MELBOURNE pee 4 Harpour For these reasons I am of opinion that the appeal fails. ae Even if the evidence had not been so clear as I th

Grimith C.J. ponderance of evidence in the appellant's favour to indue reverse a judgment of the Full Court in which they supported the judgment of the Judge of first instance question of fact. For these reasons the appeal will be dismis

Barton J. Iam entirely of the same opinion. O'Coxnor J. Tam also of the same opinion. Appeal dismissed with costs.

Solicitors, for appellant, Braham & Pirani. Solicitors, for respondents, Mulleson, England & Stewart. -

CROWLEY . 7 ; ; ' . APPELLANT; DEFENDANT, AND GLISSAN.. , ' 5 4 . Respondent (No PLAINTIFF, ; H.C. or A. ON APPEAL FROM THE SUPREME COURT OF 1905. NEW SOUTH WALES.

Sypyey, 4¢tion for malicious prosecution - Onus on plaintiff - Absence of

Sept. 4, 5, 6, probable cause - Lvidence of plaintiff not inconsistent with reasonable

Tab guilt - Nonsuit. Libel - Criminal offence - Defence of truth and publication for public be Gritmeh OJ. and manner of publication to be considered - Motive of libeller it

O'Connor JJ. Defamation Act (N.S.W.) (No, 22 of 1902), secs. 12 and 13.

\blish the absence of reasonable and probable cause, must prove that known to the defendant, at the time when he initiated the prosecu- 'were inconsistent with an honest belief upon reasonable grounds that ntiff could not establish a defence to the charge.

12of the Defamation Act (N.S. WV.) (No. 22 of 1901) makes it a criminal ffence to maliciously publish a defamatory libel. Sec. 13 provides that on trial of an indictment or information for such a libel, the truth of the lefamatory matter may be inquired into, but shall not amount toa defence a was for the public benefit that the defamatory matter should be ablished. Such a defence must be specially pleaded.

'The respondent was prosecuted by the appellant for criminal libel, and was ommitted for trial, but the Attorney-General declined to file a bill. 'The libel contained in a private letter alleging corruption on the part of the appel- it and the directors of a company of which the appellant was general r. The respondent brought an action against the appellant for malicious jon, and in support of the allegation of corruption, gave evidence of which must have been within the knowledge of the appellant when he te the prosecution. These facts were open to the construction put upon them by the respondent in the libel, but were also reasonably capable 'a construction more favourable to the appellant. The jury found for the Hdd, that, inasmuch as the facts proved by the respondent were not incon- sistent with the existence in the appellant's mind of an honest belief on onable grounds that the charges in the libel were not justifiable and that the respondent was therefore guilty of the offence of libel, the respondent had iled to discharge the onus cast upon him, as plaintiff, of proving an absence of reasonable and probable cause, and should have been nonsuited.

Abrath v. North-Bastern Railway Co., 11 Q-B.D., 440; 11 App. Cas., 2475 nd Cox v. English Scottish and Australian Bank, (1905) A.C., 168, followed.

_ Heli, also, that the plaintiff in the action was entitled to give evidence would have supported a plea of justification under sec. 13 of the ation Act 1902.

itention of the defendant in making the publication is immaterial, but the should consider whether the nature and manner of the particular publica. on were such as would benefit the public.

ecision of the Supreme Court, @lissan v. Crowley, (1905) 5 8.R. (N.S.W.), reversed,

action for malicious prosecution for defamation the plaintiff, in order H.

H.C. of A. The respondent brought an action against the appellant f hediis malicious prosecution, and obtained a verdict for £500 dan Crowrey The prosecution complained of was the laying of an i Guesax, tion for the malicious publication of a defamatory libel, und (No, 2), See. 12 of the Defamation Act (No. 22 of 1901). The appell

• • was the general manager in Sydney of an insurance comp called the City Mutual Assurance Company, and the respond was resident seeretary of a branch office in Brisbane. In Febru 1903, the respondent, who was a policy holder in the eom; wrote a letter to a friend of his living in Sydney, another p r holder, named Walters, in which he made libellous stateme concerning the directors of the company and the appellant. letter was marked private, and was apparently written for th purpose of enlisting the support of Walters in a scheme of tl respondent for the removal of the appellant from his position ¢ general manager, and the appointment of the respondent in place. In the letter various more or less indefinite charges y made against the directors, but the most important were - tion that they and the appellant were in the habit receiving commission on business introduced by them to tl company, and a sentence containing these words, " there is noth but corruption with Crowley and the directors." Reference also made to particular instances of alleged malpractice in case of two directors named Hogan and Punch,

The letter came into the possession of the appellant, who it before his directors, and finally, after some correspondence passed between him and the respondent on the subject, in criminal proceedings against the respondent for defamation.

