 ALR 594, applied.
Criminal Code Act 1924 (Tas), ss208, 221 and 420.
Alcohol and Drug Dependency Act 1968 (Tas), ss18, 19, 20, 21 and 22.
Aust Dig Defamation [70]
REPRESENTATION:
Counsel:
Applicant: G W Burton
Respondent: W C R Bale QC
Solicitors:
Applicant: In person
Respondent: Director of Public Prosecutions
Judgment category classification:
Court Computer Code:
Judgment ID Number: 104/1998
Number of pages: 10
Serial No 104/1998
File No M125/1997
GEORGE WESTBROOKE BURTON, CITIZEN OF HOBART IN THE STATE OF TASMANIA v DR RONALD PARKER, DR JOHN SPARROW and
JOHN GALLOWAY
REASONS FOR JUDGMENT EVANS J
28 August 1998
These proceedings relate to a conflict between the applicant and some officers of the Department of Community and Health Services ("the Department") over the handling of the Secretary of the Department's drug authorisation power under the Alcohol and Drug Dependency Act 1968. In certain circumstances medical practitioners may only prescribe drugs with the authority of the Secretary of the Department ("the Secretary"). Some requests for authority to prescribe particular drugs to the applicant have been refused. The applicant has vigorously contested these refusals. There have been extensive communications between the applicant, his representatives and the Department. The applicant considers that in the course of dealing with his concerns, the respondents, who are officers of the Department, have defamed him. In the summons which brings this matter before the Court, the applicant has alleged that the respondents have defamed him by publishing, or causing to be published, statements that:
he had served a term of imprisonment and was the seller of heroin;
he was drug dependent on illicit opiates;
he had been convicted of trafficking heroin;
he has a history of illicit drug involvement and use; and
he does not suffer from pain of a nature to warrant medical treatment and has falsely asserted that he suffers from pain in order to obtain prescribed drugs.
Pursuant to the Criminal Code Act 1924 ("the Code"), ss221 and 420, the applicant has applied to this Court for leave:
(i) to institute a criminal prosecution against the respondents for the alleged defamation;
(ii) to file an indictment and proceed against the respondents by way of a private criminal prosecution.
The relevant provisions of the Code are:
"221 No prosecution shall be instituted for the publication of any defamatory matter, without the order of a judge in chambers, made after notice to the person accused, and after such person has had an opportunity of being heard in opposition to the application for the order.
…
420 — (1) Any person may, by leave of the Supreme Court, file an indictment against any other person for any crime alleged to have been committed by such other person.
(2) Leave to file any such indictment shall be granted upon such terms and conditions as the said Court in any case for the purpose of securing the substantial ends of justice thinks fit to direct."
Throughout the relevant period, all of the respondents were officers of the Department. Dr John Sparrow was the Chief Medical Officer. John Galloway was the Chief Pharmacist. Dr Ronald Parker was the Regional Director (South) in September 1995, and the Secretary after at least October 1996.
Evidence
The only evidence before me is contained in affidavits filed on behalf of the applicant. The applicant has annexed to his affidavit copies of numerous documents from the records of the Department. Whilst I have been able to glean part of the relevant background from these documents and the information contained in the affidavits, I am conscious that I have an incomplete understanding of what has occurred.
The applicant is a disability pensioner. When he was 25 years of age, in 1979, he suffered a severe ankle fracture whilst playing football. He was hospitalised for three and a half months, and developed degenerative arthritic changes in the ankle joint. As a result, he has a significant ankle disability and suffers from pain and stiffness in the ankle joint. His treatment for intermittent chronic pain over the years following the accident has included prescriptions for Physeptone (a tablet form of methadone) and morphine.
The applicant says that in 1982, on the insistence of his then wife, he attended the John Edis Hospital because she considered he had an alcohol problem. The John Edis Hospital was conducted under the auspices of the Department.
In 1991, the applicant again sought treatment at the John Edis Hospital from Dr David Jackson, a medical officer in the Alcohol and Drug Service. The applicant says he sought the treatment for his chronic pain. Dr Jackson prescribed methadone tablets. Since that consultation, Dr Jackson has been involved in the applicant's treatment from time to time. In 1992, Dr Jackson notified the Secretary, pursuant to the Alcohol and Drug Dependency Act 1968 ("the Act"), s18, that the applicant was suffering from drug dependency. The following provisions of that Act will be referred to in these reasons.
