Moses v State of New South Wales

District Court of NSW|2010-09-17|Before: Nicholas J

CITATION: Moses v State of New South Wales (No. 3) [2010] NSWDC 243

HEARING DATE(S): 22 - 25 February, 6 May, 28 May, 3 June, 13 August, 9 September, 16 September (written submissions), 17 September 2010 (written submissions)

(1) Judgment for the defendant for the defamation claim brought by the first plaintiff. (2) Judgment for the defendant for the defamation claim brought by the second plaintiff. (3) Judgment for the first plaintiff for the assault claim against the defendant in the sum of $10,000. (4) Judgment for the defendant for the assault claim brought by the second plaintiff. (5) Judgment for the first plaintiff for the false imprisonment claim against the defendant in the sum of $60,000. DECISION: (6) Judgment for the second plaintiff for the false imprisonment claim against the defendant in the sum of $60,000. (7) Judgment for the first plaintiff for the claim for malicious prosecution against the defendant in the sum of $50,000. (8) Liberty to the parties to bring in short minutes of order reflecting the agreed interest calculation in relation to the claims for general and aggravated compensatory damages. (9) Costs reserved. (10) Liberty to apply concerning interest and costs. (11) Exhibits retained for 28 days.

CATCHWORDS: TORT - defamation, assault, wrongful arrest and false imprisonment, malicious prosecution - police, in undercover operation to catch an offender carrying out a series of handbag robberies, arrest the plaintiffs, identifying them because one of them looks similar and is wearing the same jumper as that worn by the offender - whether reasonable force used to apprehend the plaintiffs - whether the matters complained of were published during their arrest - whether these publications were made on an occasion of qualified privilege at common law or pursuant to s 30 Defamation Act 2005 - held that the occasion was privileged - whether the occasion of privilege was lost by reason of malice - held malice not established - whether the circumstances of the arrest and continued detention at the police station amounted to false imprisonment - whether the continuation of the charges against the first plaintiff after further robberies and the arrest of another person for some of the handbag robberies amounted to malicious prosecution - whether lack of reasonable and probable cause established - whether malice established - damages - claim for general, aggravated and exemplary damages

Crimes Act 1900 (NSW), ss 94 and 546B Defamation Act 1974 (NSW), ss 13 and 17 LEGISLATION CITED: Defamation Act 2005 (NSW), ss 26, 30 and 33 Evidence Act 1995 (NSW), s 140 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 201, 230 and 231

A v State of New South Wales (2007) 230 CLR 500; (2007) 233 ALR 584; (2007) 81 ALJR 763; (2008) Aust Contract R ¶90-280; (2007) Aust Torts Reports 81-878; [2007] HCA 10 Alderman v French (1823) 18 Mass R 1 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27 Bashford v Information Australia (2004) 218 CLR 366 Bechara v Bonacorso (No 2) [2010] NSWDC 42 Bennette v Cohen [2009] NSWCA 60 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100 British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 Casey v Australian Broadcasting Commission [1981] 1 NSWLR 305 Corby v Channel Seven Sydney Pty Ltd (Supreme Court of NSW, Nicholas J, 20 February 2008) Coyle v The State of New South Wales [2006] NSWCA 95 Dallison v Caffery [1965] 1 QB 348 Duckworth v First National Bank 254 SC 563, 176 SE 2d 568 Dumbell v Roberts [1944] 1 All ER 326 Frost v State of New South Wales [2002] NSWCA 226 Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 Gross v Weston [2007] NSWCA 279 Hackett v Tierney [1952] IrR 185 Hage-Ali v The State of New South Wales [2009] NSWDC 266 Hussein v Chong Fook Kam [1970] AC 942 John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; [2005] NSWCA 60 Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 Laing v Beardsmore [1968] 2 NSWR 673 McArdle v Egan (1934) LT 412 McConville v Credit Union Services Corporation (Australia) Ltd (Supreme Court of New South Wales, Levine J, 29 August 1997, unreported) McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250; [2007] VSCA 289 CASES CITED: Mirror Newspapers v Harrison (1982) 149 CLR 293 Moses v State of New South Wales (No. 2) [2009] NSWDC 99 New South Wales v Ibbett (2006) 229 CLR 638 O'Hanlon v Electricity Supply Board [1969] IrR 75 at 96 Papaconstuntinos v Holmes à Court [2009] NSWSC 903 Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 R v Rondo [2001] NSWCCA 540 Reading v Australian Broadcasting Corporation [2010] NSWCA 257 Rixon v Star City Pty Ltd (formerly Sydney Harbour Casino Pty Ltd) (2001) 53 NSWLR 98; [2001] NSWCA 265 Roberts v Bass (2002) 212 CLR 1 Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 Rowe v Kemper [2009] Qd R 1 Sanders v Anderson [1968] NZLR 172 Snedden v Nationwide News Pty Ltd [2009] NSWSC 1446 Spicer v Holt [1977] AC 987 State of New South Wales v Hathaway [2010] NSWCA 184 State of New South Wales v Landini [2010] NSWCA 157 State of Victoria & Ors v Richards [2010] VSCA 113 Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 Trantum v McDowell [2007] NSWCA 138 Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 Walker v Hamm [2008] VSC 596 White v South Australia [2010] SASC 95 Whittaker & Anor v Child Support Registrar & Anor [2010] 264 ALR 473 Wilson v State of New South Wales (2001) 53 NSWLR 407 Woodley v Boyd [2001] NSWCA 35 Zaravinos v New South Wales [2004] NSWCA 320

First Plaintiff: David Moses PARTIES: Second Plaintiff: Tangiwai Kawenga Defendant: State of New South Wales

COUNSEL: Plaintiffs: Mr C A Evatt / Ms L Evans Defendant: Mr M Neil QC / Mr D Caspersonn

SOLICITORS: Plaintiffs: Friend & Co Lawyers Defendant: Henry Davis York Lawyers

A INTRODUCTION - THE EVIDENCE [1] - [58] B THE CLAIMS FOR DEFAMATION [59] - [136] C THE CLAIMS FOR ASSAULT [137] - [170] D THE CLAIMS FOR WRONGFUL ARREST AND FALSE IMPRISONMENT [171] - [240] E THE CLAIM FOR MALICIOUS PROSECUTION BROUGHT BY MR MOSES [241] - [282] F DAMAGES [283] - [334]

[1] The plaintiffs bring proceedings for defamation, wrongful arrest and false imprisonment and assault and, in the case of Mr Moses (the first plaintiff), malicious prosecution arising from the circumstances in which each of them was arrested by officers and constables of the New South Wales Police Force in George Street, Waterloo on 5 September 2008.

