Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: LVMH Watch & Jewellery Australia Pty Limited v Michael Lassanah & Ors [2011] NSWCA 370
• Hearing dates: 13 and 14 September 2011
• Decision date: 28 November 2011
• Before: Giles JA; Campbell JA; Bergin CJ in Eq

Decision

(1) Appeal in relation to the defences of qualified privilege allowed.

(2) Verdicts and judgments entered by the Trial Judge in favour of the First and Second Respondents on the defamation action be set aside.

(3) Verdict and Judgment be entered in favour of the Third Respondent on the defamation action.

(4) The parties are granted liberty to file an agreed costs order with the Registry by no later than 1 December 2011. If the parties are unable to agree on a costs order they are to file and serve written submissions of no more than 3 pages by no later 7 December 2011. The question of costs will be dealt with on the papers.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: [DEFAMATION] - whether error in finding of fact pivotal to finding of malicious and false accusations - whether error in finding that "occasion" of qualified privilege was "lost" - whether failure to identify motive or purpose foreign to occasion of qualified privilege - whether finding of malice justified - reconsideration of defence of qualified privilege
• Legislation Cited: Defamation Act 2005
• Cases Cited: Aktas v Westpac Banking Corporation Limited (2010) 241 CLR 79; [2010] HCA 25; Andreyevich v Kosovich (1947) 47 SR (NSW) 357; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5; Clark v Molyneux (1877) 3 QBD 237; Cush v Dillon; Boland v Dillon (2011) 279 ALR 631; [2011] HCA 30; Dougherty v Chandler & Ors (1946) 46 SR (NSW) 370; Egger v Viscount Chelmsford [1965] 1 QB 248; Fraser v Holmes (2009) 253 ALR 538; [2009] NSWCA 36; Guise v Kouvelis (1947) 74 CLR 102; Jones v Dunkel (1959) 101 CLR 298; Lassanah v State of New South Wales (No. 3) [2010] NSWDC 241; LVMH Watch & Jewellery Australia Pty Ltd v Lassanah (Unreported, 4 March 2011, New South Wales Court of Appeal, Tobias and Young JJA); Mann v O'Neill (1997) 191 CLR 204; Megna v Marshall [2010] NSWSC 686; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57; Smith v Streatfeild [1913] 3 KB 764; Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044; Webb v Bloch (1928) 41 CLR 331
• Category: Principal judgment
• Parties: LVMH Watch & Jewellery Australia Pty Limited (Appellant); Michael Lassanah (1st Respondent); Aaron Oddie by his Tutor Michelle Pearson (2nd Respondent); State of New South Wales (3rd Respondent)
• Representation: B McClintock SC/RW Potter (Appellant); CA Evatt/L Evans (1st and 2nd Respondents); M Neil QC/D Caspersonn (3rd Respondent); Baker & McKenzie (Appellant); Friend & Co Lawyers (1st and 2nd Respondents); Henry Davis York (3rd Respondent)
• File Number(s): 2010/339209

Decision under appeal

• Jurisdiction: 9101
• Citation: [2010] NSWDC 241
• Date of Decision: 2010-09-30 00:00:00
• Before: Gibson DCJ
• File Number(s): 5370/2008

Judgment

1 GILES JA: I agree with Bergin CJ in Eq.

2 CAMPBELL JA: I agree with Bergin CJ in Eq.

3 BERGIN CJ in EQ: This is an appeal in respect of a defamation action that was heard with other causes of action not the subject of appeal by her Honour Judge Gibson sitting without a jury in the District Court of New South Wales. The First and Second Respondents to the appeal (the first and second plaintiffs at trial), Michael Lassanah and Aaron Oddie by his tutor Michelle Pearson, were awarded damages for false imprisonment and defamation arising out of the events of 10 June 2008 when they visited the Tag Heuer shop in King Street, Sydney, New South Wales (the Shop) owned and operated by the Appellant, LVMH Watch & Jewellery Australia Pty Limited.

4 The Respondents went into the Shop and looked at some watches. It is accepted that their conduct was perfectly innocent. However members of the staff in the Shop were apparently suspicious of the Respondents and the alarm that notified the police (referred to as "the hold-up alarm button") was activated. The police arrived in numbers and detained and searched the respondents in King Street in the public gaze. During this process the police officers made allegations and statements about the Respondents attempting to steal watches from the Shop.

5 The Respondents sued the Appellant and the Third Respondent, the State of New South Wales (to which I will refer as "the Police"), for wrongful arrest, false imprisonment and defamation. The Respondents withdrew their claims in defamation against the Appellant by agreement between those parties in March 2009. The Police cross-claimed against the Appellant for indemnity and/or contribution.

6 The matter complained of in the defamation action was that the Police published of and concerning the Respondents the following words:

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.

7 In its Defence filed on 5 June 2009 the Police claimed that the matter complained of was published on an occasion of qualified privilege at common law and/or pursuant to s 30 of the Defamation Act 2005 (NSW) (the Act).

8 In the Reply filed on 24 June 2009 the Respondents claimed that the Police were actuated by express malice, the particulars of which included the following:

(a) The police were racially prejudiced against the first plaintiff.

(b) Ill will, bias and prejudice on behalf of the police officers by requiring the Plaintiffs to sit in the gutter on the footpath and to interrogate the Plaintiffs while they were outside the shop when the police should have taken them into the shop where there would have been privacy and where the Plaintiffs would not be seen and observed by the many passers by outside on the footpath.

(c) Police spoke in an unnecessarily loud voice.

(d) Ill will, prejudice and bias towards the Plaintiffs as evidenced by the failure or refusal of the police to make proper notebook entries, reports including COPS reports.

(e) Wrongful failure to make proper enquiries of the staff at Tag Heuer before arresting, imprisoning and defaming the Plaintiffs.

(f) Making defamatory statements of and concerning the Plaintiffs to passers by and pedestrians who had no interest in the subject matter of the communications.

(g) Police biased and prejudiced towards the Second Plaintiff because of his intellectual disablement.

(h) Bias, ill will and prejudice by the police because they assumed the Plaintiffs were guilty of stealing from the Tag Heuer shop or attempting to steal.

(i) Failure of the police to watch and examine the Closed Circuit Television (CCTV) footage of the Plaintiffs prior to detaining and imprisoning them.

9 The proceedings were heard on 15 to 19 February 2010 inclusive when the evidence concluded. The Trial Judge then stood the matter over to 22 February 2010 for directions as to addresses. It appears that there was a further listing on 23 February 2010 and the front sheet of the Judgment refers to a hearing on 26 February 2010. The only transcripts before this Court are for the dates 15 to 19 February 2010. The First Respondent gave evidence and was cross-examined for two days. The Second Respondent's mother gave very short evidence. Each of the police officers gave evidence and was cross-examined. The Appellant did not call any evidence. However the Appellant published an Apology to the Respondents in open Court. Judgment was delivered on 30 September 2010: Lassanah v State of New South Wales (No. 3) [2010] NSWDC 241 (the Judgment).

10 The Trial Judge found that the imputations conveyed by the matter complained of were that each Respondent "is an attempted thief" and "intended to steal" from the Shop. The Trial Judge held that the Police published those imputations of and concerning the Respondents and that the defence of qualified privilege was not made out. The Trial Judge held that the Appellant was liable for the defamatory publication by the Police. The Trial Judge awarded each of the Respondents damages for defamation ($15,000 to the First Respondent and $20,000 to the Second Respondent) and false imprisonment ($15,000 to the First Respondent and $20,000 to the Second Respondent). The Trial Judge entered judgment in the State's favour on its Cross Claim against the Appellant for 100% indemnity and contribution including an indemnity for costs of the proceedings.

The Trial

11 In his evidence-in-chief Mr Lassanah said that when he and Mr Oddie were approached by the police officers in the street, "the cops" said "you guys were in the Tag Shop" to which he said he responded "yes. Is there a problem, officer?" He claimed that the following conversation then took place [WB 245]:

Police Officer: Yes. The employee of the shop said that you guys were trying to, to - attempting to steal. Pulling on drawers and trying to pull on the drawers and the glasses in an attempt to steal the watch.

Mr Lassanah: No. That's not true, that's not true. I just went there. I talked to the employees of the store and they serviced me. I left.

Police Officer: No. The employees told us that you guys were - attempted to steal a watch - there might be some item missing.

Mr Lassanah: No, we didn't steal anything. I just went to see if there was something that I liked, so I can buy.

Police Officer: Okay, pull over on the side.

12 Later in his evidence-in-chief Mr Lassanah said the police officers said [WB 255]:

The manager of the store said that ... guy was in his - in the shop, intending to steal watches. We are stopping you guys because the guy was in the shop, intending to steal. Don't go in the shop. You guys were intending to steal. You were holding the drawer and glasses in an attempt to steal.

13 Mr Lassanah said that the police officer went into the Shop to speak with the manager and that when he returned the following conversation took place [WB 257]:

Police Officer: You guys were intending to steal again. Don't go into the shop. Don't talk to no-one. You guys just go home.

Mr Lassanah: Officer, can you please hear my side of the story?

Police Officer: No. Listen mate, if you want - if you want to tell your side of the story I think you should say it in court.

Mr Lassanah: Okay, okay. But can I talk to one of the - can I talk to the manager and see why he accused me of trying to steal the watch?

Police Officer: No, don't talk to no-one. They don't want you in the shop. Just stay here.

14 Mr Lassanah also claimed in his evidence-in-chief that "the cop were (sic) very aggressive" that they were speaking in loud voices and they were "rude": [WB 255; 256; 267].

15 In cross-examination he gave evidence that when the police first arrived Leading Senior Constable Chad Ansted (LSC Ansted) said to him: (1) that the police had been called to the Shop by people inside the Shop: [WB 316]; (2) that a Shop employee had said that he and Mr Oddie were acting suspiciously in the Shop: [WB 317]; (3) that he had been told there had been tapping on the glass and attempts to lift the glass of the display cabinets: [WB 317]; (4) that the employee had said that the employer was concerned that he and Mr Oddie were about to rob or attempt to steal from the Shop: [WB 317].

16 His evidence was that he regarded LSC Ansted's conduct in going into the Shop to try to "check the situation" as being "fair" to him: [WB 317]. He said that when LSC Ansted returned from the Shop he said "I've been inside to find out some more information": [WB 317]. He claimed he also said that the Shop employees had said that he and Mr Oddie were not allowed back into the Shop because "you were acting like thieves" and that the manager of the Shop had said that he and Mr Oddie were acting suspiciously in the Shop: [WB 318]. He gave the following further evidence [WB 320- 321]:

Q. Did Mr Ansted say to you that the manager of the Tag shop had said things to him about you and Mr Oddie?

A. It was once, and the rest of the time he said, "You guys were acting like thief. Doing this, doing that." He did not use the "manager" term always, just once. Once he used the "manager" term.

...

Q. Did he say to you these words - did Mr Ansted say these words to you: "The manager of the Tag shop said you were intending to steal from the shop"?

A. Yes, he said one --

Q. Did Mr Ansted say these words to you: "We are stopping you because you guys were in the Tag shop, intending to steal"?

A. Yes, yes.

...

Q. Did he say to you he'd got that information from the manager?

A. No, he didn't. Like I say, he used the "manager " just once, when he said, "The manager says..(not transcribable).. "then the rest of the thing, "You guys were intending to do this. You guys were intending to do that. Don't go in the shop. Go home."

17 However he then claimed that he did not recall LSC Ansted at any stage using the phrase that "the employees" in the Shop had told him things about the Respondents: [WB 321]. His attention was then drawn to his answer to Interrogatory 5 in which he had said the police officer had said that "the employees" in the Shop had told him various things: [WB 323]. He reiterated that LSC Ansted used the word "manager" once and he claimed that he did not recall the use of the term "employees": [WB 325]. He then gave the following evidence [WB 325]:

Q. Did any police say to you, "They have accused you of being suspicious and acting like thieves"?

A. He said, "Oh, you guys" - after he used the term, "manager", as the conversation went on, he said, "Oh, you guys were - were acting like thief, blah blah blah blah".

18 Mr Lassanah was cross-examined about Interrogatory 8 that referred to paragraph 4 of the Statement of Claim that alleged that the Appellant's servants, employees and agents had published of the Respondents the words, "Those two people were intending to steal from our shop". The Interrogatory asked whether the person who published those words was male or female. The answer given was, "The police officer told me that it was both employees who said those words". Mr Lassanah gave the following evidence [WB 345-346]:

Q. It says, "Look at paragraph 4 of the statement of claim filed on 12 November 2008, and say what is the person" - presumably it means who was the person - "who said the words the substance of which were, 'Those two people were intending to steal from our shop', a male or a female?" Do you see that question in that interrogatory?

A. Yeah.

Q. Do you see the answer you gave, "The police officer told me that it was both employees who said those words." Do you see that answer?

A. Yes, yes.

...

Q. You see the words that are set out there, "Those two people (thereby referring to the plaintiffs) were intending to steal from our shop." Do you see that?

A. Yes.

Q. In your answer to interrogatories you say that, "The police officer told me that it was both employees who said those words." Do you see that?

A. Yes, I see it.

Q. Is that the case, that the police officers said to you that both of the employees had said to the police, "Those two people were intending to steal from our shop"?

A. Yes.

19 Mr Oddie was not called to give evidence. His mother gave very short evidence about his disability: [WB 250-254].

20 LSC Ansted gave evidence that he spoke to the manager from the Shop who told him "certain things". He then got out of the car and stopped the two Respondents. He told them his name and that of Constable Coates and said, "There's been an incident in the Tag Heuer shop. Stop there". His evidence was that he suspected there had been an incident in the Shop not that they had robbed the Shop. He said there was a possibility that they may have done something "adverse" inside the Shop. He could not say that he believed they were intending to rob the Shop, it was something that the manager of the Shop had said: [WB 413].

21 He said he believed he had reasonable grounds to stop the Respondents to find out exactly what they did in the Shop: [WB 414]. He gave the following evidence in cross-examination [WB 414-415]:

Q. I'm not asking you that. I'm asking you did you believe the manager when among other things he told you that the two men were about to rob or attempt to steal from the shop.

A. I believe there was enough, yes, to stop them.

Q. What?

A. There was enough reasonable grounds there to stop them based on his information.

Q. I'll ask you this question. Did you think you had reasonable grounds to stop them?

A. Yes, I did.

...

Q. You believed from what the manager told you that the two men were about to rob or attempt to steal from the shop.

A. No.

Q. You didn't believe him. So when he told you that, you didn't believe him.

A. Its something that I can't say, whether they were going to rob the store or attempt to steal from the store. It was enough on the information that he provided to stop them, and that's all I did.

