EL-AZZI v NATIONWIDE NEWS PTY LTD

Supreme Court of NSW|2004-10-27|Before: Levine J

CITATION : EL-AZZI v NATIONWIDE NEWS PTY LTD [2004] NSWSC 1057 HEARING DATE(S) : 27 October 2004 JUDGMENT DATE : 27 October 2004

JUDGMENT OF : Levine J DECISION : 1 No evidence of a predominant motive actuating publication of the matter complained of; 2 Decline to leave the issue of malice to the jury

CATCHWORDS : Defamation - whether issue of malice should go to the jury LEGISLATION CITED : Defamation Act 1974 s 22 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 Bass v TCN Channel Nine [2003] NSWCA 118 CASES CITED : Godfrey v Henderson (1944) 44 SR (NSW) 447 Hanrahan v Ainsworth (1990) 22NSWLR 73 McKenzie v Mergan Holdings Pty Ltd (1990) 20 NSWLR 42 Roberts v Bass (2002) 212 CLR 1 WILLIAM EL-AZZI (Plaintiff)

NATIONWIDE NEWS PTY LTD (Defendant) FILE NUMBER(S) : SC 10930 OF 1993 R Rasmussen (Plaintiff) COUNSEL : T Blackburn SC / J Hmelnitsky (Defendant) Kings Lawyers (Plaintiff) SOLICITORS : Blake Dawson Waldron (Defendant)

DLJ:19 Ex tempore: revised [2004] NSWSC 1057 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

JUDGMENT (Defamation - whether issue of malice should go to the jury)

1 The defendant has pleaded a defence of qualified privilege at common law and pursuant to s22 of the Defamation Act 1974. 2 The particulars off public interest and the defence are: "1. Pursuant to Rule 18(1)(a): Public Interest and Particulars of Public Benefit The matters complained of by their very terms related to the following subjects each of which by its very nature was of proper and legitimate interest and / or benefit to the readers of the Daily Telegraph: (a) an appeal by the New South Wales Police Service to members of the public to provide information which might assist in the investigation of 2 murders; (b) the murder of Roy Thurgar; (c) the murder of Jack Cooper; (d) organised crime in Sydney; (e) associations between police and persons reputed to be involved in organised crime; (f) the circumstances in which Roy Thurgar was murdered and details of his life which could be relevant to the investigation of his murder; (g) the circumstances in which Jack Cooper was murdered and details of his life which could be relevant to the investigation of his murder. 2. Pursuant to Rule 18(1)(b): Qualified Privilege and Qualified Protection 2.1 Common law qualified privilege The matter complained of was published pursuant to a duty of a social and / or moral nature to readers with a legitimate interest in receiving the publication because the matter complained of related to the matters of public interest particularise above. 2.2 Qualified privilege pursuant to Section 22 (New South Wales) (a) the subjects of the communication on which the defendant relies are the matters of public interest particularised above; (b) the defendant relies upon the recipients of the communication having both an interest and an apparent interest in receiving information on the subject for communication; (c) the reasonable ground for the defendant's belief that the recipients had an apparent interest was that the matter complained of by its very terms related to matters the importance of which to the public are self evident; (d) the conduct of the defendant in so publishing the matter complained of was reasonable". 3 The plaintiff has filed a reply para 2 of which states: "That the defendant in the publication of the matter complained of was actuated by express malice," and thereafter are set out a series of now relevantly four particulars: "2(a) The defendant either deliberately or recklessly associated the plaintiff with matters of serious criminality having no basis for doing so and without having made any enquiries into the truth or falsity of those matters. (b) The defendant either deliberately or recklessly stated that the plaintiff "mixed with" Roy Thurgar (paragraph 7) without any information to that effect. (e) The defendant either deliberately or recklessly developed as a theme (paragraphs 6 and 7) that the plaintiff was one of a number of corrupt detectives with whom Roy Thurgar shared a beer, a joke and a chat about illegal ventures whereas the defendant had no evidence at the time of publication to support this theme at all. (f) The defendant either deliberately or recklessly developed as a theme that the plaintiff was a dangerous underworld associate of Roy Thurgar whereas the defendant had no evidence at the time of publication to support this theme at all". 4 The defendant has moved the Court that the issue of malice should not be left to the jury on the basis of there being no evidence. In the first draft of the questions ultimately to go to the jury, the issue was formulated: "Has the plaintiff established that the defendant in publishing any of the plaintiff's imputations which you have found to be conveyed and have found to be defamatory, actuated (sic) by a predominantly improper motive?"