[2] Each of the plaintiffs brings a claim for defamation for words spoken on 5 September 2008 by officers and constables of the NSW Police Force at George Street, Waterloo. The first plaintiff claims these persons published the following slander of and concerning him: "You're robbing women", "You're a thief", "You have stolen from women"

[3] The imputations pleaded are:- (a) [Imputation deleted: Moses v State of New South Wales (No. 2) [2009] NSWDC 99]

[4] The second plaintiff pleads the following publication occurred on the same day: "You're under arrest - you're a piece of shit - you're fucked - you're going to gaol"

[5] The imputations pleaded to arise are: (a) The second plaintiff is a criminal.

[6] The defendant pleaded the following defences to the claim for defamation: (a) qualified privilege at common law;

(b) a statutory defence of qualified privilege pursuant to s 30 Defamation Act 2005 (NSW);

(d) in the case of Mr Moses, a defence of contextual justification pursuant to s 26 Defamation Act 2005 (NSW);

(e) a claim of a defence of "coherence" was raised during submissions but was never pleaded or particularised.

[7] The plaintiffs also bring claims for: (a) assault and battery (paragraphs 6 and 6E of the second further amended statement of claim) ("the assault claim");

(b) wrongful arrest and false imprisonment (paragraphs 5 and 6D of the second further amended statement of claim); and

(c) in the case of the first defendant only, a claim for malicious prosecution arising out of the circumstances in which he was charged with the following offences:

(i) stealing from a person ( Crimes Act 1900 (NSW) s 94);

(ii) intention to commit indictable offence having previous conviction ( Crimes Act 1900 (NSW) s 546B).

[8] The particulars of lack of reasonable and probable cause are: (a) No proper inquiries as to whether the first plaintiff had a previous conviction, was intending to commit an indictable offence or stole from the person were made by the police officers;

(b) Had the police officers made the most cursory or elementary inquiry they would have ascertained that they had arrested, imprisoned and charged the wrong person and that the first plaintiff was innocent of the charges and of any offence;

(c) The police officers ignored and would not listen to the first plaintiff's denials that he had committed criminal offences or was an innocent person;

(d) No actions of the first plaintiff could have caused the police to suspect the first plaintiff had committed the offences for which he was charged and his arrest, imprisonment and charges were due to prejudice and lack of care by the police officers.

[9] Although the hearing proceeded expeditiously, there were delays during submissions for the following reasons: (a) An unpleaded defence is raised in submissions:

Although never referred to during the trial, the defendant raised for the first time, in submissions, a defence based on "coherence" principles. This was initially submitted to be a basis upon which the court would hold that the publication could not be defamatory, as words spoken by police officers are not capable of conveying imputations of guilt. The basis of the defence was that words of arrest and caution are required by law to be spoken by police officers.

After I directed the defendant to provide further submissions, this claim was widened to include a claim for "coherence" as an absolute defence to the defamation claim in its interaction with the defences of qualified privilege at common law and/or pursuant to s 30 and/or as part of the defence of unlikelihood of harm: Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59. The Sullivan v Moody claim is that where police are required by law to make a publication under s 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (hereafter referred to as "LEPRA") no claim for defamation, injurious falsehood or other action is maintainable (written submissions 17 May). However, no amended defence setting out this complete defence was ever provided.

The "coherence" defence was later reduced, in oral submissions on 13 August 2010, to a claim that the "coherence" argument is something to be "taken into account" in the determination of the qualified privilege defences. No explanation has been provided for the lateness of this defence being raised: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27.

(b) The defendant's application during submissions to reopen the case

The identifiability of Mr Moses through his distinctive blue "hoody" with a white circular pattern, descriptions of the blue hoody in other offences and Mr Moses' facial similarity to the offender charged with bag snatches were important issues. During the cross-examination Detective Constable Porter produced, on his mobile phone, Mr Moses' photographs on the night of the arrest and a summary he prepared of the other offences, which led to the production of the full reports for each of these offences.

Although the late production of this material could be dealt with in cross-examination, problems arose when the defendant, during submissions, sought to reopen the case to tender photographs of the distinctive blue hooded jumper Mr Moses was wearing. The plaintiff complained that these had not been discovered and could not be put to the witnesses. It later transpired that a CD containing the photographs had been listed in the discovery documents but that "inadvertently the CD containing the photographs of the blue jumper was not included with the copies of the defendant's discovery documents" sent to the plaintiff's solicitors (letter 18 March 2009). Statements to the contrary made by Mr Neil QC in court were withdrawn.

It would be a counsel of perfection to require lawyers to comply meticulously with their obligation to discover and provide copies of documents and to penalise them, and their clients, when they fail. Courts should endeavour to resolve the disputed issues of fact between the parties rather than allow failures in procedural steps to distract attention from the main issues: see the cases discussed in British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 at [136] - [173]. The bringing of this application caused some delay in the submissions stage of the trial, but as a result of the sensible approach taken by the plaintiffs' legal advisers was able to be resolved once the explanation for the oversight became clear.

As a result of the raising of a new defence and the application to reopen, it was necessary to adjourn the submissions part-heard. Unfortunately, due to two other trials running over their time estimates, the adjourned dates became unavailable. This is due to court resources and management and not due to any fault or error by the parties.

(d) Application by the plaintiff for time to make further submissions

After the time submissions were being made, the New South Wales Supreme Court and High Court handed down decisions of significance concerning the defence of qualified privilege at common law. On 23 July 2010 counsel for the plaintiff wrote to the court asking for judgment not to be handed down until he had had an opportunity to consider these decisions. Further written submissions were received on 16 and 17 September 2010. Since that time the New South Wales Court of Appeal has handed down Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 concerning malice and s 30 but I consider it preferable for me to hand down my judgment rather than await further submissions from the parties.

Similarly, on 4 August 2010 Simpson J handed down Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852, a decision inconsistent with Corby v Channel Seven Sydney Pty Ltd (Supreme Court of NSW, Nicholas J, 20 February 2008). The ratio decidendi of Kermode is that a defence of contextual truth based upon the pleading back of one of a plaintiff's imputations is not available by reason of the terms of s 26 Defamation Act 2005. That would mean that the defence under s 26 as pleaded by the defendant in these proceedings is not available. The defendant has not addressed this problem in submissions. Rather than delay the handing down of judgment in these proceedings any further, I have prepared my judgment on this defence as if it were still available, as I have found in favour of the defendant on the defences of qualified privilege at common law and pursuant to s 30 Defamation Act 2005 (NSW).

[10] The circumstances surrounding the arrest of the plaintiffs, the subsequent charging of Mr Moses, and those charges being dropped, may be summarised as follows. Police were carrying out a covert operation on 5 September 2008 to catch an offender who had been snatching women's handbags from the seats of cars which were stopped in peak hour traffic along the busy McEvoy Street/Botany Street/Elizabeth Street roads. There had been descriptions of the suspect by the victims and the Operational Orders of 1 September 2008 set out a procedure for the offender to be caught in the act, as well as identifying by name certain possible offenders. This list did not include either of the plaintiffs. On 4 September 2008, two police officers spotted the offender committing such a robbery and gave chase but he escaped. The next night, police were waiting again. When he saw Mr Moses walking down the street, one of the police officers called to the others that Mr Moses was recognised by him as the offender from the day before, and he was seized and arrested. Mr Kawenga, who was with Mr Moses, was also seized and arrested.