22 He was told a couple of times (by the manager and by Sergeant Gibson) that the Respondents had been tapping on the glass and trying to lift the glass on top of the display cabinets: [WB 421]. The manager also told him that there had been a previous theft in the store: [WB 421].

23 He denied that the reason he apprehended the Respondents was because one of them was black: [WB 422]. He gave the following evidence [WB 424-425]:

HER HONOUR

Q. We just want to know what you said when you stopped them. Can you tell us what you said?

A. That there'd been an incident in the Tag Heuer shop. The alarm hold-up button had gone off.

EVATT

Q. Is that all you said?

A. That's all I can recall saying, yes.

...

Q. You must have spoken to these men to give them some explanation as to why you stopped them?

A. I do recall saying to them that the manager said there was a - someone - they were intending to steal from the manager. I never said they were intending to steal. The manager did.

Q. But did you say the manager said you were intending to steal?

A. Yes.

Q. So you could have said "the manager of the Tag shop said - that the manager said you were intending to steal from the shop"?

A. Yes.

Q. You could have said "we are stopping you because you guys were in the Tag shop and the manager said you intended to steal," something like that?

A. Well, they were - as I said, when I got out of the police car they were stopped and they were told to stop there. That's when I've gone back into the store.

Q. Didn't quite answer my question. Just listen to me. You said "we are stopping you because you guys were in the Tag shop and the manager said you were intending to steal".

A. I don't recall that. I can't say whether that happened or didn't.

Q. You do agree that you did say to them "the manager said you were intending to steal".

A. Yes, the manager did, yes.

Q. You had in mind this was a hold-up situation or a possible hold-up situation. Is that right?

A. Possible, yes.

...

Q. No, when you spoke to the two gentlemen you thought there was a possible hold-up situation.

A. Yes, correct.

...

Q. ...The manager told you that they were likely store robbers or possible store robbers.

A. He was - he believed that they were intending to steal from - he believed that they were intending to steal from the shop, but I never --

Q. He told you that?

A. Yes, he did tell me that.

24 He denied speaking in a loud voice when interviewing the Respondents: [WB 426-427, 459-460]. He also denied that he was satisfied that the whole thing was a "false alarm". He said that there was not a hold up but there had been an incident, a suspicious incident: [WB 444].

25 He said that Sergeant Gibson had told him that they were seen on CCTV footage inside the Shop acting suspiciously: [WB 465]. He said that the information that he received from the manager was reasonable grounds to search the Respondents and that there could have been an "implement", a "watch on the person", or "anything": [WB 466]. He gave evidence that what the manager had said in culmination with the hold-up alarm being pressed, acting suspiciously inside the Shop and lifting up cabinets was sufficient information for the Respondents to be searched: [WB 468]. He also gave evidence that Sergeant Gibson had told him that the CCTV showed that they were acting suspiciously, lifting up lids. He was satisfied with the result of the search and nothing was found upon either person: [WB 468].

26 LSC Ansted explained the "delay" between his arrival and the request for the Central Name Index (CNI) check of 8 minutes on the basis that the situation required proper investigation to see whether an offence had taken place and he had to speak to the informant (the manager) to find out exactly what had been alleged to have occurred inside the Shop. He said that this took an amount of time before the CNI check had been conducted and "unfortunately" the Respondents did not have any choice but to remain while that occurred: [WB 494].

27 Constable Gregory Lentfer gave evidence that he had a discussion with LSC Ansted at the scene who informed him that the manager at the Shop had said that there were two males previously in the Shop who had been acting suspiciously. They were tapping or being very hard on metal casings that enclosed watches and were trying to pull panels of the glass apart with their hands. LSC Ansted informed him that the manager thought that the two men were either going to try to rob from him or steal from him. The two men the police were talking to were the males that the manager had identified: [WB 500]. He said that LSC Ansted spoke in a normal voice: [WB 500].

28 Constable Lentfer said he introduced himself to the Respondents and said that they had information from the manager that they had been acting suspiciously, banging on the glass cabinets and trying to pull the panels apart and that the manager felt that they were trying to steal from him and rob him. He informed them this was reason for the search just to see if they had anything that might have been stolen or unlawfully obtained in their possession or any implements that may have been used to commit an offence. He said that both Respondents were "constantly" speaking: [WB 501]. He said that the implements that can be used to break glass can be only "millimetres big", so he took his time to make sure that he searched thoroughly and did not miss anything. He did not find anything and conveyed that to LSC Ansted. The decision to let the Respondents go was probably made by LSC Ansted immediately after the searches: [WB 502]. He did not see the Respondents sitting at any time: [WB 503]. There were people constantly walking by but they would not have been able to hear all of what was said. If they heard anything it would have been only a couple of words or a small part of what was said: [WB 503-504].

29 He said that LSC Ansted said to the Respondents that they were being detained because of what he had been told from the manager of the Shop due to them acting suspiciously within the Shop banging on the glass panels and trying to pull the panels apart: [WB 512-513]. He conducted the search and LSC Ansted did the CNI checks: [WB 514-515]. He denied shouting at the Respondents: [WB 519]. When he was searching them the Respondents were denying they had done anything wrong in the Shop: [WB 521]. The CNI checks were done prior to the search: [WB 510]. He said that he forgot to hand Mr Lassanah's licence back to him and that this was "an accident": [WB 505-506]. He denied that the Respondents were directed to sit down on the footpath and said this is not what "usually" happens in his experience. He said that it depends on the behaviour at the time: [WB 516].

30 Constable Lorraine Axford (a Probationary Constable at the time of the incident) said that she could not recall anything that LSC Ansted or Constable Lentfer said to the Respondents: [WB 533]. She made no entry in her notebook: [WB 534]. She did not have any recollection of the Respondents sitting down: [WB 535]. She had no recollection of one of the police officers directing the Respondents to sit down on the footpath and said that the Respondents were speaking in a loud voice: [WB 536]. She denied that the police were speaking in loud voices: [WB 537]. She gave evidence that either LSC Ansted or Sergeant Gibson said that the staff at the Shop had believed that they were about to be robbed or something similar, and they had pressed the hold-up alarm: [WB 538].

31 Constable Nathan Coates (a Probationary Constable at the time of the incident) gave evidence that LSC Ansted told the Respondents why they were being stopped. He recalled the explanation was that LSC Ansted had been told that they were possibly attempting to steal something out of the Shop. He could not recall what the Respondents said but remembered that they were "argumentative". He said that LSC Ansted's voice was "not out of the ordinary, not excessive": [WB 544]. He has a note in his notebook that Constable Lentfer told the Respondents his rank and his station and why he was going to be subjecting them to a search: [WB 545].

32 Constable Coates did not hear either of the Respondents say to any police officer that they would see them in Court: [WB 546]. He said nothing was said about handcuffs and neither of the Respondents was thrown to the ground: [WB 547]. He also said that neither of the Respondents sat on the footpath next to the gutter with their feet in the gutter: [WB 547]. He did have a memory of Mr Oddie sitting down for less than half the time of the whole event up against the wall and the glass door: [WB 547]. Constable Coates was cross-examined as follows [WB 549-550]:

Q. You or Constable Ansted or some other police said to them, "Well, the manager of TAG Heuer said you were intending to steal from the shop".

A. Words to that effect, yes.

Q. "We're stopping you because it was said that you were in the TAG shop intending to steal", or something like that.

A. Yes, they were explained why they were stopped.

...

Q. Mr Oddie was sitting down.

A. For a part of it.

Q. That's because he was told to sit down.

A. Yes. Its an officer safety technique that we use.

Q. Mr Lassanah was also told to sit down.

A. I can't remember.

Q. Well, he was sitting down. You can remember that.

A. I remember Mr Oddie sitting down.

Q. But you also remember Mr Lassanah sitting down.

A. No, I didn't say that.

...

Q. Do you deny he was sitting down?

A. No. I just don't remember either way.

33 He said that Constable Lentfer told the Respondents that the manager and staff of the Shop had thought that they were intending to steal or rob the Shop and that's why they were being searched to see if they had anything stolen or otherwise unlawfully obtained on them. He said it was unclear whether they had stolen anything or not: [WB 551].

34 He said that they had to further investigate by looking at footage, talking to staff, any other witnesses, and that's why the Respondents' details were obtained. If further information came to light later they could be contacted or further action could be pending on them: [WB 553]. He gave evidence that whenever police deal with somebody on the street there is "officer safety" and that they have to look out for each other and themselves because they do not know who they are dealing with each time: [WB 554]. He gave the following evidence in cross-examination [WB 554]:

Q. That's why they're often directed to sit down, is it?

A. Correct.

Q. And they were both directed to sit down on this occasion?

A. I don't remember.

Q. Well, at least one of them was.

A. I remember one was sitting down.

35 Sergeant Mark Gibson gave evidence that he went into the Shop and spoke to a female employee and a male employee, the manager: [WB 573]. They spoke about the manger activating the hold-up alarm due to the activity of two males inside the Shop and the manager showed him "some" CCTV footage: [WB 574]. He had a conversation with LSC Ansted about the footage and the males: [WB 574]. He said that the situation was calm and the Respondents were treated professionally and released in due course: [WB 575].

36 He was shown the CCTV footage at the rear section inside the Shop. He did not recall how long he spent watching it or whether he saw footage of different camera angles: [WB 576-577]. He formed a view about the behaviour of the Respondents when he saw the footage. He said that given the CCTV footage and "from what I was told by the store manager, I formed the opinion that the two males were acting suspiciously in the store" and that it warranted further investigation: [WB 578]. The manager told him he activated the alarm because the Respondents were manipulating the cabinets containing the watches. What he saw on the CCTV led him to the belief that the Respondents were acting suspiciously and he agreed with the manager: [WB 578, 580]. However he could not recall the Respondents' exact actions: [WB 580].

37 He only watched the CCTV footage for a "short period of time" - less than five minutes. The manager showed it to him on a screen: [WB 579]. He gave the following evidence [WB 582-583]:

Q. You don't know whether it showed them looking at cabinets or not looking at cabinets?

A. I can recall - I can recall viewing footage on the TV, what it showed me I don't remember, but I recall what it depicted was the same as what the manager described to me before that.

Q. What did the manager say?

A. That there was two males in the store acting suspiciously, trying to manipulate the cabinets to the watches.

Q. What did the manager say?

A. That there was two males in the store acting suspiciously, trying to manipulate the cabinets to the watches.

Q. Acting suspiciously?

A. Yes.

Q. Then what did you say? Trying to steal a watch?

A. Trying to manipulate and open cabinets to the watches.

Q. Did he show you which cabinet they tried to manipulate?

A. I don't remember.

Q. Did he say that both men tried to manipulate the cabinet?

A. I don't remember.

The Judgment

38 After referring to the Respondents' individual backgrounds the Trial Judge found that neither had the appearance of "a dangerous person" (at [22]-[40]). Her Honour then set out the circumstances of the Respondents' attendance at the Shop and their subsequent detention and questioning (at [41]-[60]). In this section of the Judgment the Trial Judge referred to Mr Lassanah's evidence of what was said when the police detained the Respondents including the following at paragraph [47]:

After I seen the cops and ... (not transcribable) ... you guys were in the Tag Shop?" I said, "Yes. Is there a problem officer?" He said, "Yes. The employee of the shop said that you guys were trying to, to - attempting to steal. Pulling on drawers and trying to pull on the drawers and the glasses in an attempt to steal the watch." I said, "No. That's not true, that's not true. I just went there. I talked to the employees of the store and they serviced me. I left." He said, "No. The employees told us that you guys were - attempted to steal a watch." And then he said there might be some item missing. I said, "No, we didn't steal anything. I just went to see if there was something that I liked, so I can buy." And he said, "Okay, pull over on the side," and then he search us. And then after they had us sat in the gutter and stuff and while they talked to the employees in the shop.

39 The Trial Judge also referred to Mr Lassanah's claims that the police were speaking in "loud voices" and that they said "you guys were attempting to steal this --" and also said that they were not allowed back in the store because "we are thief and we are attempting to steal. I mean, we were acting like thieves" (at [47]).

40 The Trial Judge then described the evidence given by Mr Lassanah at transcript 52 (at [48]) as:

"...Police said - the Manager of the store said that [not transcribable] guy was in this - in the shop, intending to steal watches, and he said "We are stopping you guys because the guy was in the shop, intending to steal", "Don't go in the shop. You guys are intending to steal". And they also said we were holding on the drawer and glasses in an attempt to steal.

41 The Trial Judge observed that a significant feature of the investigation was the total lack of any written record apart from the names and addresses that the police officers took down. The Trial Judge also referred to Mr Lassanah's claim that one of the officers said "You guys were intending to steal again. Don't go in the shop. Don't talk to no-one. You guys just go home." (at [57]). There is also reference to Mr Lassanah's request of the "officer" (unidentified) to hear his side of the story and the response that he could tell his story "in Court". The Trial Judge also referred to Mr Lassanah's evidence in which he claimed that he asked whether he could talk to the manager of the Shop and see why he had been accused of trying to steal the watch, to which the officer is said to have informed him that he was not to talk to anyone as they did not want him in the Shop (at [59]).

42 The Trial Judge then dealt with the CCTV footage from the Shop as follows:

The CCTV Footage

61. There were considerable problems ascertaining the precise timeline of the CCTV footage because the time on the CCTV footage was incorrect. This has now been corrected by an updated index to the CCTV footage, which is Exhibit 4.

62. The plaintiffs can be seen entering the store at 13.58 hrs (the reading is 13:58:30). The first plaintiff engages in discussion with the male store employee and the second plaintiff remains close to him, although he moves, on several occasions backwards and forwards. On one occasion, according to the camera outside the store and the second defendant's written submissions, the second plaintiff can be seen to rest his hands on one of the glass cabinets. He then exits the store, at 14:03:34, and can be seen standing around outside the shop, near the front door and front window. It is at this stage that the male shop attendant opens a locked cabinet to show the first plaintiff watches (14:04:39).

63. At 14:05.54, a female shop assistant is seen going to the shop counter and appears to be reaching for something below the counter. The first plaintiff continues to have a discussion with the male shop assistant, and at 14:07:05 leaves the shop and, together with the second plaintiff, turns right and walks east towards Macquarie Street.