"18 ¾ (1) Where it appears to a medical practitioner that a person consulting, or attended or treated by, him is suffering from drug dependency, the medical practitioner shall, in the prescribed form and within the prescribed time, give notice of the fact to the Secretary.
…
(2) This section does not require notice to be given by a medical practitioner on the staff of, or attending at, a treatment centre in respect of any person receiving medical treatment at that centre if such a notice has already been given in respect of that person by a medical practitioner on the staff of, or attending at, that treatment centre.
19 ¾ (1) Except in accordance with an authority given under section 22 a medical practitioner shall not make drugs available for the use of any person who, in his opinion, suffers from drug dependency.
…
20 ¾ (1) Where the Governor is satisfied that a drug is of such a nature that the period for which it is made available for the continuous use of any person without special authority should be limited, he may, by order ¾
(a) declare that drug to be a drug to which this section applies; and
(b) specify a period as the maximum period for which that drug may be made available for the continuous use of a person without special authority,
and in relation to that drug the period so specified is referred to in this section as 'the prescribed period'.
…
(4) Subject to this section, where drugs to which this section applies are made available for the continuous use of any person over a period longer than the relevant limited period, the making so available of those drugs requires an authority given under section 22.
…
21 ¾ Nothing in section 19 or section 20 prevents the making of drugs available for the use of a person receiving medical treatment at a treatment centre, if those drugs are so made available by, or with the authority of, a medical practitioner acting in the course of his duties in connection with the provision at that centre of mental health services under the Mental Health Services Act 1967.
22 ¾ (1) In accordance with this section the Secretary may, on an application made under this section in respect of any person (in this section referred to as 'the patient'), give authority for the making available of drugs for the use of that person.
(2) An application under this section shall be in writing in the prescribed form signed by the medical practitioner by whom it is made and shall ¾
(a) specify the patient in respect of whom it is made;
(b) state whether, in the opinion of the medical practitioner, the patient is suffering from drug dependency; and
(c) contain such other information as may be prescribed.
…
(6) An authority given under this section in respect of a patient shall specify ¾
(a) the drugs that may be made available for his use in pursuance of the authority, and the quantities of those drugs that may so be made available; and
(b) the period for which those drugs may so be made available,
and may specify the conditions under which, or the circumstances in which, they may so be made available.
(7) An authority given under this section shall be in writing signed by the Secretary unless, in a case of emergency, it is given orally, and an authority given orally shall be confirmed in writing as soon as practicable after it is given."
The notification that the applicant was drug dependent, lodged by Dr Jackson, did not oblige Dr Jackson to apply for approval to prescribe drugs for the applicant pursuant to the Act, s19, as he was treating the applicant from the John Edis Hospital, a treatment centre for the purposes of s21. The Act, s21, exempts treatment centres from the operations of ss19 and 20.
Dr Jackson's lodgement of the notification pursuant to the Act, s18, was apparently linked to the applicant's participation in a methadone program being conducted by the Department. Whilst a copy of the notification was not put in evidence, it is referred to in another document and apparently states that the applicant was a heroin user, that he used drugs illegally and that he was placed on the methadone program for opioid dependency. The Department instituted the methadone program in 1992. The applicant was treated on the program at the John Edis Hospital. It was a policy of the program to provide methadone as syrup, not in tablet form. Patients were given supervised doses of methadone syrup. The apparent reason for the policy was concern that if patients were prescribed methadone tablets, they could sell the tablets or otherwise misuse them.
The applicant was unhappy about the change in his treatment from methadone tablets to methadone syrup, and with his treatment generally. The applicant's view, based on past experience and medical advice, was that an appropriate narcotic analgesic was required. The applicant approached Dr Ratna at the John Edis Hospital with his concerns. Dr Ratna prescribed MS Contin, an oral morphine. After approximately five weeks, Dr Ratna declined to continue prescribing MS Contin and the applicant was referred to his general practitioner.