[11] Mr Moses and Mr Kawenga were conveyed to the police station and a record of interview carried out. Mr Kawenga was released without charge but Mr Moses was charged with two offences, one was the bag snatch carried out on 4 September 2008 and the other related to his conduct on 5 September 2008.

[12] The bag snatches continued and police came to realise from the description of the offender that Mr Moses may not have been the culprit. The police carried out a second undercover operation carried out on 23 September 2008 and the offender, who turned out to be a person named in the first Operational Orders of 1 September, was apprehended committing a robbery. On 12 November 2008 the charges against Mr Moses were withdrawn.

[13] The plaintiffs gave the following description of their apprehension by police officers on the day in question.

[14] The first plaintiff, David Moses (hereafter referred to as "Mr Moses"), a young man aged 22 at the time of the incident, had grown up in the Waterloo area, living with his parents in the family home in George Street, Waterloo from the age of five until he moved out of home some months before this incident. His father, Abraham Moses, ran a small business and his mother, Evelyn Moses, was a hairdresser.

[15] I should note that Mr Moses' physical appearance is central to the case, as the person the police were seeking on the night of his arrest was someone who had been seen committing these crimes, not only by a number of victims but by two police officers, Detective Constable Porter and Detective Constable O'Brien. The police on undercover duty had information about this offender's height, apparent age and apparent racial background (Aboriginal); Detective Acting Sergeant Buttel, the officer who planned the undercover operation had, with this information, identified persons known to the police who could be the offender, although that list has since been lost. Mr Moses was not one of these persons, nor was he Aboriginal. Mr Moses' father Abraham is Jewish and his mother Evelyn is from the Philippines.

[16] Photographs of Mr Haines, the offender who did in fact commit many, if not most, of these offences, have been tendered, and while I note the submissions of the plaintiffs that Mr Haines is much older, much taller, from a different racial background and has a receding hairline, there is some facial similarity to Mr Moses.

[17] Late in the afternoon on 5 September 2008, the second plaintiff (to whom I shall hereafter refer as "Mr Kawenga"), a 23 year old warehouse storeman working for Visitec in Alexandria, finished work at about 5.00 pm and walked to McEvoy Street with another Visitec employee to meet Mr Moses, with whom he was friendly. Mr Moses was to come by car, so Mr Kawenga went to meet him on foot (T 15-16) and was looking out for his car in the street. It had started to rain and he did not have an umbrella so he had a brown jacket "hoody" with the hood over his head to protect himself from the rain.

[18] When Mr Moses arrived in his car, Mr Kawenga got into the car and they drove about 10 metres up into McEvoy Street, when Mr Moses said: "You know, I've got to call my Dad" (T 17-18). Mr Moses' father and mother live in the block of flats opposite, but the entrance was through a security door and Mr Moses did not have the key. He stopped the car, parked it and then got out to telephone his father to see if he was at home, since someone in the household would have to press the intercom to let him in. Mr Moses got out of the car and started walking down to where the public telephone was.

[19] According to Mr Kawenga, the first he knew of any problem was when he heard Mr Moses call out "Help, help" a few seconds later. He got out of the car and ran down to see "four people on him" (T 18). He noticed that one of them was a woman and she was "on his legs" and the others were "trying to restrain him, and they were hitting him in the head, in the side and in the back" (T 18-19). Mr Moses was "just on the ground, pinned to the ground" on a patch of grass or dirt, face down (T 19). These persons were "just punching him in the head and, yeah, punching him in the back and all that, and then - yeah that kind of thing" (T 19). He screamed out at them to "get off" and they looked at him and told Mr Moses: "Don't move" and "You're in trouble mate".

[20] Mr Kawenga said "Then they came after me, so I ran" (T 19). He said two persons came after him, in addition to the four who were on top of Mr Moses, and that these persons were, like him, wearing "hoodies". They chased him for about 10 metres. Mr Kawenga had thought they were junkies, as they didn't look like police officers, until one of them called out: "Stop, police". He turned around and said: "You're not police" but started slowing down. He then saw the police radio and realised they were police. He said the police came up to him and one of them said: "Yeah, you're fucked, you're going to gaol". Another officer said: "You're fucked, you're going to gaol for six months". To which he replied: "This is fucked. I haven't done anything wrong". One of the persons came up and kneed him in the face and said "Don't swear. Have some fucking respect, don't swear" (T 21).

[21] Mr Kawenga said that these statements were said to him in a loud voice and that "you would probably have been able to hear it down the street" (T 21). There were people driving in the vicinity. Mr Kawenga was handcuffed, placed in a police paddy wagon and taken to the police station.

[22] Mr Moses gave a similar description of having arranged to meet Mr Kawenga in George Street, driving off, deciding to telephone his father and returning to park his car, and then being tackled and assaulted by a group of persons (T 72-73). He said (T 74): "Just, as soon as they saw me, they ran after me and tackled me. Didn't say they were police or anything."

[23] He said that in addition to kicking and punching him they put a set of keys to the side of his head, which he thought was a knife. He said the police said to him while he was on the ground "You fucking cunt. Stop. Stop. Where are you fucking going? You're robbing women. You're a thief. You rob from women" (T 74).

[24] He observed that one of the men was older and was wearing glasses and he said: "I'm innocent. I need my lawyer", to which the police officer replied: "If you're innocent, you don't need a lawyer". It was only at the end of the circumstances in which he was tackled to the ground that these persons "finally said they were police" (T 74). He said the police spoke to him in an aggressive manner, screaming loudly.

[25] Mr Moses said: "I was struggling with them and they said they were police and I stopped struggling" (T 84). He was then handcuffed behind his back. His face rolled at some stage against the mud or the ground (T 108) and he felt his face against the ground (T 109). The police then said to him: "You're under arrest for stealing a lady's handbag yesterday", after they restrained him (T 111). Mr Moses was then taken in handcuffs to the paddy wagon and conveyed to the police station.

[26] The police who were present were all in street clothes, as this was an undercover investigation into a series of bagsnatches from women in motor vehicles. According to the Operational Orders for this investigation (the text of which is set out in full elsewhere in this judgment) the officers in charge were Detective Acting Sergeant Stephen Buttel, Detective Senior Constable Jess Porter and Plain Clothes Senior Constable Peter O'Brien. Other police officers (Acting Sergeant Bradley Russell, Constable Knight, Constable Brogan, Constable Mabberley, Constable Quinn and Constable Casey) were assigned to assist. They were all dressed in casual clothes so that they could mingle with members of the public. As there was some drizzling rain, several of them were wearing "hoodies" similar in style to those worn by the plaintiffs.