64. No evidence was called by the second defendant. Neither of the shop assistants who were seen on the CCTV tape gave evidence although it was made clear to the Court by Mr Rasmussen, counsel for the second defendant, that they were available; he made a decision not to call these witnesses (the hearing was in fact briefly adjourned to suit the convenience of one of these witnesses, who was then not called).

65. The precise time at which the hold-up button was pressed is unclear. Although it is put to me in submissions (paragraph 26, second defendant's submissions) that this occurs at 14:04:54-14:04:57, two minutes before Mr Lassanah leaves, there is no other evidence of this; the female shop assistant can be seen bending down under the register to do something at 14:12:29 and 14:13:09, both of which occur after the plaintiffs have left the store.

66. From 14:7:38 ( sic ), the male store employee is seen at the store entrance, looking down King Street in the same direction as the plaintiffs had gone, for about the next 2 minutes. And at 14:10:09, he walks down King Street. There is then a gap of about three minutes. The police arrive at 14:13:21.

67. The only question put to Mr Lassanah about his conduct in the shop by counsel for the second defendant was whether, in the course of talking to the sales assistant, Mr Lassanah had asked what the best price might be on a particular watch that was being shown to him, with the intention of bargaining with him in some way (T-146). It was not put to Mr Lassanah that his conduct whilst in the shop was anything other than entirely proper.

68. Mr Lassanah was asked about the conduct of Mr Oddie, and whether he showed signs of being very restless, to which he replied "He did show signs, yes" and that this included pacing back and forth (T-146).

69. While the first defendant has made an attack on Mr Lassanah's credit, in asserting that the evidence of the police should be preferred as to the words actually spoken and the circumstances of arrest, no suggestion has been put that the ( sic ) Mr Lassanah's description of his own conduct in the shop, or of the conduct of Mr Oddie, was dishonest or inaccurate. Nor was anything put to Mr Lassanah during cross-examination that the conduct of either of them warranted the pressing of the hold-up button. This brings me to consideration of the issue of the police evidence generally and of Mr Lassanah's credit.

43 The Trial Judge then dealt with the evidence of the various police officers on particular topics including whether the Respondents were made to sit down; Mr Oddie's disability; the extent of the conversation with the Respondents; the description of the scene in King Street; and the confiscation of Mr Lassanah's driver's licence. Her Honour rejected the police officers' evidence: that the Respondents were not made to sit down; that Mr Oddie had articulated an invasion of his rights; that their voices were not loud; and that King Street was not busy at the time. Her Honour also found that their failure to return Mr Lassanah's driver's licence was not to their credit (at [70]).

44 Her Honour then dealt with the "credibility" of the police officers and was satisfied that doubt was cast upon the accuracy and reliability of the police evidence particularly where it was not corroborated by contemporaneous police records of any substance (at [74]). Her Honour then dealt with the question of whether the police looked at the CCTV footage (at [78]-[82]) and concluded that she could only speculate as to what if anything Sergeant Gibson saw of it. Her Honour referred to the lack of corroborative police documentation (at [83]-[91]) and rejected the Appellant's submission that there was sufficient material to make a finding that the perception of the Respondents' behaviour as acting suspiciously and trying to manipulate the cabinets warranted the pressing of the hold-up alarm button. Her Honour concluded that there was nothing in the CCTV footage to explain the conduct of the Appellant's servants or agents. Her Honour found there was no evidence of the Respondents attempting to lift the lids of cabinets and that the reasons for these allegations being made were unexplained as were the reasons for persisting with the claims after the Police arrived (at [91]).

45 In the next section of the judgment (at [92]-[95]) the Trial Judge dealt with the submissions of the Police as to why Mr Lassanah's evidence as to what was said should be rejected and concluded that the matters raised by the Appellant and the Police were not a basis upon which his evidence should be rejected (at [94]).

46 Her Honour referred to the evidence of the police officers as to what the Appellant's employees said to them with further reference to the content of the CCTV footage (at [97]) and said:

101. I have set out below in more detail why I do not accept the submissions of the second defendant [the Appellant] that it was while Mr Lassanah and/or Mr Lassanah and Mr Oddie were in the shop that the alarm button was pressed.

47 Her Honour said that she was not prepared to accept that the Respondents were acting suspiciously in circumstances where none of the store employees had been called to give evidence and the CCTV footage showed nothing improper in the Respondents' conduct (at [105]).

48 The Trial Judge continued:

When was the alarm button activated?

106. Mr Lassanah left the shop at 7 minutes past 2 in the afternoon. The police arrive at 2.13 pm. The police came to the scene very quickly as it was an urgent call over the police radio (T-167), which meant that lights and sirens were activated as an emergency job.

107. The discrepancy in time between the police receipt of the call at 14:14:59 has been explained as being due to the nature of CCTV footage and to inaccurate time measurements. According to the police, the call was received at 14:14:59 and they left the Tag Heuer premises at 15:11:19, meaning that the whole incident took half an hour of police time, the police were on the scene between 14:51:19 (T-171) and 15:11:19. Three cars came to the scene of the reported robbery.

108. Given the speed with which the police respond to such urgent calls, and given that there were cars in the immediate vicinity, as the emergency operator calls confirm, the time between the operator call at 14:44:20 and the response of the police (14:45:20) and the giving of the address (14:45:40) it can be seen that the police arrived at approximately 14:50 pm. By 14:51 the police were able to radio back to the operator:

"Just information there's been an attempt robbery on the store we are just going to try and work out what actually happened here at the moment um and we will be speaking to two POIs who have been stopped by security so if you can let that other car keep coming and um - we will go from there."

109. At 14:51:20 the police confirmed they were speaking with the POIs. The police were therefore at the premises a matter of 6 minutes after the call.

110. The plaintiffs had left the shop according to the CCTV footage, at 14:07:05, walked up to Rolex, where the first plaintiff looked at some more watches, following which he walked back down King Street towards where the Department of Community Service hire car was parked.

111. At the time that the police car came past, the Plaintiffs were still walking back from Rolex; they are seen walking past the shop according to the CCTV time, at 14:15:30, followed by two uniformed police, and they are apprehended just past the Tag Heuer shop.

112. The speed of the police response to the urgent call means that the time between the button being pressed and the police response is too short to be consistent with the second defendant's assertion that the button was pressed at 14:04:54, the time at which a female shop attendant is seen reaching for something below the counter.

113. For these reasons, I accept the submissions of the plaintiffs that the alarm button was most probably activated after the plaintiffs had left the Tag Heuer shop, in circumstances where there is no explanation or evidence as to why this occurred.

49 The Trial Judge then dealt with the question of why the Appellant's staff had pressed the hold-up button. Her Honour referred to the Appellant's failure to call the Shop assistants to explain when and in what circumstances the hold-up button was pressed or to provide the detail of the recent robbery of the Shop. In that respect her Honour was satisfied that this failure constituted grounds upon which an inference adverse to the Appellant should be drawn consistently with the principles in Jones v Dunkel (1959) 101 CLR 298. The Trial Judge then set out some principles relating to whether Mr Oddie's intellectual disability prevented him from making a claim for false imprisonment and defamation (at [119]-[121]) and dealt with the liability of the Appellant and the Police for wrongful arrest and false imprisonment (at [122]). Her Honour was satisfied that the Respondents were not in fact arrested (at [123]) and that an arrest was not a necessary pre-requisite for an imprisonment to exist (at [124]).

50 Her Honour was satisfied that the Respondents were stopped and searched because of the very serious allegations made by the Appellant's servants and agents, "mainly that they [the Respondents] had been behaving suspiciously in the circumstances where these persons believed that an armed robbery was being attempted" (at [143]). Her Honour concluded that the Police were called to the scene "to investigate a potential robbery of a store and were exercising their rights to stop and search under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)" (at [145]).

51 Her Honour also concluded that by pressing the emergency hold-up button, identifying the Respondents as the reason for doing this and persisting in those allegations, the Appellant's servants and agents did not merely provide information but were "the sole motivating force putting the prosecution in train" (at [149]). The Trial Judge also said that the Police realised "almost immediately that they had to work out what had really happened" and that they told the police radio operator of this fact. Her Honour then observed that the Appellant's servants and agents "appear to have persisted in claiming" that the Respondents had been "tapping on and trying to open the glass cabinets in their store" (at [150]).

52 Her Honour concluded:

155. Accordingly I am satisfied that the second defendant's servants or agents promoted and caused the plaintiffs being stopped, detained and searched by the police, and that their continued insistence that the plaintiffs had misconducted themselves in the store after the police arrived unnecessarily prolonged the plaintiffs' detention, in that the police were obliged to investigate the store employees' mischievous claims. I say "mischievous" because I am satisfied from the evidence that the button was pressed well after the plaintiffs left the store, in circumstances where there was no threat, and where it is clear from the CCTV that nothing untoward had occurred.

53 The Trial Judge then dealt with what was described as the "Relevant Facts" (at [156]-[163]). In this section of the Judgment her Honour refers to a number of matters including that when the police officers arrived at the Shop "they did not necessarily suspect a hold-up". Her Honour said that when LCS Ansted went to the Shop "it was clear to him that there was no armed robbery and there had been no watches stolen (at [160]). Her Honour then said:

161. Leading Senior Constable Ansted considered (T-211) that he had "reasonable grounds to stop those persons to find out exactly what they did at the store, not that they robbed the store, attempted to rob the store". He did not believe, either of his own account or from what the Manger told him, that the two men were about to rob or attempt to steal from the shop.

162. However, this does not entitle a police officer to stop and search unless there were reasonable grounds. There was no evidence the plaintiffs had any item in their possession which was stolen as there was nothing taken, and no evidence that the plaintiffs had used any items in the store in any attempt to open any of the cabinets.

54 Her Honour later concluded:

169. The deliberate giving of wrong information should be treated differently, whether or not there is evidence of it or not from the store employees in question. On any analysis, there is no conduct of the plaintiffs on the CCTV tape which could possibly lead to any suspicion that they were tapping on the glass or attempting to open the glass cabinet, and in particular no evidence that they were using any implement to do so. As was the case in Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd, Mr Lassanah was not cross-examined about his conduct in the store.

170. In conclusion, I am satisfied that the second defendant or its servants or agents made false accusations about the plaintiffs to the police as follows:

(a) The hold-up button was wrongly activated, after the plaintiffs had left the store premises and on any reasonable analysis, there was no question of there being any reason for concern.

(b) The manager of the store told Leading Senior Constable Ansted that the plaintiffs were acting suspiciously in the shop, tapping on the glass, trying to lift the glass of the display cabinets and attempting to rob or steal from these cabinets when it is clear from the CCTV that no such conduct had occurred (T 217-218).

(c) These statements were repeated to Sergeant Gibson (T 262) and in particular Leading Senior Constable Ansted said that Sergeant Gibson was told that the Plaintiffs had been "lifting up the lids" (T 265). The CCTV footage confirms that no such conduct occurred and Mr Lassanah was not cross-examined.

(d) Mr Lassanah was not cross-examined on his evidence that he was treated well in the shop and was not cross-examined on his evidence that as he left the manager said "Goodbye nice seeing you" (T 40).

(e) I accept the submissions of the plaintiffs that if the manager or other employees of the second defendant had really suspected the plaintiffs, they should have kept the door closed and rung for the police either when the plaintiffs were in the premises or shortly thereafter, and they should not be encouraging other persons to enter the store. No explanation has been provided as to why the alarm the ( sic ) activated after the plaintiffs left the shop. The submissions of the second defendant that the CCTV footage of one of the staff members bending over means that the alarm must have been activated in the shop while the plaintiffs were in the shop is incorrect as the times for the calling of the police demonstrate. The speed with which the police arrived after the alarm and the times on the radio call records for the police confirm that the alarm was activated after the plaintiffs had left the shop. It was simply coincidence that the plaintiffs were walking down the street from the Rolex shop when the police arrived.

(f) Nor do I accept the assertions that the second defendant's premises had been robbed the week beforehand. No material was put before the court to demonstrate that this had in fact occurred.

55 Her Honour concluded that the Appellant had caused and procured the wrongful detention of the Respondents and that the Appellant and the Police were liable for the false imprisonment of the Respondents. Her Honour then turned to the question of the claim in defamation in respect of which the judgment includes the following:

What was said

179. I have earlier set out the initial description given by Mr Lassanah as to what was said by the police officers (T 42.3). After Mr [ sic ] Oddie was interposed, I asked Mr Lassanah to repeat again what he had said, and I had difficulty understanding, given his strong accent, a number of things he had said, including in particular whether the police said to him "intending to steal" or "attempting to steal" (T 52).

180. At T 52, Mr Lassanah gave the following description of what was said:

"Police said - the manager of the store said that..(not transcribable)..guy was in his - in the shop, intending to steal watches, and he said, "We are stopping you guys because the guy was in the shop, intending to steal." "Don't go in the shop. You guys were intending to steal." And they also said that we were holding on the drawer and glasses in an attempt to steal."

181. In cross-examination, it was apparent that this discussion was not a single discussion followed by silence for the rest of the time that the plaintiffs were being detained by the police officers. Mr Lassanah agreed with Mr Neil QC that the police initially said they were coming because of something that was said to them by the store manager, or somebody in the store, and that he denied doing anything wrong, handed over his drivers' licence, was searched and that some time after this he and Mr Oddie were released (T 70). A more complete version appears at T 116-118:

"Q. Did Mr Ansted say to you that the manager had said that you and Mr Oddie had been trying to lift the glass on the top of the display cabinet?

A. Yes.

Q. Did Mr Anstead ( sic ) say to you that the manager had said to you - said to him that it was his view - the manager's view - that you and Mr Oddie were about to steal something, or that the shop was about to be held up?

A. No, no.

Q. Did Mr Anstead ( sic ) say to you, "The manager has alleged that some of the cabinets were attempted to be opened in the store"?

A. No. No.

Q. Let me ask you this. I'm coming to the matter complained of, your Honour. Did Mr Anstead ( sic ) say to you, "The manager of the Tag shop said you're intending to steal from the shop"?

A. He did not use the term, "manager", all the time we're there. "Oh, you guys were intending to steal - acting like thief."

Q. Do you say that Mr Anstead ( sic ) did not say to you anything using the nomination of the position as manager?

HER HONOUR: No, he said those phrases, Mr Neil

WITNESS: He didn't say "the manager", yeah.

NEIL

Q. Did Mr Anstead ( sic ) say to you that the manager of the Tag shop had said things to him about you and Mr Oddie?

A. It was once, and the rest of the time he said, "You guys were acting like thief. Doing this, doing that." He did not use the "manager" term always, just once. Once he used the "manager" term.

