Bellino v Australian Broadcasting Corporation
[1998] QCA 113
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- Bellino v Australian Broadcasting Corporation[1998] QCA 113
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Bellino v Australian Broadcasting Corporation[1998] QCA 113
Bellino v Australian Broadcasting Corporation[1998] QCA 113
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 51 of 1997
Brisbane
[Bellino v. A.B.C.]
BETWEEN:
VINCENZO BELLINO
(Plaintiff) Appellant
AND:
AUSTRALIAN BROADCASTING CORPORATION
(Defendant) Respondent
McPherson J.A.
Pincus J.A.
Williams J.
Judgment delivered 2 June 1998
Separate reasons for judgment of each member of the Court; each concurring as to the orders made.
APPLICATION TO AMEND NOTICE OF APPEAL BY ADDING GROUNDS REFUSED.
APPEAL DISMISSED WITH COSTS.
CATCHWORDS: | CIVIL - DEFAMATION - Section 377, 377(8) Criminal Code ss. 16(1)(h), 16(2) Defamation Act 1889 - Whether verdict of jury should be set aside - Whether the manner and extent of publication exceeded what was reasonably sufficient - Whether it was necessary to name the plaintiff in the publication - Whether in publishing the defamatory matter the defendant was actuated by ill will to the person defamed or by any other improper motive and did not believe the defamatory matter to be untrue - Whether the provisions of s. 16(2) are an exhaustive statement of the meaning and context of good faith for the proposes of s. 16(1)(h). |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 51 of 1997
Brisbane
Before McPherson JA
Pincus JA
Williams J
[Bellino v. A.B.C.]
BETWEEN:
VINCENZO BELLINO
(Plaintiff) Appellant
AND:
AUSTRALIAN BROADCASTING CORPORATION
(Defendant) Respondent
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered 2 June 1998
This is an appeal against a judgment given in favour of the defendant following a trial before Ambrose J. and a jury of an action for damages for defamation brought by the plaintiff, who is the appellant in this Court. The trial occupied some 14 sitting days in the Circuit Court at Cairns, at the conclusion of which the jury answered certain specific questions put to them by his Honour. It was the second trial of the action, the first having ended in an order for a retrial after a successful appeal to the High Court, which is reported as Bellino v. Australian Broadcasting Corporation (1996) 185 C.L.R. 183. It is pertinent to add that the evidence at the first trial was very largely repeated at the second trial; or so it was said by counsel for the respondent on appeal.
The action arose out of a “Four Corners” television programme, of which the author or creator was a Mr Chris Masters, which was broadcast nationally by the defendant on 11 May 1987 and repeated on 17 May 1987. Its theme was that there was corruption in senior levels of the police in Queensland; that in return for bribes senior officers were providing protection from prosecution for various illegal activities, such as gaming, prostitution, and drug cultivation or importation and distribution; and that the Queensland Government were acquiescing in or standing passively by while such misconduct took place.
The jury, by their answer to question 1, found that the programme, which was entitled The Moonlight State, was defamatory of the plaintiff; and, by their answers to question 2, that it meant: (a) that the plaintiff was a member of a group which was involved in criminal activities; (d) that he was a person who obtained protection from police or politicians; (e) that he was involved in the sale, cultivation, etc. of dangerous drugs; and (g) that he was a member of the Mafia or similar criminal organisation. They answered “No” to a number of other parts of question 2, including question 2(b), which was that the plaintiff was a person who bribed or offered bribes to members of the police force.
The defence relied wholly or partly on the provisions of s. 377(8) and the final paragraph of s. 377 of the Criminal Code or (as by the date of the trial they had become) s. 16(1)(h) and s. 16(2) of the Defamation Act 1889. That change was effected in December 1995 by a legislative amendment or reshuffle, which moved those provisions from the Criminal Code and relocated them in the Act; but the terms of the provisions remained in all material respects unaffected by the change. Section 16(1) makes it a lawful excuse for the publication of defamatory matter:
“(h)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.
Section 16(2) is as follows:
“(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 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 should be added that the effect of s. 17 of the Act (s. 378 of the Code) is in this instance to impose the burden of proving absence of good faith on the plaintiff.
With these provisions in mind, it is possible to return to the answers given by the jury at the trial. Their answer to question 3(a) was that the public discussion of the public administration of the Queensland Police Force under Commissioner Lewis was for the public benefit; (b) that the public discussion of the alleged conduct of members of that Force who were involved in the protection of prostitution, illegal gambling and illegal drug activities was for the public benefit, as also (c) was the public discussion of the alleged conduct of the Queensland Government in its sanctioning of or non‑interference with police corruption and persons engaged in such activities.
There is no dispute about these matters. For present purposes the critical two answers are those given by the jury to questions 4(a) and 4(b), which it is desirable to set out in full:
“4(a).Did the manner and extent of the programme exceed what was reasonably sufficient for the occasion?
Answer: No.”
“4(b).Was the defendant actuated by ill will to the plaintiff or by any other improper motive in making the publication?
Answer: No.”
It was on the basis of those two answers that judgment was, without opposition from the plaintiff, entered for the defendant.
The plaintiff now appeals against the verdict and judgment. Subject to one qualification to be considered later, the amended grounds of appeal are as follows:
“1.The decision of the jury in finding that the publication was protected by qualified privilege was a decision which no reasonable jury could reach.
Particulars
- A reasonable jury could only find the manner and extent of the publication exceeded what was reasonably sufficient for the occasion.
