Bellino v Australian Broadcasting Corporation

As presently advised, I have some difficulty in seeing that identification of those involved is not relevant. That is not to say that the issue of revealing the plaintiff's identity may not need to be considered in relation to other aspects of s 377. In a later ruling, his Honour held that there was no evidence on which the issue of relevance could be left to the jury.

His Honour was correct in ruling that there was no evidence upon which the jury could find that the defamatory matter was not relevant to the discussion of the subject of public interest. It is beside the point that the respondent might have presented its programme in a different way without identifying the appellant. The issue is whether the publication of the defamatory imputations was relevant to the discussion of the subject or subjects of public interest. It is apparent that his Honour accepted the respondent's formulation of the subjects of public interest. For the reasons we have given, his Honour erred in doing so. But that is of no importance because the imputations concerning the appellant were clearly relevant to those subjects of public interest that we have identified. They were basic to the discussion of the conduct of police officers. The defamatory imputations in this case were at the heart of the discussion of the subjects of public interest that were discussed in the programme. The jury could not reasonably find that the defamatory imputations were not relevant to the discussion of the conduct of the police officers or the administration of the police force under Sir Terrence Lewis. The learned trial judge was, therefore, correct in withdrawing the issue of relevance from the jury. These grounds of appeal must be rejected.

The appellant contends that it was open to the jury to find that the publication was not made in good faith because the manner and extent of the publication went beyond what was reasonably sufficient for the occasion. The learned trial judge held that, if the publication was otherwise within the protection of s 377(8), nothing in the manner or extent of publication took it outside that protection. In the Court of Appeal, Demack J did not deal with this issue in his reasons, but Davies JA did, and his Honour held that naming the appellant could not constitute an excessive manner of publication because this was not the way in which either manner or extent had been dealt with in the cases [61] . Once the true nature of a subject of public interest for the purpose of s 377(8) is understood, however, we think that his Honour was mistaken in rejecting this contention of the appellant.

1. His Honour cited Queensland Newspapers Pty Ltd v Baker [1937] St R Qd 153 at 168; Rigby v Associated Newspapers Ltd (1966) 68 SR (NSW) 414 at 426; Clines v Australian Consolidated Press Ltd (1966) 84 WN (Pt 2) (NSW) 86 at 97; Bridges v Australian Consolidated Press Ltd (1967) 70 SR (NSW) 52; Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 731; Plumb v Australian Consolidated Press Ltd [1975] 2 NSWLR 414 at 430; Pervan v North Queensland Newspaper Co Ltd [1991] AustTorts Reports 69,114 at 69,125-69,126.

In his pleadings, the appellant alleged that the manner or extent of publication was excessive simply because the programme identified him by name. In this Court, his claim is more restricted. The appellant contends that the extent of publication was excessive because it "was open to the jury to find that it was excessive to publish to a national audience such grave allegations in a form which named the Appellant". We think that the appellant was mistaken to restrict his case in the way that he does in this Court, but it makes no difference to his entitlement to a new trial.

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 [62] . 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.

1. In that case, there would have been no evidence that the manner or extent of the publication exceeded what was "reasonably sufficient for the occasion".

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 the 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.

For the above reasons, the learned trial judge erred in refusing to leave manner and extent to the jury. The verdict and judgment for the respondent must be set aside.

The appellant also contends that question three was not formulated correctly. The appellant asked the judge to formulate a question which asked whether the publication of material concerning the appellant was for the public benefit. He contends that the judge erred in asking the jury to answer question three and that neither the question nor its answer was relevant to the issues in this case. However, the question sought by the appellant is not what s 377(8) and s 379 require. Section 377(8) distinguishes between the defamatory publication and the subject of public interest. It is the discussion of the subject of public interest that must be for the public benefit, not the publication of the defamatory matter. Nevertheless, in discussing the meaning of question three, his Honour directed the jury that the question of public benefit was a balancing exercise in which the effect of the allegation on the appellant had to be weighed against the public's interest in knowing that the information exists. With great respect to his Honour, this was not what s 377(8) and s 379 required. The question for the jury was whether the public discussion of the subject or subjects of public interest was for the public benefit. Consequently, his Honour's direction was in error, but it was an error that favoured the appellant.

The learned trial judge also erred in failing to put separate questions to the jury as to whether the discussion of each of the subjects of public interest that were pleaded was for the public benefit. In the Court of Appeal, Davies JA said that, although his Honour erred in failing to leave separate questions, no reasonable jury could have concluded other than that the discussion of each subject was for the public benefit. No doubt this is true if the subjects of public interest are defined in the vague way that the respondent defined them in its particulars, and it may be that the same conclusion should be reached in respect of the subjects of public interest that we have identified. But since there must be a new trial, it is unnecessary to pursue the matter.

