Howe's Case was a slander case.
22 The observations in Howe received consideration and approval by McHugh J in Stephens v West Australian Newspapers Limited (1993) 182 CLR 211 in the following passage, which is worthy of citation at length (at 261-263):
"Reciprocity of interest or duty is essential to a claim of qualified privilege at common law. The need for reciprocity usually defeats a claim of qualified privilege where the publication has been made to the general public. Only in exceptional cases does a person have an interest or duty to publish defamatory matter to the world at large. Both in Australia and elsewhere, common law courts have repeatedly held that a person has no legitimate interest or duty to publish defamatory matter to the general public if no more is established than that the subject matter of the publication is one in which the public is interested. In Howe & McColough v Lees , Higgins J said that the word "interest" was not used in any technical sense. However, his Honour said that the person must not be "interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news" (90). In the same case, O'Connor J said that the interest must be "of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it".
As the decided cases show, however, circumstances may exist where the interest of the general public in a particular subject is such that a defence of qualified privilege is available even though the communication is made to the general public by means of a newspaper or other medium of general circulation. If a subject is one of public interest, members of the public have the requisite interest in receiving information on that subject from persons who have a corresponding interest or duty to communicate that information to the general public. If such information is published in good faith, both the author and the publisher of the article are protected "for the common convenience and welfare of society". The privilege of the publisher is "not an original privilege but one ancillary to, and dependent on, the existence of a privilege for the publication of the defamatory contents" to the general public. In Adam v Ward , a claim of qualified privilege was upheld in respect of a letter, published at the direction of the Army Council, that was intended to be and was published widely "in the British and Colonial Press". The House of Lords held that the general public had a sufficient interest in the contents of the letter to make the occasion one of qualified privilege because the letter recorded that the Council had acquitted a British Army General of charges of misconduct made against him by the plaintiff in the House of Commons. Lord Atkinson said "[e]very subject ... who had an interest in the Army had an interest in being by a public communication informed of General Scobell's acquittal". Similarly, in Loveday v Sun Newspapers Ltd this Court upheld a claim of qualified privilege where a newspaper article contained a reply to an attack on a municipal council made in the same article.
Both Adam and Loveday were concerned with publications in reply to attacks on the plaintiff or some other person which had been published to the world at large. But at least two cases show that the defence of qualified privilege may succeed even though the defamatory publication is not in reply to any attack. In Allbutt v General Council of Medical Education and Registration , the English Court of Appeal held that the Medical Council was entitled to a defence of qualified privilege in respect of a fair and accurate report to the public of the grounds for removing the name of a medical practitioner from the register of practitioners. In Dunford Publicity Studios Ltd v News Media Ownership Ltd Macarthur J upheld a defence of qualified privilege in respect of a Minister's criticism of the plaintiff, which had been published in a newspaper with a wide circulation. The criticism was the result of the Minister's belief that he had been misled into giving a letter of commendation in support of a road safety competition associated with the sale of Christmas cards by the plaintiff. Macarthur J said:
"Here, the Minister was misled by the organizers of the road safety contest. It was the duty of the Minister to ensure, and it was in the interests of the public, that his statement on the matter be given wide circulation. The wide circulation afforded by publication in a newspaper was proper. The matter was undoubtedly a matter of public interest. The Minister requested Truth to publish his statement."
These two cases show that the proprietor of a newspaper or a radio or television station is entitled to a defence of qualified privilege when it publishes statements made by a third person pursuant to or in discharge of that person's interest or duty to inform the general public about a matter.
In determining whether a person has a legal, social or moral interest or duty to publish to the world at large, the extent of the publication and the proportion of readers who have a legitimate interest in receiving the communication are relevant factors to be weighed. It has long been established, however, that qualified privilege is not lost simply because the communication is read, seen or heard by persons having no legitimate interest in receiving the communication. If publication in a newspaper or by radio or television is the only reasonable mode of communicating with the public, qualified privilege will not be lost because it is read, seen or heard by persons who have no legitimate interest in receiving the communication." (Citations omitted)
23 Further, it is clear that the circumstances that constitute a privileged occasion "can themselves never be catalogued and rendered exact" (Bashford at 197, quoting Lord Buckmaster LC in London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 22). Thus there is a requirement to "make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication" (Guise v Kouvelis (1947) 74 CLR 102 at 116 per Dixon J).