Q. I think you just said he did not say to you - is this what you're saying?

HER HONOUR: No, Mr Neil. He said he used the phrase "manager" once. The rest of the time, this witness said, he said, "You guys are acting like thieves." That's what he said, Mr Neil.

NEIL

Q. Did he say to you these words - did Mr Anstead ( sic ) say these words to you: "The manager of the Tag shop said you were intending to steal from the shop"?

A. Yes, he said one--

Q. Did Mr Anstead ( sic ) say these words to you: "We are stopping you because you guys were in the Tag shop, intending to steal"?

A. Yes, yes.

Q. Did he say following that, anything further about, "You were intending to steal"?

A. Yes. He said, "Don't go into the shop. You guys were intending to steal. Don't go in the shop."

Q. Did he say to you the manager had told him that you and Mr Oddie had been intending to steal?

A. He just said, "You guys were intending to steal," as..(not transcribable).."You guys were intending to steal, so don't go in the shop. You guys were intending to steal."

Q. Did he say to you he'd got that information from the manger?

A. No, he didn't. Like I say, he used the "manager" just once, when he said, "The manager says..(not transcribable).." then the rest of the thing, "You guys were intending to do this. You guys were intending to do that. Don't go in the shop. Go home.""

182. It is clear from the evidence of all of the witnesses that Mr Lassanah was told to go home (without his drivers licence which was retained by the police) only after the enquiries had finished. In other words, the accusations about being a thief and intending to steal from the Tag Heuer boutique shop were not made once, but several times.

183. The first point that the first defendant made in written submissions is that the "very first version in evidence" (first defendant's written submissions paragraph 3) should be accepted. The first plaintiff has used the word "employee" three times, twice being what he said the police told him the employee said to him and once about himself talking to the employee. Similarly, the passage at T 52.20 referred to the first line to the manager again. However, the second version, which was given after Mr Oddie left the court (it having been apparent that he was very frightened), does not refer to the manager as being the source of the allegations. In addition, when the first plaintiff was taken through evidence with some care by Mr Neil QC in cross-examination, he gave the third and more comprehensive version set out above. The first defendant does not refer to the version of the matter complained of given in cross-examination in its written submissions.

184. The first defendant's submission is that the matter complained of, in the version given by Mr Lassanah, is so different in substance from what was said that the publication pleaded was not made, and the imputations cannot therefore be conveyed.

185. I do not accept this submission. It is clear from the second and third account given by Mr Lassanah of his conversation with the police officers that the police officers were stating that he was a thief and that he intended to steal from the Tag Heuer shop. This is particularly the case in relation to the conversation in the course of which he was told to "go home". Any initial reference to the manager or some other unidentified store employee as being the source of the allegations was not, I find, made other than in the opening words of the police officers when they first arrived on the scene.

186. However, even if it were the case that the police were merely repeating what the store manager said and were using either the phrase "employees" or "manager", the substance of the allegation was that the plaintiffs were thieves and were attempting to steal from the Tag Heuer shop. The fact that words spoken by the police officers differ in some respects to the words pleaded is not sufficient to deny publication, for the reasons explained in Lamb v West, supra and Smith v John Fairfax & Sons Ltd, supra.

187. It is asserted that the first plaintiff's version of events using the word "manager" is consistent with the answer to interrogatory 8. The fact that the police officers said both employees had accused him of intending to steal from the Tag Heuer shop does not mean that the police officers did not directly accuse the plaintiffs of stealing. The answer to interrogatory 8 needs to be seen in its context. Nor is the alleged error of counsel for the plaintiffs in cross-examining Leading Senior Constable Ansted at T 221-222 (written submissions paragraph 10-11) of any significance. The actual words of Mr Lassanah should be preferred to a summary of them given by his counsel in cross-examination of Leading Senior Constable Ansted.

188. Fundamentally, the question of whether or not the police were merely repeating words that the manager had said concerning the manager's suspicions or directly accusing the plaintiffs is a distinction without a difference. Even in the version given by the police officers, it is clear that the police officers conducted the detention and search of the plaintiffs the way they did. For example, Constable Lentfer gave as his reason for wanting to search the plaintiffs as being "just to see if youse [sic] have anything that might have been stolen, unlawfully obtained in your possession, or any implements that may be used to commit an offence".

189. I have rejected the attack on Mr Lassanah's credibility made in paragraph 19 of the first defendant's written submissions. The police made no records of any kind during their visit to the premises, including a notation of what allegations, if any, were in fact made by store employees, and the store employees who spoke to the police were not called by either defendant to give evidence.

56 Her Honour then dealt with publication, identification and whether the imputations were conveyed. Having determined those issues in the Respondents' favour her Honour considered the defence of qualified privilege as follows:

Qualified privilege

205. Communications are protected at common law where a person has an interest or duty of a legal, social or moral nature to make a statement on an occasion and the recipient has a corresponding interest or duty to receive it: Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; (2004) 204 ALR 193; (2004) 78 ALJR 346; (2004) Aust Torts Reports 81-727; [2004] HCA 5 at [9]-[10] per Gleeson CJ, Hayne and Heydon JJ.

206. What has been called the "guiding principle" of reciprocal duty and interest is a broad and general one, based on public utility: Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 657 per Evatt J.

207. It is because of the width of the principles concerning the principles of reciprocal duty and interest, which are broad and general, that there must be 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: Bashford v Information Australia (Newsletters) Pty Ltd, supra, at [10].

208. I have set out the circumstances of the detention of each of the plaintiffs in the section concerning the false imprisonment. I shall not repeat them again.

209. The question of duty and interest was considered at length by Ipp and Campbell JJA in Bennette v Cohen [2009] NSWCA 60. At [25](d) Ipp JA warned that the close scrutiny required meant that the following six factors needed to be given great weight when carrying out the necessary scrutiny:

(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.

Relevance to the occasion of qualified privilege

210. The parties agree ( Bashford v Information Australia (Newsletters) Pty Ltd at [54]) that the court examines all the circumstances of a case, including the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of and reason for the publication. After considering these matters, the court makes a judgment as to whether the publisher had a duty or interest that justify the making of the publication and whether the recipients, or some of them, had a duty to receive or an interest in receiving it.

211. The first defendant submits (written submissions, paragraph 91), that the touchstone is public policy, which determines issues of duty and interest. The concept of public policy or common convenience and welfare of society means "that the interests of society in general require that a communication made under the particular circumstances to the particular person should be protected": Howe & McColough v Lees (1910) 11 CLR 361 at 368-369.

212. The first defendant also draws my attention to the statement of the High Court in Mann v O'Neill (1997) 191 CLR 204; (1997) 145 ALR 682; (1997) 71 ALJR 903; [1997] 12 Leg Rep 21; (1997) Aust Torts Reports 81-436; [1997] HCA 28 and to statements to the effect that authorities and organisations charged with the investigation and prosecution of crime such as the police usually enjoy the protection of common law qualified privilege.

213. When considering whether or not a defence of qualified privilege at common law actually attaches, I must consider the whole of the publication. This was not a publication where the police officers told the plaintiffs that they were investigating allegations, and having done so, told the plaintiffs what they were, invited a response, or otherwise processed the allegations which were made by the store employees. Mr Lassanah's evidence was that for the whole of the time that the police were there, right up until the time that he was told to "go home", he and Mr Oddie were told the words that are set out in his evidence in chief and cross-examination in more detail above.

214. The parties did not address me as to how I should deal with a slander where the evidence of the plaintiffs was that words were spoken not once but several times. Nevertheless, it is clear from the evidence of Mr Lassanah that at all relevant times, the police made the same statements and, towards the end of the interview, if not at the beginning, were adopting what was said by the store manager. It ( sic ) circumstances in which Mr Lassanah was told to "go home" without his driver's licence being returned, was not conduct which was consistent with having satisfactorily concluded an investigation; the ordinary reasonable bystander hearing these words and seeing the context in which they were spoken (the context being relevant to the defence, even where that context includes conduct that is not part of the matter complained of) would be left with no doubt that the police had investigated the matter and had formed certain views.

215. The bases upon which the plaintiffs had attacked the defence of qualified privilege at common law are two-fold. Firstly, it is asserted that there was no reciprocity, in that members of the public had no interest in receiving the false accusations of criminality in circumstances where the police used a loud voice (written submissions, 16 September 2010). Secondly, it is submitted that as the police had no intention to convey the imputations, the defence must fail.

216. In Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9, McClellan CJ at CL stated at [80]:

"80 However, the defence will be made good if it can be shown that the defamatory matter, which gave rise to the imputation, was published on an occasion of qualified privilege and the matter was relevant to the privileged occasion. I do not understand Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; (1997-1998) 193 CLR 519, (particular at [8]) to say anything to the contrary. Although the imputation must be defended, the occasion which may attract the privilege is when the matter which gives rise to the imputation is published."

217. The duty of the bank to communicate ( Aktas v Westpac Banking Corporation Ltd at [86]) was a duty to communicate the statement "Refer to Drawer". However, McClellan CJ at CL explained the difference between a statement "Refer to Drawer" and a statement "drawer is a thief" at [75] as follows:

"75 The issue can be readily understood by a variant of the present case. If a bank returned a cheque to the payee having correctly determined that there were insufficient funds with two endorsements, one being "Refer to Drawer" and the other, the "drawer is a thief", the imputations arising from the publication of the first statement, made necessary by the bank's decision to refuse payment, will be an occasion of qualified privilege. The publication of the second will not, there being no interest or duty on the part of the bank to publish that the drawer is a thief, with whatever defamatory imputation may be found to arise from the publication of that statement. An occasion on which matter which gives rise to defamatory imputations is published may not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement: Roberts v Bass (at [62])."

218. While it was relevant to the privileged occasion for the police to repeat, at the commencement of the interview, at least some of the allegations made by the store manager, when it became apparent that there was no substance in the complaint and that Mr Lassanah was angry and upset and wanting to speak to the store manager, as well as considering legal avenues, it was not appropriate for the police officers to repeat the matter complained of and to state that the plaintiffs had in fact been intending to do what they were accused of doing, or to order them not to return to the shop, or to tell them to "go home".

219. 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.

220. Accordingly, the publication was made on an occasion which is not protected by a defence of qualified privilege at common law.

221. I should briefly note some discussions of reciprocity where allegations of criminality are made.

Reciprocity where allegations of criminality are made

222. Gatley on Libel and Slander (11 th ed, 2008) notes at [17.11]:

"Charges of crime...will only be privileged if made with the honest desire of promoting investigation into the alleged crime, or prosecuting the alleged offender or, it is submitted, recovering property or proper compensation."

223. In Aktas v Westpac Banking Corporation Ltd, supra, McClellan CJ at CL referred at [39] to Bashford noting that two questions arise, namely, whether the occasion of publication was one where the necessary reciprocality existed and whether the matter defaming the plaintiff was sufficiently relevant to the privileged occasion to attract the defence. While a communication made to ensure the detection of crime may be protected ( Aktas at [43]) it is not the case that all publications to the police are made on an occasion of qualified privilege: Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299; Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd [2009] NSWDC 4; (2009) 9 DCLR (NSW) 123 at 199.

224. The submissions of the plaintiffs that there is no reciprocity of interest between members of the public and the police is misconceived and I reject it. The police are not obliged to lower their voices while apprehending persons in case the allegations of criminality are unfounded in the course of attending to an urgent call for assistance of the kind that has occurred here.

225. I have taken into account, when considering the issue of qualified privilege at common law, these issues of reciprocity. As to intention to convey, I agree with the submission of the first defendant that if a defendant does not intend to convey an imputation the defence is still available in some circumstances: see Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387-388. What may be more relevant in the present circumstances is whether or not the police officers had belief in the truth of what was said. The persisting with allegations throughout the interview, in circumstances where these allegations are put as coming from the police as well, is what causes the occasion of qualified privilege to be lost.

57 The Trial Judge then dealt with the statutory defence of qualified privilege under s 30 of the Defamation Act 2005 (NSW). The statutory defence of qualified privilege is available if the defendant proves that: (a) the recipient has an interest or apparent interest in having information on some subject; and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances: s 30(1). A recipient has an apparent interest in having information if and only if at the time of the publication, the defendant believes on reasonable grounds that the recipient has that interest: s 30(2). There are a number of matters that the Court may take into account in determining whether the conduct of the defendant in publishing the matter was reasonable in the circumstances including the extent to which the matter published distinguishes between suspicions, allegations and proven facts: s 30(3)(d); the sources of the information in the matter published and the integrity of those sources: s 30(3)(g); and whether the matter published contained the substance of the person's side of the story: s 30(3)(h).

58 Her Honour referred to the latitude that should be given to police where an offence of a serious nature may have been or is about to be committed and said:

231. Doing the best I can with the submissions that have been provided, what is clear from this evidence is that no attempt was made to obtain the plaintiffs' side of the story (s 30(h)), even when it was offered, and that the allegations made by the store employees were uncritically adopted by the police officers even though it was no more than suspicion (s 30(d) and from a source whose accuracy was under question (s 30(g))).

232. I am satisfied that no defence is being ( sic) made out under s 30 of the Defamation Act 2005. One of the reasons why I am satisfied that no defence has been made out is that I am satisfied that the dominant motive for the publication was malicious.

59 Having foreshadowed the finding that the dominant motive for the publication was malicious the Trial Judge then turned to the consideration of malice and said:

Malice

233. In Roberts v Bass (2002) 212 CLR 1; (2002) 194 ALR 161; (2002) 77 ALJR 292; (2003) Aust Torts Reports 81-683; [2002] HCA 57 Gaudron, McHugh and Gummow JJ at [76] that ( sic ) "mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice".

234. Views which are "wrong-headed, or prejudiced, or carelessly formed, or even irrational" will not constitute or demonstrate malice (per Gleeson CJ at [5] and [13]). What is necessary is "a purpose or motive that is foreign to the occasion [of qualified privilege]" which actuates the making of the statement (at [75] per Gaudron, McHugh and Gummow JJ).

235. The police were investigating the making of a very serious allegation against one person who is clearly intellectually disabled and another person who was a responsible member of the community, namely the person who identified himself as Mr Oddie's carer. Mr Lassanah wanted to go into the store to find out why these allegations had been made about him, in circumstances where it was obvious that at best these allegations were frivolous or erroneous and at worst they were actively mischievous. The purpose or motive that was foreign to the occasion of qualified privilege was that for a number of reasons, including concern about a respectable member of the public who is threatening to complain, which caused the police to use bullying techniques, namely to order the plaintiffs to "go home". I have not accepted the evidence of the witnesses called by the first defendant, and I find their explanation for failing to keep any record of the circumstances in which they detained and searched the plaintiffs implausible. The police officers clearly realised that there had been a mistake and that they had detained and searched a responsible member of the community and the disabled person in his care. Rather than attempt to resolve the situation, they repeated the allegations made by the store manager as if they were true. The assertion (written submissions, paragraph 114) that the police were acting reasonably and doing their job in performing their duties in accordance with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the Police Act 1990 (NSW) needs to be measured against the facts in this case, including the matters raised by the plaintiffs as set out at [70] above.

