On 28 November 2011 the New South Wales Court of Appeal determined that defamatory statements uttered by police doing their work are protected by both forms of qualified privilege – statutory and common law ([2011] NSWCA 370).   In a case which involved police officers uttering defamatory statements the Court of Appeal upheld both forms of qualified privilege and held that there was no evidence that they were motivated by malice.  As a result, the defendant’s appeal was allowed.

Giving the leading judgment on appeal, Chief Judge in Equity Paddy Bergin also found no evidence that police officers were motivated by malice when they approached two men outside a city jewellery shop and said:

The manager of the TAG Shop said you were intending to steal from the shop. We are stopping you because you guys were in the TAG Shop intending to steal. You were intending to steal. Don’t go into that shop. You were intending to steal.

Facts

Michael Lassanah, a carer, and his intellectually disabled charge Aaron Oddie, sued TAG Heuer shop proprietor LVMH Watch & Jewellery Australia and the NSW police force for wrongful imprisonment and defamation after they were detained and searched outside the TAG shop in King Street, Sydney in June 2008.

The shop’s manager pressed the hold-up button to call police after noticing “suspicious” behaviour.

Sitting without a jury, NSW District Court Judge Judith Gibson heard the matter in February last year.

In her September 2010 judgment, Judge Gibson found two imputations were conveyed to the public by police at the scene – that Lassanah and Oddie were each “an attempted thief” and “intended” to steal from the shop.

The defence of common law qualified privilege failed, with Judge Gibson stating:

“The occasion of qualified privilege was lost once the police went from repeating the allegations of the store manager to making allegations, particularly in circumstances where it was, by that time, clear that the store manager’s allegations were at best misconceived or at worst mischievous or false.”

The section 30 qualified privilege defence also failed – on the basis that the police officers involved were motivated by malice.

Lassanah was awarded $15,000 damages and Oddie $20,000 in defamation.

Appeal

Justice Bergin found several errors of fact in the primary judgment, including that that police used “bullying techniques”.

“Indeed Mr Lassanah did not claim that he felt he was being bullied. Nor did he claim that he felt intimated. Rather his evidence was that he was “angry” and “very mad”.

Justice Bergin also rejected Judge Gibson’s conclusion that it was “obvious to the police officers, that the allegations were frivolous or erroneous or actively mischievous” – on the basis that there was no evidence for it.

Common law qualified privilege

Justice Bergin accepted the primary judge’s finding that an occasion of qualified privilege existed, but rejected her finding that it was “lost” when “the police officers went from ‘repeating’ the allegations of the manager of the Shop to ‘making the allegations”.

Justice Bergin stated:

“That does not mean that the latter communications in the circumstances that pertained on this occasion were not relevant to or germane to the occasion.

Malice

imageJustice Bergin agreed with the appellant that Judge Gibson (pic) failed to identify any improper motive on the part of the shop manager or police.

“A mistaken belief that there was a threat, engendered possibly by Mr Oddie’s presentation and lack of appreciation of his disability, is not a proper basis for concluding that the Appellant’s employees’ allegations against the Respondents were mischievous and false.”

Her Honour rejected every particular of malice articulated in reply:

I need only reiterate the trial judge’s finding at paragraph [307] that they “did their best to bring the whole incident to a close reasonably quickly”.

In doing their “best” they acted consistently with their duties and obligations as police officers. There is no basis upon which a finding of malice could be made against the police.”

Statutory qualified privilege

Justice Bergin found that the police and the shop manager had acted reasonably in the circumstances.

Lassanah had been able to “put his side of the story” to police and:

“There was no basis for the conclusion that the police officers had ‘uncritically adopted” the allegations made by the Shop employees.”

And:

“The police officers certainly took steps to verify the information by checking the information with the employees including reviewing part of the CCTV footage.”

The appeal was allowed and a verdict and judgment entered for the police.

Appearances

For the appellant: Bruce McClintock SC and Richard Potter instructed by Baker & McKenzie.

For Lassanah & Oddie: Clive Evatt and Luisa Evans instructed by Friend & Co Lawyers.

Reporter:  Y C Kux

This report originally appeared in the Gazette of Law and Journalism – Australia’s leading online media law journal.