- A reasonable jury could only find that the respondent acted in an absence of good faith.
- A reasonable [jury] could not have found: -
- that the respondent had reasonable grounds for believing that the imputations were true;
- that the respondent took proper steps so far as they were reasonably open to verify the accuracy of the material;
- the respondent sought a response from the appellant in any meaningful way or gave the appellant a reasonable opportunity to respond.
- The decision of the jury was contrary to and/or against the weight of the evidence.
Particulars
- The evidence of the witness Masters and the publication itself clearly disclosed that what was published was more than what was reasonably sufficient for the occasion, namely the discussion of:-
- the administration of the Queensland Police Force under Commissioner Lewis;
- the alleged conduct of members of the Queensland Police Force who were involved in the protection of prostitution, illegal gambling and illegal drug activities; and
- the alleged conduct of the Queensland Government in its sanctioning of, or non‑interference with police corruption and persons engaged in prostitution, illegal gambling and illegal drug activities.
- The evidence of the witness Masters disclosed that he failed to duly inquire prior to the publication.
- Further, in light of the decision in David Russell Lange v Australian Broadcasting Corporation (High Court of Australia, 8th July 1997) a reasonable jury could not have found that: -
- the respondent had reasonable grounds for believing the imputations were true;
- the respondent took proper steps so far as they were reasonably open to verify the accuracy of the material;
- the respondent sought a response in any meaningful way from the appellant or gave the appellant a reasonable opportunity to respond.
- The learned trial judge failed to direct the jury that the respondent's conduct in publishing material giving rise to a defamatory imputation would not be reasonable unless:-
- the respondent had reasonable grounds for believing the imputations were true;
- the respondent took proper steps so far as they were reasonably open to verify the accuracy of the material;
- the respondent sought a response in any meaningful way from the appellant or gave the appellant a reasonable opportunity to respond.
- The learned trial judge misdirected the jury that, in looking at the question of absence of good faith, they should take into account that such a finding will have a serious consequence in public perception of the person involved, that is, Mr Masters.
- The amount of damages assessed by the jury was manifestly inadequate in that no reasonable jury ought to have assessed such damages in the sum of $90,000.00 in the light of the imputations found to have been made by the jury and of the admitted extent of the publication.
- No reasonable jury could have failed to award exemplary damages to the appellant.”
On the hearing of the appeal, no objection was raised by the respondent to the proposed amendments except ground 3, which it was submitted might also affect grounds 1(c) and 4 of the amended notice of appeal. As to those grounds, the Court reserved its decision on the application to amend; but, subject to that qualification, leave to appeal was granted in the terms applied for in the amended notice. It now becomes necessary to consider the impact, if any, of the matters sought to be relied on in proposed ground 3 concerning the decision in Lange v. A.B.C.
In Lange v. Australian Broadcasting Corporation (1997) 71 A.L.J.R. 818, seven Justices of the High Court held that each member of the Australian community has an interest in receiving information, opinions and arguments concerning government and political matters that affect the people of Australia, and that the duty to disseminate such information is the correlative of the interest in receiving it. The interest that each Australian has in discussion about government and political matters, their Honours said, extends the categories of qualified privilege for the purposes of the law of defamation. This synopsis, which is adopted from the headnote to the report of that decision in the Australian Law Journal Reports, sufficiently states the effect of that decision for present purposes. It is only necessary to add that the form of qualified privilege identified by their Honours was held to derive from the freedom of communication on matters of government and politics created by particular provisions of the Constitution. In considering the interaction between that freedom and the provisions of State legislation, such as s. 16 of the Defamation Act or s. 377(8) of the Code, the High Court in their reasons for judgment observed (71 A.L.J.R. 818, 830 col. 1A) that such statutory regimes “cannot trespass upon the constitutionally required freedom”. Their Honours went on:
“However, a statute which diminishes the rights or remedies of persons defamed and correspondingly enlarges the freedom to discuss government and political matters is not contrary to the constitutional implication. The common law rights of persons defamed may be diminished by statute but they cannot be enlarged so as to restrict the freedom required by the Constitution. Statutes which purport to define the law of defamation are construed, if possible, conformably with the Constitution. But, if their provisions are intractably inconsistent with the Constitution, they must yield to the constitutional norm.
The common law may be developed to confer a head or heads of privilege in terms broader than those which conform to the constitutionally required freedom, but those terms cannot be any narrower. Laws made by the Commonwealth or State Parliaments or the legislatures of self‑governing territories which are otherwise within power may therefore extend a head of privilege, but they cannot derogate from the common law to produce a result which diminishes the extent of the immunity conferred by the Constitution.”
Occasions will no doubt arise in future when it will be necessary to consider in more detail the implications for the law of defamation in this State of the decision in Lange v. A.B.C. For the present, it is enough to say that it is difficult to appreciate how it could have affected the result arrived at in the present case. Sections 16(1)(h) and 16(2) of the Queensland Defamation Act 1889 were intended by its author Sir Samuel Griffith to codify a relevant part of the common law of defamation as it was at that time understood in this jurisdiction: see Bellino v. Australian Broadcasting Corporation (1996) 185 C.L.R. 183, 189, 221-222. In doing so, the legislation may, however, conceivably have either enlarged or diminished the common law rights of persons defamed in this State or colony, as it was in 1889 when those legislative provisions were first enacted, or in 1899, when they were altered in the respects referred to in Bellino v. A.B.C. (1996) 185 C.L.R. 183, 221. If its effect was to diminish those rights, the decision in Lange v. A.B.C. would be of no avail to the plaintiff in the action whether it falls to be considered at the time of trial or now on this appeal. That is so because if the plaintiff’s rights were diminished, the defence of qualified privilege available to the defendant under the legislation was correspondingly enlarged. To that extent, the plaintiff’s claim must necessarily have failed even if the jury had been directed in accordance with the Lange defence. His action would in law and in fact have been determined according to a standard which, on that assumption and to that extent, was if anything more favourable to the plaintiff than the Constitution allowed, which is not a matter about which he can complain on this appeal.
