Bellino v Australian Broadcasting Corporation [1994] QCA 150

IN THE COURT OF APPEAL [1994] QCA 150 SUPREME COURT OF QUEENSLAND Brisbane Appeal No. 270 of 1992 Before The Chief Justice Mr Justice Davies Mr Justice Demack [Bellino v. Australian Broadcasting Commission] BETWEEN: VINCENZO BELLINO (Plaintiff) Appellant AND: AUSTRALIAN BROADCASTING COMMISSION (Defendant) Respondent REASONS FOR JUDGMENT - THE CHIEF JUSTICE Judgment delivered 13.05.94 I have had the advantage of reading the reasons prepared by Davies J.A. where the relevant facts and issues are sufficiently stated. I agree with a number of the observations made by the judge but my assessment of the case and my conclusions differ from his. I can state at the outset that I agree with Davies J.A. that the second appeal, based on the jury's alleged confusion, should be dismissed for the reasons he indicates. The first appeal, or application for a new trial, presents more difficulty. For my part I am able to put aside the respondent's attempt to suggest that the trial judge was in error in not allowing a defence based on s. 377(5) to go to the jury. If an attempt was made to apply this subsection to the facts of the present case the question would be raised whether all of the people to whom the general telecast went or was directed -- 1 of 39 -- 2 had or were believed to have had such an interest in knowing the truth, including the truth about Bellino, as would make the totality of the broadcast including the defamation of Bellino, reasonable in the circumstances. The subsection introduces the possibility of qualified privilege for communications to a different and, as it will usually be, a more restricted audience than is contemplated by subs. (8). It will not legitimately do the work by way of defence of broad public discussion of issues which subs. (8) can achieve. For the defence to succeed it would be necessary for all of the viewers to have had a real and direct personal, trade, business or social concern in the affairs of Bellino (see Telegraph Newspaper Co. Ltd. v. Bedford (1934) 50 C.L.R. 632 at 662) and this cannot be supposed. Further, under subs (5) it more clearly appears that the relevant "subject" would have been the plaintiff's alleged involvement rather than the more general topics set out by the respondent in the particulars which it provided. I consider that the trial judge was, on the evidence in this case, justified in removing sub.s (5) from the jury's consideration. The main difficulties for us are presented under subs. (8). I agree with Davies J.A. that the form in which the questions went to the jury and their rather arbitrary selection of topics and limited range presented problems which would have been better avoided. Assuming, however, that any deficiencies in the questions might have been compensated for by a sufficiently full and clear summing up -- 2 of 39 -- 3 (c.f. Davies v. Evans [1991] 2 Qd.R 498 at 506) certain difficulties remain. It has been observed that sometimes some of the matters on which the judge will have to form a view for the purpose of deciding whether a relevant occasion of qualified privilege has arisen will have to be considered again by the jury when they turn their minds to the question of good faith (see e.g. Calwell v. Ipec Aust Limited (1975) 135 C.L.R. 321 at 330 and Justin v. Associated Newspapers Ltd [1966] 86 W.N.(Pt 1) (NSW) 17 per Walsh J.A. One specific complaint made on behalf of the appellant is that the judge in the approach which he adopted took away altogether from the jury's consideration the live and important issues of relevance and extent of publication which are established as components of good faith in the final paragraph of s. 377. The judge's action in this respect followed from certain rulings he made at an earlier stage of the trial before the summing up commenced, but it sufficiently clearly appears that objection to this course was maintained by counsel for the plaintiff below and a redirection was requested to cure the effect of it and, rather belatedly, it is true, amplification of the questions was asked for at that stage. However, the trial judge did not accede to these requests. Counsel for the plaintiff below said that even if the jury answered question three, "Yes", it would not be able to deduce what they were meaning to find on the topics of relevance and extent of publication. -- 3 of 39 -- 4 In the circumstances, a very considerable burden was undoubtedly placed on the summing up by the form of the specific questions put to the jury so it is necessary to decide on its effect. As best as can be determined it seems the judge considered that he was making an appropriate distinction between his role and the jury's by himself finally deciding that there was involved in the telecast the discussion of a subject (or subjects) of public interest and by leaving to the jury the decision whether the discussion of that subject was for the public benefit. This explains why he told the jury as a matter of law that, in effect, the communication which was telecast was made in the course of or for the purposes of the discussion of some subject which was of public interest, leaving to them what he appeared to think was the distinct "public benefit" area embraced by the form of question three. When his summing up is examined it is fair to say that he directed the jury to arrive at their answer on public benefit by balancing two interests, the public benefit in informing on the general subject matters which the defendant had particularised and, on the other hand, the interest of the individual plaintiff in the protection of his reputation. Even if some policy balance of this kind might lie behind the form of the criteria selected for mention in the drafting of the qualified privilege defences in s. 377, it was not relevant for the jury to be directed in terms of those general considerations rather than in terms of the specific considerations made -- 4 of 39 -- 5 relevant by s. 377(8). To say that this misdirection favoured the plaintiff since it added a further precondition for the application of the defence, might be a proposition which was maintainable if all other matters which the plaintiff was entitled to the jury's decision on, had been correctly put to them. The pressing need in the present case was for a precise definition of the subject of public interest and the jury were not given this. Fundamental questions are whether the three topics particularised by the respondent were, for present purposes, the relevant subjects and, if they were, was the matter published, which included the defamation of the plaintiff, relevant to them. These questions can be, perhaps, helpfully confronted by selecting an example which illustrates the problem. If, say, the