[27] The Operational Orders were prepared by Detective Acting Sergeant Buttel, whose extensive local knowledge of the area and of criminals in the area was a key factor in the operation. At T 217 Detective Senior Constable Peter O'Brien described Detective Acting Sergeant Stephen Buttel's role in the following terms: "All I can clarify for the court, Detective Sergeant Buttel is a long-serving member of Redfern. He has been involved with street-level crime, particularly robberies for a long time. He is exceptionally good at recognising faces and remembering people's names and faces. If anyone was going to be put together a list of people who are likely to be committing these type of offences, he would be the one you would go to at Redfern. He was the one they went to at Redfern."

[28] Detective Acting Sergeant Buttel had prepared a list of likely suspects for this crime. As already noted, although this list is now lost, we know Mr Moses was not on it, and neither was Mr Kawenga (T 217). Detective Acting Sergeant Buttel has been unable to locate the list of suspects since that time (T 253-254) but he confirmed in his evidence that the plaintiffs' names were not on it (T 254) and they were unknown to him. He did, however, remember who he thought had committed these crimes when he prepared the Operational Orders. As it turned out, Detective Acting Sergeant Buttel had correctly identified the real offender, a Mr Haines.

[29] As the author of the Operational Orders, a senior and experienced police officer, and the person who observed the identification and arrest, Detective Acting Sergeant Buttel had an objective insight into what occurred. He described the incident as follows: "A. To the best of my knowledge, I saw, I believe it was Moses, that male in a blue hooded jumper on the northern end of McEvoy Street walking between where his car was parked which was just east of the telephone booth, which is on McEvoy Street and walking between that area.

Q. And could you describe for what time he walked and anything about his motion? A. Look, I don't remember the times exactly. But it was around, I would say, 6 o'clock at night and it was - it was peak hour traffic. I remember it was getting dark and in relation to that conversation between - with us on the police radio, it was between myself and, I think it was Detective Porter, and it was in relation to the identification of the male that we were watching.

Q. Can you recall who said what about that? A. I recall - I recall saying, "Is it the same, is it the same person?" And I believe Porter said, "It looks like the same person." " (T 256) [Emphasis added].

[30] This was important, because it was Detectives O'Brien and Porter who had chased the offender unsuccessfully the night before. Because of this identification of Mr Moses, instead of following the Operational Orders and waiting for an offence to be committed, the police immediately moved forward to arrest Mr Moses.

[31] Detective Acting Sergeant Buttel described the arrest as follows: "Q. What did you see happen next? A. At that time we moved in and arrested Moses.

Q. Who did that?? A. The four police involved in the operation.

Q. Who reached in first, can you recall? A. I don't recall.

Q. Did you see anything about the arrest? A. The arrest, it turned into a struggle that ended on the floor - on the ground.

Q. Between who? A. Between Moses and probably eight police that were there.

Q. Were you involved in this struggle? A. I was, yes.

Q. In what way? A. Attempting to restrain or hold Moses on the ground. Like, he was on the ground.

Q. Did you do anything to Moses yourself? A. I - I held Moses down on the ground with my - by his shoulders with my hands." (T 257)

[32] Detective Acting Sergeant Buttel first said there were four but then said (at T 262) that eight police officers wrestled the plaintiff to the ground: "Q. You were holding his face down on the ground-- A. Yes.

Q. --well I mean, how was he brought down to the ground? A. He was wrestled to the ground.

[33] At T 269 line 35 Detective Acting Sergeant Buttel used the word "melee" to describe the scene. He said that Mr Moses was "eventually subdued" (T 258), handcuffed and taken back to Redfern. The other police officers involved in Mr Moses' arrest were all larger and heavier than Mr Moses; Detective Acting Sergeant Buttel, for example, is 5ft 11 ins and weighs 90 kilograms.

[34] The description of the arrest by Detective Constable O'Brien was as follows (T 166): "There was something of a struggle. Of course all the other people who were involved, they turned up at the scene, so there was [Detective] Porter and Mr Moses and then myself".

[35] Detective Constable O'Brien said he heard Detective Porter say: "You're under arrest for robbery, bag snatching" and the police caution, and said that the word "police" was said at the outset. He disagreed with Mr Moses' estimate of the time he was on the ground struggling as being five minutes, saying it was only one minute (T 167) and denied that police kicked or punched him.

[36] Detective Acting Sergeant Buttel's recollection of the conversation he had prior to the arrest with Detective Porter and Detective O'Brien is considerably less definite than the evidence of those officers of their identification of Mr Moses (T 267). He recalled not a statement, but a question: "Is that him?"; he recalled the response from Detective Porter not as being "That's him" but as "That looks like the same guy from last night", following which the police officers seized first Mr Moses. It was only after they seized Mr Moses that they saw Mr Kawenga and, although there was nothing about him in the Operational Orders, they arrested him too.

[37] One of the reasons given by police for the apprehension of Mr Moses and Mr Kawenga was their nervous manner (T 283-284), as well as Mr Moses' facial similarity to the man they chased the day before. However, this was not the evidence of Detective Acting Sergeant Buttel, who had his mind "pretty much made up" (T 273) that the offender was a Mr Haines (correctly, as this was the person later charged with many of these offences). He described the reason for the arrest as being as a result of the two detective's identification of Mr Moses, rather than because of anything Mr Moses was doing or anything about his demeanour: "Q. Did you think that perhaps Moses didn't look quite the type to do this sort of thing?

WITNESS: It wasn't - it wasn't what I thought, it wasn't - it's not - it was - it was an identification from two detectives quite senior, that's, you know, that's why he was arrested and charged, both - what I think and I wasn't there on the floor, I didn't see what happened on the floor so I can't - I can't say what - just because he's got nice parents doesn't make him a saint." (T 274)

[38] The other officer who identified Mr Moses as the person who had been chased the previous day was Detective Porter. It was not Mr Moses' facial resemblance that triggered the arrest; it was raining and Mr Moses was wearing a jumper with a hood. He thought Mr Moses was the same offender he had chased before for the following reasons: "A. Yes. Well the car pulled up, it was in the rain, Moses was driving it and then Kawenga had got in it, so we were talking about, "Right, this white car's pulled up, that's the car I saw yesterday, yep, he's got in the front passenger side, yeah, it's proceeding. He turned right into McEvoy and parked". We were just - we were just calling that as it happened.