The respondent was committed for trial, but the Attorne General declined to file a bill. The respondent then brought ¢ action for malicious prosecution,

The appellant moved for a rule wisi to set aside the verdict on t grounds (amongst others) that the verdict was against evide that the plaintiff ought to have been nonsuited inasmuch as thet was no evidence that the publication was for the publie bem and that evidence was erroneously admitted to show that # libel was true and that it was for the public benefit that it be published. A rule nisi for a new trial was granted on

"Subsequently the Full Court discharged the rule with Glissan v. Crowley (2).

sion, moved the High Court for leave to appeal also from the er of the Supreme Court refusing to grant a rule nisi on the ds mentioned. The High Court held that leave was not

ary: Crowley v. Glissan (3). Further reference to the facts found in the judgments.

t. The evidence of truth and public benefit was wrongly nitted. 'The case never came to trial, and consequently no

ch can only be raised when specially pleaded. It does not xe the libel less a libel; it merely furnishes the defendant th an excuse for the publication of it. Therefore, untii there plea, there is an offence, and, as the civil Court could only con- er the issues as they existed at the time when the information , truth was at that stage immaterial.

e Was no evidence that it was for the public benefit that libel should be published, within the meaning of sec. 13 of the jumation Act 1902. The letter was intended to be read only he person to whom it was addressed, being marked "private." public could not be benefited by a publication to one person h the intention of furthering the writer's own private aims. referred to McIsaacs v. Robertson (4).] It is not sufficient tt the matters published are such that if they had been hed in another manner the public might have been bene- d. The motive and the circumstances of the particular pub- nare to be considered. Moreover the general public have no it in the private affairs of the company. It is merely a 'Y concern, not a public body. The learned Judge gave y a direction as to the matter being one of public interest had no bearing on the issue of truth and public benefit,

N's.w. W.N., 220, (3) 2C.1.R., 402. ) 5S.R. (N.S.W.), 219 (4) 3S.C.R. (N.S.W.), 51.

grounds but refused as to the third: Glissan v. Crowley H. C. or a.

H.C. oF A. and it was left to them in such a way as to confuse their nm

on that issue. Next, there was no evidence to go to the jury that respondent could have successfully pleaded truth if the pro tion had continued, and he should have been nonsuited. referred to South Hetton Coal Co. v. North Eastern Association (1).] | Evidence was given of instances of alle, corruption, as to which the jury must be taken to have fo agamst the appellant; but the letter stated that there 1 "nothing but corruption," and the evidence fell a long way sh of that. The respondent, if he had pleaded truth on his tri would have had to establish the truth of all the allegations m in the libel ; failing that he would necessarily have been cony Gross exaggeration in the libel will render a plea of ti ineffectual. [They referred to Clarkson v. Lawson (2); Clem v. Lewis (3); Leyman v. Latimer (4); Wakley v. Cooke a Healey (5); Bishop v. Latimer (6); R. v. Newman (7); on Libel and Slander, 4th ed., p. 175; Folkard on Libel Slander, 6th ed., p. 414; Fraser, Law of Libel and Slander, 3 ed., p. 82.] The respondent himself admitted that he could substantiate his charges against several of the directors. The that the directors received commission, though perhaps irr was not necessarily corruption. It was proved that it was the prs tice for all officers of the company to take commission on b introduced by them, and there was no reason why the appell: any rate, should not takeit. [They referred to Bray v. Ford Buckley on Companies Acts, 6th ed., p. 504; Liquidato Imperial Mercantile Credit Association v. Coleman (9); Rica Railway Co.v. Forwood (10).) The plaintiff's own evidi therefore negatives the plea of truth. 3 Again, there was no evidence of want of reasonable the prosecution. Assuming that the Supreme Court was 1 and that the jury were right in the view they took 3

(1) (1894) 1 Q.B., 133. (5) 4 Ex., 511; 19 LJ. Ex., 9 (2) 6 Bing., 266, 587. (6) 4L.., 775. (3) 3Brod. & B., 297 ; 3 Barn. & Ald., (7) 1 El. & Bl., 558.

(4) 3 Ex. D., 15, 352. (9) L.R., 6 HLL, 189. (10) (1901) 1 Ch., 746.

he information, to have honestly believed otherwise.

urritH C.J. - The question is whether the appellant reason- lieved at that time that the truth of the charges made by spondent could not be proved. It is his state of mind at e that is material.]

a question of law for the Judge whether the facts proved consistent or not with the existence of reasonable and prob- se. If upon the plaintiff's case a reasonable jury could 'to the conclusion that the defendant honestly believed which could have led a reasonable man to think the guilty, there should be a nonsuit. There was no e that the appellant did not honestly believe in the respon- lt, and the facts as known to him were reasonably con- nt with that belief; for, although he knew the truth, the facts wn to him were reasonably capable of a different construc-

ry could and did find adversely to him with respect to not conclusive ; the question is whether a reasonable jury ave found otherwise, and the onus was on the respondent to lish that they could not. [They referred to Abrath v. N. E. y Co.(1)]. The bona fides of the appellant was clearly

eiving his advice, he waited for a considerable time before iting, and endeavoured to persuade the respondent to

from attacking the company in the future. Then, when ttacks were repeated by the respondent, the appellant took ngs in the interests of the company to have the respondent Even if there was evidence to go to the jury, the erance of evidence was so greatly in favour of the appel-

at the verdict was against the weight of evidence and ld be set aside. It was not disputed that all the matters red to in the libel were put before the company's solicitor, he advised a prosecution. 'That is in itself very strong of the existence of reasonable and probable cause: mg v. Mackintosh (2); Oheney v. Bardwell (3). This Court

| Q.B.D., 440; 11 App, Cas., (2) 2B. & C., 693. 253, (3) 2) N.S.W. LR, 401.

efit, it was still possible for the appellant, when he 1 ©. oF A.