incidence of murder in Queensland can be accepted as being a subject of public interest, the public discussion of which is for the public benefit, is an author of an article on the topic protected if he includes in his discussion, the statement "and, by the way, X was guilty of murdering Y last year although he has never been prosecuted for the crime"? Let is be assumed that he does not disbelieve this statement and is not actuated by ill-will towards X. Does the word "relevant" in the last paragraph of s. 377 mean "has some connection in terms of topic dealt with" or does it go further and require that the defamatory aspect lies wholly within the bounds of a topic more exactly stated so that all of the material -- 5 of 39 -- 6 discussion must be the subject of public interest which it is for the public benefit to discuss. The ramifications of this distinction will be returned to later. As will appear the second alternative is favoured. In the present trial, the only matter which the judge let go to the jury under improper motive was recklessness and the only matter which he allowed them to consider under public benefit was the balancing exercise previously mentioned which departed from the criteria specified in s. 377(8). It is necessary now to look more closely at the result of the approach adopted below. The judge below made a number of rulings of either a provisional or final character as the trial proceeded. When he came to put the matter to the jury there was a limited range of issues which he entrusted to them and it became clear what the issues were that he had reserved for his own decision. Once he had accepted, as he apparently did, the respondent's "particulars" or statement of the parameters of the topic or topics which the telecast discussed, it would seem to follow fairly inevitably that those topics would be regarded as legitimate subjects of importance and public interest. But the appellant's complaint was not about that decision since the matters referred to in the particulars involve no defamation or even mention of himself. His complaint was that in discussion of those general subjects defamatory references to him were intruded. When, by the form of question number (3) the jury were asked to answer whether the discussion of the identified topics was for the -- 6 of 39 -- 7 public benefit, the answer they would give, if they acted reasonably, was almost inevitably an affirmative one. The only significant matter of contention arising under s. 377(8) that he entrusted to the jury was the issue of improper motive and on this their answer favoured the respondent. The issue of motive is only one of the ingredients in the statutory definition of "good faith" in s.377 of the Criminal Code. Indeed, the statutory adoption of a definition of good faith which includes also the issues of relevance to the identified occasion of qualified privilege and the further issue of manner and extent of publication, including these as independent headings and not just as indicators of the motive of the one who publishes, has some capacity to cause confusion when common law authorities are compared. In the context of the common law, the usual reference to good faith will be to the motive of the publisher as the words themselves on their face would tend to imply. Since, in the present case, the ambit of the issues which the judge left to the jury as compared with the full effect of the published words complained of was so restricted, it is necessary to give attention to the respective roles of judge and jury in cases arising under the Code when qualified privilege is involved. The appropriate division of roles is a matter which is now largely determined by the judgment delivered by Mason J. and agreed with by three other judges of the court in Calwell v. Ipec Aust Limited (supra). At page 330 of that judgment it -- 7 of 39 -- 8 is pointed out that, although the task of construction of the Code should be approached free of any presumption that the pre-existing common law was intended to apply, there are nevertheless insufficient clear indications in the relevant sections on the intended division of roles of judge and jury. For this reason, it was understandable that the judges should have reached the conclusion on this matter which they did in Telegraph Newspapers Co. Ltd v. Bedford (supra) and their conclusion should be accepted as correct: see per Mason J. at 330 of Calwell's case. Although the judges in Bedford were giving their attention to subs.(3), it was accepted by Mason J. that the same considerations would apply to the provision equivalent to subs. (5). It would seem to follow that the same would further equally apply to subs. (8). In Calwell's case, it was held to have been an error for the trial judge to entrust to the jury matters which he should have determined conclusively himself. I understand the effect of Mason J.'s judgment in Calwell having in mind the extent of the approval which he gives to the judgments of Starke and Evatt JJ. in Bedford is that when these defences of qualified privilege are raised, the judge should in determining whether an occasion of qualified privilege has arisen make the necessary independent decisions on relevance and manner and extent of publication as well as on the other issues of public interest and benefit and the degree of connection with any previously established topic of discussion stemming from the requirement that the -- 8 of 39 -- 9 publication should be "in the course of" that discussion. The result will be that the jury may not be asked to make determinative rulings on certain topics just mentioned but may, if the judge decides that the occasion of privilege is not lost because of a lack of relevance or undue extent of publication or on account of the other factors mentioned, have regard to some of these matters, as well as others, in the course of deciding whether it has been shown that the defendant published with "good faith" (which will often, at this point, largely revolve around the existence of improper motive - the remaining aspect of "good faith"). The judge may also seek the decision of the jury on any preliminary matters of fact needed as a basis for his determination of the matters within his province when he decides whether the defence of qualified privilege is available. These appear to be the correct conclusions notwithstanding any impression to the contrary which might be gained from s. 379 or the final paragraph of 377 if considered in isolation. The view which has been just expressed means that the judge in the present case quite correctly did not abandon to the jury the decisions on relevance and extent of publication. He did not, in fact, entrust to them decisions on these matters at all and in the circumstances