The applicant consulted Dr Shaw who also prescribed MS Contin. Pursuant to the Act, s19, Dr Shaw was obliged to apply to the Secretary for authority under s22, to prescribe MS Contin for the applicant if he was of the opinion that the applicant was suffering from drug dependency. On 23 March 1994, Dr Shaw forwarded an application to the Secretary pursuant to the Act, s22, in which he referred to the applicant as suffering from some degree of drug dependency.
At this time the applicant continued to receive methadone treatment from Dr Jackson, who was treating the applicant from a treatment centre and was not constrained by the Act, ss19 and 20. Dr Jackson considered that the applicant needed treatment for pain caused by his osteoarthritis. Dr Jackson recognised that opiates, such as methadone, were not ordinarily an appropriate analgesic for the treatment, however, he considered that this was not the case where, as occurred with the applicant, opiates had previously been used. He considered that the applicant should be prescribed methadone, but due to the short time of methadone's analgesic effect, considered it necessary that the applicant take it two or three times a day. Apparently, it was not practical for the applicant to be involved in the supervised administration of methadone syrup on such a regular basis. Accordingly, Dr Jackson prescribed tablets which the applicant could take as required, without supervision.
Dr Jackson's approach to the applicant's treatment was opposed by the Department's Chief Pharmacist, Mr Galloway. Mr Galloway considered that the applicant should be treated with methadone syrup, like others on the methadone program. A document put into evidence quotes Mr Galloway as saying:
"There are very good public health grounds for not making narcotic drugs (other than supervised doses of methadone syrup) available to people with a history of drug abuse. … a considerable number, perhaps a considerable majority, of opioid users claim at one time or another that they have a medical condition which warrants treatment with potent narcotic drugs … The cases in which it is actually justified, however, are extremely rare …"
Mr Galloway made efforts to have the applicant's treatment conform with the methadone program policy of supervised doses of methadone syrup, rather than methadone tablets. These efforts were opposed by the applicant. He was supported by Dr Jackson and by Dr Ian Wilson, who became involved in the applicant's treatment during 1995. Dr Wilson was employed by the Department as Community Medical Officer, Alcohol and Drug Services (Southern Region). Dr Jackson and Dr Wilson considered the applicant was suffering from chronic pain, and, that in his unusual circumstances, it was appropriate to treat him with tablet opioids. Dr Jackson no longer considered the applicant to be drug dependent and Dr Wilson was of the same view. Mr Galloway and others within the Department considered that as a consequence of the applicant's history of drug misuse and dependency, any opioid medication should be in the form of syrup, as with patients being treated for drug dependency.
In August 1996, Mr Galloway wrote to Dr Wilson pointing out that if he wished to continue to prescribe methadone tablets for the applicant, he would need to obtain authority pursuant to the Act. The John Edis Hospital had closed and Dr Wilson was not treating the applicant from a treatment centre for the purposes of the Act. Dr Wilson was authorised to continue to prescribe methadone tablets pending his preparation of a report on the applicant's future treatment.
Dr Wilson provided an extensive report to Dr Sparrow on 31 October 1996, in which he recommended the continued treatment of the applicant with methadone tablets. Contemporaneous with his preparation of the report, he lodged an application for authority to continue the treatment pursuant to the Act, s22. He did not lodge the application on the basis that the applicant was drug dependent. The application was lodged because he had been continuously prescribing methadone for the applicant for a period in excess of that allowed by the Act, s20.
By letter of 6 November 1996, Dr Sparrow, writing on behalf of the Secretary, Dr Parker, advised Dr Wilson that he was authorised to prescribe methadone to the applicant, subject to the condition that at least one dose was taken each day in liquid form, supervised by a pharmacist. Preferably, the second dose for each day was to be taken under supervision, or supplied as a takeaway with the morning dose if supervision could not be provided without difficulty. Dr Wilson wrote requesting a review of the terms of the authorisation. He proposed that the medication be changed from methadone to Kapanol (slow release morphine). In response, Dr Sparrow, writing on behalf of the Secretary, Dr Parker, advised Dr Wilson by letter dated 2 December 1996, that authority to prescribe methadone was withdrawn. Authority was given to prescribe Kapanol to be taken once each day in a liquid vehicle, administered by a pharmacist.