H. C. oF A. can enter a verdict for the defendant if of the opinion that

verdict was wrong. The point was raised at the trial, and ground was taken on the rule nisi. [They referred to Rolin ¢ Innes Sup. Ct. Prac., 343; Trafford v. Pharmacy Board (V and Act No. 49 of 1900, sec. 7.]

(GrirrirH C.J. referred to Cox v. English, Scottish and A tralian Bank (2).]

Broomfield and Piddington, (Gerber with them), for respondent. It is not contended that all the matters referre in the letter are instances of corruption. There was no inm in the information, and therefore any statements that were i ferent must be taken in a non-libellous sense. The responden was only compelled to justify what was plainly libellous. only libellous statement in the letter was that referring to " ruption with Crowley and the directors." The letter be considered only in its reference to the appellant, not libel on the directors or the company. The meaning of the was that under the regime of the appellant and the di corruption was rife. The respondent is not bound to the li meaning of the words, and if the jury were of the opinion the facts proved were fairly described by the words used, no can be found with their verdict. "Corruption" means an a of duty by dishonest or partial conduct.

[O'Connor J. - It would be corrupt for a man to depart from ; duty from some improper or indirect motive, whether dishone not, to serve some improper end, for instance to gratify his personal spite. ] :

There is no need to prove a desire for pecuniary gain. aggrandisement would be a corrupt motive. [They ref Murray's English Dictionary.) "Nothing but corrupti merely a strong way of expressing that there was a great d corruption. Matters of a heinous nature merit strong and persons who go somewhat beyond the literal describing great public abuses will not be compelled to the exact words used. [They referred to Morrison v. Harn (3); B. v. Labouchere (Lambri's Case) (4); Australian

(1) (1902) 2 8.R. (N.S.W.), 418. (3) 3 Bing., N.C., 75% (2) (1905) A.C., 168. (4) 14 Cox C.C., 419.

Hugh (3).) The meaning that may fairly be put upon the is wholly a question for the jury in such cases as this. On view of the meaning of the letter there was abundant evi- ee to support the finding of the jury. Many instances of grave of duty on the part of the appellant and the directors were wed. The jury must be taken to have believed the respondent's nesses in preference to those of the appellant, wherever there a conflict. The taking of commission was clearly corrupt. directors were in a fiduciary position to the policy holders, nd were bound to introduce only profitable business, whereas their est, if they earned commission, was to introduce any business

it could be dragged in. The evidence on these points was luite sufficient to justify the use of the strong expressions in the libel, and as the appellant knew the facts, and the jury have ound against him, he must be taken to have known when he e the information that the truth of the libel would be estab- The same argument applies to the question of public fit. If the finding of the jury can be supported as to that, e appellant cannot be heard to say that he might not have ht that the publication was for the public benefit. The were justified in finding as they did on that point. The ive might be purely personal, and the extent of publication limited, yet, if the matter published was of such a nature its publication in any way could be for the public benefit, he libeller is protected by sec. 13 of the Defamation Act. It is nature of the matter published that decides the question. The 'ture cannot have intended to allow a person to be punished o chooses unwisely the manner of publishing matters which it the public benefit. to have published. If that had been nded the word "so" would have been inserted before " pub- ed" at the end of the sub-section, and instead of the words uld be" the word "were" would have been used. [They ed to Morgan v. Irby (4); R. v. M' Hugh (3)]. MeIsaacs v. (5) went on the ground that the matter published was h a nature that its publication could not be of public benefit.

(1894) A.C., 284, at p. 287. (4) 2 Legge, 1149. App. Cas, 156, (5) 3 SER, (N.S.W.), 51. (1901) 2 Tr. R., 569.

Co. v. Bennett (1); Simmons vy. Mitchell (2); Rv, HO ora.

In the present case the company was one whose welfare w: importance to a large section of the public, and corruption i management could not be too publicly condemned. Even on other construction of the section, this particular publication wa likely to benefit the public, for it might have resulted in a eha in the directorate and management of the company. ;

On the question of reasonable and probable cause the Judg directed the jury properly.

(Grirritn C.J. - The learned Judge directed them that, if found the facts against the defendant, as he must be taken to have known the facts, they must find that there was no rea able and probable cause.]

In this particular case that direction was right, though in othe cases it might not have been accurate. All the facts were in knowledge of the defendant.