there may have remained nothing for the jury to consider on them as separate issues. One of the appellant's criticisms on appeal, namely that the judge should have taken the jury's answer on these two topics, need not be accepted, but this does not mean that the determinations made by the judge upon -- 9 of 39 -- 10 the matters within his province, escape scrutiny. If errors occurred in this area, there will be implications for the form of relief to which the appellant may be entitled, for instance, he may be entitled to judgment on the basis that the defence of qualified privilege is not available at all rather than being entitled merely to a new trial. Even assuming for the moment that the improper motive ingredient of "good faith" was properly placed before the jury (and the appellant does not concede this) if the defence of qualified privilege under subs. (8) was not available on the facts of this case, then the defence fails and the respondent will not be assisted by the jury's finding on the aspect of good faith which was left to them. It is necessary to reach a conclusion on the correctness of the judge's ruling that subs. (8) was available as a defence and at this point of the discussion the issues raised in connection with the "murder" example mentioned earlier are pertinent. Prior to the telecast referred to in the proceedings, there was no relevant public interest established in the affairs of the appellant. The question then is, was the respondent justified in terms of the subsection in intruding into a discussion of the general topics which it identified in its particulars, a reference to the alleged involvement of the appellant? An answer similar to that given in Bedford's case (supra) must be given here. It cannot be accepted that a wide telecast to the general public of any beliefs or suspicious entertained by the respondent about -- 10 of 39 -- 11 the appellant could attract qualified privilege. Mere curiosity in the viewer is not enough to attract a defence of qualified privilege and the viewers indiscriminately addressed in the telecast could not all have a legitimate interest in how the appellant, a private individual, conducted his affairs. There was no preceding discussion of the appellant's affairs going on and for the defence to be available there would have been a need for this: see per Latham C.J. and Dixon J in Loveday v. Sun Newspapers Ltd (1938) 59 C.L.R. 503 referred to by Windeyer J in Uren's case, (1966) 117 C.L.R. 185 at 209, i.e., the publication was not "in the course of" the discussion of such a matter which was already proceeding. The 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 were of a quite general character: see Uren's case (supra) per Windeyer J. at 209, Truth (NZ) Ltd v. Holloway [1960] N.Z.L.R. 69 at 83, Adam v. Ward [1917] A.C. 309 per Lord Loreburn at 320-321 and The result is that it should have been held below that no relevant privileged occasion arose and hence the defence of qualified privilege failed. In the eventuality that the defence should be held to fail, the respondent challenges the award of damages as being excessive especially since special and aggravated damages were excluded in the jury's assessment. In view of the decision which I would reach on this topic, namely that there must be a retrial on damages, and if that view were to -- 11 of 39 -- 12 prevail in this court, it would be undesirable to say a great deal more. Extremely serious though the allegations against the appellant and grievous though the defamations were, the amount assessed by the jury should be regarded as excessive. This conclusion is fortified in view of the principles recently expounded by the High Court in Carson v. John Fairfax & Sons Ltd, 67 (1993) A.L.J.R., 634. My view is that there should be an order for a new trial but it should be limited to the issue of general damages. On any retrial the judge would have the greater freedom to assist the jury on quantum which comes from the statements in Carson's case (supra). I would allow the appeal on this basis. -- 12 of 39 -- 13 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 270 of 1992 Brisbane Before The Chief Justice Mr Justice Davies Mr Justice Demack [Bellino v. Australian Broadcasting Commission] BETWEEN: VINCENZO BELLINO (Plaintiff) Appellant AND: AUSTRALIAN BROADCASTING COMMISSION (Defendant) Respondent REASONS FOR JUDGMENT - DAVIES J.A. Judgment delivered 13/05/1994 The appellant was the unsuccessful plaintiff in an action before a judge and jury for damages for defamation against the respondent. Although the jury assessed damages at $750,000 the respondent, on the basis of answers given by the jury to other questions asked, moved for judgment. The motion was unopposed and judgment was given for the respondent. This is the first judgment against which this appeal is brought. The appellant later sought to set aside that judgment on the basis of evidence which he sought to adduce from three of the jurors as to the intention of the jury when it answered the questions asked. The learned trial judge refused that -- 13 of 39 -- 14 application and the appellant also appeals against that refusal. In his amended notice of appeal the appellant appeals against the first judgment on six grounds. Apart from general grounds, these focus on two matters: the formulation of question 3 of the questions asked of the jury, together with the learned trial judge's directions on that question; and his Honour's directions on good faith as an element of qualified protection under s. 377 of the Criminal Code. The jury concluded that words and pictures published by the respondent in a television programme called "The Moonlight State" broadcast on 11 and 17 May 1987 were defamatory of the appellant. They found that those words and pictures meant that: - the appellant was a person who either individually or as a member of a syndicate obtained protection from the police or other bodies; - the appellant was a person who either individually or as a member of a syndicate was involved in the sale, manufacture, possession, cultivation and/or importation of dangerous drugs; and - the appellant was a person who either individually or as a member of a syndicate was immune from prosecution as a result of either political or police favour obtained either by bribery or corrupt practices. -- 14 of 39 -- 15 Question 3, which the jury answered in the affirmative, was in the following terms: "Was the public discussion of the subject or subjects of public interest for the public benefit?" That question was asked because of the respondent's defence in reliance on s. 377(8) of the Code which provides: "377. It is a lawful excuse for the publication of defamatory matter -... (8) if the publication is made in good faith