Q. Did you continue to do so after Mr Moses got out of the car when it was in McEvoy Street? A. Yes.

Q. Did you say anything on the radio about Mr Moses when you saw him after he got out of the car? A. When he got out of the car? His back was turned to me so I kept observing, observing him when he's gone onto the side of McEvoy and turned around, I recognised the jumper straight away and - and the build and so forth. And then I said, "That's the guy that did the thing - that robbery yesterday". And then I ran out of the car.

Q. And what you've just said was said on the radio, was it? A. Yes.

Q. So just let me get that straight. You were in your cars. His jumper and his build? A. Yes.

Q. And did you recognise anything else about him? A. Well he had the hood on again, and the face was - it was similar to the face the day before.

Q. And then you said on the radio what you said in your last answer? A. Yes.

Q. Did you notice him doing anything after he got out of the car and before you went across and arrested him? A. Yes. He was, like, pacing up and down." (T 283-284)

[39] The reasons why Detective Porter was "a hundred per cent sure" he had the right person were summarised by him as: "WITNESS: Identical jumper.

Q. Yes. A. Had the hood over, similar face, the same build, the same physical appearance.

Q. Anything to do with the vehicle? A. It's the same vehicle, saw both days as well." (T 289)

[40] Detective Constable Porter agreed the arrest was "pretty spontaneous" and occurred about 20 seconds after Mr Moses got out of his car (T 319 lines 32 and 34).

[41] The next officer on the scene was Constable Quinn, who had a clear view of the arrest from her location. She "saw one of the males get taken down by some police officers" (T 367) in a dirt area at the intersection of George and McEvoy Streets. At that stage she thought there were two, possibly three police officers involved. She ran towards the group of police officers who at that stage had this person on the ground. She squatted down next to where they were to see if she could assist in any way (T 368).

[42] At the time that she arrived Mr Moses was face down with a policeman holding his shoulders down and he appeared to be struggling. There were at least two and possibly three other police officers beside herself, and there were up to eight officers in the vicinity (T 370): "Q: Can I suggest at the end of the proceedings there were as many as 8? A: No, not while he was on the ground.

Q: What about when he was picked up from the ground? As many as 8 then? A: There could possibly have been as many as 8 in the vicinity, but not the direct vicinity of where he was."

[43] This is similar to Detective Acting Sergeant Buttel's evidence (T 257).

The evidence of police officers as to what was said to Mr Moses

[44] Constable Quinn's evidence was (T 370): "Q: Did you hear the police calling out "You're under arrest"? A: Yes.

Q: Did you hear the police calling out "You've stolen from women, you've stolen a handbag"? A: Yes.

Q: "You're robbing women, you're a thief" something like that? A: Something along those lines, yeah." (T 370)

[45] Detective Acting Sergeant Buttel's evidence was: "Q. Did you say or did you hear the others say, "You've been robbing women, you've stolen a handbag, you've stolen from women." or something? A. No, I don't remember it being said. I'm not - I'm not saying it wasn't said.

Q. You just don't remember it was being said? A. No. No.

Q. Well was everyone there - and I'm not saying shouting - but at least speaking in loud voices? A. They were, yes. People were doing different things.

Q. Sorry, by people I mean police? A. Police, yes."

[46] Detective Porter's evidence was, however, very definitely to the contrary: "Q. Now can you recall if you said anything to the accused at the time of arrest by way of a caution? A. Yes.

Q. What did you say? A. "You don't have to say or do anything if you don't want to, whatever you say or do may be recorded and used as evidence".

Q. Can you recall anything else you might have - you said to Mr Moses at the time? A. As I say to everyone I arrest, I introduce myself, "Detective Porter from Redfern. You're under arrest for stealing a lady's handbag yesterday on 4 September" and I caution.

Q. All right. A. And I say - then I usually say something like, "We'll go - you'll now be taken back to the station and we'll speak about that".

Q. How soon after you first came up to Mr Moses did you tell him you were a police officer? A. As soon as I took hold of his arm.

Q. What happened after you took hold of his arm? A. We were standing in the mud.

WITNESS: We were standing in a muddy area so I took hold of him, told him I was the police, "You're under arrest". He tensed up and then next thing we were on the ground.

Q. And who's, "We"? A. I think it was - it was - well it was, it was Tara Quinn, myself, Buttel came later, he wasn't involved in the arrest and Detective O'Brien." (T 281)

[47] Detective O'Brien's evidence was similar: "I was trying to get Mr Moses under control because there was a struggle. He ended up on the ground and I was saying things to him along the lines of, "Put your hands behind your back. We're going to handcuff you and then it's all sweet." But he kept struggling and trying to wriggle away and we kept trying to control and so it went on for a while.

Q. Did you hear Porter saying anything to him about him being arrested? A. Yes.

Q. What did Porter say? A. "You're under arrest for robbery, bag snatching," or something along those lines.

Q. Did you hear him give him any caution? A. Yes, the caution. "You're not obliged to say anything unless you wish to do so. But anything you say can be taken down and used in evidence at court. Do you understand?"

Q. Did Mr Moses say anything to you about whether he thought you were police, or not? A. I don't have any recollection of that.

Q. Did Mr Porter say anything about who you were? A. If you work in plain clothes one of the things you do is you announce your office. Now, that wouldn't have happened straight up, simply because we're trying to take control of the situation and then we would declare our office and that's basically what would have happened.

Q. How soon after Porter reached the man did he, or you, declare your office? A. I couldn't say with any great definitecy [sic] but it would've been as soon as we could do it, as soon as we could do it. So like I said, there was something of a struggle to start with and we weren't going to be taking one hand off this potential person who could either get away or assault us. We're not going to be doing that, put our hands in our pocket and pull a police ID and go - no way.

Q. Did you do that as soon as practicable? A. Yes, having said all of that, one of the things that you do if you're in a situation like that, is you say, "It's police, stop struggling. Police," you know. We've got a set of handcuffs out, you know, so once again--

Q. Was "Police" said at the outset? A. Yes." (T 166)

[48] Constable O'Brien did, however, waver in cross-examination: "Q. Then did he keep on saying, "I haven't done anything, you've got the wrong man"? What did he say? He must have said something. "What are you doing?" A. Yes.

Q. And you said to him, "You've stolen a handbag," or, "You're a thief, you've been robbing cars"? A. I didn't say that.

Q. Well, someone must have said that to him. A. It's quite possible someone said it but it wasn't me.

Q. Well, the other police there might have said it? A. I have no recollection of it. I certainly didn't say it.

Q. It would be a natural thing to say, wouldn't it? A. It would be natural enough, true.

Q. Yes, "You've been robbing women, you're a thief, you've stolen from women"? It would be natural for the police to say that, even though you didn't say it. A. It's possible they would have. Like I said, I didn't, and I didn't hear anyone else say it.

Q. But it wouldn't surprise you if some of the police had said that.

Q. It's possible that police called out those words, you didn't hear them. A. I didn't hear them." (T 188-189)

[49] The only witness who categorically states that the words were not spoken is Detective Constable Porter; he is also the only person who said he read out the charges, i.e. for stealing, at this time.