[Grirrirn C.J. - But were not many of them capable of than one construction ? The questions were, what was the mea which the prosecutor might reasonably put upon the terms of letter, and whether the defendant could reasonably have ta different view of the facts from that which the jury might ta Ought not the jury to have been aiso asked whether the defe honestly believed on reasonable grounds that the plaintiff not prove such a plea 7]

The jury were in effect so directed, because the judgment the Privy Council in Abrath v. N. #. Railway Co. (1) was rea to them. b

If their finding is reasonable as to the facts, the appellant i practically estopped from contending that he thought otherwis The plea was so obviously an answer to the prosecution that ther was an absence of reasonable and probable cause. Exerci reasonable intelligence and fairness, the prosecutor ought to known that he would fail. The appellant cannot complain » of a mere omission to direct the jury in a particular way. Hed not ask for the direction. 4 '

As to the admission of evidence of truth, the appellant wa bound to expect that the plea would be set up. The stat defence is on the same footing as any other, and just as 2

the contemplation of the prosecutor as any other matters H. C. or A. hi might be given in evidence at the trial. There is no wae inciple upon which evidence on the point could be excluded at Crowrey » hearing of the civil action. It was material on the question of Ce jaintiff's innocence. (No. 2). {They referred also to Ravenga v. Mackintosh (1) and Hewlett

Want K.C.,in reply. The argument for the respondent assumes the whole question is whether the respondent was guilty or at, whereas the real question is whether there was reasonable probable cause for a belief in his guilt. The jury were, in , told that if they believed the evidence for the plaintiff they ust find for him. The liability of the appellant cannot depend 'hether he came to what the jury afterwards found was the ght conclusion as to the facts and the question of public benefit. was clear from the Judge's summing up that he thought the were reasonably capable of being construed as the appellant ed them. That should be enough to dispose of the case. ing that view the Judge ought to have nonsuited, inasmuch the facts were not inconsistent with the existence of reasonable nd probable cause.

{ the question of capacity of a shareholder who is in debt to © company, to become a director, he referred to Dawson v. fricam Consolidated Land and Trading Oo. (3).J

FrItH C.J. The appellant in this case was the manager of sept. 11 assurance company which had its headquarters in Sydney. he respondent, who was the principal officer of the company in e, wrote a letter to a person named Walters, who was in the company, containing very serious charges against ppellant. In respect of that letter the appellant instituted il proceedings against the respondent for the publication defamatory libel. The Attorney-General having declined to

(1) 2B. & C., 693, (2) 5 Taunt., 277.

• (3) 1898) 1 Ch., 6.

file a bill, the respondent then brought an action against ¢ appellant for malicious prosecution. Now, in an aetion malicious prosecution the plaintiff must establish three things, a was pointed out by Bowen L.J. in the ease of Abrath v. N. Railway Co. (1), in a passage cited with approval by their ships of the Privy Council in Cow v. English Scottish and Aw tralian Bank (2),an appeal from the Supreme Court of Queens The passage is as follows: - 'This is an action for mali prosecution, and in an action for malicious prosecution the pla tiff has to prove, first, that he was innocent and that his innoce was pronounced by the tribunal before which the accusation
made; secondly, that there was a want of reasonable and pro! cause for the prosecution, or, as it may be otherwise stated, the circumstances of the case were such as to be, in the eyes of the Judge, inconsistent with the existence of reasonable and pi able cause ;. and, lastly, that the proceedings of which he eo plains were initiated in a malicious spirit, that is, from an in and improper motive, and not in furtherance of justice." again (3): "Now, in an action for malicious prosecution the plain has the burden throughout of establishing that the cireums' of the prosecution were such that a Judge can see no reasonal or probable cause for instituting it." Their Lordships, in Com v. English Scottish and Australian Bank (4), then proc te take each step in turn, and having dealt with the facts stated at the end of their judgment that they agreed with t learned Judges of the Supreme Court that on the facts evidence the circumstances were not such as to be inconsi with the existence of reasonable and probable cause. test is therefore whether a reasonable man might draw inference, from the facts known to him, that the accused p was guilty.

Ordinarily the first step in an action for malicious prose tion is for the plaintiff to establish his innocence of charge that was brought against him. But that is not sufficient in itself. He must also show that there was an absence 0 reasonable and probable cause for the prosecution. Now, as ¥

(1) 11. Q.B.D., 440, at p. 455. (3) 11. Q.B.D., 440, at p. 457. (2) (1905) A.C., 163, at p. 170. (4) 1905) A.C., 168, at p. 171.

'iff has been established the question arises whether the mt took reasonable steps to ascertain the actual truth. If ad known the truth he could not have had reasonable s for making the charge. But, if he did take such steps to 'in the truth as a reasonable man would in such a case, and e facts, as far as he knew them, were such that a reasonable n might draw the inference from them that the accused was y, then there is not an absence of reasonable and probable e on his part for the criminal proceedings.