in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair." The learned trial judge decided that the publication of the defamatory matter was made in the course of, or for the purposes of, the discussion of some subject of public interest. His Honour said: "I direct you as a matter of law that the publication of defamatory matter concerning the plaintiff was made in the course of, or for the purposes of discussion of a subject of public interest." He did not say expressly what that subject was. The appellant did not, before this Court, dispute the trial judge's right to determine that question or his conclusion on it. The appellant's objection to question 3 and to his Honour's directions with respect to it is that the subject or subjects of public interest to which the question relates was or were not clearly identified. The subjects of public -- 15 of 39 -- 16 interest, within the meaning of those words in sub-s. (8), were particularised by the respondent as: (a) organised crime and corruption in Queensland and/or allegations made in relation thereto; (b) the existence of, and/or protection of, illegal activities, and/or allegations made in relation thereto; and (c) trafficking in illegal drugs and/or allegations made in relation thereto. The appellant contended that his Honour did not indicate to the jury what the subject or subjects of public interest were to which the question related. None are identified in the question and, according to the appellant, although the learned trial judge mentioned, in the course of giving directions, each of the subjects particularised by the respondent, he did not indicate which of these he concluded were subjects in the course of or for the purposes of the discussion of which the publication was made. The direction which I have quoted above indicates that there was only one such subject of public interest. On the other hand, others of his Honour's directions appear to indicate that he had concluded that each of the subjects particularised was a subject of public interest in the course of or for the purposes of the discussion of which the publication was made; and that the phrase "subject or subjects" in the question merely left the jury free to -- 16 of 39 -- 17 determine whether the public discussion of any of those subjects was for the public benefit. If each was a subject of public interest in the course of or for the purposes of the discussion of which the publication was made, it was sufficient to bring the case with the prima facie protection of sub-s.(8) if the public discussion of any one of them was for the public benefit. In my view, his Honour should have directed the jury in clear terms that each of the subjects particularised by the respondent was a subject of public interest in the course of or for the purposes of the discussion of which the publication of defamatory matter concerning the appellant was made; and a question should have been asked in respect of each such subject whether the public discussion of it was for the public benefit. If his Honour's directions were intended to convey that view and question 3 was intended to ask those questions, neither was clearly expressed. However I do not think that a reasonable jury could have concluded that any of the subjects particularised by the respondent was not a subject the public discussion of which was for the public benefit. Consequently even if his Honour's direction was, in effect, that the publication was made in the course of or for the purposes of the discussion of one but not the others of the subjects particularised by the respondent, I think that the jury's answer to question 3 must have been "yes". -- 17 of 39 -- 18 A quite different source of confusion in the present case was the reference, more than once by the learned trial judge in the course of his summing up on question 3, to the appellant's involvement in the activities which constituted the subjects of public interest; so that it was open to the jury to infer either that the subjects of public interest were not each of the activities particularised by the respondent and set out above, but the appellant's involvement in each of those activities; or that, given that the subjects were the activities particularised, the jury were required nevertheless to say whether public discussion of the appellant's involvement in those activities was for the public benefit. For example, his Honour said: "You have to consider it in this way, you look at the effect of the making of the most serious allegations against the plaintiff with its effects 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 of illegal activities and trafficking in illegal drugs. The ABC's case is that there is public benefit in those allegations being publicly discussed." This passage is one of those in which his Honour invited the jury, in determining the question of public benefit under sub-s.(8) to conduct a balancing exercise. He returned to this theme a little later in his summing up. There he said: "As I said at the beginning of this discussion of this aspect of the case, the defendant must prove on the balance of probabilities that public discussion of the subject or subjects of interest involved were for the public benefit. As I have told you, the underlying principle is that the law recognises that there are occasions where publications made in good faith, even though not proved to be true, are protected. This occurs if the public convenience and general welfare of -- 18 of 39 -- 19 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 intact. If, when you balance the two competing notions, you find yourself satisfied that it was overall more important that the public know that there was evidence of corruption or of a widespread or institutional kind but also that there was evidence that the plaintiff was a person involved in a serious way than to broadcast the programme without naming those involved in corrupting the police force you would find that the defendant had made out that public discussion of the subjects of organised crime protection of illegal activities and trafficking in illegal drugs were for the public interest." I should say that in introducing the appellant's involvement in the activities particularised by the respondent his Honour was acceding to submissions of the appellant. The respondent also, in its address to the jury, paraphrased question 3 as "whether the subject matter of the publication, the alleged involvement of the plaintiff in those various serious illegal activities, was proper for the public to know". Notwithstanding this, the respondent conceded before us that his Honour's statement of this balancing exercise in the context of whether the public discussion of a subject was for the public benefit, was