[50] The question of what was said when Mr Moses and Mr Kawenga were arrested is important for the defamation claim. On the one hand, there is the evidence of Detective Porter and Detective O'Brien, who made the identification of Mr Moses which led to the arrests. As is set out in more detail below, both men were defensive in their subsequent conduct, and their evidence in these proceedings, about the circumstances in which they arrested the plaintiffs. I note, for example, the description in the police facts of Mr Kawenga being released without charge "due to a lack of direct evidence" when not one question about the robberies was put to him during the record of interview - see Exhibit 5 pages 2.6 and 2.4. I also note Detective Porter's dismissal of Sergeant Kos's recording of the injuries to the Mr Moses' face, and his claim that these were acne scars.

[51] By contrast, Sergeant Buttel presented not only as a senior police officer who put together the operational plan to trap the offender, but an objective and honest witness who made concessions where appropriate and, if he could not remember what happened, said so. Constable Quinn, who was watching the arrest, was similarly an objective and honest witness. Where there is any difference between the evidence of Detective Acting Sergeant Buttel and Constable Quinn with that of Detectives Porter and O'Brien, I prefer the evidence of the former.

[52] Mr Kawenga was arrested by Constable Knight. His evidence was that one of the other police officers said "Go get him" (T 237). Constable Knight ran after him, caught him and said to him then "You're under arrest". He was quite certain he did not call out (T 237). He then used a "leg sweep" to bring Mr Kawenga to the ground (T 238). He was certain he did not say "You're going to gaol" or "You're fucked, you're a piece of shit" (T 238). He arrested Mr Kawenga for being involved in bag snatches (T 240).

[53] Constable Brogan observed Mr Kawenga running down the footpath towards McDonalds and chased him. He said he called out "Police" and the male "sort of slowed a bit" so they caught him about 40 metres further west. He told Mr Kawenga to "sit down" but he did not, so Constable Knight used the leg sweep to bring Mr Kawenga to the ground (T 349). He said that Constable Knight then said something along the lines of "Constable Knight from Redfern Police. You're under arrest for bag snatches or robberies" (T 349) and the man was handcuffed. He denied the words complained of by Mr Kawenga. Mr Kawenga repeated the words he said Constable Knight spoke to him in the record of interview.

[54] This evidence is relevant to the defamation claim. The police said that there were very few other persons present. Constable O'Brien said: "Q. There were passers-by and tenants and occupants of houses nearby? A. Not that many at that path on McEvoy Street, no. It was just on dusk. It was raining. It may not have been raining right at that time but it was raining within 5 minutes of it. Not that many people walk up and down there, which is one of the reasons why they came under suspicion in the first place.

Q. But there were cars moving slowly, if not stationary. A. That's true.

Q. It certainly happened within the observation of those cars. A. Yes.

Q. And weren't some of the cars hooting and tooting? A. Not that I recall.

Q. I mean hooting and tooting at you. A. Not that I recall.

Q. There was a factory across the road, was there, and a McDonald's? A. There's a factory across the road. The McDonald's is down the road, wouldn't have been in sight of what was going on." (T 192)

[55] Mr Moses said that the police were screaming loudly and that the words "You're robbing women, you're a thief, you have stolen from women" were spoken loudly (T 74, 75, and 85). He said that he saw "a lot of people standing out the front" of where his father lived, and a lot of motorists were "tooting their horns" (T 118).

[56] This was confirmed by Mr Abraham Moses, the plaintiff's father. He actually saw the arrest from the window of his home, although he did not know at the time the person who was being arrested was his son: "Q. Tell us more about the commotion. What were people doing? A. I saw a lot of people around, I saw neighbours were going up and down, and I was trying to see what happened, you know. I asked some people. They said--

Q. So what were people saying? A. They said somebody - they used words "bag snatching and somebody has been arrested"." (T 148-149)

[57] Mr Moses repeated this in cross-examination: "Q. All right. Now, was that an area where I think you said there had been bag snatching going on? A. For the past week or so I heard that there was some bag snatching going on in that area.

Q. When some neighbour spoke to you, did they say something to you about bag snatching? A. That's exactly, yeah. That's what they said. "As usual" - that's exactly what she told me - "As usual, there has been some bag snatching."

Q. Did someone say to you that they thought someone had been arrested for bag snatching? A. Yeah.

Q. Yes, all right. A. But they'd use the word "arrest". They said, "Some bag snatching has been going on." Of course the police were there. There must have been some arrest going on I suppose, I assume." (T 152-153)

[58] Having set out the evidence relevant to the publication issue, I now consider the substantive issues for the defamation claim.

[59] Mr Moses pleads a publication of the following words: "You're robbing women"

[60] This publication gives rise to the following imputations: (a) The first plaintiff is a thief.

[61] The second plaintiff pleads that the defendants published the following words of and concerning him: "You're under arrest - you're a piece of shit - you're fucked - you're going to gaol"

[62] This is asserted to give rise to the following imputations: (a) The second plaintiff is a criminal.

[63] I shall first deal with the question of whether or not these words were said and whether or not the defences pleaded, namely qualified privilege at common law and pursuant to s 30 and, in the case of Mr Moses, contextual justification, have been made out.

[64] The defendant's submissions are that the police did not say the words pleaded as the matter complained of in paragraph 2 of the second further amended statement of claim, and that I should accept the evidence of Detective Constable Porter that he said "You're under arrest for stealing a lady's handbag yesterday on 4 September" (T 281 line 15).

[65] Detective Constable Porter, Detective Constable O'Brien and Detective Acting Sergeant Buttel did not agree that these words had been said. Detective Constable Porter was insistent that he had introduced himself, stated the offence and administered the caution and that it was only then that Mr Moses ended up on the ground, this being his response to these events.

[66] However, Detective Constable Porter's version of events is implausible for a number of reasons. The other police officers who were present used words like "struggle" and "melee" to describe the circumstances of arrest.

[67] Constable Quinn's evidence on this issue is unequivocal. I do not accept the submission that "something along those lines, yeah" means that the words were not actually used. Constable Quinn's evidence is not consistent with the polite version of events given by Detective Constable Porter. It is consistent with the evidence of Mr Moses.

[68] The evidence of the police is that they said "You're under arrest for bag snatches".

[69] This is consistent with the first part of the matter complained of.

[70] The submissions of both the plaintiffs and defendant as to what was said to Mr Kawenga (and for that matter to Mr Moses) were short and unhelpful. The defendant submitted that the police version should be accepted, that the police did not say the words pleaded, that their version is different from the plaintiffs' version and that there should be a verdict for the defendant.