In a prosecution for criminal libel somewhat different considera- arise. The first thing that the prosecutor must prove is the ication of the libel. That may be the only material fact. It ay be that the circumstances are such that the onus is thrown 1 the defendant to excuse himself. In the present case the libel the prosecutor amongst other things with corruption. It d that there was "nothing but corruption with Crowley and ¢ directors." The information sworn before the magistrates tained no innuendoes. It merely alleged that the words were hed concerning Crowley. Now it is necessary to consider ether, at the time of laying the information, a reasonable man ght have come to the conclusion that the accused person, the pondent Glissan, was guilty of the charge. The person who an information for the publication of a criminal libel must :taken to know the law, and to know what are the defences hich may be made to such a charge. One of those defences is at the words are not capable in law of a defamatory meaning, that they were not used in a defamatory sense. Another is at the matter was published on a privileged occasion, which ight be met by proof of malice on the part of the person making the publication. These are defences which the prosecutor must ke into consideration, and should apply his mind to consider ether it was probable that they could be successfully set up, whether the circumstances were such as to deprive the dant of the benefit of the privilege. In New South Wales er defence can be set up, namely that the matters published true, and that it was for the public benefit that they should ished. It is not disputed that the question whether the

out by Owen J. at the trial, after the innocence of the H.C. or A.

matters are true or not is a question the answer to wl

tory matter is as to a single concrete fact within the k of the prosecutor he must be taken to have known it at th of laying the information. If the matter is not a statement. concrete fact, but an inference from facts, then different ques arise. It may be that the prosecutor must be taken to. the facts from which the inference is sought to be dray it by no means follows that he must be taken to know inferences which will be drawn from them, and if w facts reasonable men could draw an inference either way, difficult to say, according to the rule laid down in the case of v. English, Scottish and Australian Bank (1), that there y absence of reasonable and probable cause for the prose But it is not only necessary for the defendant to proye the tr of the defamatory matter ; he must also prove that it was for public benefit that it should be published. I take it Statute in laying down that rule means that all the eireun of the case are to be taken into consideration - the manner publication,and the circumstances under which it was mad as the facts. For instance, it may well be that the publicat a libel to an officer of police is for the public benefit, but publication of the same matter by advertisement in a pi newspaper would not be for the public benefit at all. the publication is for the public benefit or not is a questio fact to be determined by the tribunal before which the east tried. But, if a reasonable man might draw an inference eit way, it cannot be said that there was a want of reasonab probable cause for the proseeutor drawing it in a way advers the accused person. That seems to be an obvious application the rule. If a reasonable man might draw the inference that t accused could not successfully set up such a defence,

because he was not likely to induce any jury to believe int truth of the allegation, or because he was not likely to in them to believe that it was for the public benefit that the p cation should be made, it cannot be said that there was absence of reasonable and probable cause for the prose

be any doubt about these principles. I proceed to apply to the present case.

e prosecution was for the publication of a letter. At the he respondent endeavoured to establish, in order to show a f reasonable and probable cause on the part of the prose- yr, that the statements in the letter were true, and secondly it was for the public benefit that the matters should be hed. The appellant's counsel objected to evidence of this ng given, and the learned Judge admitted it, and, as I think, perly. I will not deal with the other charges contained he letter, as they are of minor importance, but will confine my ion to that contained in the sentence, "there is nothing but tion with Crowley and the directors." These words are n to many constructions. They were taken at the trial, and ated by the parties, by the learned Judge in his summing up, xy the Full Court, as asserting the existence of a course of 'ion between Crowley and the directors of the company. acts of Crowley, the appellant, were deposed to by the dent and his witnesses, which, it was said, amounted to f of corruption on the part of the appellant, and also on the tof the directors. It was treated as a charge of corruption en him and them in the management of the affairs of the ny. One of the charges made and sought to be supported e evidence was that the appellant had corruptly interfered h the election of directors on more than one occasion. It was ved that on another occasion he made away with ballot papers, also that he had forged a signature to ballot papers, which, ever, were not produced. Another charge was that he had ed ballot papers addressed to the scrutineers. I will not e about these matters, because the charges must be treated whole, and the defence can only be established by proving the thof the whole of the defamatory matters charged. I will e myself to the charge of corruption. One of the charges on a particular occasion an action for defamation was against the appellant by a discharged servant of the ny. He had in the course of his duty written a letter ich was alleged to be defamatory, and the jury took that view

ning that the matter was defamatory. Ido not think there H.C. or A.