wrong. However, it submitted that the direction favoured the appellant. Looked at only in this context, that submission is correct: whilst it is clear that the public discussion of any of the subjects particularised above is -- 19 of 39 -- 20 for the public benefit, it may not be so clear that the public discussion of the involvement of a particular individual, in this case the appellant, in those activities is for the public benefit. However, the introduction of the appellant's involvement in these activities into consideration of this question, together with the way in which the question of good faith was pleaded and argued (to which we refer below) may have contributed to his Honour's failure to consider whether identification of the appellant 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. In the court below the respondent also relied on sub-ss (3) and (5) of s. 377. Both were rejected by the learned trial judge. Before us the respondent contended that the learned trial judge should not have withdrawn the defence under s. 377(5) from the jury. That may well be correct. Section 377(5) provides: "377. It is a lawful excuse for the publication of defamatory matter -... (5) 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 believed, on reasonable grounds, 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." The subjects, within the meaning of the above provision, were particularised by the respondent as the same subjects -- 20 of 39 -- 21 as it particularised with respect to sub-s. (8), that is: (a) organised crime and corruption in Queensland and/or allegations made in relation thereto; (b) the existence of, and/or protection of, illegal activities, and/or allegations made in relation thereto; and (c) trafficking in illegal drugs and/or allegations made in relation thereto. Nevertheless his Honour, in ruling that there was no case of qualified protection under sub-s. (5), defined the subject or subjects as the appellant's involvement in some of the activities particularised. Had he realised that the subjects were the activities, not the appellant's involvement in any of them, he may have found a prima facie case of qualified protection, that is, subject to the question of good faith. Moreover, as with his consideration of sub-s. (8), the introduction of the appellant's involvement in these activities into consideration of this question may have contributed to his Honour's failure to consider whether identification of the appellant 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. I turn now to the question of good faith. Section 377 defines "good faith" in the following way: -- 21 of 39 -- 22 "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 does 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." It is helpful first to examine the way in which the appellant presented his case in the court below on the issue of good faith. The appellant in his amended reply denied that the publication was made in good faith and alleged that it was actuated by improper motive, that the manner and extent of the publication exceeded what was reasonably sufficient for the occasion, and that the material broadcast concerning the appellant was not relevant to the subjects of public interest the discussion of which was relied upon by the respondent to excuse the publication. At the trial, the appellant's submissions on improper motive were limited to the assertion that the respondent made the publication recklessly, in particular that it failed to make relevant inquiries or check certain information in the programme. Further, it became clear at trial that the appellant's arguments concerning the manner and extent of the publication and the relevance of material in it were based upon the fact that the programme had identified the appellant by name in a context in which other persons involved and known by name were not so identified. -- 22 of 39 -- 23 Of the questions asked of the jury only one, question 4, went to good faith. It was in the following terms: "If 'yes' to Questions 1 and 2, was the Defendant actuated by an improper motive to the Plaintiff in publishing the defamatory matter?" The jury answered this question in the negative. Question 1 had been whether the words and pictures were defamatory of the plaintiff, which, as I have said, was answered in the affirmative, and question 2 asked a number of specific questions as to the meaning of the words and pictures published, and the jury's affirmative answers to three of those questions constituted the three findings which I set out earlier in these reasons. In accordance with the appellant's submissions in the court below, his Honour summed up to the jury on the basis that improper motive involved only the issue of recklessness. It may be doubted, having regard to the express words in the definition of "good faith" in s. 377, "and does not believe the defamatory matter to be untrue", whether recklessness can constitute improper motive under that section. See, however, Australian Consolidated Press Ltd v. Uren (1966) 117 C.L.R. 185 at 209-210; Clines v. Australian Consolidated Press Ltd (1966) 84 W.N.(Pt. 2) (N.S.W.) 86 at 99-100, 101; Sinclair v. Bjelke-Petersen [1984] 1 Qd.R. 484 at 500-501; contra Queensland Newspapers Pty Ltd v. Baker [1937] St.R.Qd. 153 at 167-8. It is unnecessary to consider this question as his Honour's summing up on this question was not -- 23 of 39 -- 24 attacked on appeal. The appellant's grounds of appeal related specifically to the "relevance" issue and the "excessiveness" issue; and also to one aspect of improper motive, namely that his Honour erred in directing the jury that "it must be clearly demonstrated that there was an improper motive before the onus on the plaintiff to prove the absence of good faith can be discharged". This last ground related only to the standard of proof and I do not think that there is any substance in it. If mention of the appellant by name was a matter to be considered by the jury, it can only have been because it was evidence of improper motive, given the exclusion from the published matter of the names of others involved whose names were known to the respondent. It cannot have been because the matter published was not relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter. And it cannot have been because the manner and extent of publication exceeded what was reasonably sufficient for the occasion. As to relevance, the structure of the programme was to present a chronological account of allegations of corruption in the Queensland Police Force, to show the hierarchical structure of the corruption and to show, by the example of the Bellinos, how the structure extended from the Gold Coast -- 24 of 39 -- 25 through Brisbane to North Queensland. The allegation against the appellant was that he took a leading part in the drug trade and aspects of police corruption. The question is not whether it was necessary to name him but whether it was relevant to do so. As it was his family which made the connection between North Queensland and the south it was relevant. His Honour was entitled to withdraw that question from the jury. 