5 In Godfrey v Henderson (1944) 44 SR (NSW) 447, Jordan CJ said (at 454): "It is of the utmost importance in the case of statements made on occasions of qualified privilege, that the privilege which the law casts around such statements should not be nullified by a readiness to treat as evidence of express malice destroying the privilege anything which does not definitely, and as a matter of common sense, point to the actual existence of some express malice which was really operative in the making of the statement; and substantial evidence is required, not surmise or a mere scintilla..."

6 In McKenzie v Mergan Holdings Pty Ltd (1990) 20 NSWLR 42, Clarke JA said (at 47): "A trial judge who is confronted with a submission that an issue should be withdrawn from a jury for lack of evidence is required to determine whether there is any evidence upon which the jury could reasonably find that the party opposing the motion has made out his case on the probabilities on that issue. In considering the motion the judge is bound to pay regard only to the evidence which favours the party opposing the motion" [I interpolate, the plaintiff] "and to disregard the evidence in favour of the proponent of the motion."

7 Those authorities indicate the approach to be taken by the judge on an application of this kind. 8 Malice as a matter that can defeat the defence of qualified privilege, has recently received authoritative consideration in the High Court in Roberts v Bass (2002) 212 CLR 1 in the joint judgment of Gaudron, McHugh and Gummow JJ commencing especially at para [75] on page 30. Their Honours commence their examination of the principles of malice with the statement: "An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice." (emphasis in the original) 9 The existence of the purpose or motive is one thing, but it is often overlooked and can now no longer be overlooked that the second ingredient is absolutely critical, namely, that the motive actuated the publication. Their Honours go on further to say at para [76]: "Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication. In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive. Thus, a police officer who is bound to report statements concerning other officers to a superior will not lose the protection of the privilege even though he or she knows or believes that the statement is false and defamatory unless the officer falsified the information. Conversely, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication". (footnotes omitted) 10 Having dealt with and identified as incorrect, statements in Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 (at 51) and Hanrahan v Ainsworth (1990) 22NSWLR 73 (at 102-3), their Honours continue with these words which open para [79]: "As we have said, malice means a motive for, or a purpose of, defaming the plaintiff that is inconsistent with the duty or interest that protects the occasion of the publication." 11 Their Honours stress the decisiveness of the motive or purpose for which the occasion is used. The fact that a plaintiff was defamed cannot, as a matter of logic, be determinative of the issues arising on the question of malice. It is the purpose or motive which actuate the publication that defames the plaintiff which receive attention. 12 Their Honours, particularly in para [84], deal with the notion of recklessness, stating that in the law of qualified privilege, as in other areas of the law, the defendant's recklessness may be so gross as to constitute wilful blindness which the law will treat as equivalent to knowledge. 13 A threshold basis for the defendant's present application is said to be the failure of the plaintiff in his reply to identify the motive which must be predominant and which must actuate the publication, and of course, be improper. 14 Here, the present application becomes murky. True it is that the plaintiff has not said in his amended reply that the defendant was actuated by express malice constituted by the following motive, namely, (for example) to destroy the plaintiff; has not particularised a case of that degree of recklessness to which I have referred by reference to Roberts v Bass (supra); has not asserted in a way that could be elevated in accordance with the principles in Roberts v Bass to questions of bias or spite or ill will. What the particulars in the amended reply merely do is refer to "deliberateness" and "recklessness" in the defendant's association of the plaintiff with matters of serious criminality and it having no basis for doing so, or "deliberately" and "recklessly" stating that the plaintiff mixed with Thurgar without any information and cognate matters as set out in the particulars above. 15 They are insufficient in my view as a matter of pleading that the murkiness is added to by the role, if any, that the decision of the Court of Appeal in Bass v TCN Channel Nine [2003] NSWCA 118 plays in this area. In that case the Court was constituted by the Spigelman CJ, Handley JA and Wood CJ at CL. The ultimate result of that appeal was a new trial, it having been held by a majority that the learned trial judge was in error in taking away malice and entering a verdict for the defendant. 16 There is a clear and direct conflict between what the Chief Justice says and what Handley JA says as to the requirement of the particularisation of the case in malice. The Chief Justice, to my mind, makes it clear, particularly at para [10], that the particularisation of a case in malice must specify a purpose or motive within the context to which I have referred. It is with that proposition that in para [134] and following, that Handley JA is in stark disagreement with the Chief Justice. I am unable to read anything in the judgment of the Wood CJ at CL, who concurs with Handley JA, that directly concurs with Handley JA's clear dissent from the Chief Justice. 17 In view of the ultimate outcome of the present application, I feel that I need say no more than the approach of the Chief Justice in terms of the pleading appears to me to be correct especially when one bears in mind the function the particulars are required to perform, namely, the identification to the other side of the case that side will have to meet. 18 In the light of Roberts v Bass there is, in my view, a requirement that that case at a pleading and particularisation stage be made perfectly clear subject to one reservation, as to the identification of the motive, the basis of its impropriety and the way in which it actuated the publication. The reservation to which I refer is one to which Handley JA refers in Bass that in some cases, the material might not immediately be known to a plaintiff. That reservation also includes what I have heard as a cri de coeur from time to time, that the task of a plaintiff in establishing lack of good faith or malice in a newspaper is hardly ever an easy one. 19 In the instant case, what especially has been relied upon by the plaintiff as something more than a matter of mere surmise or a scintilla, is some of the components of the cross-examination of Miranda Devine especially from line 20 on page 421 to the end of the cross-examination on page 422 at line 40. Viewing that material from the point of view of the plaintiff's case as one must, the highest to which it can go in my view, is the inclusion of the plaintiff's name with the other names of criminals of notoriety. "Q. So did you believe William El Azzi to be a notorious underworld figure? A. No.