and gave a verdict against him for heavy damages. tors, perhaps thinking that it was through endeavouring t his duty to the company that he had incurred the liability, | him £1000 to pay the judgment debt, which he was to repay b instalments, and a year later increased his salary, at the s time increasing the salaries of other officers of the society. it was said, was evidence of corruption. Another charge was thi the appellant had at an early stage of the history of the compa received commission on business introduced by him to the cot pany, and that the directors had done the same thing. Accordin to the evidence every officer of the company did so. Whe that was right or not depends upon whether the persons were entitled to object were aware of it or not. Very likely was not right. Another charge was that in the case of one the directors who was insured for £1000, and was in ill-healtl the appellant allowed him to reduce his policy from £1000 t £400, and that in calculating the amount he was to get the company as the surrender value, he calculated the am at from £15 to £25 more than he ought to have got, it was said that the appellant got an advantage from because the director in question, by means of the money h received in this way, was enabled to pay the appellant a debt du to him. Finally there was a charge made in respect of adi who for many years was a debtor to the company. he was a debtor a rule was passed that, if any director be debtor to the company, he should cease to be a director, but had no application to the case of a member of the company was a debtor becoming a director. It was said that the appell had connived at members who owed money remaining dit and at their receiving commissions. There was some eviden ce all these points. There was evidence also for the defence. At th close of the plaintiff's case counsel for the defendant moved fi non-suit, on the ground that the plaintiff had not made out his The learned Judge refused the application, but reserved leave | move the Full Court to enter a non-suit. The point taken exactly the same as that taken before this Court; that the evid was not inconsistent with the existence of reasonable and prob cause for the prosecution. A rule nisi was asked for on

nt the application for a nonsuit. The Full Court finally

ed a rule on two grounds - that the verdict was against ence, and that His Honor ought to have nonsuited the plain- jasmuch as there was no evidence that the alleged libel was iblished for the public benefit. They refused to grant it on the rd ground, that His Honor was in error in admitting evidence

benefit that it should be published. One of the points was that the Judge directed the jury that it was a question 'them to consider whether there was reasonable and probable for the prosecution, which is what the Judge was said to edone in the case of Com v. English Scottish and Australian nk (1). There is some colour for this contention, for at the d of his summing up the learned Judge, after referring to the nee at length, said : - "It is for you to say, as I stated before, ether you believe that these charges are true, and whether ou think that in the way they were published they were pub- for the public benefit. It is entirely for the plaintiff to y you that the defendant, in bringing these proceedings in criminal Court, acted without reasonable and probable cause. are the matters which you have to consider, and I now ve them to you." Upon that I remark first of all that when aintiff has proved that the charges were true and published e public benefit he has merely proved his innocence. But it go one step further. He must prove that the defendant reasonable and probable cause for believing him guilty. ing the facts as appearing by the plaintiff's case, and on the cuments admitted in evidence, if upon those facts it was open reasonable man to think that the defence of truth and publie could not be established, then there was a failure to absence of reasonable and probable cause for the prosecu- n. Now the facts set up to prove corruption were all matters king both ways. The jury may have been justified in inferring iption. The learned Judge at the trial left the matter to such a way that it was open to them to decline to find ruption. Again, on the question of public benefit, he left it to (1) (1905) A.C., 168.

them in terms which showed that he would not have been surpi if they had come to the conclusion that the publication w: for the public benefit. In that I have no doubt that the leam Judge was right. But ifa reasonable man, or the jury, might thought that the publication was not for the publie benefit, t the appellant was entitled to take that view, and if he did, # was not an absence of reasonable and probable cause for t prosecution. The charge of corruption was an inference of f from facts to be proved, and if those facts were of a doul character, and such that a reasonable man might draw an ence from them either way, then the plaintiff failed to es want of reasonable and probable cause. That principle i the same as was applied in Cox v. English Scottish and A lian Bank (1). In that ease evidence was given to show that plaintiff left his home with intent to delay his creditors, and th facts were consistent with his having done so. The manager 0) defendant bank swore that he honestly believed that the plaint had done so, the jury found that he did not, and found a verdict the plaintift. The Privy Council held that the facts, being sistent with the view said to be taken by the defendant's man: were therefore not inconsistent with the existence of reason: and probable cause. In that case the jury specially found thi they did not believe the statement of the prosecutor when he that he honestly believed that the plaintiff had left his home wi

intent to delay his.creditors. But in the opinion of the Court tha finding was wholly unsupported by the evidence. Of course had not honestly believed in the plaintiff's guilt the ease woul have been very different. But it was for the plaintiff to esta that the facts as known to the defendant were inconsistent with the existence of reasonable and probable cause.

the charge of corruption was not a proper inference to draw fri the facts, that the charge was much too large, and that there w nothing to justify the statement that there was nothing but cot ruption with Crowley and the directors. Further, the applied to all the directors, and the evidence was that it could!

the transactions were equally open to an innocent con- m as to a guilty one. When the case came before the Full rt, a rule nisi was granted on some grounds and refused as to but the attention of the Court was mainly directed to the dthatthe verdict was against evidence and against the weight idence. But, if the view that I take is the correct one, it is that the plaintiff failed to establish the absence of reasonable obable cause unless the facts were such that on the prosecu- | the Judge would have been bound to direct the jury if they eved the evidence to find for the accused. If the facts were h that a reasonable jury could have found either. way, the iff had failed to prove his case. An instance of this distine- amay be given. Suppose a public man is guilty of a grave litical offence, such as malversation of public moneys, and a on who knows the charge to be true communicates it to some nm who is interested in the matter becoming public. He uted for defamation and the prosecution fails on what- ound. In such a case the accused person must be taken to e known of his own misconduct, and also to have known that as for the public benefit that the matters should be disclosed, se no reasonable man could come to any other conclusion. h a case there would be no reasonable and probable cause.