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". In this context the word "manner" has been construed as being concerned with the form of language and print, including any violence, exaggeration, recklessness or carelessness in the phraseology used; while "extent" has been construed as addressing the breadth of the publication: see Queensland Newspapers Pty Ltd v. Baker [1937] St.R.Qd. 153 at 168; Rigby v. Associated Newspapers Ltd (1966) 68 S.R.(N.S.W.) 414 at 426; Clines v. Australian Consolidated Press Ltd (supra) at 97; Bridges v. Australian Consolidated Press Ltd (1967) 70 S.R.(N.S.W.) 52; Rigby v. Associated Newspapers Ltd [1969] 1 N.S.W.R. 729 at 731; Plumb v. Australian Consolidated Press Ltd [1975] 2 N.S.W.L.R. 414 at 430. See however Pervan v. The North Queensland Newspaper Co. Ltd (1991) Aust. Torts Rep. 81-119 at 69, 125-6. There was no complaint here about the way in which the appellant was named; it was the fact that he was -- 25 of 39 -- 26 which formed the basis of the complaint. Nor was any complaint made about the breadth of the publication. His Honour was therefore entitled to withdraw manner and extent from consideration by the jury. It is arguable, I think, that reference to the appellant by name and the exclusion from the matter published of the names of others involved was evidence upon which the jury could have concluded improper motive. Question 4 was wide enough to encompass this but his Honour's direction on improper motive was not. That is not to say that the question was sufficiently specific to deal with this issue. Plainly it was not. If it is accepted that this question was one for the jury it 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. The way in which the case was conducted below and in this Court precluded consideration of this question. Although the appellant's amended reply alleged improper motive, the particulars of improper motive did not relate to the naming of the appellant. Rather, the amended reply asserted that naming the plaintiff went beyond what was necessary for the occasion only in particularising the allegations concerning manner and extent. As I indicated earlier, at trial the appellant also contended that naming him was not relevant to the matters the existence of which might excuse the -- 26 of 39 -- 27 publication. There he further contended either that the appellant's involvement in the activities particularised by the respondent was, in each case, the relevant subject of public interest or that, if the relevant subjects of public interest were those activities particularised by the respondent, the question for the jury was whether the public discussion of the appellant's involvement in those activities was for the public benefit. Nor did the notice of appeal or the appellant's contentions in this Court raise this question. It is not clear whether the appellant's failure to raise this question was deliberate. The question then is whether this Court should order a new trial upon a question which was not pleaded or argued below and was not raised in this Court. This is not a case where a party has merely failed to refine a point or formulate it specifically; the point was simply not taken at all. Moreover it was the appellant who suggested below that question 3 be put in the form: "Was the public discussion of the plaintiff a matter of public interest for the public benefit?" Clearly this Court could not order a new trial on such a question without hearing from the respondent. But I do not think that there is any justification for ordering a new trial upon a ground which was neither alleged nor argued -- 27 of 39 -- 28 below and which was not sought in this Court. As there is no reason to grant a retrial on any of the grounds sought, the first appeal should, in my view, be dismissed. In the second appeal, the appellant conceded that the decision of the Full Court of Queensland in Evans v. Davies [1991] 2 Qd.R. 498 was indistinguishable from this case. Nor did he argue that that decision should be overruled by this Court. The point was taken, as I understand it, to preserve the appellant's rights should this matter go further. In the absence of argument on this appeal I see no reason to depart from the reasoning or conclusion in Evans. This appeal should also therefore be dismissed. -- 28 of 39 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 270 of 1992 Brisbane [Bellino v. Australian Broadcasting Commission] BETWEEN: VINCENZO BELLINO (Plaintiff) Appellant AND: AUSTRALIAN BROADCASTING COMMISSION (Defendant) Respondent ____________________________________________________________ _____ MACROSSAN C.J. DAVIES J.A. DEMACK J. ____________________________________________________________ _____ Judgment delivered 13/05/1994 SEPARATE REASONS FOR JUDGMENT DELIVERED BY THE CHIEF JUSTICE, DAVIES J.A. AND DEMACK J. DAVIES J.A. AND DEMACK J. CONCURRING AS TO THE ORDERS MADE. SEPARATE REASONS OF THE CHIEF JUSTICE, DISSENTING ON THE APPEAL FROM THE JUDGMENT OF 24 NOVEMBER 1992, CONCURRING ON THE APPEAL FROM THE RULING OF 1 DECEMBER 1992. ____________________________________________________________ _____ APPEAL DISMISSED WITH COSTS. ____________________________________________________________ _____ CATCHWORDS: DEFAMATION - QUALIFIED PROTECTION - trial judge's formulation of question and directions to the jury - identification of subjects of public interest - matters of public discussion - s. 377(8) Criminal Code (Qld) QUALIFIED PROTECTION - whether trial judge erred in withdrawing defence from jury - s. 377(5) Criminal Code (Qld) GOOD FAITH - publication identified appellant by name in context of others involved and known by name not so identified - evidence of improper motive - whether manner and extent of publication 'excessive' - whether naming -- 29 of 39 -- 30 of appellant relevant to public discussion - s. 377 Criminal Code (Qld) APPEAL AND NEW TRIAL - application to set aside judgment - whether evidence of jurors as to their intention admissible Counsel: C.E.K. Hampson Q.C. with him P.C. Jensen for the Appellant R. Mulholland Q.C. with him D. Boddice for the Respondent Solicitors: Messrs Myles Thomson for the Appellant Messrs Biggs & Biggs Francis and MacGregor for the Respondent Date(s) of Hearing: 16 and 17 June 1993 -- 30 of 39 -- 31 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal Brisbane Before The Chief Justice Mr Justice Davies Mr Justice Demack [Bellino v. Australian Broadcasting Commission] BETWEEN: VINCENZO BELLINO (Plaintiff) Appellant AND: AUSTRALIAN BROADCASTING COMMISSION (Defendant) Respondent REASONS FOR JUDGMENT - DEMACK J. Judgment delivered 13/05/1994 On 11 May 1987, the Australian Broadcasting Corporation (the "ABC") telecast a program called "The Moonlight State". The program dealt with organised crime and corruption in Queensland. It named certain people who were said to be involved, including Vincenzo Bellino ("Bellino"). Included in the telecast was a statement to the effect that Bellino denied involvement in corruption and also denied any business association with his Brisbane based brothers Gerald and Antonio. Bellino lived in Cairns. In 1991, Bellino sued the ABC for defamation. By then a Royal Commission had found widespread corruption. Various people had been charged, but not Bellino. -- 31 of 39 -- 32 In its defence, the ABC raised pleas under s. 377(3), (5) and (8) of the Criminal Code. In his reply to the s. 377(8) plea, Bellino asserted in respect of the manner and extent of the telecast that it exceeded what was reasonably necessary by naming him, in that this was not necessary to any proper publication relating to the subject matters detailed in the defence. The particulars which had been given of the subjects were:- "(a) Organised crime and corruption in Queensland and/or allegations made in relation thereto; (b) the existence of, and/or protection of, illegal activities, and/or allegations made in relation thereto; (c) trafficking in illegal drugs and/or allegations made in relation thereto." The trial was a lengthy one, and, at the end, various questions were left to the jury. They found that the telecast was defamatory of Bellino in three particulars: (i) The Plaintiff was a person who either individually or as a member of a syndicate obtained protection from the police or other bodies, (ii) The Plaintiff was a person who either individually or as a member of a syndicate was involved in the sale, manufacture, possession, cultivation and/or importation of dangerous drugs, (iii) The Plaintiff was a person who either individually or as a member of a syndicate was immune from prosecution as a result of either political or police favour obtained either by bribery or corrupt practices. Question 3, which has become very significant, and which was answered in the affirmative, reads: "Was the public discussion of the subject or subjects of public interest for the public benefit?" -- 32 of 39 -- 33 The jury found that the ABC was not actuated by any improper motive to Bellino in publishing the defamatory matter. It assessed damages at $750,000. It said this amount did not include aggravated damages. It found Bellino had not suffered any special damage, and that the ABC had not published the defamatory matter in contumelious disregard for Bellino's rights. In the course of the trial various rulings were made by the trial judge about the issues pleaded. Various criticisms were made in the course of the hearing of the appeal, but it seems to me that the issues left to the jury fairly indicate the matters where factual issues were in dispute. From the point of view of the defence, the remaining plea was that under s. 377(8). The difficult issue left to the trial Judge, and the issue that has given difficulty on appeal is the respective roles of Judge and jury in determining the fate of a plea under any of the subsections of s. 377. The first significant case for present purposes is Telegraph Newspaper Co. Ltd v. Bedford (1934) 50 C.L.R. 632. That appeal concerned s. 377(3) and (5), but as subsequent cases have shown, the observations made in that case should be applied to all the subsections of s. 377: Australian Consolidated Press Ltd v. Uren (166) 117 C.L.R. 185, at p. 208; Clines v. Australian Consolidated Press Ltd (1966) 84 WN (Pt 2) N.S.W. 86; Justin v. Associated Newspapers Ltd (1966) 86 WN (Pt 2) 17 at p. 34 and -- 33 of 39 -- 34 Caldwell v. IPEC Australia Limited (1975) 135 C.L.R. 321. It follows from Bedford's case that the availability of any of the pleas under s. 377 is a matter for the Judge, any relevant facts that are in dispute being found by the jury (p. 64 and p. 658). This appeal, in my opinion, turns on the question whether it was relevant to the subjects discussed in "The Moonlight State" to name Bellino. That is the issue which was raised from the outset in the pleadings and it was the issue which remained obvious at the end of the appeal. As it came before the trial Judge, it was raised as a matter that went to the issue of the manner and extent of the publication, i.e. to the issue of good faith. However, it was a matter for the Judge to determine whether it was relevant to the discussion of the subject or subjects of public interest. Unless it was relevant to that, privilege could not arise. In my opinion, the most helpful discussion of this issue is in the judgment of Walsh J. in Justin v. Associated Newspapers Ltd. The defendant published newspapers, "Daily Mirror" and "The Sun". The plaintiff, on the day he resigned, gave an interview to a reporter in which he made strong criticisms of the conditions under which he worked at the city morgue. These were published in the "Daily Mirror". Later in the same day, "The Sun" made no reference to the article in the "Daily Mirror", but published the statement that the plaintiff had resigned and had become a voluntary patient at a mental hospital. The -- 34 of 39 -- 35 defendant sought to rely on s. 17(h), the equivalent of s. 377(8), in effect claiming that the disclosure of the plaintiff's mental state was made in the course of a discussion of a subject of public interest. At p. 36, Walsh J said: "Even if the publication had cast doubt on the criticisms and had used the facts about the plaintiff's entry into a mental institution as a supporting argument, it may be questioned whether there was any sufficient nexus between a legitimate reply to the criticisms and the references to the plaintiff to bring the latter into the area of privilege. If it is said that, to refer to this question, is to introduce prematurely the question of "relevance" and that it belongs properly to the consideration of good faith, the answer is that "relevance" of the kind which I am here discussing was at common law treated as an element in deciding the "privileged occasion" question. It was so treated also, in Bedford's case [(1934) 50 C.L.R. 632], in relation to the statutory provision corresponding to s. 17(c) in which, as I have said, it was laid down that the Judge should make his decision with the common-law principles in mind. The reference to relevance in the provision defining good faith, coupled with decisions which show that "relevance" can play a part