The applicant was not prepared to accept these conditions on his treatment, and says he has received no medication for his pain since December 1996.
The publications
The evidence tendered by the applicant included an affidavit sworn by Dr Jackson in which he states that Mr Galloway has made statements concerning the applicant as detailed in pars1, 2, 3 and 5 of the applicant's summons. He also says the respondents published material of a nature as particularised in the summons. Besides these general assertions, no specific details of the statements or publications are contained in Dr Jackson's affidavit.
Of the many documents put before the Court by the applicant, those set out below were relied upon to establish publications as detailed in his summons. I will not deal with the documents in detail. In the course of listing the documents, I have included extracts from some of them. The extracts show that there is evidence of some of the alleged publications by some of the respondents. It is convenient to deal with the matter on the assumed basis that the applicant can establish that the alleged publications were made. In the main, the documents relied on, which can be said to be publications by one of the respondents, are responses to or related to correspondence from the applicant, his lawyers or his doctors. The documents relied on by the applicant are:
(a)15 April 1994. Letter from Mr Galloway for the then Secretary, Gillian Biscoe, to Dr Shaw on the outcome of Dr Shaw's application on behalf of the applicant pursuant to the Act, s22.
"1Mr George Burton has been notified as being drug dependent. Mr Burton was included on the Methadone Program for his dependency on illicit opiates.
…
Accordingly, your application to prescribe narcotic drugs for Mr Burton is refused. Please note that it is an offence under the Alcohol and Drug Dependency Act 1968 to prescribe narcotic drugs for a drug dependent person without appropriate authority."
(b)16 May 1994. Memorandum from Mr Galloway to the Secretary as to the applicant's FOI request.
(c)24 August 1995. File notes prepared by Dr Wilson of two telephone conversations he had with Peter Handley, Co-ordinator, Southern Regional Alcohol and Drug Services.
(d)13 August 1996. Letter from Mr Galloway to Dr Wilson concerning the basis upon which the applicant was currently receiving medication.
"If Mr Burton's current treatment is for only analgesic purposes, then it can only be concluded that there is no medical basis for it. Certainly, no permit has been issued under the Alcohol and Drug Dependency Act1968 which would legally allow prescribing of methadone for analgesia to proceed.
It appears beyond doubt that this patient has a history of illicit drug involvement and use, and no reason has been put forward why his opioid dependency should not be managed within the ordinary requirements of the methadone policy with daily supervised doses of methadone syrup. As previously indicated, it would be inequitable to allow prescribing of methadone tablets to Mr Burton to continue when all other methadone clients are required to receive daily supervised methadone syrup."
(e)1 October 1996. Report prepared by Dr Wilson on the applicant in support of his application for an authority to prescribe methadone tablets for the applicant. The report was sent to Dr Sparrow.
(f)8 December 1996. File note prepared by a senior pharmacist in the Department, not one of the respondents, that the applicant does not seem to have true pain, his opiate requirements are for addiction and that he should be transferred on to the supervised methadone syrup program.
(g)15 March 1996. File note prepared by an employee of the Department, not one of the respondents, noting a telephone conversation advising that the applicant was selling two bottles of methadone tablets per week. (In his report of 1 October 1996, Dr Wilson says that Mr Galloway informed him that the report was false.)
(h)29 August 1995. Ministerial briefing on correspondence received from the applicant prepared for the Department by Peter Handley. The briefing is endorsed by Dr Parker as Regional Director (South).
25 September 1996. Letter from Dr Parker as Secretary responding to a letter from the applicant's solicitors.
(j)8 October 1996. Letter from Dr Parker as Secretary responding to a letter forwarded by the applicant's solicitors to the Minister for Community and Health Services.
"The fourth paragraph of your letter includes the statement 'Those decisions have been based upon an alleged history of opiate abuse by Mr Burton. There is no evidence at all to support this allegation.' Those instructions to you by Mr Burton are erroneous. The Department has on file a Notice of Drug Dependency made in 1992 under Section 18 of the Alcohol and Drug Dependency Act 1968 which states that Mr Burton was a heroin user, that he used drugs illegally and that he was placed on the methadone program for opioid dependency. His use of heroin around this period was also confirmed recently by another medical practitioner.