Q. You put him there as an notorious underworld figure? A. Well because he used to mix with them.

Q. Is that what you say? A. Yeah, Thurgar mixed with figures like Christopher Flannery, John Sayers, Tom Domican, Barry McCann and William El Azzi.

Q. Do you say that that does not mean that Mr El Azzi, was not an notorious underworld figure. Is that what you say? A. Well he could have been, but I didn't say that he was. I haven't said that he was. I've got he was charged over the conspiracy to murder Michael Sayers with Roy Thurgar and Tom Domican and a couple of these other people. So he - and there are lots of stories about him with Roy Thurgar.

Q. So on the basis of that material, you decided to put Mr El Azzi in a paragraph which included the big boys of crime? A. Well no, the big boys of crime is not in that paragraph.

Q. Didn't you say before that Mr Flannery, Mr Sayers, Mr Domican and Mr McCann and Mr Thurgar were all notorious underworld figures? A. Yes.

Q. And indeed, didn't you agree with me that they were some of crime's big boys? A. Yes. But I don't say in that previous paragraph, you know, "the big boys of crime and these are who they are" in the next paragraph. I've just gone to a new idea which is Thurgar mixed with these people.

Q. But you don't, for example, say that Mr El Azzi had no association with these people, do you? A. No, because he did have an association with them.

Q. You don't say for example, that these are the only big boys of crime, do you. You don't try and close the group down to only being Flannery, Sayers, Domican and McCann, do you? A. No, of course not.

Q. You leave it open don't you, as to who the other big boys of crime might be. You'd agree with that wouldn't you? A. Yes.

Q. And then you put Mr El Azzi right there at the end of it. Is that right? A. Yes.

Q. Indeed, if you had truly wished to convey that Mr El Azzi did no more than associate with Mr Thurgar, you could have put his name in that paragraph that refers to mixing - that is, the, "Police files are clogged with the names of criminals, identities and corrupt detectives with whom he shared a beer, a joke and a chat", you could have put in there such as policeman William El Azzi? A. Well I could have, but the names - I left the names ntil the next paragraph, so you know, there are no names in that paragraph. So I just sort of set the scene and said, you know, these are the type of people that he was sharing a beer with or mixing with. Then I go on to name some of them.

Q. You've indicated, haven't you, in this paragraph that each of those persons, and I understand your evidence to be, that each of them were notorious underworld figures? A. Yes. Criminal identities.

Q. And corrupt detectives? A. Yes". 20 Second, Ms Devine's acknowledgment in answer to the question (T 422 line1): "Q. You don't, for example, say that Mr El Azzi had no association with these people do you? A. No because he did have an association with them". 21 Third, the question at T 422 line 20 and her answer in which she explains that she left the names until the next paragraph: "Q. Indeed, if you had truly wished to convey that Mr El Azzi did no more than associate with Thurgar, you could have put his name in that paragraph that refers to mixing - that is, the, "Police files are clogged with the names of criminals, identities and corrupt detectives with whom he shared a beer, a joke and a chat", you could have put in there such as policeman William El Azzi? A. Well I could have, but the names - I left the names until the next paragraph, so you know, there are no names in that paragraph. So I just sort of set the scene and said, you know, these are the type of people that he was sharing a beer with or mixing with. Then I go on to name some of them."

22 None of those three matters, or indeed anything else that I could read in the evidence of Ms Devine, constitutes evidence of a motive or of it being a predominant motive, and, if it were a predominant motive that it actuated the publication of exhibit A which will or will not be found by the jury to have defamed the plaintiff by carrying one or more of the imputations. 23 I do not think it unfair to remark that there may be viewed some justice in the situation, if it is a "situation": that as much difficulty attends a newspaper attaining the advantage of a defence of qualified privilege at Common Law as attends a plaintiff in proving a case in defeasance of it. I decline to leave the question in the terms of paragraph 4 on the issue of malice to the jury. **********

Last Modified: 11/10/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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