236. The likelihood is that the police officers realised, almost from the very first, that there had been a mistake, and that they were dealing with an intellectually disabled person and his black American carer. Even the notation of the names of the plaintiffs seem to have been done towards the end of their detention, as Leading Senior Constable Ansted says that these names were noted just before he did the CNI checks, which occurred towards the end of their period of detention (Ansted T 200-201).

237. The police officers' lack of belief in the truth of the imputations is another issue relevant to malice. They did not tell the plaintiffs what was happening, and they ordered them to go home in such terms that the ordinary bystander would believe the allegations were still on foot.

238. Accordingly, if I have erred in holding that the matter complained of was not published on an occasion protected by qualified privilege, I would be satisfied that the occasion of qualified privilege was lost by reason of the malice of the first defendant's servants or agents in publishing the matter complained of.

60 The Trial Judge then considered the Cross-Claim brought by the Police for indemnity and found as follows:

265. Given the "all or nothing" approach the cross-claimant and cross-defendant have taken to the cross-claim, and the fact that I have not been addressed at all as to whether a percentage should be awarded, I do not propose to speculate on what percentage of liability should be sheeted home to the cross-defendant but to make an order for 100% indemnity or contribution.

266. I note that if I had been asked to apportion this indemnity, I would have made the same finding. The cross-defendant's servants or agents were entirely responsible, on the facts of this case, for the police being called, for the identification of the plaintiffs as potential robbers and for the persisting nature of these allegations which appear to have ended only when the police decided not to investigate the matter further and to leave the store.

267. Nor do I consider that the cross-defendant should receive any credit for the apology read out in court. It was a very late apology, and I note the evidence of Mr Lassanah that he thought this apology inadequate. He was not consulted as to its contents. It would have meant nothing to Mr Oddie, who was not only no longer in court (having been excused) but who would not have been able to understand it.

268. The cross-defendant submits it cannot be held liable for the damages for the defamation because the defamation case brought against it has been dropped: written submissions paragraph 32. This misconceives the nature of the cross-claim. It is not necessary for the cross-defendant to be sued for defamation for the first defendant/cross-claimant to bring a cross-claim.

269. Accordingly I have made an order in the cross-claim that the second defendant/cross-defendant should indemnify the first defendant/cross-claimant for 100% of the judgment in these proceedings.

61 Although there is no appeal in respect of the rejection of the claim against the Police for exemplary damages it is relevant (for other reasons referred to below) to refer to her Honour's observations in respect of that claim as follows:

307. However, I do not consider that this is an appropriate case for exemplary damages. The police were in a very difficult position, with the staff of the shop having pressed the hold-up button and insisting that the plaintiffs had attempted to rob the store. They did their best to bring the whole incident to a close reasonably quickly. This is not a case of misconduct of the kind described in New South Wales v Delly [2007] NSWCA 303.

Leave to Appeal

62 Leave to appeal was the subject of earlier application to a Court differently constituted. The Appellant sought leave to appeal from the Judgment with respect to the false imprisonment and against the order for it to indemnify the Police with respect to the judgment against the Police for both false imprisonment and defamation. The Police sought leave to cross-appeal against the Trial Judge's findings in relation to the defences of qualified privilege at common law and qualified privilege under s 30 of the Defamation Act .

63 Leave to appeal was granted to the Appellant and to the Police in relation to the defamation action with respect to so much of the Trial Judge's decision in which the defence of qualified privilege was rejected and the finding of malice was made: LVMH Watch & Jewellery Australia Pty Limited v Lassanah (4 March 2011, Unreported, NSW Court of Appeal, Tobias and Young JJA at [17]). The question of whether leave should be granted with respect to the quantum of contribution and/or indemnity for both false imprisonment and defamation was reserved to this Court. The applications for leave were otherwise refused.

The Appeal

64 The appeal was heard on 13 and 14 September 2011 when Mr B McClintock SC leading Mr RW Potter, of counsel, appeared for the Appellant, Mr M Neil QC leading Mr D Caspersonn, of counsel, appeared for the Police and Mr CA Evatt, of counsel, leading Ms L Evans, of counsel, appeared for the Respondents.

Grounds of Appeal

65 There was some controversy about the real issues for determination on this Appeal: [OB 2-3, 47, 67 and 71]. However the following issues encapsulate each of the parties' contentions as to what this Court is required to decide on this Appeal:

1. Whether her Honour erred in failing to find that any situation where a police officer is explaining or repeating to a member of the public an allegation made against him and seeking his response is, of necessity, an occasion of qualified privilege: [OB 67].

2. Whether her Honour erred in finding that the occasion of qualified privilege was lost: [OB 2-3, 47, 67, 71].

3. Whether her Honour erred in failing to specify the purpose that was foreign to the occasion of qualified privilege and in determining that the Police were actuated by malice: [OB 2-3, 47, 67, 71].

4. Whether her Honour erred in failing to find that the Police had established a defence of qualified privilege under s 30 of the Defamation Act 2005: [OB 33].

66 The Respondents' submissions included the contention that where there is a joint publication or publication by joint tortfeasors then the malice of one or some infects the others so that all are liable. In this regard the Respondents relied on Webb v Bloch (1928) 41 CLR 331 and submitted that if the employees of the Shop were malicious, the police officers who took part in the publication are deemed to have been infected by their malice and would lose the defence of qualified privilege [OB 61-64]. The Appellant and the Police questioned the correctness of this proposition and in doing so relied upon Egger v Viscount Chelmsford [1965] 1 QB 248 which overruled the case of Smith v Streatfeild [1913] 3 KB 764 upon which the High Court had relied in Webb v Bloch. In Egger v Viscount Chelmsford the Court of Appeal (Lord Denning MR, Harman and Davies LJJ) limited the principle to circumstances in which an agency was proved. This limitation had also been noted by Jordan CJ, with whom Maxwell and Owen JJ agreed, in Dougherty v Chandler & Ors (1946) 46 SR (NSW) 370 at 375 to 376. Having regard to the conclusions I have reached below it is unnecessary to decide this issue.

67 Both the Appellant and the Police claim that her Honour fell into error in making findings of fact that are against the evidence and the weight of the evidence. One matter of significance raised by the Appellant is an alleged erroneous finding of fact as to the time at which the alarm button was pressed. It is appropriate to deal with this matter first because of its effect on the findings that are the subject of the other issues for determination.

Error on Timing

68 The Trial Judge raised her concerns about the accuracy of the timing shown on the CCTV footage on a number of occasions during the trial. On the second day of the trial when LSC Ansted was being cross-examined, her Honour indicated that she needed some assistance in relation to the accuracy of the timing of the incident: [WB 445]. Her Honour mentioned her concerns again on the third day of the trial [WB 455] and on 19 February 2010, the day on which the evidence concluded, the CCTV disks together with a document entitled "Updated Index to CCTV Footage" and dated 18 February 2010 (the First Index) became Exhibit 4.

69 There were three sources of the timing of the incident at the Shop on 10 June 2008. The first was the CCTV footage and the First Index (Exhibit 4). The second was the Incident Log Report kept by the Police (Exhibit D). The third was the record kept when the call to Triple Zero was made (Exhibit G). It was accepted at the trial that the times recorded in the two official documents, the Police Incident Log Report and the Triple Zero Record were accurate. It was also accepted at the trial that the times shown in the Appellant's CCTV footage and the First Index in Exhibit 4 were out by 39 minutes [WB 417-418].

70 Although the transcript of the days of the trial after 19 February 2010, when final submissions were made, are not before this Court, there is included in the Appeal Book a document entitled "Updated Index to CCTV Footage Using Police Time" which is dated 23 February 2010 with a handwritten note, "Ex 4A Handed up on 23/2 and added to Ex 4 as an aide memoire" (the Second Index) [WB Tab G]. It is this document that contains the correct times and includes, for instance, Mr Lassanah leaving the Shop at 2.45pm rather than 2.07pm as was recorded in the First Index.

71 The Appellant submitted that the Trial Judge failed to recall that the timing on the CCTV footage was the subject of the correction in Exhibit 4A. It is submitted that her Honour's failure to recall this matter is significant to the findings in respect of when the hold-up alarm button was pressed. Her Honour's conclusion as to when the hold-up alarm button was pressed is pivotal to the conclusion that the Appellant's employees had made mischievous and false accusations against the Respondents. It is submitted that the finding that the hold-up alarm button was pressed after the Respondents left the Shop cannot be sustained on the evidence.

72 A Consolidated Chronology was produced for the Appeal based on Exhibits D, G and 4A: [OB 19-25]. During the Appeal the Respondents accepted that they could not argue with the times as corrected and propounded by the Appellant and supported by the Police (tr 49). The Consolidated Chronology shows that Mr Lassanah was in the Shop for nine minutes between 2.36pm and 2.45pm. It shows that Mr Oddie was in the shop for five minutes between 2.36pm and 2.41pm. It shows that after having left the Shop and the vicinity of the Shop at 2.45pm the Respondents walked past the Shop at approximately 2.53pm and returned back past the shop at 3.08pm. It is accepted that it was between the latter two times that the Respondents were stopped and searched. Accordingly that process must have taken less than 15 minutes (ie between 2.53pm and 3.08pm). The Trial Judge found that it took between 8 to 9 minutes (at [160]).

73 The Consolidated Chronology shows a female employee in the Shop reaching down below the counter at 2.41(54)pm. It also shows that at 2.41(59)pm the Police Incident Log Report recorded a "Call Collection" with a note "New Incident key pressed". At 2.44pm the Police Incident Log Report records "Incident Broadcast". The Consolidated Chronology also shows that the police officers arrived on the scene at 2.51pm and they departed at 3.11pm. It shows that LSC Ansted was in the Shop for two minutes between 2.55pm and 2.57pm and a further three minutes between 3.03pm and 3.06pm. It shows that Sergeant Gibson was in the Shop for approximately four and a half minutes between 2.59(03)pm and 3.03(36)pm and for a further one minute between 3.05pm and 3.06pm.

74 Paragraph [106] of the Judgment refers to Mr Lassanah leaving the Shop at "7 minutes past 2 in the afternoon". That entry is in the First Index and it is apparent that her Honour relied upon that document to make that finding. It is accepted on the Appeal that the Respondents did not arrive at the Shop until 2.36pm.

75 The findings in paragraph [107] appear to rely upon the First Index, the oral evidence given by LSC Ansted [WB 374] and the Police Incident Log Report. Her Honour refers to the "police receipt of the call at 14:14:59", whereas the Police Incident Log Report records the receipt at "14:41:59". Her Honour's finding that the call was received at "14:14:59" appears to be a typographical transposition, particularly having regard to her Honour's later finding that the police left the premises at 15:11:19 "meaning that the whole incident took half an hour of police time". Her Honour then refers to the accurate times in her observations that the police were "on the scene between 14:51:19 (T-171) and 15:11:19". In paragraph [108] her Honour refers to the times that are contained in the Police Incident Log Report to conclude that the police had arrived at the Shop at approximately 14:50pm. However at paragraph [110] her Honour returns to the erroneous times in the CCTV footage and First Index once again stating that the Respondents had left the Shop at "14:07:05".

76 In paragraph [111] her Honour refers to the time that the police car came past the Shop and the fact that the Respondents were walking back past the Shop according to the CCTV time at "14:15:30", twenty-one minutes before they had actually arrived at the Shop. In paragraph [112] her Honour referred to the speed of the police response to the urgent call and concluded that the time between the hold-up alarm button being pressed and the police response was "too short" to be consistent with the assertion that the hold-up alarm button was pressed at "14:04:54", a reference once again to the erroneous time in the First Index.

77 It is apparent that her Honour did not have regard to Exhibit 4A at the time she reached her conclusion that the alarm button was pressed after the Respondents left the Shop. Exhibit 4A shows Mr Lassanah leaving the Shop at 14.45.05. The Police Incident Log Report, Exhibit D, shows that the Police at 14.41.59 received the call some three minutes before Mr Lassanah left the Shop. Exhibit 4A also shows the female employee reaching below the counter 14.41.54, once again, three minutes before Mr Lassanah left the Shop.

78 It appears that the combination of the erroneous times on the CCTV footage and the First Index (Exhibit 4) with some of the accurate times on the Police Incident Log Report (Exhibit D) with no reference to the accurate times on the Second Index (Exhibit 4A) led her Honour to the conclusion that she could only ascertain the time at which the hold-up alarm button had been pressed by a comparison between the time that it was allegedly pressed in the First Index and the speed with which the Police arrived at the Shop. It is clear that her Honour failed to have regard to the Second Index that was provided on 23 February 2010 that showed the Shop attendant reaching below the counter at 2.41(54) pm and the Respondents leaving the Shop at 2.45pm. This comparison with the Police Incident Log Report showing that the call was received at 2.41(59)pm would have assisted her Honour to reach what is the irresistible conclusion that the hold-up alarm button was pressed prior to the Respondents leaving the Shop.

79 I am satisfied that the Trial Judge fell into error in concluding that the alarm button was activated after the Respondents left the Shop. This was a finding that was not open on the evidence.

Other Challenges to findings of fact

80 The first finding of fact in respect of which the Police make a challenge is at paragraph [235] that the police officers used "bullying techniques" in ordering the Respondents to "go home".

81 The Trial Judge extracted Mr Lassanah's evidence (at [59]) in which he raised with the police officers his wish to go back into the Shop and ask why he had been accused of stealing a watch. There is no issue that at this time Mr Lassanah was very angry and was threatening legal action. The Police submitted that in those circumstances the police officers advised the Respondents to go home. It was submitted that there was a reasonable prospect that if Mr Lassanah went back into the Shop he would have argued with the staff and that the police officers tried to take the heat out of the situation and calm things down. It was submitted that they were reasonably seeking to avoid argument and confrontation. It was also submitted that the police officers were acting reasonably with a display of commonsense in attempting to keep the accused and the accusers apart. It was submitted that this could not reasonably be described as "bullying".