[71] The plaintiffs' submissions (page 13, paragraph E) assert that Mr Kawenga asserted that these words were spoken. Neither the plaintiffs nor the defendant referred to the ERISP transcript (Exhibit A) where in answer to question 295 Mr Kawenga says that he said: "Then what they did to me when I got caught, when they got me they fuckin', one of them's fuckin kneeing me in the head saying, "he [sic] saying, well one of the guys are going to me, you're fucked now, you're gonna go to gaol you fucking scum or some shit like that, and I went, I didn't do shit. And then the one guy's got his fuckin knee on my head and I, yeah, yeah, don't, don't you swear punk or some such shit. And they kept fuckin, whatsit, how old are you, 21, or you're fucked, yeah, all this smart arse shit, but yeah besides that it's good." (Exhibit A, page 28).

[72] Mr Kawenga repeated, in his evidence, that he had told the officers this at the time, saying, at T 42 line 17: "I said, well, I pretty much went off on a rant then. You [sic] said "You know, you try and accuse me of [sic] my mate stealing stuff. You know, you're screaming at me "You're fucked, you're going to gaol", all the verbal abuse."

[73] It was a feature of the submissions of both parties, but particularly of the defendant, that evidence which did not assist the defendant was not referred to. Not having the benefit of any explanation from the defendant concerning this contemporaneous statement by Mr Kawenga of what he said, I intend to accept it.

[74] The submission was made that there was no evidence that any person heard the matter complained of.

[75] Leaving aside the fact that publication may be made by joint tortfeasors to each other (Trantum v McDowell [2007] NSWCA 138), it is possible for there to be publication even though no witness comes forward to testify that he or she heard the words spoken, as long as someone was in a position to hear the defamatory publication. For example, the only witness called in Duckworth v First National Bank 254 SC 563, 176 SE 2d 568 denied hearing the words spoken; because there was evidence that there was a large crowd present and of the defendant shouting the words, the court permitted the matter to go to the jury, which found for the plaintiff. If the words are spoken in the presence of others, it must be shown that they were spoken loudly enough so that the persons present could have heard them. The evidence of Mr Moses's father, who heard the commotion and saw the arrest from his window, is evidence that the arrest attracted attention. There were shops such as McDonald's nearby, and the plaintiffs said that motorists were tooting their horns. As I have indicated elsewhere, I am satisfied the police were calling out to each other as well as to the plaintiffs. I am satisfied there was publication to a third party.

[76] Having found that each of the publications was made, I now turn to the question of the defence.

The defence of qualified privilege at common law and whether it is defeated by malice

[77] The general principles concerning qualified privilege at common law may briefly be stated. Communications are protected by the defence of common law qualified privilege where the publisher has an interest or a duty (legal, social or moral) to make a statement on an occasion and the recipient of the statement has a corresponding interest or duty in receiving it: Bashford v Information Australia (2004) 218 CLR 366 at [9]-[10], [53] and [136]-[137]. This includes a close examination of all the circumstances of the case (Bashford at [10]). The New South Wales Court of Appeal in Bennette v Cohen [2009] NSWCA 60 has explained the interaction of "duty" and "interest". In Bennette v Cohen Ipp JA at [25] sets out a list of propositions concerning duty and interest, noting the very high level of generality and obstruction of the test for common law qualified privilege and the need for "close scrutiny" of "all the circumstances of each case", which results in practice in common law qualified privilege having a relatively limited or narrow practical application. There is no closed set of criteria that must be applied or considered.

[78] The issues raised by the plaintiffs in their most recent submissions are that the police officers had no intention to convey the imputations, and that there was no reciprocity between the recipients of the publication (passers by who heard the words) and the police officers.

[79] Police officers carrying out an arrest are not obliged to keep their voices down in case they have arrested the wrong person. Members of the local community who saw the arrests had an interest in hearing the matter complained of as these crimes were occurring in that street, and issues of local law and order were involved.

[80] The New South Wales Court of Appeal in Bennette v Cohen [2009] NSWCA 60, considered issues of "duty" and "interest". In Bennette v Cohen Ipp JA, at [25] extracted a list of propositions concerning duty and interest, noting the very high level of generality and obstruction of the test for common law qualified privilege and the need for "close scrutiny" of "all the circumstances of each case", which results in practice in common law qualified privilege having a relatively limited or narrow practical application. There is no closed set of criteria that must be applied or considered. In particular, at 25, Ipp JA noted the following guidelines: "(i) As a matter of public policy, it must be in the general interest of the whole community that the type of material in question be published, notwithstanding that it is defamatory of a third party;

(ii) The occasion must not be used for some purpose or motive foreign to the interest that protects the making of the statement. Further, there must be a significant connection between the defamatory material and the privileged occasion;

(iii) The interest that gives rise to qualified privilege must be real and direct;

(iv) Ordinarily, a volunteered statement is privileged only where there is a pressing need to protect the interests of the defendant or a third party, or where the defendant has a duty to make the statement;

(v) If a publication is made to a large audience, a claim of qualified privilege at common law will fail unless the members of the audience all have an interest in knowing the truth, and;

(vi) The interest should not give officious and interfering persons a wide licence to defame."

[81] Campbell JA went on to add, at [207]: "[207] I would add some explanation concerning the way in which the public interest impacts upon common law qualified privilege. It seems uncontroversial that the notion of the public interest operates as a means of limiting the sorts of reciprocal duty or interest that can give rise to qualified privilege. However one does not enquire whether the particular statement that was defamatory was made in circumstances such that the reciprocal interest of the maker and recipient of the statement was such that the making of that statement itself advanced the welfare of society and the public interest. Rather, the requirement of public interest, for the existence of qualified privilege operates at a higher level of generality, that the duty or interest of both maker and recipient is such that it is in the public interest that a person should be free to make that type of statement in the type of circumstances where the particular statement in question was made."

[82] The circumstances of this case involve the police in the execution of their duty. The recipients of the publication were local residents and persons driving along the street where these robberies had been taking place. These persons all had an interest in receiving this information. I reject the plaintiffs' submissions that there is no reciprocity of interest.

Lack of intention to convey and belief in the truth

[83] The issue of lack of intention to convey the imputations has some complexity here, because the defendant has denied publication and intention to convey. The defendant maintains that it is entitled to deny publication while relying at trial upon the defence of qualified privilege. This includes a refusal to answer interrogatories concerning intention to convey and belief in the truth of the imputations.

[84] The defendant submits that it is entitled to plead and run the case as it did and to deny publication, refuse to answer interrogatories and to plead the defence of qualified privilege notwithstanding, relying upon Casey v Australian Broadcasting Commission [1981] 1 NSWLR 305 at 308-309 per Hunt J. The application in Casey was to strike out the defendant's denial of publication, identification and defamation and the presence of inconsistent defences.