The plaintiff’s position is affected only if, and to the extent that, the constitutional immunity is narrower than the privilege conferred by s. 16(1)(h) of the State Act. As such, that immunity could still not have altered the result arrived at in the trial of this action unless it wholly displaced the State legislative provision. The extract quoted from the reasons in Lange v. A.B.C. suggests that that is not its effect. To repeat part of what was said there -
“Laws made by ... State Parliaments ... which are otherwise within power may ... extend a head of privilege, but they cannot derogate from the common law to produce a result which diminishes the extent of the immunity conferred by the Constitution.”
It was not suggested that the effect of s. 16(1)(h) was to derogate from the extent of the common law privilege as defined by that provision, and, indeed, Miss Dick S.C. in her submissions on behalf of the appellant affirmed that it supplemented, and did not supplant, the privilege conferred by s. 377(8) of the Code or s. 16(1)(h) of the Act. In Bellino v. A.B.C. (1996) 185 C.L.R. 183, 214, Dawson, McHugh and Gummow JJ. said that the defences under s. 377 of the Code were “statutory equivalents” of the common law defence of qualified privilege. See also the reasons of the same learned Justices at 221, 222. Even, therefore, if the trial had been conducted and the jury directed in accordance with the Lange “defence”, the plaintiff would not have been, and cannot now be, better placed to succeed in the action. As it is, the defence was never pleaded and his Honour was not asked to direct or redirect in the terms now relied in ground 3, no doubt for the very good reason that the verdict in the action was returned some six months or more before the decision in Lange was delivered. It follows that the application to amend the notice of appeal by adding ground 3 should be refused.
A litigant who attempts on appeal to set aside a jury verdict necessarily assumes a heavy burden, particularly in a case like this where issues of good faith or the existence of specific states of mind fell to be determined. With respect to matters like that, credibility is critical; and in assessing it the jury at the trial enjoy the opportunity, not available to this Court, of seeing and hearing the witnesses give their evidence, and so of forming an impression of their honesty or otherwise. There is nothing new in this, which has in law long been accepted as the proper approach on appeal in reviewing jury verdicts in civil proceedings. “Whether the evidence be strong, or conflicting or weak, it is equally the province of the jury to decide it”; and, further, “It is for the jury to say whether and how far the evidence is to be believed”. See Hocking v. Bell (1945) 71 C.L.R. 430, 444, where Latham C.J. quoted with approval these passages respectively from the speech of Lord Gordon in Dublin Wicklow & Wexford Railway Co. v. Slattery (1878) 3 App. Cas. 1155, 1217, and of Lord Blackburn in Metropolitan Railway Co. v. Jackson (1877) 3 App. Cas. 193, 207. The verdict, said Starke J. in a passage in his reasons in Hocking v. Bell (1945) 71 C.L.R. 430, 487, that was recently adopted by the High Court in Calin v. Greater Union Organization Pty. Ltd. (1991) 173 C.L.R. 33, 42, “is not to be disturbed unless the jury, viewing the whole evidence reasonably, could not properly find it”.
An appellant seeking a new trial on the ground that it is against the weight of evidence therefore needs what their Honours described in Calin as “an exceptionally strong case”, in which the evidence “so preponderates against the verdict” as to show it to be “unreasonable and unjust”. See also Thiess v. T.C.N. Channel Nine Pty. Ltd. Limited (No. 2) [1994] 1 Qd.R. 156, 172-173. It scarcely need be added that in the present case the difficulty confronting the appellant plaintiff is not lessened by the fact that the question under review is one as to which, by s. 17 of the Act (s. 378 of the Code), the onus rested on the plaintiff of proving the converse of one or more of a series of negative propositions; that is to say, that the manner and extent of the publication did not exceed what was reasonably sufficient for the occasion (which is the principal issue on this appeal), or that, in making the publication, the defendant was not actuated by ill will to the plaintiff or by any other improper motive; or that it did not believe the defamatory matter to be untrue. Other matters, such as public interest and public benefit in s. 16(1)(h) were conceded at the trial, or are not now issues in this appeal.