in determining the prior question of privilege, creates a difficulty. But it may be pointed out that the decisions do recognise that "relevance" may have a bearing also on the question of malice. The introduction of "extraneous matter" may have a double effect, the first being that the publication of the extraneous matter is not privileged at all, and the second being that it may afford evidence of malice which takes away the protection in relation to the simultaneous communication of other matter to which privilege would otherwise attach. See Adam v. Ward [(1917) A.C. 309, at p. 318], per Lord Finlay L.C., and compare pp. 326-327, where a different view seems to be preferred by Lord Dunedin, namely, that the whole document is privileged but the extraneous matter may be evidence of "express malice". The view expressed by Lord Finlay seems to have been adopted at p. 321 by Earl Loreburn, at p. 340 by Lord Atkinson (who referred to this as a difficult question on which the authorities gave little or no assistance), and at p. 348 by Lord Shaw and, more importantly for present purposes, in -- 35 of 39 -- 36 Bedford's case [(1934) 50 C.L.R. 532]. It may be that, when the terms of s. 17 were originally inserted in the Queensland code, when the law on this point was not settled, the author accepted the view that the inclusion of extraneous matter in a communication made on a privileged occasion was important only on the question of malice. It is provided by s. 19 that, whether any defamatory matter is or is not relevant to any other matter, is a question of fact. If a publication is made, part of which satisfies the conditions of some paragraph in s. 17, but part of which is defamatory and is unrelated to those conditions, it might be said that a determination that the latter part falls outside the protection a determination that it is not "relevant" to the matter which does satisfy the conditions required for protection and that this is a question of fact. But, if this suggestion were adopted, it would seem to be inconsistent with the approach made in Bedford's case [(1934) 50 C.L.R. 632, at p. 647]. It is there stated by Starke J. that a publication relating to matters affecting the public good may contain defamatory statements having no relevance thereto and consequently falling outside the protection given by the Act and it is a function of the judge to determine whether the defendant has published anything outside that protection. Apart from authority, it might have been said that the provision in s. 19 indicates that the respective functions of judge and jury in a case in which s. 17 is raised cannot be ascertained simply by adopting the rule of the common law. But, as it has been held that that is how they should be ascertained, it seems necessary to treat s. 19 as applying only to a question of relevance which arises under the definition of good faith, and as having no application to the question whether a publication is extraneous or foreign in such a way as to take it outside the area of any protection. At least I think it is necessary to take it as being established that the presence in the Act of s. 19 does not preclude the judge from ruling that a publication is extraneous to the matters which are relied upon by a defendant as providing a lawful excuse for the publication and from ruling for that reason that it is not protected." (underling added) The facts here are very different from those in Justin. "The Moonlight State" referred to a number of allegations and events which pointed to widespread crime and -- 36 of 39 -- 37 corruption, to protection of offenders and to trafficking in illegal drugs, that is, to the matters covered by the particulars of the subjects of public interest. Included among these was a reference to the naming of Bellino in Parliament, where he was said to have been one of the Queensland Mafia (vol 2, part 1, p. 14). The naming of a person in Parliament as someone who has connections with organised crime gives wide currency to that assertion: compare Adam v. Ward [1917] A.C. 309. "The Moonlight State" also purported to identify Bellino as "The Marble Man" who was alleged to be able to stop police investigation, including an investigation into the production of marijuana, at a marble mine conducted by Bellino. The particulars which the ABC gave of the subjects of public interest did not assert that the public discussion of Bellino's involvement was for the public benefit. However, as he had been named in Parliament as a person involved in these matters, the public discussion of the subjects might fairly include a reference to him. It is at this point that the careful weighing of the competing public and private interests is important, see generally the judgment of Evatt J. in Telegraph Newspaper Co. Ltd v. Bedford (1934) 50 C.L.R. 632. While the allegations in Parliament had been made years before, the effect of the references to Bellino both in Parliament and later was to emphasise that the alleged corruption was widespread in time and in region, and was resistant to public exposure. The decision of the High Court in Pervan v. -- 37 of 39 -- 38 North Queensland Newspaper Co. Ltd (1993) 117 A.L.R. 569 illustrates how the discussion of a subject of public interest in Parliament establishes some of the context in which relevance is to be determined for present purposes. One of the issues where the majority of the High Court disagreed with the Full Court was on the categorisation of the first two sentences in the defamatory advertisement. Both were questions, but were treated by the Full Court as statements of fact and by the High Court as comment. Once it is clear, as the majority in the High Court thought it was clear, that the allegations of misuse of funds made in Parliament were being raised for consideration in the public arena (p. 573) the questions are clearly comments. In other words, the publication of matters raised in Parliament is not a relevant consideration under s. 374 alone. A reference to a matter raised in Parliament may be relevant to the public discussion of a much wider issue. In my opinion the naming of Bellino in the telecast was relevant to the particularised subjects of public interest the discussion of which was for the public benefit. This means that the plea under s. 377(8) is properly raised by the ABC. The factual issues were left to the jury. They found the public discussion was for the public benefit. They found there was no improper motive, the essential finding on the issue of good faith. In the circumstances the appeal should be dismissed with costs. The appeal which relates to the refusal to hear submissions based on the jury's reaction to the verdict -- 38 of 39 -- 39 should also be dismissed with costs. -- 39 of 39 --