The appeal must be allowed with costs, the order of the Court of Appeal set aside, and the appeal to that Court allowed with costs and an order made for a new trial of the action.

The appellant, Vincenzo Bellino, brought proceedings for defamation against the respondent, the Australian Broadcasting Corporation (the ABC), in the Supreme Court of Queensland. He claimed to have been defamed in a national television broadcast entitled "The Moonlight State". The action was tried by judge and jury, with the trial judge (Mackenzie J) formulating specific questions for the jury's determination. In consequence of the jury's answers to those questions, it was held that the broadcast was made on an occasion of statutory qualified privilege and judgment was entered for the ABC. The appellant appealed unsuccessfully to the Court of Appeal (Davies JA and Demack J, Macrossan CJ dissenting). He now appeals to this Court.

The general subject matter of "The Moonlight State" was corruption in the Queensland police force, particularly police protection of illegal gambling, prostitution, and the supply of illegal drugs. The programme had three general theses or themes. The first was that corruption was longstanding. The second was that it extended from the top to the bottom of the police hierarchy. The third was that it was geographically widespread or, more precisely, that it extended from the Gold Coast in the south to Cairns in the north.

The programme showed, amongst other things, illegal activities allegedly conducted with police protection by the appellant's brothers, Geraldo and Antonio Bellino, in Brisbane. As well, the programme gave an account of a police investigation and report by Detective Constable Jim Slade (the Slade Report) which, it was said, revealed a number of meetings in Far North Queensland between someone called "the Marble Man" and marijuana growers at which "marijuana seeds [were] handed over along with instructions regarding their cultivation and ultimate distribution". A nocturnal meeting between "the Marble Man" and another person was dramatised, in which an actor playing "the Marble Man" was shown handing over a box, ostensibly containing marijuana seeds.

According to the programme, the Slade Report contained details of a meeting in a Cairns hotel of "five Italians, stating they planned to exert pressure on known [heroin] dealers [in Cairns and Townsville] to bring the dealers under their control". In this context, it was acknowledged that the report "doesn't pretend to be anything more than police intelligence" and that "police intelligence isn't necessarily fact". However, it was also said that information from people at the centre of the drug trade in Far North Queensland closely reflected much of what was contained in the report. The programme went on to reveal that the report named "members of the Bellino family in connection with the alleged marijuana growing scheme". And, in that context, the appellant was shown at his marble mine at Chillagoe in North Queensland and identified as "the Marble Man" and, also, as the brother of Geraldo and Antonio Bellino.

The programme also contained an interview with a former police officer who said that he had been instructed by his superiors not to pursue an investigation into the activities of certain persons working at the appellant's mine who were wanted by the police in relation to various offences, and who were suspected of growing cannabis for their own use in a small area of the mine. The programme went on to reveal the attempted bribery of Det Constable Slade by a superior officer, the bribe being given, allegedly, in the name of Geraldo Bellino. The programme also detailed allegations of large cash donations to political parties made by the "Gerry Bellino family", and showed photographs of the then Premier of Queensland opening the "Bellino's marble mine".

Towards the end of the programme, the presenter said that people associated with the programme had spoken to "a number of the people mentioned" and then went on to say:

Mr Vincenzo Bellino, named as "The Marble Man" denied any involvement in drug deals or attempts to corrupt Queensland police. He also denied any business association with his Brisbane-based brothers, Geraldo and Antonio Bellino. No one from the programme had spoken to the appellant. However, the reporter responsible for its presentation had spoken to the appellant's solicitor who indicated that the various allegations were denied.

As already indicated, specific questions were left to the jury. The answers to those questions reveal that it was found that the programme was defamatory of the appellant and that it bore the following meanings:

• that he "was a person who either individually or as a member of a syndicate obtained protection from the police or other bodies";

• that he "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

• that he "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".

The pleadings and particulars, and the statutory provisions on which they were based

The respondent did not claim that the defamatory matter was true. Instead, it pleaded three defences of statutory qualified privilege [63] under s 377 of the Criminal Code 1899 Q (the Code), namely, that the publication was made for the public good; for the purpose of giving information on a subject which its viewers had, or were reasonably believed to have, an interest in knowing the truth; and in the course of, and for the purposes of, the discussion of a subject of public interest. Only the third of those defences is directly involved in this appeal. Nonetheless, it is convenient to make some reference to the first two defences, and to the trial judge's rulings in relation to them, so as to make clear the elements of the third defence.