With this in mind, it is possible to turn to the defamatory matter itself. The Moonlight State was a television programme of about an hour or a little less in duration, of which roughly the last 20 minutes or so contained allegations involving the plaintiff. After frequent references to, and views of, brothels, and interviews with their keepers and with prostitutes or strippers, the programme focussed on connections between prostitution and the drug trade. A view of an extensive marijuana crop was shown. Mr Masters as the compère announced that “Four Corners” had obtained a copy of a Queensland Bureau of Crime Intelligence Report, referred to at the trial as the Slade Report, giving details of an investigation into the drug trade in North Queensland. In the course of the television programme, it was said that the Report described meetings between a marijuana grower and someone known as “The Marble Man”. A dramatic reconstruction was screened showing a man with white shoes alighting from a car and engaging in a drug deal at night. Shortly afterwards in the programme, Masters said the Report referred to members of the Bellino family in connection with an alleged marijuana growing scheme, and then specifically identified the plaintiff Vincenzo Bellino as “The Marble Man” and as a senior member of that family. A former police officer Ross Dickson, who was being interviewed on the programme, spoke of the frustration by superior orders of his attempt to investigate marijuana growing at a Chillagoe marble mine conducted by the Bellino family. Masters then explained to the viewing audience that, four months after the Slade Report was released, an alleged attempt had been made to bribe the author of the Report, who was Det. Const. J. Slade. A senior police officer had given him $100 “in the name of Geraldo Bellino”. After references to allegedly widespread corruption, bribing and protection rackets among senior Queensland police officers, and to a speech in Parliament by an Opposition member who named the “godfathers” of the Queensland mafia as Gerry Bellino, Tony Bellino and the plaintiff Vince Bellino, the programme proceeded to a second dramatic reconstruction, which was of the marble mine at Chillagoe being opened by the then Queensland Premier in July 1983.
It was a major element in the plaintiff’s case at trial and on appeal that the defence under s. 16(1)(h) (s. 377(8) of the Code) was not available to the defendant because the publication in the television programme of the defamatory matter about the plaintiff exceeded in manner and extent what was reasonably sufficient for the occasion, and did so in several particulars. One was that the plaintiff was named in the programme. The others were the dramatic reconstructions of the drug deal and of the Premier opening the marble mine at Chillagoe. In considering each of these features of the same broadcast in relation to the first trial, Dawson, McHugh and Gummow JJ. in Bellino v. Australian Broadcasting Corporation (1996) 185 C.L.R. 183, 232-233, said this:
“Once it is understood that it was the conduct of the various police officers that was or were the subject or subjects of public interest, it was open to the jury to hold that naming the plaintiff was unnecessary and that, accordingly, the extent of the publication exceeded what was ‘reasonably sufficient for the occasion’. It was the discussion of the conduct of the police officers that was the ‘occasion’ for the purpose of applying the ‘manner and extent’ element of the issue of good faith. A reasonable jury could conclude that that subject could have been fully discussed without naming and ensuring the defamation of the plaintiff. Of course, the plaintiff may still have been defamed if he had not been named. To people who knew of his connection with the Chillagoe mine, he would have been defamed even if he had not been named and no reference had been made to ‘the Marble Man’. But if the programme had not named the appellant, the great majority of viewers would have learnt of the corrupt conduct of the relevant police officers - which was the subject of public interest - without having the appellant defamed to them. Of course, it was also reasonably open to the jury to find that naming the appellant did not exceed what was reasonably sufficient for the occasion. The jury might have thought, for example, that the full extent of corruption in the administration of Sir Terrence Lewis could not be properly understood without naming each of the Bellino brothers and thereby revealing the connection between the activities of the appellant in North Queensland and those of his brothers in southern Queensland. But this choice was a matter for the jury.
In addition, one segment of the programme portrayed ‘the Marble Man’ at night delivering a box that apparently contained seeds for growing marijuana. It was open to the jury to conclude that this segment - which dramatically reinforced the imputation that the appellant was engaged in the cultivation of illegal drugs - went beyond what was reasonably sufficient to discuss the subject of public interest: the conduct of the relevant police officers.
Another segment of the programme also showed the then Premier of State opening the marble mine at Chillagoe and, in the context of allegations of political corruption, supported an imputation that the appellant had a corrupt relationship with politicians. Although the jury negatived any imputation that the appellant had bribed or offered bribes to members of political parties, it found that the programme imputed that the appellant ‘was immune from prosecution as a result of either political or police favour obtained either by bribery or corrupt practices’. If, as we think is the case, the jury could reasonably find that the programme’s use of the Chillagoe mine opening and the Premier’s involvement in it went beyond what was reasonably sufficient for the occasion, that aspect of the publication should also have been left to the jury on manner and extent.”
This extract from the joint judgment of their Honours appears to come close to determining against the plaintiff on this appeal the question of “reasonable sufficiency” under s. 16(2). The learned Justices accepted that it was reasonably open to the jury to find that naming the appellant in the television broadcast did not exceed what was reasonably sufficient for the occasion. It is true that, as regards each of the two instances of dramatic reconstruction described, their Honours said only that it was open to the jury to conclude that those two segments went beyond what was reasonably sufficient for the occasion; but that was because it was the specific question then before the Court in that case, which was that that particular issue should not have been determined by the judge but left to the jury for their decision. There is no reason to suppose that in law the converse was not equally true; that is to say, it was open to the jury to conclude, as in fact they did at the second trial, that the reconstructions did not go beyond what was reasonably sufficient for the occasion. If that is so, then it plainly becomes so much more difficult for the plaintiff on this appeal to sustain an argument that the answer of the jury to question 4(a) should be set aside. It is nevertheless necessary, or at least desirable, to examine the evidence at the trial on this occasion in order to decide whether the finding of the jury that the manner and extent of publication did not exceed what was reasonably sufficient for the occasion was, as the plaintiff contends on appeal, not one that was reasonably open to them to make.
