In an action for malicious prosecution for defamation the plaintiff, in order to establish the absence of reasonable and probable cause, must prove that the facts known to the defendant, at the time when he initiated the prosecu- tion, were inconsistent with an honest belief upon reasonable grounds that the plaintiff could not establish a defence to the charge.
Sec. 12 of the Defamation Act (N.S.W.) (No. 22 of 1901) makes it a criminal offence to maliciously publish a defamatory libel. Sec. 13 provides that on the trial of an indictment or information for such a libel, the truth of the defamatory matter may be inquired into, but shall not amount to a defence unless it was for the public benefit that the defamatory matter should be published. Such a defence must be specially pleaded.
The respondent was prosecuted by the appellant for criminal libel, and was committed for trial, but the Attorney-General declined to file a bill. The libel was contained in a private letter alleging corruption on the part of the appel- lant and the directors of a company of which the appellant was general manager. The respondent brought an action against the appellant for malicious prosecution, and in support of the allegation of corruption, gave evidence of facts which must have been within the knowledge of the appellant when he initiated the prosecution. These facts were open to the construction put upon them by the respondent in the libel, but were also reasonably capable of a construction more favourable to the appellant. The jury found for the plaintiff.
Held, that, inasmuch as the facts proved by the respondent were not incon- sistent with the existence in the appellant's mind of an honest belief on reasonable grounds that the charges in the libel were not justifiable and that the respondent was therefore guilty of the offence of libel, the respondent had failed to discharge the onus cast upon him, as plaintiff, of proving an absence of reasonable and probable cause, and should have been nonsuited.
Abrath v. North-Eastern Railway Co., 11 Q.B.D., 440; 11 App. Cas., 247; and Cox v. English Scottish and Austrahan Bank, (1905) A.C., 168, followed.
Held, also, that the plaintiff in the action was entitled to give evidence which would have supported a plea of justification under sec. 13 of the Defamation Act 1902.
In considering the question whether the publication of defamatory matter was for the public benefit within the meaning of that section, the motive…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Crowley v Glissan (No 2)
Sign in free to access the full text
Details
AGLC
Crowley v Glissan (No 2) [1905] HCA 31
Case
[1905] HCA 31
Decision Date
CaseChat Overview and Summary
Crowley, the plaintiff, brought an action against Glissan, the defendant, for malicious prosecution and for publishing a criminal libel. The case was heard before Griffith C.J., Barton and O'Connor JJ.
The legal issues before the court were whether the plaintiff had established the absence of reasonable and probable cause for the prosecution, and whether the defendant had a defence to the criminal libel charge. Specifically, the court had to consider whether the plaintiff's evidence was inconsistent with a reasonable belief in his guilt, and whether the defence of truth and publication for the public benefit under the Defamation Act (N.S.W.) applied to the circumstances of the publication.
The court found that the plaintiff had not discharged the onus of proving the absence of reasonable and probable cause for the prosecution. The evidence presented by the plaintiff was not inconsistent with the defendant having held a reasonable belief in the plaintiff's guilt. Regarding the libel charge, the court noted that the nature and manner of publication were relevant considerations for the defence of truth and public benefit, and that the motive of the libeller was immaterial.