1. A defence of a fair report of the proceedings of the Legislative Assembly of Queensland was also pleaded by way of amended defence. This defence was not left to the jury and is not involved in this appeal.

Since the date of the trial, several sections of the Code relevant to these proceedings, including s 377, were reformatted and renumbered. Then, in 1995, the provisions of the Code dealing with defamation were relocated in the Defamation Act 1889 Q [64] . It is, however, convenient to proceed on the basis that the relevant provisions of the Code remain as they were.

1. This relocation was effected by s 459(1) and (2) and Sch 3, Pt 1 of the Criminal Code 1995 Q which came into operation on 16 June 1995.

So far as it bears on the defences pleaded by the respondent, s 377 of the Code provides [65] :

It is a lawful excuse for the publication of defamatory matter -

(3) If the publication is made in good faith for the public good;

(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;

(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.

"Defamatory matter" is defined in s 366 in these terms [66] : Any imputation concerning any person, or any member of his family, whether living or dead, by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise him, is called defamatory, and the matter of the imputation is called defamatory matter. Thus, as McHugh J pointed out in Pervan v North Queensland Newspaper Co Ltd [67] , "[t]he reference to "defamatory matter" in s 377(8) is a reference to the imputations arising from the publication". 1. The substance of s 377 of the Code is now enacted as s 16 of the Defamation Act (see n 141). 2. The substance of s 366 of the Code is now enacted as s 4 of the Defamation Act (see n 141). 3. (1993) 178 CLR 309 at 333.

The respondent particularised the subjects relied upon for its defences under s 377(5) and (8) 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;

(c) trafficking in illegal drugs and/or allegations made in relation thereto.

It also identified the public interest in those subjects as the basis for its defence, under s 377(3), that the broadcast was made for the public good.

The appellant replied to the respondent's defences under s 377 by pleading absence of good faith. "Good faith" is defined in the concluding words of s 377 in this way:

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.

The appellant's particulars of want of good faith were far from precise. It is, however, clear that he raised relevance, manner and extent, and improper motive and claimed, as well, that the respondent knew that the material was untrue or did not care whether it was true or false. In respect of relevance, manner and extent, and improper motive, he complained that rumour had been reported as fact, that adequate inquiries had not been made and that the appellant had been identified by name, whereas, by way of contrast, actors had been used to portray anonymous informants in other parts of the programme.

Section 378 of the Code imposes the burden of proving absence of good faith upon the party so alleging and s 379 provides [68] : "Whether any defamatory matter is or is not relevant to any other matter, and whether the public discussion of any subject is or is not for the public benefit, are questions of fact."

1. The substance of ss 378 and 379 of the Code is now enacted as ss 17 and 19 of the Defamation Act (see n 141).

The trial judge's rulings, the summing-up and the jury's findings

It is now settled that the question whether a publication was made in good faith is a question of fact for the jury, whilst the question whether, good faith apart, it was made on an occasion of statutory qualified privilege under s 377 is, essentially, a question of law to be determined by the trial judge [69] . However, it may sometimes be necessary for disputed questions of fact to be determined by the jury before the trial judge can rule whether or not the occasion was privileged [70] . And the jury must determine for the purposes of s 378(8) whether the defamatory matter consists of fact or comment [71] , if that is in issue, and whether the public discussion of the subject involved is or is not for the public benefit [72] .

1. See, eg, Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 647; Musgrave v The Commonwealth (1937) 57 CLR 514 at 552. See also Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 330, concerning a provision in very similar terms to s 377. 2. Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 208; Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 658. 3. Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 317-318. 4. Section 379 of the Code.

In the present case, the trial judge ruled that the respondent could not rely on its defences under s 377(3) and (5), but that, subject to the question whether public discussion was for the public benefit, it could rely on its defence under s 377(8). His Honour's reasons suggest that, in considering the defences under sub-ss (3) and (5), he treated the allegations made concerning the appellant as the subject on which the ABC was providing information and held that, because that was the subject concerned, the publication was neither for the public good nor for the purpose specified in sub-s (5). However, a somewhat different approach was taken in relation to the defence under sub-s (8), his Honour indicating that the "essence" of the programme was a matter of public interest, namely, "the systemic corruption of a police force", and that that subject "was almost a perennial one".

On the question of good faith, his Honour ruled that, if privilege was otherwise made out, the defamatory material was relevant and manner and extent were not excessive. He also ruled that there was no evidence that the respondent believed the defamatory matter to be untrue, but that there was evidence on which the jury might find improper motive in so far as "recklessness" might support a finding to that effect.