24 After the statement of these general principles, the defendant purports to embark upon an examination of the circumstances surrounding the publication and events leading up to it. No point was taken during the course of submissions that outside of the facts determined by the jury and the agreed facts, were facts relied upon by the defendant but not the subject of evidence. I remark upon this because the submissions for the defendant state, as a matter of fact, that on Monday, 20 May 1991, "two days before publication of the matter complained of, Roy Thurgar, an underworld figure, was assassinated in suburban Randwick". Reference is made to some hours previously the body of another underworld figure, Jack Cooper, having been found. This is an instance of a newspaper using itself, and what it publishes, as evidence of the facts and as proof of the facts. These facts have not independently been proved. The parties appear to accept them as true as part of the background of circumstances leading up to the publication, in paragraphs 10 and 12 set out above.
25 It is agreed, however, that the police had issued an appeal, the essence of which is set out in paragraph 12 of the agreed facts. They had also made statements, the making of which is not in dispute (leaving aside again the question of the actual truth of their contents) as referred to in paragraph 10 of the agreed facts. The matter complained of contains a statement, attributed to Detective Inspector John Wilson, that Thurgar "had acquired a host of enemies during his long underworld career". The police were "closing no lines of inquiry" and wished to investigate the associates of both of the murdered men. They postulated possible links to an earlier spate of gangland killings and gang wars in the 1980s, which would have to be explored.
26 Wilson is reported by the defendant as having said:
"Our intelligence suggests he had a falling out with a former criminal associate who may have ordered his killing. There could have been a number of reasons why. Thurgar was a man who had such a big criminal history that we will have to speak to a number of his associates as part of our investigations to try to establish a motive."
27 The defendant also relies upon the statement attributed by it to Wilson (about which there is no issue that he said it):
"It is too early to suggest that there has been a resurgence of the gang warfare of the Eighties. But obviously we cannot rule it out as it is a line of inquiry we have to explore. If there are any similarities between the deaths it will become apparent to us."
28 Reliance is also placed on what Detective Inspector Beresford said:
"Obviously someone didn't like him, someone took revenge - but who and for what reason we do not know. He was a man with a lot of enemies. I think he was a guy who had a lot of problems."
29 It is to be observed that these statements are not part of the express appeal to the public for information. They appear on their face to be providing information to the newspaper.
30 The defendant, after making some observations about the seriousness of gangland killings being a threat to society and of the risk of retribution, states that the police have a "legal, moral and social duty to take all reasonable steps to solve such murders as quickly as possible to restore public order and prevent further killings from occurring". That is a statement of the role and function of the police service. The defendant then adds that the performance of the ordinary role and function of the police service "includes in appropriate cases the release of information to the public through the media to enable them to assist". With that proposition I am in agreement. It would be a derogation from the proper performance of the police service's duties for the service not to avail itself of the mechanism of instruments of mass communication to make an appeal to the public of the kind reported by the defendant in the publication sued upon. (There may be instances where, for security reasons or to maintain the integrity of an investigation in progress, the appeal to the public may be limited).
31 Members of the public and the readers of the newspaper (though not all of them, as has been referred to above by McHugh J) have a legitimate interest in receiving the information contained in the appeal made to the public for the public to give information, with a view to the solution of the crimes.
32 Trite though it is to say, the appeal to the public is for the public to give information to the police, and not to the press.
33 Thus far, as I understand the defendant's submissions, it is the fact that the police has a professional duty to solve crime and prevent crime that as part of that duty, it can make appeals to the public, whereupon at the very least it could be said that the newspaper has a "civic" duty to publish the appeal made by the police.
34 What the defendant then goes on to say is that the public has an interest in receiving "all available information about the murders". Why is that so? So that "each member of the public could fulfil his or her moral and social duty to provide the police with any information which is relevant to the police investigations". Thus, it is argued, the public had an interest in being informed on the subject of the killings and was entitled to know the background, the nature of murdered men, their associates, the circumstances in which they were killed as far as those circumstances were known, whatever theories the investigating police might have had and "the public appeals of the police for assistance". The defendant thus appears to be blurring the public appeal by the police, which the defendant I would hold had a civic duty or a moral duty to reproduce on the pages of its newspaper, with accompanying material of the background nature to which reference has just been made. It is argued that it is impossible to divorce the police appeals to the public for assistance from the associated police statements made about the murders. It would be artificial to publish the appeal, it is argued, without the other statements that the police thought appropriate to make.
35 The defendant submits that it had a duty to publish "the information" properly, as "the trail of a murderer can quickly go cold".