It needs to be understood that the Department has no wish to deny Mr Burton access to methadone. The primary concern is that Mr Burton has a history of opiate abuse, and that four confidential reports have been received in the past twelve months that Mr Burton has allegedly been selling drugs illegally. People with a history of opiate abuse should only be given narcotic drugs on a supervised basis when there are concerns about continued unreliability with drugs of abuse. You may not be aware that diverted methadone has caused a significant number of deaths in Australia."
(k)6 November 1996. Letter from Dr Sparrow for Dr Parker, the Secretary, to Dr Wilson in response to that written by Dr Wilson in the interests of the applicant.
"In Mr Burton's case, there is evidence that he has been involved in heroin use in the past. The Pharmaceutical Services Branch has advised me that four separate reports have been received in approximately the past twelve months that Mr Burton has allegedly sold methadone tablets. Accordingly, there appears to be good reason to take some steps to minimise risk to the public."
(l)2 December 1996. Letter from Dr Sparrow for Dr Parker, the Secretary, to Dr Wilson in response to a letter written by Dr Wilson in the interests of the applicant.
"In Mr Burton's case, our records indicate that he has a history of heroin and other drug use. When this is added to the four separate reports of selling of drugs, there is surely sufficient reason to institute measures to support drug security."
Basis for the publications
The publications appear to be based upon information about the applicant in the Department's records which includes the following:
A nurse's assessment dated 16 March 1982 prepared following the applicant's admission to the John Edis Hospital. An extract from that assessment is:
"Claims to have taken all the addictive drugs on the market. He has taken Heroin. Had been caught and charged with possession of large amounts of Heroin found in car ... was sentenced to jail for the offence …
Before he was jailed for drug possession, he had been selling Heroin $60 - $80 a taste. Made a large amount of money.
Says there is a $15,000 contract out on him due to his drug involvement."
Before me it was agreed that the above note is in error in so far as the applicant was not gaoled for being in possession of heroin. He was gaoled for marijuana offences.
Information extracted from the applicant's file by Dr Wilson:
"He described starting drinking heavily at 17 years old, a year later started smoking marijuana, and for the prior few years having used heroin in binges, usually lasting for six months …
His history ... demonstrates he had spent one year in gaol in the late 1970's on marijuana charges. He had spent several years in Sydney using heroin and prior to 9 June 1992 was spending over $2,000 per week on it. He was diagnosed as being opioid dependent …
On 26 May 1994, he gave the history that he was dependent (on methadone)."
A form 18 notification lodged by Dr Jackson in 1992 which stated that the applicant was a heroin user, that he used drugs illegally and that he was placed on the methadone program for opioid dependency.
Discretion
Against this background, the applicant seeks leave from the Court to institute proceedings for criminal defamation against the respondents, and leave to proceed against them by way of a private prosecution.
Prosecutions for criminal defamation and private criminal prosecutions are extremely rare. I was not referred to any prosecution for criminal defamation which has proceeded in Tasmania.
Applications for leave to institute prosecutions for criminal defamation have been dealt with in other jurisdictions which have similar provisions to those under consideration. Whilst my discretion is unfettered, I am influenced in my consideration of this application by the following principles extracted from the authorities to which I refer.
Where the applicant has a civil remedy, leave should only be granted if:
(a)the application has demonstrated a sound case, that is, a clear prima facie case that defamatory publications were made including evidence negating lawful excuse for the publications. Goldsmith v Pressdram Ltd [1977] 1 QB 83 at 88, Gouldham v Sharrett [1966] WAR 129 (FC) at 137 and Spautz v Williams [1983] 2 NSWLR 506 at 537; and
(b)the case is one which calls for the intervention of the criminal law, Shapowloff v Fitzgerald [1966] 2 NSWR 244 at 249.
That the intervention of the criminal law is called for where:
(a)the defamation is so serious as to require both punishment of the offender and the protection of the community. Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 485, and Spautz v Williams (supra) at 540; and
(b)the public interest, as distinct from the individual's interest, requires the institution of criminal proceedings. Goldsmith v Pressdram Ltd (supra) and Shapowloff v Fitzgerald (supra).