The trial judge did not direct the members of the jury as to the precise subject matter of the public discussion in the course of which, or for the purposes of which, he found the broadcast to have been made. Instead, he informed them of the three subjects on which the respondent relied, namely, "organised crime and corruption and allegations related thereto protection of illegal activities and allegations related thereto [a]nd trafficking in illegal drugs and allegations related thereto". His Honour instructed the jury that the question whether the public discussion, presumably of those subjects, was for the public benefit was to be determined by balancing "the effect of the making of most serious allegations against the [appellant] against the public's interest in knowing that information exists that involves [him] in organised crime, protection of illegal activities and trafficking in illegal drugs".

On the question of improper motive, the trial judge directed the jury that it could find improper motive on the part of the ABC if it found that those associated with the programme had acted recklessly, not caring and not checking whether the defamatory material was true or false, as opposed to engaging in "a process of careful checking of the information and of making considered judgments".

In answer to the specific questions formulated by the trial judge, the jury found that "the public discussion of the subject or subjects of public interest [was] for the public benefit" and that the ABC was not "actuated by an improper motive to the [appellant] in publishing the defamatory matter". Thus it was that there was judgment for the ABC.

It was argued on behalf of the appellant, as it was at trial and in the Court of Appeal, that the rulings and summing-up by the trial judge effectively denied any consideration of the substance of his case, namely, that there was no occasion to identify the appellant, a private individual, and to publish serious and unsubstantiated allegations about him. More precisely, it was argued that the trial judge should not have ruled that the ABC could rely on the defence under s 377(8) because consideration of that defence should have been confined to the appellant's alleged involvement in organised crime and corruption. Alternatively, it was argued that the question of public benefit should have been considered by the jury on the basis that it was the appellant's alleged involvement in organised crime and corruption that was the subject of discussion. Finally, it was argued that "good faith" should have been left to the jury on the basis that, by reason of the identification of the appellant, a finding could be made that the defamatory matter was irrelevant to a discussion of the matters particularised by the ABC, and/or that the manner and extent of publication was excessive.

The expression "some subject of public interest" suggests similarity with the common law concept of "matter of public interest", an integral part of the common law defence of fair comment. However, "matter of public interest" has no fixed meaning for the purposes of that defence. Rather, the position is as stated by Lord Denning MR in London Artists Ltd v Littler [80] : "There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury." Similarly, the expression "some subject of public interest" has no fixed meaning and no fixed area of operation. At least that is so in ordinary usage, where its referents are apt to change according to circumstances as they exist from time to time.

In their judgment in this case, Dawson, McHugh and Gummow JJ would confine the expression "subject of public interest" in s 377(8) of the Code to "the conduct of a person engaged in activities that either inherently, expressly or inferentially [invite] comment or discussion". This their Honours would do by construing s 377(8) in the light of the common law defence of fair comment as it had supposedly developed at the time when the provisions of the Code dealing with defamation were first enacted. There are, in my view, several reasons for not confining s 377(8) in this way.

One reason for not confining s 377(8) in the way indicated is that it must be construed in accordance with the general principle that codifying statutes are to be construed according to their terms and, except for ambiguities or technical terms, not by reference to the pre-existing law [81] . The expression "subject of public interest", although imprecise, is neither technical nor ambiguous. And as a matter of ordinary language, it is apt to extend to "a[ny] matter [that] is such as to affect people at large" [82] .

1. See Sungravure Pty Ltd v Middle East Airlines (1975) 134 CLR 1 (a case concerning the Defamation Act 1958 NSW at 22, per Mason J, referring to Bank of England v Vagliano Bros [1891] AC 107 at 144-145, per Lord Herschell. 2. London Artists Ltd v Littler [1969] 2 QB 375 at 391, per Lord Denning MR, speaking of a "matter of public interest" in relation to the common law defence of fair comment.

Another reason for not confining s 377(8) by reference to pre-existing law is that there is no body of pre-existing law relevant to the area in which the sub-section operates. As Windeyer J pointed out in Australian Consolidated Press Ltd v Uren, s 377(8) has "no direct common-law ancestor" and it is not the "statutory counterpart" of the common law defence of fair comment [83] . Fair comment is a separate and distinct defence under s 375 of the Code [84] .

1. Uren's case (1966) 117 CLR 185 at 207 speaking of s 17(h) of the Defamation Act 1958 NSW (now repealed) which was in the same form as s 377(8) of the Code. See also Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 319. 2. The substance of s 375 of the Code is now enacted as s 14 of the Defamation Act (see n 141).