[85] At 307F Hunt J noted: "A defendant is always entitled to put the plaintiff to proof of the facts alleged by him in his statement of claim. No doubt the defendants here will be obliged to admit publication by them in order to answer properly drafted interrogatories (see also the Supreme Court Act 1970, s 82) but I see no abuse of process in merely putting the plaintiff to such proof." (Emphasis added)

[86] There is no doubt that a defendant is entitled to plead inconsistent defences, as Hunt J in Casey at 309, referring to Bullen, Leak & Jacobs, Precedents and Pleadings, 12th edition at page 74 notes. Similarly, in Laing v Beardsmore [1968] 2 NSWR 673 at line 27, Walsh J observes that: "There is no rule which prevents a defendant from filing inconsistent pleadings". As Jacobs JA noted at 693, that was a case where the plaintiff alleged publication of a slander and the defence was in denial of publication. A defence of qualified protection under s 17 was pleaded.

[87] However, the key lies in Hunt J's statement, at page 307F of Casey, namely that the defendants were obliged to admit publication at a later stage in order to answer properly drafted interrogatories. If a defence of qualified privilege is relied upon, the plaintiff is entitled to receive those answers.

[88] Gatley on Libel and Slander notes that a defendant should exercise some care in determining whether or not to deny the words bear a defamatory meaning and advance a plea of justification, such an approach may be difficult to sustain forensically. Gatley goes on to note, at paragraph 29.3, that a defendant may plead as many different alternative defences as he wishes, even though the allegations are inconsistent, although it may not always be prudent for him to do so, drawing attention in footnote 15 to Hackett v Tierney [1952] IrR 185 (commented on in O'Hanlon v Electricity Supply Board [1969] IrR 75 at 96, where a defendant was held entitled to deny having used the words complained of and also to claim qualified privilege in respect of them, a decision contrasted with Alderman v French (1823) 18 Mass R 1 at 8-9, where publication was denied but justification pleaded. Gatley also refers to Casey, in circumstances where the learned authors appear to have assumed that this decision supports Hackett. In fact, Hunt J noted the entitlement of a party to put the opponent to proof, but that the relevant admissions would have to be made when properly drafted interrogatories in relation to the defence of qualified privilege were served.

[89] In Sanders v Anderson [1968] NZLR 172, Hardie-Boys J rejected an application to amend brought at the trial to plead a defence of qualified privilege as an alternative to an admission of publication. Hardie-Boys J rejected the application citing Gatley on Libel and Slander, 5th edition and Odgers on Libel and Slander, 6th edition at 509. While the principal basis upon which the application for amendment was rejected was that it was a late application, and one to set aside a jury verdict, one of the bases was that it was a defence inconsistent with a denial of publication.

[90] In McConville v Credit Union Services Corporation (Australia) Ltd (Supreme Court of New South Wales, Levine J, 29 August 1997, unreported) Levine J noted: "It would be an extraordinary state of affairs if a media defendant could simply deny publication of an indisputably published program or article in pleading the alternative substantive defence in respect of which the plaintiff would not be entitled to deliver any interrogatories."

[91] If the submissions of the defendant are correct, then any defendant could simply deny the publication and on this basis refuse to answer what Hunt J called "the properly drafted interrogatories" referred to by Hunt J in Casey.

[92] The defendant's written submissions seek to distinguish these cases and the discussion of them in Bechara v Bonacorso (No 2) [2010] NSWDC 42, on the basis that the relevant principles do not appear to have been drawn to the attention of the court. However, none of the cases referred to by the defendant go higher than permitting inconsistent pleadings. There is no authority for the proposition that a party is entitled to deny publication while at the same time pleading a defence of qualified privilege at the trial, as Levine J noted in McConville.

[93] In the defendant's submissions in reply, it was asserted that the defendant in Bechara v Bonacorso (No 2) was denying publishing the matter complained of but proposed to assert he made a statement of a different nature and to assert the defence of qualified privilege was attracted to that publication. That is incorrect, because if a publication sufficiently different to the one complained of fails to be established, then the plaintiff has failed to prove publication. There are complications in slander cases where some but not all of the slander can be proved, but that is not the case with these very short slanders.

[94] The next submission that the defendants make is a submission that by reason of the fact that the plaintiffs were being arrested by the police, statements by the police to the effect that the plaintiffs were guilty and were going to gaol are not capable of arising because of the presumption of innocence. The defendant relies upon Mirror Newspapers v Harrison (1982) 149 CLR 293. This is a variant on the "coherence" argument, discussed in more detail below.

[95] It is not clear to me whether this is a submission that the imputations cannot be conveyed at all, or whether this is a submission by reason of context. There is a separate submission headed "context" on page 10 of the submissions, so I assume that this is a further basis upon which the submission is made.

[96] For the reasons explained by McColl JA in John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; [2005] NSWCA 60 the presumption of innocence when a person is arrested cannot operate as some form of bane to the antidote of a police officer calling the person he is arresting a thief, or saying that that person is going to gaol. Merely stating that a person has been arrested and charged does not give rise to an imputation that a person is guilty of that offence, for the reasons explained by Mason J in Harrison at 300.9. However, a statement that a person is guilty and will go to gaol does convey such an imputation. If the defendant's submissions were correct, any statement to the effect that a person is guilty of an offence and/or going to gaol would not be capable of conveying an imputation of guilt by reason of the presumption of innocence.

[97] The final submission of the plaintiff is one of context, namely that the listener must be taken to have heard and seen the whole incident and in the manner of a "strike in" the hypothetical audience would take into account and view the whole incident. It is submitted that the plaintiff cannot rely upon a few words alone and take them out of the obvious situation of police arrest.

[98] If the defendant had brought a strike-in application, and identified those portions of the police conduct which are asserted to give rise to this general impression, this would have been a submission I could deal with in some detail. The principle that any words or events that can add to or change the complexion of the matter complained of have to be included as a part of the matter complained of (Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 at 477) is predicated upon there being an application to strike in those events with some parity. No such application has been made here.

[99] As a general factor, it is certainly possible for the defendant to point to the circumstances of arrest of each of the plaintiffs. As this involved chasing the plaintiffs, wrestling them or sweeping them to the ground, handcuffing them and taking them away, I cannot see that there would be any aspect of this conduct which would lead to there merely being a suspicion of guilt.

Finding concerning intention to convey the imputations

[100] The police officers denied that they intended to convey any of the imputations. However, it was apparent from their evidence that they genuinely believed that Mr Moses was the thief they were looking for and that Mr Kawenga, by reason of being with Mr Moses, was a potential accomplice.

[101] The defendant's submissions refer to imputations being conveyed by "unintended loose words" (paragraph 95) and "inadvertent" or "left field" imputations. The problem seems to be that the defendant's witnesses have taken the strategic position of denying each of the publications and any imputations conveyed by the publications pleaded by the plaintiffs.

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