82 The further aspect to this challenge is that it was not suggested to the police officers in cross-examination that they were "bullying" or using "bullying" techniques against the Respondents. Mr Lassanah gave evidence that the "cop" was "very aggressive" in ordering he and Mr Oddie to sit down: [WB 256]. He also claimed that the police officer's manner was "rude": [WB 267].

83 Although it was submitted on behalf of the Appellant and the Police that it was never suggested to any of the police officers that they were using "bullying techniques", trial counsel for the Respondents did attempt to suggest to Constable Lentfer that the police, including himself, were "aggressive" [WB 519]. That was rejected and the cross-examiner did not return to the topic. It is the fact that it was not suggested to the police that they were using bullying techniques and that they had no opportunity to answer such an allegation. 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": [WB 258]. His evidence on the one hand was that he regarded the police officers as aggressive and rude but on the other that LSC Ansted was being fair to him in checking the situation with the Shop employees. In those circumstances the finding that the police officers used "bullying" techniques in telling the Respondents to "go home" was not justified.

84 The next finding of fact in respect of which the Police make a challenge is at paragraph [213] as follows:

This was not a publication where the police officers told the plaintiffs that they were investigating allegations, and having done so, told the plaintiffs what they were, invited a response, or otherwise processed the allegations which were made by the store employees.

85 It was submitted that the police officers informed the Respondents of the allegations. They received a response from the Respondents. They checked and made enquiries with the Shop on two occasions. Sergeant Gibson viewed part of the CCTV. They conducted CNI searches, physically searched the Respondents and subsequently released them.

86 In all those circumstances the finding that the police officers did not inform the Respondents that they were investigating allegations cannot be sustained. The finding that the police officers did not inform the Respondents what the allegations were is also unsustainable. The Trial Judge set out the conversation between the police officers and Mr Lassanah that included allegations made by the Shop employees that the Respondents were tapping on the glass and were seeking to lift the lid of the cabinets. Mr Lassanah put his response to the police officers, it appears quite firmly, that he had been dealt with by the employees in a rather friendly fashion. I agree with the submissions of the Police that the portion of paragraph [213] set out above cannot be sustained on the evidence.

87 The next finding in respect of which the Police bring a challenge is as follows:

235. ...it was obvious that at best these allegations [made by those in the Shop] were frivolous or erroneous and at worst they were actively mischievous.

88 There is no clear explanation in the Judgment of why it was "obvious", meaning obvious to the police officers, that the allegations were "frivolous or erroneous" or "actively mischievous". It is quite clear from the CCTV footage that the employees were apprehensive and suspicious. It may have become clear to the police officers towards the end of their communications with the Respondents that the allegations were "erroneous" because there was nothing found on the search of the Respondents and at least one of the police officers concluded that Mr Oddie was suffering from a disability. To find that it was "obvious" to the police officers that the allegations were frivolous or mischievous would require some findings of fact as to the matters that would lead them to conclude frivolity or mischievousness. I am satisfied that the finding of such obvious frivolity and active mischievousness is without foundation.

89 There are other challenges to the Trial Judge's findings of fact with which I will deal later in the consideration of Ground 4 as to whether her Honour erred in failing to find that a defence under s 30 of the Defamation Act 2005 was available to the Police.

Ground 1 - Occasion

90 The Appellant and the Police claim that the Trial Judge erred in failing to find that in "any situation" where a police officer is explaining or repeating to a member of the public an allegation made against that person and seeking their response is, of necessity, an occasion of qualified privilege. It is not necessary to decide whether this is so in "any situation". However it is necessary to decide whether the Trial Judge erred in failing to identify an occasion of qualified privilege in respect of the situation in the present case in which the police officers communicated to the Respondents the allegations made against them. It was submitted that although the Trial Judge set out the principles of law relating to qualified privilege at common law and also recited the submissions of the parties at paragraphs [205] to [209] of the Judgment, there was no express finding as to the nature of the occasion, including whether or not that occasion was in fact privileged.

91 In identifying the "occasion" it is important to consider the "hallmark" of reciprocity of duty and interest: Cush v Dillon; Boland v Dillon (2011) 279 ALR 631; [2011] HCA 30 per French CJ, Crennan and Kiefel JJ at 635 [11]. It has also been referred to as a "special and reciprocal interest": Andreyevich v Kosovich (1947) 47 SR (NSW) 357 per Jordan CJ at 363 referred to in Aktas v Westpac Banking Corporation Limited (2010) 241 CLR 79; [2010] HCA 25 per French CJ, Gummow and Hayne JJ at 91 [31]. The Trial Judge referred to this as the "guiding principle" and with reference to Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 observed that there must be 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" (at [207]) (These words are in fact those of Dixon J (as his Honour then was) in Guise v Kouvelis (1947) 74 CLR 102 at 116).

92 In considering the defence of qualified privilege at common law it is imperative, as a first step, to identify the occasion to enable the subsequent proper analysis of whether the publication is relevant or germane to the occasion. If the occasion is not so identified it becomes difficult to assess whether something is foreign to the occasion when a claim of malice is made.

93 The Trial Judge did not make an express finding that "any situation" (the expression used in the Ground of Appeal) where a police officer is explaining or repeating to members of the public an allegation made against them seeking their response is, of necessity, an occasion of qualified privilege. However her Honour did refer to the decision of the High Court in Mann v O'Neill (1997) 191 CLR 204 and mentioned the fact that the Police had referred her to statements in that case to the effect that authorities and organisations charged with investigation and prosecution of crime, such as the police, usually enjoy the protection of common law qualified privilege (at [212]). This would appear to be a reference to the judgment of Brennan CJ, Dawson, Toohey and Gaudron JJ in Mann v O'Neill at 216, where their Honours said (footnotes omitted), "Complaints to prosecuting authorities - 'statements in aid of justice', as they are sometimes called - enjoy qualified privilege".

94 I am of the view that on a reasonable reading of paragraphs [218] to [225] of the Judgment, the Trial Judge implicitly found that an occasion of qualified privilege existed because of her conclusion that it was "lost" when the police officers went from "repeating" the allegations of the manager of the Shop to "making" the allegations (at [219] and [225]). These paragraphs suggest that the Trial Judge accepted that where a police officer apprehends a member of the public and communicates allegations of criminality, the occasion is one of qualified privilege. This appears in part from paragraph [224] in which her Honour rejects the Respondents' submissions at trial that there was no reciprocity of interest between members of the public and the police. Her Honour also concluded that the police officers were not obliged to lower their voices while apprehending persons in case the allegations of criminality were unfounded "in the course of attending to an urgent call for assistance of the kind that has occurred here".

95 Although not expressly stated, I am satisfied that the Trial Judge concluded that the occasion on which the police officers communicated the allegations of the Shop manager and/or employees to the Respondents was an occasion of qualified privilege. The police officers had a duty to communicate the allegations to the Respondents during the course of their investigation as to whether criminal conduct had occurred and the Respondents had a reciprocal interest in receiving the communication first to know that such allegations were being made against them and secondly to have the opportunity to answer them.

 

Ground 2 - Occasion Lost

96 The Appellant and the Police submitted that an occasion of qualified privilege on which a police officer repeats allegations to a suspect cannot suddenly cease to exist at a precise point in time, depending on what is actually said by the police officers. It was submitted it is not the occasion that ceases, but whether what was said, and any imputations conveyed by what was said, were relevant to the occasion of privilege.

97 Both the Appellant and the Police relied upon the observations of Parke B in Toogood v Spyring (1834) 149 ER 1044; (1834) 1 Cr M & R 181 at 1049-1050; 193 (recognised as having "continued significance in the contemporary common law": Aktas v Westpac Banking Corporation Limited per French CJ, Gummow and Hayne JJ at 88 [18] and applied in Cush v Dillon; Boland v Dillon at [11], [14], [18], [22], per French CJ, Crennan and Kiefel JJ) about the requirements to attract the privilege as follows:

In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.

98 Although the Trial Judge included a heading in the judgment "Relevance to the Occasion of Qualified Privilege" there was no discussion of any of the authorities on the issue. In this regard the Appellant relied upon the following passage of Tobias JA's judgment in Fraser v Holmes (2009) 253 ALR 538; [2009] NSWCA 36 at 546-547 [35]-[38] as follows:

35 The test of relevance has been the subject of two recent decisions of this Court: Lindholdt v Hyer [2008] NSWCA 264 at [125]-[135] per McColl JA; Aktas v Westpac Banking Corporation Ltd (2009) (sic) NSWCA 9 at [72]-[78] per McClellan CJ at CL with whom Ipp and Basten JJA agreed. Suffice it to say that the question is whether the imputations arising from paragraph 3 were sufficiently connected to the occasion which attracted the privilege with respect to the balance of the letter.

36 The appellant submitted that in the context of what was an ongoing political debate during an election campaign, and given the stance taken by the Association, any ulterior motive on the part of the Association's representative, the respondent, for campaigning so enthusiastically against the appellant and his party, was relevant to the occasion of qualified privilege. It was submitted that voters, particularly nurses, in the appellant's electorate had an interest in knowing the appellant's view on these matters and were entitled to know if the respondent's motives on behalf of the Association in spending over $1 million of the Association's funds in support of the Labor Party was truly to assist the nursing profession.

37 It is true, as McClellan CJ at CL pointed out in Aktas at [73], that it is only matters in respect of which the publication is occasioned by the necessary reciprocity of interest which the law describes as being published on an occasion of qualified privilege. Accordingly, the imputations, to be relevant to the subject matter of that occasion, must not be "truly unconnected" with that subject matter, as Hodgson JA described the test in Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470 at [43], or as Sheller JA stated the test at [2], must be "germane and reasonably appropriate to the occasion".

38 As noted by McColl JA in Lindholdt at [130] the majority of the High Court in Bashford [2004] HCA 5; (2004) 218 CLR 366 at [27] approved Sheller JA's formulation. Kirby and Callinan JJ approved both tests (at [193] and [235] respectively. Kirby J also observed at [194]):

"All of these formulae are attempts to define the boundaries of discussion that is truly within the scope of the matter of public interest, so as to exclude the introduction of extraneous, irrelevant or marginal and gratuitous imputations that unacceptably do harm to the reputation and honour of an individual. Scientific precision is impossible by the use of such formulae. In every case a judgment is evoked. In some instances the titillating character of an irrelevant defamatory imputation in an otherwise justifiable context will be plain. But in other cases the issue will be more debatable, as Callinan J has correctly recognised."

99 At the time of the delivery of the judgment in Fraser v Holmes the High Court had not delivered its judgment in Aktas v Westpac Banking Corporation Limited in which the Court of Appeal was reversed. However McClellan CJ at CL's observations in Aktas , relied upon by Tobais JA, were not the subject of any criticism by the High Court.

100 The Appellant also referred to Simpson J's judgment in Megna v Marshall [2010] NSWSC 686 in which her Honour charted the "relevance principle" back to Adam v Ward [1917] AC 309. Her Honour said (at [72]):

The relevance principle may be illustrated in this way: ordinarily speaking, discussion during the course of a Council meeting would attract privilege. The occasion confers a privilege upon the members of the Council, so that they may freely, openly and honestly exchange information and express views on matters relevant to Council business. For that purpose, the occasion is privileged. But the privilege conferred on specific communications is limited to those that are relevant to or have the necessary connection with Council business. If a defamatory statement is made that is not relevant to the business of the Council, while the occasion may be privilege, the specific communication is not.

101 The issue for consideration in the determination of whether the defence of qualified privilege at common law is made out is whether the particular communication is clothed with the privilege or comes under the umbrella of the applicable privilege of the occasion and not whether the occasion is lost.

102 If her Honour intended to find that a particular communication was not covered by the relevant privilege, rather than that the occasion was lost, it is very difficult in the circumstances of her Honour's findings to work out which particular communication might be said to be outside the umbrella of privilege. However it seems that her Honour intended that when the police officer repeated the allegation without prefacing it with "the employee said" or "the manager said" the statement was irrelevant to the occasion of privilege or outside the occasion of privilege. Her Honour described the communications as going from "repeating the allegations of the store manager" to "making allegations". 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. The police officers had been called to what they were informed was a possible attempted robbery from the Shop. In police investigation in urgent circumstances where members of the public are nearby and where safety issues may be of concern, there must be some latitude in the police communications with suspects. To hold otherwise is inconsistent with what was said by Parke B in Toogood v Spyring that the law does not restrict the right to make statements in such circumstances within any narrow limits.

103 The Appellant submitted that the question is whether the two imputations were not "truly connected" or alternatively "germane and reasonably appropriate to the occasion". It was submitted that the subsequent conduct by the police by repetition of the words giving rise to the same imputations, even if considered to be unnecessary or inappropriate would not cause an occasion of privilege to be lost, but may be evidence of malice, which is quite a separate concept and requires consideration of different principles and in respect of which there is a different onus. I agree.

104 I am satisfied that her Honour fell into error in concluding that the "occasion" was lost.

Ground 3 - Malice

105 The Appellant submitted that the Trial Judge failed to identify any improper motive that would give rise to a finding of malice on the part of the Police. The following passage of Gaudron, McHugh and Gummow JJ's judgment in Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at 31 [76] referred to in so many cases (for instance most recently in Aktas v Westpac Banking Corporation Limited per French CJ, Gummow and Hayne JJ at 88 [17] and Cush v Dillon; Boland v Dillon per French CJ, Crennan and Kiefel JJ at 639 [15], [28]-[29]; per Gummow, Hayne and Bell JJ at 640 [32]) provides clear guidance in relation to the determination of the question of malice in the circumstances of the present case:

Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication. In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive. Thus, a police officer who is bound to report statements concerning other officers to a superior will not lose the protection of the privilege even though he or she knows or believes that the statement is false and defamatory unless the officer falsified the information. Conversely, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication.

106 The Appellant submitted that there is no finding by the Trial Judge that the conduct of the Police gave rise to an improper motive leading to a finding of malice on the part of the Police. Although the Trial Judge stated that in all likelihood the officers knew from the start that there was a mistake, there was no finding, nor, it was submitted, could there be a finding on the evidence, that any later repetition of words which gave rise to the imputations was made with the knowledge that they were in fact false.

107 It is difficult to discern the basis of the Trial Judge's finding that "the dominant motive for the publication was malicious" (at [232]). Her Honour expressly recognised that to defeat a defence of qualified privilege there needs to be a purpose or motive that is foreign to the occasion that actuates the publication (at [234]). In purporting to identify that purpose or motive her Honour said (at [235]):

The purpose or motive that was foreign to the occasion of qualified privilege was that for a number of reasons, including concern about a respectable member of the public who is threatening to complain, which caused the police to use bullying techniques, namely to order the plaintiffs to "go home".