A third reason for not confining s 377(8) so as to exclude general topics of public interest is that, in any event, the defence of fair comment was not confined in that way when the provisions of the Code dealing with defamation were first enacted. Then, as now, defamatory matter impugned the conduct of individuals and, in that sense, the defence of fair comment applied only to the conduct of individuals. A defence of fair comment was available in the case of individuals whose conduct was a matter of public interest because they exercised public functions [85] or because, in some other way, they submitted their conduct or some aspect of it to the public arena [86] . But it was also available in the case of individuals connected with more general matters of public interest. Thus, in South Hetton Coal Co Ltd v North Eastern News Association Ltd [87] , Lord Esher MR said that a newspaper article on living conditions in a colliery village related to a matter of public interest because "it related to so large a number of people, of such a kind, to a district of such an extent, and to matters of such importance as to render it a matter of public interest that the conduct of the employers should be criticised" [88] .

1. See, eg, Hibbins v Lee (1864) 4 F & F 243 [176 ER 549]; Hedley v Barlow (1865) 4 F & F 224 [176 ER 541]. 2. See, eg, Carr v Hood (1808) 1 Camp 355n [170 ER 983]; Dunne v Anderson (1825) 3 Bing 88 [130 ER 447]; Campbell v Spottiswoode (1863) 3 F & F 421 [176 ER 188]. 3. [1894] 1 QB 133. 4. South Hetton Coal Co [1894] 1 QB 133 at 140. The other two members of the Court of Appeal (Lopes and Kay LJJ) also took a broad general approach to the question whether the subject of the article was a matter of public interest. Lopes LJ said (at 143): "The attack upon the plaintiffs is in respect of the sanitary condition of their property, involving the health, comfort, and well-being of over 2,000 human beings. The sanitary condition of this large population is placed under the control of a public body who do not interpose. Can it be said that this alleged state of things is not a matter of grave public interest?" Kay LJ said (at 144-145): "Considering the extent of colliery business in this country, the enormous number of men employed in it, the legislative provisions that have of necessity been made concerning the mode of carrying it on, as for instance in the ventilation of coal mines, considering the number of people in this particular village, the fact that the houses in which they live are supplied by the colliery proprietors rent free as part of the colliers' wages, that this very village is within the jurisdiction of a rural sanitary authority, and that the article complained of seems from the commencement of it to be one of a series dealing with the homes of pitmen in the county of Durham, I am of opinion that the subject of the article is a matter of public interest."

In my view, the expression "subject of public interest" must be construed according to ordinary usage and, when so construed, is capable of broad contemporary application. Thus, the matters particularised by the respondent as subjects of public interest for the purposes of its defence under s 377(8), which for convenience can be referred to compendiously as organised crime and corruption in Queensland, are, in my view, "subject[s] of public interest" for the purposes of that sub-section.

Section 377(8): "in the course of, or for the purposes of discussiond"

In their ordinary and natural meaning, the words "in the course of [a] discussion" import a temporal connection in the sense that they require a discussion that is "currently going on" [89] . And, in my view, as a matter of ordinary language, they also require that the defamatory matter be a contribution to that discussion, in the sense that it is connected with or arises out of the subject being discussed.

1. Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 209, per Windeyer J, approving the trial judge's ruling to this effect.

It was suggested in argument that, even if there was no ongoing discussion, the broadcast might come within s 377(8) if its purpose was to initiate "the discussion of some subject of public interest, the public discussion of which is for the public benefit". That suggestion was made in the context of the appellant's argument that, for the purposes of ruling on the defence under s 377(8), the trial judge should have confined himself to a consideration of the question whether the broadcast was in the course of, or for the purposes of, the discussion of the appellant's alleged involvement in organised crime and corruption. That argument loses much of its significance if s 377(8) operates in the manner suggested.

In Australian Consolidated Press Ltd v Uren, Windeyer J referred to two judicial statements in support of his conclusion that the words "in the course of the discussion of some subject of public interest" require that there be "a discussion of that subject currently going on" [90] . One was the statement of Dixon J in Loveday v Sun Newspapers Ltd [91] that the words "matter of public interest", at least in the context in which they were used in Adam v Ward [92] , refer to something that "has already become of public interest" [93] . I do not think that, of itself, that statement throws any real light on the question whether a publication made for the purpose of instigating the discussion of the very subject of the publication is a publication "for the purposes of discussion" within s 377(8).