For this purpose, it is convenient to begin with the Slade Report, which was the starting point for those parts of the programme that referred to the plaintiff. It is dated 21 November 1984 and begins by recording that, on 5 June 1984 and again on 27 August 1984, Det. Sgt. Slade in the company of another police officer had interviewed a female informant at the Atherton CIB. In conversations that were tape recorded, she told them that her former defacto husband, a man named R.K. Lazarevic (who had died in an motor accident in May 1982) had been involved in growing marijuana for an Italian known to her as the “Marble Man”. The Report adds that inquiries showed that the Marble Man was the plaintiff Vincenzo Bellino; that, whenever Lazarevic contacted the plaintiff, his brothers Gerry and Antonio would show up within two days to deliver jars of cannabis seeds to Lazarevic; that the Bellinos were involved in a marble mining operation; and that the plaintiff, with other members of the Bellino family, had been a principal in a restaurant in Cairns called “The House on the Hill”. This group, the Report went on to add, were responsible for cultivation, importation and distribution of cannabis, as well as the importation and distribution of heroin. The Report contained other references by name to the plaintiff as a participant in these and related activities.
It was apparently late in 1986 that Masters travelled from Sydney to interview Slade in Queensland. Slade told Masters about the Report and by the time Masters returned to Sydney there was a copy of it waiting for him in a brown paper package. Slade also told him of having received in March 1985 $100 from Senior Sgt. Barnes with the words “this is a present from Uncle Gerry”. Masters said in evidence that he took this to be a reference to Gerry Bellino, who he knew had interests in gambling and prostitution activities in Brisbane. On one or more occasions, he said, Slade informed him that he had deduced that this payment had been generated by or was connected with or related to his Report, which had been prepared some four or so months before the money was paid. He also told Masters that an attempt had been made to have his Report withdrawn, and, on another and later occasion, that the payment was made in return for information concerning members of the Bellino family.
According to this evidence of Masters, it was Slade who deduced the connection between the bribe attempt and the Slade Report. It was Masters himself who inferred that, although the approach by Barnes was made in the name of Gerry [Bellino], it in fact emanated from the plaintiff Vincenzo Bellino. In his evidence at the trial, he offered several reasons for that conclusion. One was that the Slade Report contained, in all, some seven direct references to the plaintiff Vincenzo Bellino by name as a person who was involved in the drug business, but only one such reference to Gerry and Antonio Bellino. Slade had not been involved in any investigation concerning Gerry Bellino. Other matters on which Masters placed reliance consisted of what he was told by the female informant (the defacto widow of the deceased Lazarevic) who had been interviewed by Slade at Atherton in 1984, and information obtained from a man named Michael Kielly. These individuals provided Masters, or so he testified at the trial, with two independent sources of information, which he considered justified him in naming the plaintiff in the programme as a person involved in the drug trade. In addition, he learnt of an attempt by someone to erase information relating to the Bellinos and the Slade Report from the database of the Australian Bureau of Criminal Investigation in Canberra.
There was cross-examination at the trial about the need (or the lack of it) to name the plaintiff at all on the programme. At one point Masters said that he named the plaintiff in order to give a “fair and honest” account of the contents of the Slade Report with respect to the plaintiff’s involvement in the drug trade. It was put to him that, in contrast, the senior police officer Barnes, who was said to have offered the bribe to Slade, was not named on the programme. The explanation given by Masters for this apparent discrepancy in treatment of the plaintiff and Barnes is revealed in the following questions and answers:
“You could have put on television that you were informed by a police officer that he had been bribed by a senior police officer, or attempted to be bribed by a senior police officer, and that he had reported that bribe, couldn’t you ? --- Yes.
You could have named the senior police officer ? --- I didn’t - I mean, I could have named 100 people, and I would be in Court for the next 100 years. It wasn’t so important to - and I don’t like to name people lightly, and have said that on many occasions, I don’t believe that journalism is about naming names. I would like to minimise the amount of naming and the amount of pain that our programmes cause, and I’m sorry that they do cause pain.”
He went on:
“So I can easily explain why it was important to name Mr Vincenzo Bellino, but not so important to name Senior Officer Barnes. Senior Sergeant Barnes was a superior officer. I could name the rank and make my point. I thought it was also important from a tactical point of view in a curious way not to name him, and not to name people like Sergeant Burgess because I had seen in the past what happens when you do name some of these middle ranking people. What happens is they get scapegoated, they get torn apart, they take the blame, and I didn’t want the programme to blame - to pretend that the blame lay there, but rather, as I said in the beginning, it was that administration and that the responsibility had to go to the top, to Parliament and senior police.
Then why did you name Mr Bellino? --- Because it was Mr Bellino’s name that I believed provoked the bribe attempt, so it was crucial. I still can’t see how I could have made the programme without putting that name in it.”
On appeal it was submitted that the explanation given by Masters for naming the plaintiff on his programme, by relating the bribe attempt back to him, was “contrived” and that the jury ought not to have accepted it. To my mind, the real reason for naming a particular individual, as was done here, is that it adds an element of verisimilitude to what would or might otherwise appear as a vague and generalised allegation unsupported by any substantiating detail; in other words, it is done “to give to airy nothing a local habitation and a name”. It may possibly have been this that Masters was intending to convey, although without directly admitting it, when he said in evidence that he still could not see how he could have made the programme without putting the plaintiff’s name in it. His remark to that effect is, I think, somewhat cryptic; but his own explanation for naming the plaintiff in the programme was that the repeated references to the plaintiff’s name in the Slade Report were, in his opinion, what had provoked the bribe attempt. So, he said, “it was crucial”.