108 There are grammatical problems with this passage of the Judgment and it is difficult to know what her Honour really intended. Although the balance of this paragraph and the other paragraphs dealing with malice are set out earlier it is convenient to repeat them here to give context to this analysis:

235. The police were investigating the making of a very serious allegation against one person who was clearly intellectually disabled and another person who was a responsible member of the community, namely the person who identified himself as Mr Oddie's carer. Mr Lassanah wanted to go into the store to find out why these allegations had been made about him, in circumstances where it was obvious that at best these allegations were frivolous or erroneous and at worst they were actively mischievous. The purpose or motive that was foreign to the occasion of qualified privilege was that for a number of reasons, including concern about a respectable member of the public who is threatening to complain, which caused the police to use bullying techniques, namely to order the plaintiffs to "go home". I have not accepted the evidence of the witnesses called by the first defendant, and I find their explanation for failing to keep any record of the circumstances in which they detained and searched the plaintiffs implausible. The police officers clearly realised that there had been a mistake and that they had detained and searched a responsible member of the community and the disabled person in his care. Rather than attempt to resolve the situation, they repeated the allegations made by the store manager as if they were true. The assertion (written submissions, paragraph 114) that the police were acting reasonably and doing their job in performing their duties in accordance with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the Police Act 1990 (NSW) needs to be measured against the facts in this case, including the matters raised by the plaintiffs as set out at [70] above.

236. The likelihood is that the police officers realised, almost from the very first, that there had been a mistake, and that they were dealing with an intellectually disabled person and his black American carer. Even the notation of the names of the plaintiffs seem to have been done towards the end of their detention, as Leading Senior Constable Ansted says that these names were noted just before he did the CNI checks, which occurred towards the end of their period of detention (Ansted T 200-201).

237. The police officers' lack of belief in the truth of the imputations is another issue relevant to malice. They did not tell the plaintiffs what was happening, and they ordered them to go home in such terms that the ordinary bystander would believe the allegations were still on foot.

238. Accordingly, if I have erred in holding that the matter complained of was not published on an occasion protected by qualified privilege, I would be satisfied that the occasion of qualified privilege was lost by reason of the malice of the first defendant's servants or agents in publishing the matter complained of.

109 Her Honour's finding in the first part of paragraph [235] that it was "obvious that at best these allegations were frivolous or erroneous and at worst they were actively mischievous" (the Later Finding) is a repetition in part of her earlier finding that it was "clear that the store manager's allegations were at best misconceived or at worst mischievous or false" (the Earlier Finding) (at [219]). The Earlier Finding was in relation to the conclusion that the "occasion" was "lost" and it is convenient to set those paragraphs out again to assist with the context of this analysis and in the appreciation that both findings were based in part upon the finding that the hold-up alarm was activated after the Respondents left the Shop. Those paragraphs are as follows:

218. While it was relevant to the privileged occasion for the police to repeat, at the commencement of the interview, at least some of the allegations made by the store manager, when it became apparent that there was no substance in the complaint and that Mr Lassanah was angry and upset and wanting to speak to the store manager, as well as considering legal avenues, it was not appropriate for the police officers to repeat the matter complained of and to state that the plaintiffs had in fact been intending to do what they were accused of doing, or to order them not to return to the shop, or to tell them to "go home".

219. 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.

220. Accordingly, the publication was made on an occasion which is not protected by a defence of qualified privilege at common law.

110 The reference to "mischievous" allegations in both the Earlier Finding and Later Finding can be traced back to paragraph [155] of the Judgment. The reference to "false" allegations in the Earlier Finding can be traced back to paragraph [170] of the Judgment.

111 In paragraph [155] the Trial Judge found that the Appellant's employees had made "mischievous" claims. Her Honour said that the basis upon which she reached that conclusion was because the hold-up alarm button was pressed "well after" the Respondents left the Shop, in circumstances where there was no threat and where it was clear from the CCTV that nothing untoward had occurred.

112 Mr Lassanah had not left the inside of the Shop and Mr Oddie had not departed with him from the outside of the Shop until 2.45 pm, three minutes after the hold-up alarm button was pressed. There was no proper basis for the finding that the hold-up alarm button had been pressed after, let alone "well after", the Respondents had left the Shop.

113 The finding that there was no threat was also made on the premise that the Respondents had left the Shop at the time the hold-up alarm button was pressed. The reference to "threat" in this context was really to an apprehension in the Appellant's employees. Mr Lassanah was still in the Shop and Mr Oddie was just outside the Shop when the button was pressed. The finding that there was no threat because the Respondents had left the Shop at this time is also unjustified.

114 The final matter of there being "nothing untoward" on the CCTV is an available conclusion from a review of the footage in the comfortable environment of objective retrospectivity. The CCTV was obviously not reviewed in full in such an atmosphere at the time the hold-up alarm button was pressed or shortly thereafter when the police officers arrived. The Appellant's employees reported that they were suspicious of the Respondents and the CCTV footage would have been viewed with that in mind in the urgent atmosphere of the need to bring the detention of the Respondents to a conclusion one way or another.

115 Another area of the Trial Judge's reasons that were affected by the finding in relation to the timing of the pressing of the hold-up alarm button was the conclusion in paragraph [170] that the Appellant's employees had made "false accusations" about the Respondents. Her Honour found that the hold-up alarm button was "wrongly activated" after the Respondents had left the Shop. Her Honour said "on any reasonable analysis, there was no question of there being any reason for concern" (at [170](a)). This finding is also premised upon the finding that the hold-up alarm button was pressed after the Respondents left the Shop and the conclusion that there was no reason for concern was infected by that erroneous finding. Although her Honour said that "on any reasonable analysis" there was no reason for concern, such analysis must be conducted in the light of the different circumstance of the Appellant's employee activating the alarm before the Respondents left the Shop.

116 Her Honour accepted the Respondents' submissions that if the manager or other employees of the Appellant had "really suspected" them they should have rung for the Police either when they were in the Shop or shortly thereafter (at [170](e)). This seems to be a tacit acceptance of the corollary that if the employees had pressed the hold-up alarm button before the Respondents left the Shop it was probable that they "really suspected" them. Her Honour observed that no explanation had been provided as to why the hold-up alarm was activated after the Respondents left the Shop and once again concluded that the hold-up alarm was activated after the Respondents left the Shop as the "times for the calling of the police demonstrate". As I have said earlier these "times" do not "demonstrate" that position. Her Honour again referred to the speed with which the Police arrived after the hold-up alarm was activated and said that the "times on the radio call records for the police confirm that the alarm was activated after" the Respondents had left the Shop. Once again this is an erroneous finding that clearly had an impact on the Trial Judge's mind in concluding that the Appellant's employees made "false accusations" about the Respondents.

117 There was no justification for the finding that the Appellant's employees' allegations against the Respondents were "false" and/or "mischievous" where such finding depended upon the erroneous premise that the hold-up alarm button was pressed after the Respondents left the Shop.

118 The only other basis upon which her Honour purported to find that the Appellant's employees' allegations against the Respondents were "mischievous" or "false" is the reference to the CCTV footage. Her Honour's conclusion that it was clear from the CCTV that nothing untoward had occurred is a conclusion reached having reviewed the CCTV during the trial. However her Honour's finding at [155] of the Judgment suggests that it must have been clear to the Appellant's employees that nothing untoward had occurred. The communications between the Appellant's employees and the police officers demonstrate that it was not clear to the employees that there was nothing untoward on the CCTV. The viewing of the CCTV with Sergeant Gibson was in a very different climate to that which pertained during the trial when her Honour viewed the CCTV footage. The parties to the Appeal also requested that this Court review the CCTV footage. That was done. It is true that it is not possible to see any interference with the top of the cabinets in which the watches are apparently displayed. However it is also very clear that the employees were acting in a fashion consistently with them being very suspicious and very concerned at the presence of the Respondents in the Shop and after they left.

119 Without the findings of fact in relation to the activation of the hold-up alarm button and the presence of the employees' apprehension of threat, there is no real basis for the conclusion that the accusations made by the Appellant's employees were mischievous and false. The Appellant accepted at trial through its apology to the Respondents that its employees were mistaken. However, it is quite clear from the CCTV footage that the employees were apprehensive and suspicious of the Respondents. 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.

120 I have earlier explained why the Later Finding was without foundation. There is no finding that it did become apparent to the police officers that there was no substance in the complaint. Rather there were broad findings, without any reference to the basis thereof, that the police officers realised "almost from the very first, that there had been a mistake" (at [236]).

121 Although there was an attempt in paragraph [235] to expressly identify the foreign or improper motive, it failed through grammatical and/or typographical error. That results in the need to try to distill the Trial Judge's intention from the surrounding paragraphs under the heading "Malice" (in particular at [235]-[238]).

122 The Trial Judge's conclusion on malice appears to be based on the following findings in paragraph [235] to [238]: (a) that the police officers told a respectable member of the public who was threatening to complain to "go home" and thereby engaged in bullying; (b) the police officers failed to resolve the situation and repeated allegations made by the Shop manager as if they were true; (c) the explanation by the police officers for their failure to keep any record of the circumstances in which they detained and searched the Respondents was implausible; (d) the police officers did not believe in the truth of the imputations; and (e) the police officers, in all likelihood, realised almost from the very first that there had been a mistake and that they were dealing with an intellectually disabled person and his black American carer.

123 The first finding, (a) that the police officers told a respectable member of the public who was threatening to complain to "go home" and thereby engaged in bullying (at [235]), even if sustainable (and I have found that the "bullying" finding was not (at [82] above)) does not establish a purpose or motive foreign to the occasion of qualified privilege so as to justify a finding of malice. It might establish that the professional conduct of the police officers, in particular the manner in which they released the Respondents in telling them to "go home", was less than that expected of them in the particular circumstance, but it does not mean that the utterance "go home", even if delivered in a bullying tone, evidences that in publishing the matter complained of and the imputations thereby conveyed the police officers were actuated by an improper motive.

124 The second finding, (b) the police officers did not attempt to resolve the situation and repeated allegations made by the Shop manager as if they were true insofar as it contains a conclusion, that the police officers did not attempt to "resolve" the situation, needs to be reviewed in light of the Trial Judge's following finding (at [307]):

The police were in a very difficult position, with the staff of the shop having pressed the hold-up button and insisting that the Plaintiffs had attempted to rob the store. They did their best to bring the whole incident to a close reasonably quickly.

125 If her Honour intended the conclusion that the police officers did not attempt to "resolve" the situation to mean that the police officers failed to bring the matter to a close, then this finding is inconsistent with the later finding in paragraph [307]. If her Honour intended otherwise, such intention is not clear.

126 The balance of this finding, that the police officers repeated the allegations of the Shop manager as if they were true, also fails to identify a purpose or motive foreign to the occasion. At best, if able to be sustained with the finding that they failed to resolve the situation, it may show that the conduct of the police officers in this urgent situation was somewhat loose in that they failed to insert the preamble "the manager said" or "the employees said" before suggesting that the Respondents had attempted to steal and/or were attempting to lift lids of the cabinets. This circumstance is not dissimilar to the circumstances of Clark v Molyneux (1877) 3 QBD 237 in which the publisher used expressions in excess of the communications he had received. The information that he had received was that the plaintiff had left the Army through some trouble at cards but he published that the plaintiff was expelled from the Army for cheating at cards. He was also informed that the plaintiff had led an irregular life at Cambridge but had published that he had led a profligate life at Cambridge. It is also not dissimilar to the circumstance in Cush v Dillon; Boland v Dillon where the publisher of the matter complained of was said to have converted a statement of rumour into a statement of fact. That the police officers may have converted the Shop manager's allegations into statements of fact does not, on its own, establish that they were actuated to publish those facts for a foreign or improper purpose. As I have said before, there was no identification of such a purpose or motive and this finding cannot justify a conclusion of malice.

127 The third finding, ( c) the explanation by the police officers for their failure to keep any record of the circumstances in which they detained and searched the Respondents was implausible , also fails to identify any motive or purpose foreign to the occasion. The police officers did make some records and photocopies of parts of Constable Coates' and LSC Ansted's notebooks became Exhibit F. Those notes included the record of the attendance on the Shop with its address, the name of the Shop Manager with his address, date of birth and contact telephone numbers and the names of each of the Respondents, their addresses, the date of birth of Mr Oddie, the licence details of Mr Lassanah, the fact that database searches had been conducted and the fact that the Respondents had been searched with a "Nil find". Her Honour found that the particulars in Constable Coates' notebook were "inadequate" (at [70(b)]).

128 It is certainly not clear what her Honour intended by the finding that the police officers' "explanation" for their failure to keep "any record" of the circumstances in which they detained the Respondents was "implausible". There is nothing in the Judgment that refers to the "explanation" that is said to be "implausible". Sergeant Gibson did not make any notes and gave evidence in cross-examination that the reason he did not do so was because others were taking notes and he did not "complete the job" [WB 583]. Constable Axford gave evidence that she did not make any entry in her notebook because "only the person conducting any enquiries" would write down the information they obtained [WB 534]. Constable Lentfer did not make any note but he was not asked why that was so [WB 513; 522]. The Trial Judge asked LSC Ansted about the contents of his notebook. He said that the reason he had the details in his notebook was so that he could do the CNI checks [WB 403-404]. If it is any of these "explanations" that the Trial Judge was referring to as "implausible" it was never suggested to any witness that this was so and it is not contained in the Judgment. In any event, even if there were an explanation that her Honour found to be implausible, this without more cannot be converted into a finding of improper or foreign purpose or motive to ground a finding of malice.

129 The fourth finding, (d) the police officers did not believe in the truth of the imputations , does not establish malice. It is appropriate to recall here that as a matter of law, "malice means a motive for, or a purpose of, defaming the plaintiff that is inconsistent with the duty or interest that protects the occasion of the publication. It is the motive or purpose for which the occasion is used that is ultimately decisive, not the defendant's belief in the truth of the matter" and "neither a lack of honest belief nor knowledge of the falsity ipso facto destroys a defence of qualified privilege": Roberts v Bass at 32-33 [79] and 34 [83].

130 In respect of this finding the Appellant relied upon the following evidence of LSC Ansted (WB 413-415, 425, 467-468):

Q. When the gentleman from Tag Heuer spoke to you when you arrive ( sic ) in your car, he told you things about which you've just related. Correct?