1. Uren's case (1966) 117 CLR 185 at 209. 2. (1938) 59 CLR 503. 3. (1915) 31 TLR 299 at 304, per Buckley LJ. 4. Loveday (1938) 59 CLR 503 at 521. The other was a statement to similar effect by Latham CJ in the same case (at 513). See also Truth (NZ) Ltd v Holloway [1960] NZLR 69 at 84; Justin v Associated Newspapers Ltd (1966) 86 WN (Pt 1) (NSW) 17 at 40, per Walsh JA.

In Loveday v Sun Newspapers Ltd, Dixon J was, I think, referring to a subject which is of public interest because it, or some aspect of it, has been put into the public arena [94] or become the subject of public discussion [95] before publication of the defamatory matter. However, there are some subjects which are inherently of public interest. So much was most recently recognised in this Court in the statement in Theophanous v Herald & Weekly Times Ltd [96] that "[t]he public at large has an interest in the discussion of political matters such that each and every person has an interest, of the kind contemplated by the common law [relating to qualified privilege], in communicating his or her views on those matters and each and every person has an interest in receiving information on those matters".

1. See, eg, Crate v McCallum (1905) 11 OLR 81; Adam v Ward [1917] AC 309; Kinney v Fisher (1921) 62 SCR 546. See also the cases cited in n 156. 2. See Hibbs v Wilkinson (1859) 1 F & F 608 [175 ER 873]. 3. (1994) 182 CLR 104 at 140, per Mason CJ, Toohey and Gaudron JJ.

The words "for the purposes of the discussion of some subject of public interest" are, in my view, capable of referring to a publication which is itself a discussion of a subject of public interest, particularly one that is inherently so. It was not suggested that the broadcast involved in this case was, itself, a discussion of a subject of public interest. Rather, the suggestion was that it might be defended as having been made for the purpose of initiating a discussion of the appellant's role in organised crime and corruption.

Standing alone, the words "for the purposes of the discussion of some subject of public interest" are also capable of referring to a publication, which is not itself a discussion of a subject of public interest, but, rather, a publication of factual statements intended to initiate discussion when none is under way. When read in context, however, the words do not bear that meaning. The sub-section clearly distinguishes between the publication in question and the discussion which is the occasion giving rise to its protection, indicating that it is concerned with an actual discussion and not one that might occur as the result of the publication in question. To some extent, that is confirmed by the use of the definite article: the second limb of s 377(8) would clearly have a wider operation if the sub-section were to provide protection for a publication made in the course of, or for the purposes of, a discussion of some subject of public interest.

The respondent's defence under s 377(8): the subjects of discussion

As already indicated, s 377(8) distinguishes between the publication in question and the discussion which, if the other requirements of s 377(8) are satisfied, affords protection to that publication. The focus of s 377(8) is on the subject of the discussion, not the subject of the publication in question. Unless the publication is itself a discussion of a subject of public interest, the discussion, which may be private or public, must be proved and proved to be under way at the time of the publication of the defamatory matter.

Because the respondent did not defend its broadcast on the basis that it, itself, was a discussion of some subject of public interest and because s 377(8) does not extend to cover statements of fact intended to initiate discussion of a subject matter of public importance and, thus, cannot afford protection for the broadcast on the basis that it was made for the purpose of initiating discussion of the appellant's role in organised crime and corruption, the respondent can rely on s 377(8) only to the extent that it established an on-going discussion or discussions. The evidence in that regard consisted of copies of newspaper articles, extracts from Hansard and videotapes of other television broadcasts. That evidence was not analysed in any detail in this appeal. However, it is clear that it disclosed some discussion at some stage of illegal drug dealing and other criminal activity in Queensland.

The question whether the discussion as proved was of the subjects particularised by the respondent does not presently arise. It is sufficient for present purposes to observe that the proved discussion was of a broader subject than the appellant's alleged involvement in organised crime and corruption. That being so, the appeal must fail to the extent that it was argued that the trial judge should have considered whether the latter was a subject of public interest and should have directed the jury to decide whether the discussion of that subject was for the public interest.

The respondent's defence under s 377(8): additional considerations

Although of no direct relevance to the outcome of the appeal, it is convenient to note three further matters with respect to the respondent's defence under s 377(8). First, because the discussion or discussions relied upon were concerned with general subjects which, for present purposes, can be identified as organised crime and corruption in Queensland, the jury's task, so far as it concerned the question of public benefit, was to consider the nature of those subjects. It was not, as the trial judge instructed, to balance "the making of most serious allegations against the [appellant] against the public's interest in knowing that information exists that involves [him] in organised crime, protection of illegal activities and trafficking in illegal drugs". However, that exercise, which was favourable to the appellant, would have been appropriate had the subject of discussion been his alleged involvement in those activities.