It was submitted on appeal that the explanation given by Masters was contradicted by the jury’s answer to question 2(c), which was that the television programme did not mean that the plaintiff was a person who, either individually or as a member of a syndicate, bribed or offered bribes to members of the Police Force. Their answer to question 2(c) accorded with the text of the television programme and the Report itself, both of which described the $100 as having been handed over as a present from Uncle Gerry. The inference by Masters that the bribe had really come from the plaintiff was not disclosed on the programme; but he may nevertheless in fact have drawn it, and the reason he gave for his doing so was at least capable of being considered genuine, rather than the product of “contrivance”, imaginative afterthought, or fabrication. As appears from what was said by Dawson, McHugh and Gummow JJ. in Bellino v. A.B.C. (1996) 185 C.L.R. 183, 232-233, it was reasonably open to the jury to find that naming the plaintiff did, or alternatively did not, exceed what was reasonably sufficient for the occasion. As to that, their Honours said, “the choice was a matter for the jury”.
The choice having been made in favour of the defendant at the second trial, it is not easy to see how, applying settled criteria for setting aside a verdict on appeal, this Court can now interfere with it. The same applies to the two dramatic reconstructions complained of. The particular vice of such reconstructions, it may be thought, is that they project an impression of being contemporaneous recordings (which they are not) of events that have occurred, and so add an element of visual force or emphasis to the imputation conveyed, in this instance, by naming the plaintiff in the programme as a person involved in the drug trade. Essentially, however, the initial question still remains whether naming the plaintiff exceeded what was reasonably sufficient for the occasion. Had the plaintiff not been named at all, the dramatic reconstructions by themselves would have added little, if anything, to the defamatory sting. Having regard to what was said in Bellino, it was reasonably open to the jury to find that the manner and extent of the two reconstructions, when combined with the naming of the plaintiff, exceeded what was reasonably sufficient for the occasion; but it is equally clear that it was reasonably open to them to take the converse view of the publication and of the evidence. Their finding on the point is comprehended in their response to question 4(a), which they answered by saying that the manner and extent of the publication did not exceed what was reasonably sufficient for the occasion.
Subject to examining the evidence about the two independent sources on which Mr Masters said he relied, a conclusion to the foregoing effect would, on the face of it, be sufficient to dispose of that question on the appeal. Of the three matters specified in s. 16(2) of the Act, the reasonable sufficiency for the occasion of the manner and extent of publication was the principal focus of Miss Dick’s submissions before the Court, which is the second of the matters referred to in s. 16(2). No allegation was made that defamatory matter published was not relevant to matters attracting the protection of s. 16(1)(h). The third item in s. 16(2) is that the person publishing the defamatory matter must not be “actuated by ill will to the person defamed; or by any other improper motive, and does not believe the defamatory matter to be untrue”. At the trial, the cross-examination of Masters opened by asking him whether he still thought the allegations made against the plaintiff in the television programme were true; to which the witness replied that he maintained “I don’t know whether they are true or untrue”, adding “I suppose I maintain that they are unproved”. By the time, the questions went to the jury at the trial, it was, so Miss Dick informed us on appeal, conceded by the plaintiff that there was no longer any issue for them to decide of whether the defendant believed the defamatory matter to be untrue. The only remaining question or questions therefore were whether, in making the publication, the defendant was actuated by ill will to the plaintiff, or by any other improper motive. This was the subject of question 4(b) put to the jury, which was also answered in the negative.
In deciding whether this finding can properly be set aside on appeal, it is necessary to consider the evidence of Masters concerning the two independent sources on which he relied. One of them was the female informant who had identified the plaintiff to Slade as “the Marble Man”. At the trial Masters said that, when he spoke to her in 1987, she gave him a much more comprehensive account than appeared in the Slade Report. She said that, through her defacto husband Lazarevic, who had been growing crops of marijuana, she had a fairly extensive knowledge of the drug trade during the 1970s and 1980s. Lazarevic had worked for the plaintiff, whom she had seen when he came to their house. Her daughter was with her at the time of the interview with Masters, and said she had seen the plaintiff come to the house with jiffy bags of seed. The female informant was frightened and reluctant to be interviewed or involved; but she impressed Masters as a “reasonable decent person”. In cross-examination Masters was asked about the means by which the daughter had identified the plaintiff on his visits to the house. She was 10 years old in 1987, and her father had died early in 1982. Master said he had with him a photograph of the plaintiff. However, the daughter could not have been more than 5 years old at the time she claimed to have seen the plaintiff, and the photograph of the plaintiff was taken from a television programme shown in 1987. In cross‑examination, Masters said he did not remember pulling out a photograph and asking the female informant or her daughter “a question about whether she saw this or not, but I know we had the photographs there”. Later, when asked about it again in re‑examination, he firmed up. “I had”, he said “a photograph of Vincenzo Bellino which I certainly showed ... to June, to the woman ... to the female witness”. Even so, his answer to that effect was, Miss Dick emphasised, incomplete, in that it did not record any or what response had been given by the female informant, or, for that matter, by her daughter if she too was shown the photograph.