36 The defendant then comes to the nub of the matter. If it is accepted, the defendant argues, that the defendant had a duty to publish the statements of Wilson and Beresford, "or at the very least their public appeal for assistance in solving the serious crimes", then the question becomes whether a part of the matter complained of, which it is clear falls within neither of the alternate categories just referred to, but which refers to the plaintiff, was "sufficiently connected" with the "privileged occasion" to attract the defence. The posing of this proposition begs the question that the privilege attached to the occasion of publishing both the appeal by the police and the information by the police.
37 The defendant notes that the plaintiff sued on the whole of the matter complained of as giving rise to the defamatory imputations.
38 The defendant contends that the subjects were the murder of two underworld figures, the nature of the police inquiry into their murder, and the focus on investigation of the murdered men's associates. It is asserted that those matters were of interest to the public beyond mere interest as news. The identity of Thurgar's associates was a particular focus of the police investigation. It is suggested that information on that subject relates directly to both the request by the police for assistance and the statements by the police as to their lines of inquiry. It is argued that without this information (information about Thurgar's associates), members of the public "with relevant information may not have realised its relevance and may not have brought it to the attention of the police."
39 The defendant then proceeds to repeat by way of submission what it published by way of reportage, namely the acquaintance of the plaintiff with Thurgar, and the plaintiff's description of him as contained in the matter complained of.
40 There was no issue of malice, and thus it is argued for the defendant that the public's interest in receiving information on the subject (whether it be the appeal, the statements by the police, the focus of the investigation or a blurring of all three is not clear) was "of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it".
41 The plaintiff, in his submissions, focuses on the elision of separate questions: whether there was an occasion of qualified privilege at common law in relation to the publication of the police appeal for information about two very recent murders. The second question is, if there is an occasion of qualified privilege for the publication of that appeal, did that occasion extend to protect the publication of material in addition to the appeal. The plaintiff argues, and I agree, that the defendant, on the assumption of privilege attaching to its publication of the police appeal, did not address succinctly the separate question but rather, as I have indicated during the course of the analysis of the defendant's submissions, elided various considerations with the appeal and various components of the reportage.
42 The appeal for assistance from the police as published by the defendant was quite specific:
"Police have appealed for help in solving both killings.
They want to hear from anyone who saw Cooper leave his shop and go to his van, or anyone who might have seen it leave the Chinatown car park.
And they want anyone who may have witnessed anyone acting suspiciously in Alison Rd, Randwick, about 7.30pm on Monday, to come forward.
The gunman in the Thurgar case is described as being 162cm to 167cm tall, wearing an Andy Capp-style hat and a tracksuit top and jeans."
43 I agree with the plaintiff's analysis that the police appeal is discrete, and the balance of the article relating to investigations, or what I have called reportage, is detached from that appeal. Indeed, as the plaintiff says, the police had no difficulty in distinguishing between the appeal to the public for assistance and associated police statements about the murders, to use the words of the defendant in it's submissions.
44 The plaintiff argues that the defendant elides, without clear acknowledgment of the difference, the question of the publication of the appeal by the police, and associated statements made by them relating to the question of publication of information generally about the matters of the murders. The publication of the information generally about the murders includes, of necessity, the police appeal. As I have remarked above, the police's duty to solve the murders includes, in appropriate cases, release of information to the public and the making of appeals to the public. The mechanism adopted by the police legitimately and appropriately should include the vast resources available to instruments of mass communication. Save for the police appeal, it does not necessarily follow, as is implicit in the defendant's submissions, that merely because information relating to the murders is conveyed by the publication as reportage that there exists a legitimate interest in the public to receive such information. The defendant seems to be suggesting that the receipt of the information, and the legitimate interest in the receipt thereof, is founded in the source being the police. This is wrong; the source is the defendant (save for the appeal).
45 I agree with the plaintiff's submission that the defendant has blurred, merged and elided the distinction between any legitimacy in the defendant in republishing the police appeal and all the attendant "information about the murders".
46 It is obvious that the defendant has to advance such a submission because the plaintiff is referred to only in the context of the matters other than the content of the police appeal.
47 The defendant's privilege, if it exists, is derivative only. As McHugh J said in Stephens at 261, quoted above:
"…the proprietor of a newspaper or a radio or television station is entitled to a defence of qualified privilege when it publishes statements made by a third person pursuant to or in discharge of that person's interest or duty to inform the general public about a matter."
48 The person who has the primary interest or duty to inform the general public about the matter is not the defendant but the police service.
49 In the end, on the very critical assumption that qualified privilege attaches to the publication of the police appeal, I am simply not persuaded that the material added to the appeal by the defendant's reportage is covered by any such privilege.