eanother case. Suppose the case of a public man who, when yy, was charged with some trivial offence, and long afterwards, an he has deservedly earned an honourable reputation, or when rybody has quite forgotten the matter, someone states the facts ublic. He bringsa prosecution for criminal libel. He knows, hinks he knows, that the defendant cannot escape unless he that the statement was true, and that its publication was e public benefit. He knows of course that it was true, but

benefit that it should be published after the lapse of so years. The jury however come to a contrary conclusion. it to be said, when an action for malicious prosecution is ght against him, that he must be taken to have known that it or the public benefit that the libel should be published, iply because the jury may have, or a jury might have, come to

to two only out of five, and, certainly as to some of the 4.0. ora.

H.C. or A. that conclusion? There are many matters on which

men might in the same case take different views. The jury take one view, but, if reasonable men might take another the plaintiff fails to discharge the onus of proving want of rea able and probable cause.

For these reasons I think that the plaintiff in the present failed to discharge the onus cast upon him, and that reasons stated he ought to have been nonsuited.

O'Connor J. I am of the same opinion. There is no do to the general principle applicable to cases of this kind. is no class of cases in which it is more difficult to explain the' to a jury than those cases in which questions of reasonable probable cause have to be left to them, and the expl becomes more difficult still when the evidence is in con with a prosecution for defamatory libel.

There is only one part of the rule laid down in Abrath NE. Railway Co. (1), by Bowen L.J., which it is neces consider in this case ; that is, that the plaintiff has to prove " there was a want of reasonable and probable cause for the p cution, or, as it may be otherwise stated, that the cireums of the case were such as to be in the eyes of the Judge ir sistent with the existence of reasonable and probable cau Now, when that is applied to the case under consideration, itm be applied in this form. The plaintiff has to prove that circumstances were such as to be inconsistent with the exister in the mind of the defendant of an honest belief that the pl was guilty of the offence of criminal libel. That brings me once to the question, what is the offence of criminal libel entirely agree with the view taken by Owen J. in admitti evidence tendered by the plaintiff to prove the issue of truth public benefit. The provisions of see. 13 of the Defamation constitute the offence of criminal libel, and in it there is m provision for the form of pleading necessary to raise this defe

er to constitute the offence of criminal libel. Taking them the statement of the offence is qualified in this way : famatory publication, no matter how injurious or how lic ous, is not a criminal offence if it is proved to be true, and

it was for the public benefit that it should be published.

erefore, whenever the question 1s raised in a criminal Court ether a person is or is not guilty of libel, then, no matter how famatory the publication may be, if both branches of the fence are established, the libel is not punishable in a criminal

at being the offence of criminal libel, we must next apply the le as to reasonable and probable cause. That the person ited wrote the libel there can be no doubt, nor that it was facie libellous. Then arises the question whether the cumstances within the knowledge of the defendant - and in is connection we must assume that all the facts were found in é plaintiff's favour - were such as to be inconsistent with the e in the mind of the defendant of an honest belief, ded upon reasonable grounds, that the defamatory statement snot true. That is the first consideration, but I leave it for } present to deal with the second branch of the statutory

e. In the view which I take it becomes unnecessary to ider the second branch very fully. It is only necessary me to refer to it because of a question of law raised with dtoit. Assuming, for the moment, that the first branch been proved, then, as regards the second branch, the question r the jury is, were the circumstances such as to be incon- with the existence in the mind of the defendant of belief that it was not for the public benefit that the ory matter should be published? Some question has n raised by Mr. Want as to the meaning of that part of ectii I entirely agree with the opinion of the Supreme that the intention of the libeller has nothing to do with

e respondent that the circumstances of the publication to be considered. I cannot agree with that contention. s to me that the circumstances of publication must

clear on reading secs. 12 and 13 that they are intended H.C. or A.

always be considered, and the question for the jury in | case is this: taking the facts by reason of which it is that the publication was for the public benefit, including circumstances of the publication itself, whether on those | it was reasonable for the defendant to have considered th: was not for the public benefit that the libel should be publisk Putting the circumstances of the publication out of considerati we would have a merely abstract question left. The question was it for the public benefit that the libel should be lished under the circumstances in which it was published ? can the jury come to any conclusion upon such a question out looking at the surrounding circumstances ? They might fi that it was for the public benefit in some supposed case wh might never arise. Such a finding might have no relation tot publication the subject of the action. All the circums' : the publication must be taken into consideration by the j dealing with the question whether the publication was foi public benefit. I have no hesitation in saying in this case that, the first branch of the defence were established, the jury wo be entitled to say that a reasonable man under the cireumstat ought to have come to the conclusion that the publication was the public benefit. We have here a publie company, with s holders, and with all its transactions liable to public serutiny. - would be altogether unreasonable for a person in the posit the defendant, if the defamatory matter were true and he h reasonable ground for so believing it, to have come to the con sion that it was not for the publie benefit that it shou published. But, as I said before, that can have no practical b ing on this case, except on the assumption that the first b the defence had been established. The whole question is, there sufficient evidence to establish the position that the cire stances were inconsistent with the existence in the mind of defendant of an honest belief, founded upon reasonabl that the libellous matter was not true? Now, that brings me to Piddington's contention as to the meaning of the words of the lil The whole document must be read in dealing with that questi He very properly, I think, contended that there was only sentence which could be considered as seriously libellous, at