The second matter to be noted is that the appellant's alleged involvement in organised crime and corruption was not irrelevant to the trial judge's consideration of the defence under s 377(8). It was for his Honour to consider whether the broadcast of material asserting that involvement - more precisely, the publication of the defamatory imputations - was made in the course of, or for the purposes of, an on-going discussion. As already indicated, it was for his Honour to decide whether there was any discussion of that subject, whether the broadcast had a temporal connection with that discussion and, also, whether the imputations were connected with or arose out of the discussion. However, it is by no means clear that that is what was done.

The trial judge seems to have approached the question whether the defamatory matter was published in the course of, or for the purposes of, the discussion of a subject of public interest, not by considering the defamatory imputations, but by identifying the "essence" of the programme. As already indicated, his Honour identified its essence as "systemic corruption of a police force" and seems to have considered that that was a "perennial" subject of discussion. And it may be that his Honour made his ruling that the respondent could rely on its defence under s 377(8) on the basis that systemic corruption was the subject of discussion, rather than the subjects particularised by the respondent and, apparently, left to the jury for their decision on the question of "public benefit". However, the appellant made no complaint with respect to these issues.

The third is a more general matter which, to some extent, emerges from the two matters just discussed. It is necessary, if a defamatory publication is defended under s 377(8) of the Code for the subject of the discussion to be "determined with some exactness" [97] . Precise identification is necessary to enable the trial judge to decide whether the defamatory matter was published in the course of, or for the purposes of, the discussion of that subject and, also, whether the subject is one of public interest. Precise identification is also necessary to enable the jury to decide whether discussion of that subject is "for the public benefit" and, if it is in issue, whether the defamatory matter is relevant to the discussion relied upon. As already indicated, it may be that the subjects of the discussion or discussions proved by the respondent did not correspond precisely with those which it particularised.

1. Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 209, per Windeyer J, speaking of s 17(h) of the Defamation Act 1958 NSW (now repealed) which was in the same form as s 377(8) of the Code.

It is clear from the terms of s 377 of the Code that good faith is a separate element of the defences provided by that section. And, in each case, it is the publication - by definition, the defamatory imputations - which must be made in good faith. This notwithstanding, the issues which fall for consideration by the jury on the question of good faith may overlap with those to be decided by the trial judge in ruling whether, good faith apart, the occasion of its publication is protected [98] . The degree of overlap may vary according to the particular sub-section relied upon and, also, according to the facts of the particular case.

1. See Justin v Associated Newspapers Ltd (1966) 86 WN (Pt 1) (NSW) 17 at 51-52, per Jacobs JA; Mackie v Australian Consolidated Press Ltd [1974] 1 NSWLR 561 at 573-574, per Hutley JA; Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 330, per Mason J.

In the case of a defence under s 377(8), the question whether the publication is relevant to the discussion in question, which is for the jury, will usually have much in common with one of the questions to be determined by the trial judge, namely, whether the defamatory matter was published in the course of, or for the purposes of, that discussion. However, it cannot be said, merely because the trial judge rules that the publication was made in the course of, or for the purposes of, that discussion, that there is no further issue of relevance for the jury's consideration. That approach would deny effect to the words of s 377(8) which, as already noted, make good faith and, hence, relevance a separate component of a defence under that sub-section.

The general question, so far as relevance is concerned, is whether "the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter". In the context of s 377(8), the precise question is whether the defamatory imputations are relevant to the on-going discussion of a subject of public interest, the discussion of which is for the public benefit.

In any context, "relevance" is a question of judgment and degree in all but the clearest cases. It is, thus, not surprising that little light has been shed on what is involved when relevance is in issue, either for the purposes of s 377 of the Code or for the purposes of the common law relating to malice. Earl Loreburn, speaking of the judge's function in relation to common law qualified privilege in Adam v Ward [99] , used the following terms: material "that is not relevant and pertinent"; "foreign matter"; and "something beyond what [is] germane and reasonably appropriate to the occasion". In so doing, his Lordship acknowledged that "[t]he facts of different cases vary infinitely" [100] and that the principle could not be expressed in more definite terms. In my view, the same imprecision applies when relevance is in issue under s 377 of the Code, particularly in the case of a defence under s 377(8). And given that imprecision, relevance must be left to the jury if it is reasonably possible for a person to form the view that the defamatory imputations, or any of them, are not relevantly connected with the on-going discussion which is said to be the occasion for their protection. Or to put the matter in terms which are, perhaps, more appropriate to common law malice but which, nonetheless, have some significance in the context of good faith, relevance must be left to the jury if it is possible to conclude that the occasion of the on-going discussion was used, not to further that discussion, but to intrude some separate or discrete topic containing defamatory matter.

