Its case was, in effect, that the appellant's reputation had always been so bad that he had virtually no reputation to lose. His Honour substantially (but not entirely) upheld the respondent's plea.
3 His Honour admitted the evidence, which the defendant sought to lead about the matters referred to in the plea of mitigation of damages. This appeal is really about whether his Honour was right in doing so.
4 The question of the admissibility of evidence of reputation is of some importance, although, unlike some other aspects of defamation, not overburdened by authority. The starting point is that expressed by Devlin LJ in Plato Films Ltd & Ors v Speidel [1961] AC 1090 at 1100:
"The action of libel is an action for loss of reputation. On the issue of damage, what has to be investigated is not whether in truth the plaintiff is a good or bad man, but whether he is reputed to be a good or bad man. If a man's reputation is already so bad that it cannot be made worse, the man who defames him will, in fact, have done him no further damage."
5 One would therefore have suspected that a plaintiff would always be at liberty to lead evidence about the excellence of his reputation, and a defendant would always be at liberty to lead evidence about the evil reputation of the plaintiff. However, things are not as simple as that. Despite earlier doubts on the matter, it is now clear that evidence may be led by a plaintiff of his good reputation, either by his own testimony or from the evidence of witnesses; Anderson v Mirror Newspapers (No. 2) (1986) 5 NSWLR 735 per Hunt J; and it has always been held that the defendant may lead evidence to the contrary; but, in either case, the reputation evidence is subject to two fundamental rules. The first is that the evidence must relate to "the relevant sector" of the plaintiff's reputation. Thus if a plaintiff sues on a libel that he is a dishonest solicitor, it is not to the point that he has a reputation as a good golfer. Similarly if the libel is that he is dishonest, it is not to the point for the defendant to demonstrate that he is a reckless motorist. (See Plato Films per Lord Denning).
6 The other is that evidence of bad reputation must be limited to general reputation, evidence of specific incidents being inadmissible.
7 In the present case, the appellant's case is that his Honour infringed both these rules. As to the first rule, Mr Molomby SC, who appeared for the appellant, argued that the four enumerated matters contained in the particulars were outside "the relevant sector". If the libel concerned dishonesty, they amounted to allegations of bad motoring. The libel, be it remembered was an imputation that the plaintiff arranged to have another person killed; how can that, so the argument ran, be in the same "sector" as an accusation that he had pleaded guilty to departmental charges of misconduct? It is not easy to ascertain exactly what is "the relevant sector" of a plaintiff's reputation in the case of any libel; nor do the decided cases provide any help in answering that question, although they furnish many examples of extreme cases. The difficulty of the question is demonstrated by the almost comic conclusion of a New Zealand Court of Appeal presided over by Cooke P in Television New Zealand v Prebble (1993) 3 NZLR 513 that in a libel of a politician's probity that to allege that he was "offensive" was outside "the relevant sector" whereas to allege that he was "dishonest" was within "the relevant sector". In this connection, it must be confessed that the decision of this Court in Chappell v Mirror Newspapers Ltd (1984) AustTorts R 80-691 (Moffitt P, Samuels & Priestley JJA) hardly adds lustre to the debate: whilst approving the English decisions culminating in Plato Films, it does not proffer any guidance on how to determine what "the relevant sector" is, either in general terms or in terms relevant to that case; indeed, it leaves one wondering why the Court embarked on a long excursion on the subject.
8 Bereft, then, of any helpful authority, we shall have to determine for ourselves what is "the relevant sector" in this case. Mr Molomby suggested it was "activities of violence": he was said to have been involved in threatening to kill someone, any other actions (or threats of actions) involving his killing or maiming people would be within "the relevant sector". Mr Houghton SC, for the defendant/respondent, submitted that "the relevant sector" was really "conduct as a police officer". On the whole, I think Mr Houghton is correct. We were shown the defamatory newspaper article, and I must say its effect is the horror it conveys that a police officer, whom one would normally expect to be busying himself in protecting people's lives, would arrange to have someone else murdered. The defamatory impression, which would arise if the same allegation were made of a person outside the police force would be significantly less.
9 So much for the alleged breach of the first rule. As to the second rule, that the rule exists is not in doubt. What is difficult, is to apply it, because there is often one specific incident which of itself can cause a general reputation. For example if (which, of course, is not the case) the plaintiff had been convicted of murder, presumably he would gain the reputation of "murderer" simply from that incident, in which event evidence could be given of it by a defendant. Conversely, if a plaintiff's general reputation derives in whole, or in part, from a particular incident, evidence may be given of that incident: thus, in Marsden v Amalgamated Television Services Pty Limited ([1999] NSWSC 1119, unreported, 15 November 1999) Levine J permitted the plaintiff, Mr Marsden, to have admitted in evidence that he had been President of the Law Society of New South Wales, and it would be difficult to see how he could adduce evidence of a general reputation of excellence as a solicitor without adverting to that specific fact. In the present case, I am of the view that the so-called "specific incidents" which the defendant pleaded and proved were of that kind; they were the foundations of his general reputation, not merely detailed illustrations of that reputation.
10 The appellant submitted at trial, and renewed the submission before us, that, in any event, even if all the four matters pleaded in mitigation were proved, they do not legally amount to anything, because they only relate to the plaintiff's reputation in three named bodies - the New South Wales Police Service, the National Crime Authority and the Australian Federal Police; or, in other words, that his Honour should have treated the plaintiff as having an untarnished reputation, although very serious matters were held against him in the very circles in which he had moved. He was a policeman (for over 35 years, indeed); his son was a policeman (although his father was very concerned that the libel might affect his future in the Force, the son did not offer himself as a witness on his father's behalf); his son's wife was a policeman; at least half of the witnesses he called were either policemen or former policemen. The police force was his life; his reputation was made in, and existed in, that force. Indeed, his case in chief can be gauged by an answer, which his wife gave;
"They never had a better policeman that what he was".