The other source of information was Michael Kielly. At the time Masters spoke to him, he was facing charges and was about to be sentenced for transporting heroin from Cairns to Sydney, where he had been arrested at the airport. Kielly had informed a police officer named Priest that he had been transporting the heroin for the plaintiff. Priest and another police officer Inspector Wheatley both told Masters that Kielly was dangerous, to which Wheatley added that he was a deviate and a liar; but each of them, he said, also added that not everything said by Kielly was untrue. On the other hand, at the court hearing that followed, Wheatley gave evidence that Kielly had not said to him that he was involved in a drug syndicate in Queensland. In these circumstances, Masters explained, “I had to do my best to work out what was likely to be true and what was unlikely to be true. You know, you don’t have many choices ... But you’ve got no choice but to do your best to make a sober evaluation and that’s what I was trying to do.” His assessment was that he thought that were was “some likelihood that what he [Kielly] said about Mr Bellino was true because I’d already heard from the female witness ...”. Kielly, Masters added, did seem to have some intimate knowledge of the plaintiff: he talked about the marble mine.
On that footing, it would be reasonable to suppose, that Masters placed some but not much reliance on Kielly’s information as an independent source of the truth, but that he did so only because it was corroborated by the female informant. That was the effect of what was said by Masters in evidence in chief. When cross-examined about it, Masters said he was trying to keep an open mind. But, he went on:
“... what was really compelling was that absolutely, independently, he [Kielly] gives me an account of having a direct involvement with Vince Bellino in drug trafficking after a separate witness has given me another account.”
To a legally trained mind, the error implicit in this statement by Masters is that he used the evidence of the witness whom he believed, not for the purpose of confirming his belief in another and apparently reliable witness, but in order to enhance the credibility of the first witness whose reliability was, objectively speaking, plainly open to serious doubt. By doing so, he was able to persuade himself that he had the two independent witnesses necessary to satisfy the standard on which he claimed to have acted. The reason he gave for relying on the self-confessed criminal Kielly was no more than that the information he supplied happened to coincide with that of the female informant in naming the plaintiff as a person involved in trading, in two quite different forms, of dangerous drugs, and that both referred to the marble mine.
The marble mine at Chillagoe was seized upon in the programme, as it had been in the Slade Report, as a graphic means of identifying the plaintiff with the drug trade, with senior police corruption, and with the political inaction which it was the purpose of the programme to expose. In fact, at the trial the objective evidence showed that the extent of the plaintiff’s personal participation in the marble mine at Chillagoe was not extensive. Masters seems not to have discovered or investigated this aspect of the Report. A closer reading even of the Slade Report itself would have disclosed that the restaurant known as “House on the Hill” had been sold by the Bellino family about 18 months before the date of the Report in November 1984, and that it was “since that time” that they were said to have been involved in a marble mining operation. Eighteen months before that date would have been some time in about May 1983, which was shortly before the Premier opened the mine and about a year or more after the death of Lazarevic, who was the marijuana grower. It therefore seems improbable that, before the death of Lazarevic in early 1982, the plaintiff was already known in the Lazarevic household as “the Marble Man”. However, the initial error, if that is what it was, was attributable to the Slade Report or to the female informant. The most that can be said is that Masters adopted a description and method of identification which others had used without adverting to this inconsistency.
In a broad sense, the appeal highlights the divergences in the attitudes of members of the different vocations or callings. Lawyers ordinarily expect evidence to conform to particular standards of reliability. At least in the course of preliminary investigations, police officers are to some extent obliged and expected to act on evidence giving rise to no more than suspicion. Journalists appear to fall somewhere between the two. Mere suspicion is not ordinarily enough to justify or excuse publication of defamatory matter, which is an obvious reason why it is dangerous for them to act on a confidential police report; but, before publication, they are not required to satisfy themselves of facts beyond reasonable doubt or to any other particular standard. Subject to fulfilling the other requirements of s. 16(1)(h) and s. 16(2), it is enough that, in publishing defamatory matter, they are not actuated by ill will or other improper motive, and that they do not believe it to be untrue. In relation to s. 16(1)(h), or its Code equivalent s. 377(8), the majority of their Honours in Pervan v. North Queensland Newspaper Co. Ltd. (1993) 178 C.L.R. 309, 327, said:
“Accordingly, s. 377(8) provides protection if the facts on which the comment is and can be seen to be based are not believed to be untrue and the statement or indication of the facts as such is protected by the section subject to the requirements of ‘good faith’ and the other requirements of the section. Those requirements include the fairness of the comment and the relevance of the comment to the privileged occasion.”
The case was one in which, unlike the present, the defamatory imputation consisted of comment. But it does not, for that reason, seem possible to distinguish or to deny the applicability of the decision to the present matter. On one interpretation of it, the reference in that passage from the joint judgment of Mason C.J., Brennan, Deane, Dawson, Toohey and Gaudron JJ. to the requirement of “good faith” and the other requirements of the section may be thought to elevate “good faith” to the status of an independent requirement outside or going beyond the provisions of s. 16(2) or, as it used to be, the final paragraph of s. 377 of the Code. Section 16(1)(h), which was formerly Code s. 377(8), speaks of a publication being made “in good faith”; but the expression “good faith” is, for the purposes of s. 16 including s. 16(1)(h), expounded in s. 16(2). It provides that a publication “is said to be made in good faith” if the three requirements of relevance, reasonable sufficiency for the occasion, and the absence of ill will, improper motive, or non-belief in untruth, are satisfied. The provisions of s. 16(2) are an exhaustive statement for the purpose of s. 16(1)(h) of the meaning and content of “good faith”. No further or additional requirement of good faith, understood in some other sense, is needed in order to gain the protection of s. 16(1)(h), although some of the tests commonly used for determining the existence of good faith at common law, such as recklessness, may be apposite in assessing the presence or absence of “good faith” as expounded in s. 16(2).