to the whole letter. That sentence contained the allegation re was "nothing but corruption with Crowley and the etors." Now, it is quite true that in a case of libel, whether il or criminal, the meaning of the words is a question for the under all the circumstances of the case. And if this had n a prosecution for criminal libel, and the issue was to be deter- ed by the jury under the direction of the Judge, it would be t to them to say what was the fair and reasonable construction he words. But that is not the case where the question is as he attitude of mind of the person initiating the prosecution. entitled to take a reasonable view of the meaning of the s, and if he does take a reasonable view of their meaning, d honestly believes that the words as bearing that meaning ntrue, he is entitled all through the case to treat the words having that meaning. Now, interpreting this letter in the of the surrounding circumstances, it appears to me reason- capable of only one meaning, namely, that there was in the s between Crowley and the directors a system of corrup- But it is not necessary to go as far as that. As long as ley had reasonable grounds for putting that construction it he was protected. Further, as to the meaning of the , there is one circumstance which I think may fairly be n into consideration. Evidence was given of the letter of o which this was a reply. In that letter, according to intiff's evidence, Walters asked him if he had heard about rley and the directors carrying on, and said that Mr. Saunders, citor, had told him about it. Then he went on to mention the eof Punch. That is the whole of the matter of which he It is to those instances of alleged corruption between ley and the directors that the letter refers. We find also nce of the meaning placed upon the letter by Crowley him- at an early stage of the proceedings, in a letter written by a to the respondent on 2nd March, 1903. In that he says: "In nection with your letter of 2nd February to Mr. Walters, re is one sentence which neither my directors nor myself | allow to pass, that is, 'there is nothing but corruption | Crowley and the directors.'" Again, on 26th November,

must be considered in reference to the circumstances H. C. or A.

H.C. or A. 1903, in a letter spoken of as a warning to the respond

uses this expression, "If, as seems likely, this leniency has b mistakenly construed by you, well and good, they will then af you an opportunity of proving if there is the slightest shado truth in your damnable libel that ' there is nothing but corrup with Crowley and the directors.'" In view of that evidence clear that the serious part of this imputation was that wh volved the management of the company in a charge of corr For the purposes therefore of the question which had to be s mitted to the jury as to the honest belief, on reasonable grounds, the appellant that the defamatory matter was not true, it must. taken that it amounted to a charge of systematic corrup between him and the directors. Is there any evidence to lish that ? I must say that I can see none. There was eyi of three charges extending over a period of three years, chi made in connection with the management of elections. There) evidence to go to the jury to support these charges, but it app to me that they involve nothing more than improper con op the part of Crowley himself, not on the part of the di There is evidence of the charge as to the loan of £1000, but is no evidence of corruption in any of the circumstances connect with that. Then there is a charge as to the taking of comn i sion. His Honor the Chief Justice of New South Wales thou that in that there was some evidence of corruption. Corrup is something done knowingly with a dishonest intent. practice, though it may or may not be reprehensible, can certa not in any sense be called corrupt. It appears to have been of the regular business methods of the company openly carri on, for every person who introduced business to get a comm It seems to me that there is no evidence to establish eo between the general manager and the directors in doing sor thing which was apparently done openly and in the o routine of business. In addition to this, there is the el in reference to Hogan and Punch. I can see no evide whatever from which an unfavourable inference can be dra in regard to Hogan's case. As to that of Punch, evide given by the respondent establishes a state of facts cons tent with the charge of corruption. But, as was pointed m

as to that charge, the defendant, having in his mind only now found in the plaintiff's favour, was entitled to take sw of those facts which in the circumstances was reasonable. ought that they did not establish the charge of corruption, t say that that was unreasonable ; and that was the only on which there was the slightest evidence of corruption een Crowley and the directors. But even if there were any e of the truth of that portion of the charge, that is part of the defamatory charge. Where truth is set up asa defence

therefore clearly of opinion that the existence of one e of that kind, even if proved absolutely, can in no be a justification of the wholesale statement as to corruption

e being, therefore, no evidence to support the plaintiff's that the defendant did not, when he initiated the ution, honestly believe that the defamatory statements untrue, I am of opinion that the plaintiff should have been

Appeal allowed with costs. Order appealed from discharged with costs. Rule made absolute for a nonsuit.

or, for appellant, 7. J. Pea: , for respondent, EZ. Trevor Jones.

'brother the Chief Justice, it is equally consistent with H.C. or A.