1. [1917] AC 309 at 320-321; see also at 318, per Lord Finlay LC; at 327, per Lord Dunedin; at 348, per Lord Shaw of Dunfermline. 2. Adam v Ward [1917] AC 309 at 321.

It follows from what has been said as to the circumstances in which relevance must be left to the jury that it is also necessary for the trial judge to identify the discussion and the subject involved in that discussion before any ruling can be made on the question whether it will or will not go to the jury. As already indicated, there was no very precise identification of the discussions and the subjects of discussion in this case. This notwithstanding, the matter can be approached on the basis that the discussions were public discussions and that the relevant subjects were the general subjects particularised by the respondent and referred to by the trial judge in his summing-up.

The broadcast attributed serious criminality to the appellant - criminality which, as the terms of the broadcast show, was denied and was known to be unsubstantiated except to the extent that inquiries by the ABC, or its staff, of persons involved with illegal drugs suggested otherwise. It was, in my view, open to a properly instructed jury to conclude, by reason of the identification of the appellant and the substantial degree of prominence given to him in the programme, that the defamatory matter constituted a separate and discrete topic lacking genuine connection with the public discussion of the general subjects on which the respondent relied for its defence under s 377(8). Or to put the matter another way, it was open to the jury to conclude that the occasion was used, not to further that discussion, but to intrude a separate topic involving allegations of serious criminality on the part of the appellant. It follows that relevance should have been left to the jury.

So far as manner and extent are concerned, the question under s 377 is what is "reasonably sufficient for the occasion", which translates, in the case of a defence under s 377(8), to what is reasonably sufficient for the discussion in question. As with relevance, reasonable sufficiency raises questions of judgment and degree, particularly in the context of a defence under s 377(8). And, for the reasons given with respect to relevance, manner and extent should, in the case of a defence under s 377(8), be left to the jury if there is any reasonable basis for a conclusion that the publication exceeded what was reasonably necessary for the discussion in question.

If, as has been assumed, the discussion was a public discussion, it cannot be complained that the broadcast was made to the public at large. However, the manner in which the allegations were made concerning the appellant was capable of being regarded as exceeding what was reasonably sufficient for the on-going discussion of the general subjects upon which the respondent relied. There was, for example, the somewhat sinister impression generated in the segment in which an actor portrayed "the Marble Man" delivering marijuana seeds; there was the statement that the ABC's researches confirmed much of what was contained in the Slade Report; and there was also the segment in which photographs were shown of the then Premier of Queensland opening the marble mine at Chillagoe, suggesting, in the context of allegations of political corruption, an improper association between the appellant and the then Premier. It follows that, in my view, manner and extent should also have been left to the jury.

The appellant made no complaint in this Court with respect to the way in which improper motive was left to the jury. It is, however, convenient to note two matters. First, the jury was instructed to consider the ABC's recklessness as evidence of improper motive. "Recklessness" ordinarily signifies the publication of false matter without regard to whether it is true or false, with the consequence that the publication is treated as though made without belief as to its truth [101] . At common law, this may support a finding of malice. And it may support a finding of improper motive under s 377, although ordinarily it will be more directly relevant to the question whether the publication was believed to be true.

1. See Horrocks v Lowe [1975] AC 135 at 150. See also Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 at 444, per Lord Esher MR; at 454, per Lopes LJ.

The second matter to note is that the question put to the jury was whether the ABC was "actuated by an improper motive to the [appellant] ". The definition of good faith includes "ill-will to the person defamed" and "any other improper motive". As a matter of ordinary language, the definition does not require that improper motive be directed to the person defamed [102] . In my view, the matters which entitled the appellant to have the jury consider relevance and manner and extent are also capable of supporting a finding that the defamatory matter was published, not to further the on-going discussion or discussions on which the respondent relied, but to advance its own thesis that corruption extended from the Gold Coast in the south, to Cairns in the north.

1. This is also the case as regards common law malice. In Horrocks v Lowe [1975] AC 135 at 152, Lord Diplock interpreted the words of Lord Esher MR in Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 at 444 as "disposing of a suggestion that reckless disregard of whether what was stated was true or false did not constitute malice unless it were due to personal spite directed against the individual defamed".

The appeal should be allowed with costs; the order of the Court of Appeal should be set aside and, in lieu thereof, it should be ordered that the appeal to that Court be allowed with costs. Although the appellant has succeeded only on the question of good faith, the issues on that matter are intertwined with the availability of the pleaded defences and, thus, there should be a new trial of the action. The costs of the first trial should abide the outcome of the second.