There was evidence that Masters made inquiries of the female informant (from whom a signed statement was obtained before publication) and of others, including police officers apart from Slade, and received some confirmation of the plaintiff’s participation in the drug trade in North Queensland. To that extent, there was evidence that he had not acted in reckless disregard of the known facts or abstained from investigating available information tending to contradict the belief he formed about the plaintiff. The defendant sought a response from the plaintiff shortly before publishing the programme, and received a written response from the plaintiff’s solicitor requesting details of the allegations in the programme. The request was not answered by the defendant; but the plaintiff’s denial was, in a fashion, published together with the programme. When the impact upon the plaintiff’s reputation is considered, it cannot be said that the defendant was scrupulous in investigating and confirming the imputations it broadcast against him; but it is another and different matter to say that the jury were bound to reach the conclusion that the defendant had acted recklessly in what it did or failed to do.
Once this point is reached it is in my opinion not possible to say that the jury could not reasonably have made the findings implicit in the answers to either questions 4(a) or 4(b). There was evidence on which it was reasonably open to them to conclude the defendant believed that the plaintiff was involved in the drug trade in Queensland; and that, in naming him on the programme and including the two reconstructions complained of, the manner and extent of the programme did not exceed what was reasonably sufficient for the occasion. What is more important, it cannot be said that the evidence that was relied on by the plaintiff as showing that the defendant was actuated by “ill will” or other improper motive, was so “preponderant” as to show that the findings of the jury were “unreasonable and unjust”. The fact that some, perhaps many, ordinary members of the community might, on the same evidence, have arrived at a different conclusion is not a sufficient basis for sustaining the appeal.
This is enough to dispose of grounds 1, 2, 3 and 4 of the notice of appeal. As a result, it becomes unnecessary to consider the matter of the quantum or character of the damages awarded, or not awarded, which is the subject of grounds 6 and 7. Ground 5, which complained of misdirection by the trial judge, was formally abandoned on the appeal.
It follows that the appeal must be dismissed with costs.
Bellino v. Australian Broadcasting Corporation (1996) 185 C.L.R. 183; Lange v. Australian Broadcasting Corporation (1997) 71 A.L.J.R. 818; Calin v. Greater Union Organisation Pty. Ltd. (1991) 173 C.L.R. 33; Pervan v. North Queensland Newspapers Co. Ltd. (1993) 178 C.L.R. 309.
Counsel: Ms J. Dick S.C. for the appellant
Mr R.A. Mulholland Q.C., with him Mr D.K. Boddice, for the respondent
Solicitors: Terry Fisher & Co. for the appellant
Biggs & Biggs for the respondent
Hearing Date: 11 March 1998
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 51 of 1997
Brisbane
Before McPherson JA
Pincus JA
Williams J
[Bellino v. A.B.C.]
BETWEEN:
VINCENZO BELLINO
(Plaintiff) Appellant
AND:
AUSTRALIAN BROADCASTING CORPORATION
(Defendant) Respondent
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 2 June 1998
I have read and agree with the reasons of McPherson J.A. and with the orders he proposes.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 51 of 1997
Brisbane
Before McPherson JA
Pincus JA
Williams J
[Bellino v. A.B.C.]
BETWEEN:
VINCENZO BELLINO
(Plaintiff) Appellant
AND:
AUSTRALIAN BROADCASTING CORPORATION
(Defendant) Respondent
REASONS FOR JUDGMENT - WILLIAMS J
Judgment delivered 2 June 1998
The facts relevant to this appeal are fully set out in the reasons for judgment of McPherson JA which I have had the advantage of reading.
Ultimately, this appeal must be resolved upon a consideration of the verdict of the jury on questions 4 (a) and (b). This court, in reviewing the verdicts, must adopt the approach recently confirmed by the High Court in Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33.
Counsel for the appellant emphasised the naming of the appellant in the program, and the dramatic reconstructions purporting to show the role played by the appellant in the illicit drug trade, in contending that the manner and extent of the program exceeded what was reasonably sufficient for the occasion. The evidence before this jury on the retrial on this issue was identical with that considered by the High Court on the hearing of the appeal from the first trial. In Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 Dawson, McHugh and Gummow JJ at 186-7 considered the evidence and concluded that the “aspect of the publication should also have been left to the jury on manner and extent”. This was, in my view, very much a question for the jury and there has been no challenge to what was said in the summing up in relation to this issue. It was clearly open to the jury to reach the conclusion they did and, bearing in mind the Calin test, there is no proper basis for this court concluding that the verdict should be set aside. As was said in the course of the passage I have just referred to from Bellino “the choice was a matter for the jury”; the jury has made its choice and that is the end of the matter.
The onus was on the appellant of proving absence of good faith. The answer to question 4(b) indicates that the jury was not satisfied that he had discharged that onus. In considering that question in the circumstances of this case the jury’s assessment of Masters could well have been of critical importance. He was in the witness box for a considerable period of time and was very thoroughly cross examined. His honesty in deciding what should be included in the program could well have been an important, if not decisive, factor in the minds of the jury. As has often been said, this court does not have the advantage of evaluating the witness as the jury did. In the circumstances it was for the jury, applying community standards, to decide that issue. The conclusion which they reached was clearly open to them, and there is no basis for this court interfering with it.
I agree with all that has been said by McPherson JA in his reasons.
The appeal must be dismissed.