Civil Remedy
The applicant has a civil remedy. At the time of the hearing he was bankrupt. He is due to be discharged on 30 August 1998. He contends that, as he is bankrupt, he cannot pursue a civil action for defamation. That is not so. His action for defamation would be for a personal injury or wrong done and this would not be stayed by his bankruptcy, Bankruptcy Act 1966 (Cth), s60(4). See Holmes v Goodyear Tyre and Rubber Co (Aust) Ltd (1984) 55 ALR 594.
In explaining his pursuit of these proceedings, the applicant has mentioned a multitude of concerns. A primary concern seems to be his wish to establish that he is not drug dependent within the meaning of that term as defined in the Act. That sort of issue can be readily resolved in civil proceedings seeking an appropriate declaration against those who assert that the applicant is drug dependent.
I am satisfied that adequate civil remedies are available to the applicant in relation to the matters which are the subject of his summons.
Strength of the case
The alleged publications defame the applicant. As in most defamation cases, the real issue is whether the publications are lawful (defendable). The provisions in the Criminal Code which relate to prosecutions for criminal defamation are similar to the provisions in the Defamation Act 1957 which relate to civil actions for defamation. Publications can lawfully be made if covered by what is commonly referred to as a qualified privilege. The relevant portions of Criminal Code, s208, follow:
"208 — (1) It is a lawful excuse for the publication of defamatory matter —
…
(e)if the publication is made in good faith for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is reasonably believed by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances;
(f)if the publication is made in good faith on the invitation or challenge of the person defamed;
…
(2) For the purposes of this section, a publication is said to be made in good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill-will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue."
The bulk of the specified publications by the respondents about which the applicant complains are contained in correspondence in response to communications from the applicant, the applicant's lawyers and the applicant's doctors. The correspondence was for the purpose of giving information to the recipients with respect to matters about which the recipients had an interest in knowing the truth. Subject to the requirement of good faith, the correspondence is likely to be protected by the Criminal Code, s208(1)(e) and (f). The applicant canvassed many matters which he considered showed that the respondents, in particular Mr Galloway, lacked good faith. I am not satisfied that any of the material before me provides a basis for challenging the respondents' good faith. Generally as to their good faith, it is pertinent that information on the Department's records provides a basis for the thrust of the publications about which complaint is made.
The need for punishment and public interest
I am in no doubt that the alleged publications do not call for the intervention of the criminal law. The alleged publications were made in the course of the applicant's conflict with the Department over the manner in which the Secretary's drug authorisation obligations were carried out. The Secretary's assessment of applications for authority to prescribe drugs is an onerous and important task. The assessment can involve the need to balance a variety of conflicting interests. It is not in the interests of the general community to allow narcotic drugs (other than supervised doses) to be made available to people who are likely to misuse them. The evaluation of this risk in relation to a particular patient is a formidable task. It is in the interests of the public that those involved in this and equatable tasks deal with them in a frank and open manner. To allow discussions and communications in such circumstances to be the subject of criminal proceedings for defamation would strongly discourage the candidness that is required of those involved. This would be contrary to the public interest and the public good. The alleged publications, having been made in this context, I am in no doubt that the publications do not require the intervention of the criminal law to punish the respondents.
Conclusion
In summary, I am satisfied that adequate civil remedies are available to the applicant in relation to his claims. Insofar as specific publications by the respondents have been identified by the applicant, the bulk of them are contained in correspondence which is likely to attract the defence of qualified privilege. The alleged publications have been made in circumstances which do not call for the intervention of the criminal law, and to give leave for the institution of criminal proceedings in these circumstances would be contrary to the interests of the public. For these reasons, I refuse the applicant the leave he seeks.
There is one other matter to which I should advert. The applicant approached the Director of Public Prosecutions and requested him to prosecute the respondents for criminal defamation. The Director of Public Prosecutions refused the applicant's request and has given evidence that he is not satisfied that there is a reasonable prospect of the respondents being convicted. He said he would not file an indictment against the respondents, and if an indictment was filed, he would take over the prosecution and enter a nolle prosequi discharging the respondents. In the circumstances, it would be futile to grant leave to pursue the prosecution and this is a matter which should be given significant weight in considering the application of leave. Goldham v Sharrett (supra). This is a further reason for refusing the application.
0