A. Yes, he told me certain things.

Q. You then got out of the car with your other police officer, and stopped or apprehended the two men?

A. Yes.

Q. What did you do? What did you say to them.

A. What did I say to them?

Q. Yeah.

A. I said they were to stop there.

Q. What?

A. They were to stop there. I told them my name, where I was from, same with Constable Coates. I said, "There's been an incident in the Tag Heuer shop. Stop there."

Q. You told them to stop there.

A. Yes.

Q. You suspected that they were armed hold-up robbers. Correct?

A. There was an incident in Tag Heuer.

Q. Mm?

A. Yes, there was an incident in Tag Heuer.

Q. But at that time, you suspected they were going to rob or had robbed Tag Heuer.

A. No, I didn't suspect they had robbed. There was a possibility that they may have done something adverse inside the store.

Q. And were intending to rob Tag Heuer.

A. No. I can't say that I believe they were intending, because that's something I can't say, that they were intending to steal. That's something that the manager of the store said.

Q. What you said a few moments ago was the manager told you that the two people were about to rob or attempt to steal from the shop. That's what you said.

A. That's what he believed that was going --

Q. No, that's what he told you.

A. That's what he told me, yes.

Q. So you believed that the two men were about to rob or attempt to steal from the shop.

A. No.

Q. What? You didn't. You didn't believe him?

A. I believed they were possibly doing some adverse inside the store, possibility, but --

Q. The manager told you among other things, you just said, that the two gentlemen were about to rob or attempt to steal from the shop. You've said that.

A. Mm.

Q. I'm suggesting to you that you therefore believed that the two men were about to rob or attempt to steal from the shop.

A. No.

Q. You didn't believe him. You did not believe what the manager said.

A. That was the information he told me. I mean, I had reasonable grounds to stop those persons to find out exactly what they did at the store, not that they robbed the store, attempted to rob the store.

Q. I'm not asking you that. I'm asking you did you believe the manager when among other things he told you that the two men were about to rob or attempt to steal from the shop.

A. I believe there was enough, yes, to stop them.

Q. What?

A. There was enough reasonable grounds there to stop them based on his information.

Q. I'll ask you this question. Did you think you had reasonable grounds to stop them?

A. Yes, I did.

...

Q. You believed from what the manager told you that the two men were about to rob or attempt to steal from the shop.

A. No.

Q. You didn't believe him. So when he told you that, you didn't believe him.

A. Its something that I can't say, whether they were going to rob the store or attempt to steal from the store. It was enough on the information that he provided to stop them, and that's all I did.

...

Q. Yes, but you were. The manager told you that they were likely store robbers or possible store robbers.

A. He was - he believed that they were intending to steal from - he believed that they were intending to steal from the shop, but I never --

Q. He told you that?

A. Yes, he did tell me that.

...

Q. Look, I don't want to go into this forever. The manager told you he thought these people were intending to steal or rob the store?

A. Obviously, he hit the hold-up button.

Q. Yes, and he has pressed the hold-up button.

A. Yes.

Q. So its pretty dramatic what happened and he made these allegations?

A. Yes, they were held up the week before.

Q. Yes, but not by these people.

A. No, not by these people.

Q. You arrive on the scene, search them and find nothing.

A. I didn't search them, Constable Lentfer searched them.

Q. Sorry, they were searched in your presence.

A. Yes.

Q. Nothing was found?

A. No.

Q. You let them go. But the manager had not retracted his allegations, had he?

A. No.

Q. Well, then why didn't you take them to the police station for further enquiries or something?

A. Because the investigation was completed there and then at the store. There was an allegation made, there were reasonable grounds to search and that was done.

Q. Just because you found nothing you let them go?

A. There was no further reason or requirement to hold them any longer. They were free to go.

Q. There was no reason for you to search them or apprehend them in the first place, was there?

A. Yes, there was, most definitely. What the manager of the store said, that is sufficient information to subject both persons to a search, in culmination with the hold-up alarm being pressed, acting suspiciously inside the store, lifting up cabinets.

...

Q. Sergeant Gibson told you that the CCTV showed they were acting suspiciously.

A. Lifting up the lids, yes.

Q. You still let them go.

A. We were satisfied with the search, the result of the search, nothing was found upon either persons as a result of the search.

Q. Well, what did Sergeant Gibson say? Did he say, "You shouldn't have let them go"?

A. No, he was satisfied as well. He was the supervisor, he was present.

Q. Well did you get any instructions to let them go?

A. No. It was on face value. I mean, we were all present there. There's no need to hold somebody any longer than required.

131 The evidence of the police officers, in particular LSC Ansted, was that when they attended the Shop it was not for them to make a judgment that the Respondents were thieves. The Appellant's employees were suspicious of the Respondents and they were concerned that the Respondents had attempted to rob the Shop. It is true that LSC Ansted said he did not "believe" that the Respondents were thieves. His evidence was that he believed that something "adverse" may have happened in the Shop. That does not mean that he had knowledge that the matter complained of or the imputations conveyed thereby were false. Rather LSC Ansted's task was to investigate the allegations that the Respondents were thieves or attempted thieves and in doing so to communicate those allegations to them. The fact that during the course of their investigation the police officers did not reach the conclusion or hold the belief that the Respondents were thieves does not establish an improper motive or purpose foreign to the occasions such as to justify the conclusion of malice.

132 The last finding, (e) the police officers, in all likelihood, realised almost from the very first that there had been a mistake and they were dealing with an intellectually disabled person and his black American carer , has, in part, been the subject of analysis earlier. However there is no basis for finding that the police officers from "the very first" realised there had been a "mistake". The fact is they would have observed that Mr Lassanah was a black American. Nothing turns on this notwithstanding that it was suggested, ever so weakly, that the reason that the police officers arrested him was because of these attributes [WB 422]. If her Honour's finding is to be understood as meaning that notwithstanding the police officers realising there had been a mistake they continued with their investigation and publication of the Shop manager's allegations and consequent imputations, knowing they were baseless (and perhaps false), then this would need to be the subject of proper findings of fact that the police officers did know that there was a mistake and that the allegations were false. As I have already said, the findings that the Appellant's employees made mischievous and false allegations were unfounded.

133 The Appellant submitted that the reality on the evidence is that the Police responded to a call for assistance and nothing in their conduct gave rise to a finding of any possible motive on their part that was improper or foreign in the sense required to establish express malice. It was also submitted that even if it is established that the Police did not act reasonably in performing their duties, the evidence did not approach a level that could remotely be said to constitute an improper purpose sufficient for a finding of malice against the Police. Accordingly it was submitted the Appellant could not be held liable. I agree.

134 I am satisfied that the Trial Judge fell into error in concluding that the defence of qualified privilege was defeated by malice.

Statutory Defence

135 The Trial Judge found that the defence under s 30 of the Defamation Act was not made out. Section 30 provides:

30 Defence of qualified privilege for provision of certain information

(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the "recipient") if the defendant proves that:

(a) the recipient has an interest or apparent interest in having information on some subject, and

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and

(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:

(a) the extent to which the matter published is of public interest, and

(b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and

(c) the seriousness of any defamatory imputation carried by the matter published, and

(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and

(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and

(f) the nature of the business environment in which the defendant operates, and

(g) the sources of the information in the matter published and the integrity of those sources, and

(h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and

(i) any other steps taken to verify the information in the matter published, and

(j) any other circumstances that the court considers relevant.

(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.

136 In considering the matters to be taken into account in deciding whether the publication was reasonable her Honour said:

231. Doing the best I can with the submissions that have been provided, what is clear from this evidence is that no attempt was made to obtain the plaintiffs' side of the story (s 30(h)), even when it was offered, and that the allegations made by the store employees were uncritically adopted by the police officers even though it was no more than suspicion (s 30(d) and from a source whose accuracy was under question (s 30(g))).

232. I am satisfied that no defence is being ( sic) made out under s 30 of the Defamation Act 2005. One of the reasons why I am satisfied that no defence has been made out is that I am satisfied that the dominant motive for the publication was malicious.

137 I have already found that the Trial Judge's conclusion in relation to malice was not justified. However that was said to be only "one of the reasons" why the statutory defence was not available. The other reasons appear from paragraph [231] with the inference that her Honour concluded that the publication was not reasonable in all the circumstances. The Appellant contends that the evidence does not support the findings of fact in relation to those other reasons.

138 As to the finding that "no attempt was made to obtain the plaintiffs' side of the story (s 30(h)), even when it was offered", it was submitted that Mr Lassanah's own evidence establishes that he provided his side of the story when the Police questioned him. He said he informed the Police that the allegations were not true, that he "just went there", that he "talked to the employees" of the Shop and that they "serviced" him: [WB 245]. He said that he did not steal anything and that he had gone to the Shop to see if there was something that he liked that he could buy: [WB 245]. Clearly Mr Lassanah was able to put his version of what occurred in the Shop. The finding that there was no attempt made to obtain his side of the story is not justified.

139 As to the findings that "the allegations made by the store employees were uncritically adopted by the police officers even though it was no more than suspicion (s 30(d) and from a source whose accuracy was under question (s 30(g)))" it was submitted that the accuracy of the source was not under question. Section 30(3)(g) refers to the "integrity" of the source rather than the "accuracy" of the source. It is directed to whether the source is reputable or sound and of moral principle ( The Macquarie Dictionary Federation Edition Edited by A Delbridge, JRL Bernard, D Blair, S Butler, P Peters, C Yallop, The Macquarie Library 2001) not whether the particular information provided by the source in the particular instance may be inaccurate. There may be circumstances where a source has provided inaccurate or unreliable information on a number of occasions in the past such as to draw their integrity as a source into question, but this was not the situation here.

140 It was submitted that the Shop is and was a well-known international brand store and part of a major international company selling well-known valuable products. The employees were apparently respectable personnel who had activated an urgent hold-up alarm and made serious urgent allegations and maintained and persisted in them to the Police. It was not suggested to the police officers in cross-examination that they regarded the accuracy or integrity of the source as being "under question". LSC Ansted said that in 95% of the cases in which armed hold up alarms are activated, there has been no robbery [WB 425]. However that does not mean that the accuracy or integrity of the source was "under question". The police officers were attempting to work out what the allegations were by looking at the CCTV and receiving information from the employees of the Shop and searching the Respondents and obtaining a response from the Respondents. At the conclusion of this process the police officers took the view that the Respondents should be released. If at that time the police officers had a question about the accuracy of the initial allegations this was after the publication. When the police officers attended the urgent situation and conducted their investigation there was no suggestion that the source of the information was "under question" in the sense that the "integrity" of the source, as referred to in s 30(3)(g), was "under question". I am satisfied that her Honour erred in finding that the accuracy of the source was "under question" for the purposes of applying s 30(3)(g) of the Defamation Act 2005.

141 It was also submitted that the police officers did not uncritically adopt the information from the Shop. The manager of the Shop claimed that the Respondents were lifting the glass tops of the cabinets and were attempting to rob the Shop or were going to steal something. The Police were also informed that a hold-up had occurred the previous week. LSC Ansted and Sergeant Gibson both went into the Shop on two occasions and Sergeant Gibson watched some of the CCTV footage. They were checking the information. LSC Ansted went back to the Shop after speaking to Mr Lassanah. Indeed, as I have already said, Mr Lasannah's evidence in cross-examination was that he regarded LSC Ansted's conduct in returning to the Shop to "check the situation" as being "fair" to him: [WB 317]. There was no basis for the conclusion that the police officers had "uncritically adopted" the allegations made by the Shop employees.

142 For these reasons and the reasons earlier stated in relation to the Trial Judge's finding of malice, I am satisfied that the Trial Judge erred in failing to find that a defence of statutory qualified privilege was available.

Reconsideration of the Defences of Qualified Privilege

143 The parties were asked for their submissions in respect of what was to occur if this Court considered that there was error in the Trial Judge's determinations. All parties submitted that it is appropriate for this Court to determine the defences of qualified privilege rather than to order a new trial (tr 10-13; 14/09/2011). Accordingly it is appropriate to approach the determination of the defence of qualified privilege both at common law and under s 30 of the Defamation Act on the evidence that was available to the Trial Judge. It is also necessary to proceed on the basis that the defamatory imputations were conveyed and published of and concerning the Respondents, as found by the Trial Judge. What I have already said largely directs this Court's determinations.

144 The first step is to determine whether the occasion on which the publication took place was an occasion of qualified privilege. If so, the next question is whether the repetition by the Police of the allegations made by the Shop manager and/or employees without the preamble that it was their allegation was not relevant or germane to the occasion. If necessary, the next question is whether the police officers were actuated by a purpose or motive foreign to the occasion such as to establish malice. It is also necessary to consider whether the publication was "reasonable" for the purposes of the defence under s 30 of the Defamation Ac 2005 .

145 The circumstance in which the police officers communicated with the Respondents was one in which the police officers had a duty to communicate the allegations to the Respondents and the Respondents had a reciprocal interest in knowing that serious allegations had been made against them so that they could be given the opportunity to respond to them. There is a public interest in not allowing serious allegations to be made and kept secret from the alleged suspect, unless of course such allegations would for the time being compromise investigations or the safety of others. The circumstance in which the police officers communicated the allegations to the Respondents was an occasion of qualified privilege.

146 The Appellant submitted that when the evidence of Mr Lassanah is analysed, it is clear that there was no "persisting" with the allegations by the police officers. In this regard the Appellant referred to Mr Lassanah's evidence in which he said that when he was first approached, an officer said that "the employees told us that you guys were - attempted to steal a watch": [WB 245]. It was submitted that Mr Lassanah's evidence was that the officer made the "intending to steal" statement only once after the Police had made enquiries inside the Shop [WB 255]. However the Trial Judge concluded (at [182]) that this statement was made several times. The Appellant submitted that no question was put by anyone (either in cross-examination or re-examination) as to when such a statement was made, whether it was repeated and if so, how many times.

147 The Appellant submitted that even if Mr Lassanah's evidence is accepted, there is insufficient evidence to conclude that this allegation was persistently repeated. Mr Lassanah's answer to Interrogatory 8 establishes that the police officers did use the preamble "the employees" in putting the allegations to the Respondents. Although in his later cross-examination Mr Lassanah was unwilling to accept that this had been said, I am satisfied that the police officers did use such an expression. When that is combined with his other evidence I am satisfied that the police officers informed the Respondents that the allegations that had been made in relation to them attempting to lift the top of the cabinets and/or steal the watches were allegations made by the manager and also by the employees of the Shop. I am not satisfied that the allegations without the preamble were persistently repeated. However I am satisfied that during the communications there were occasions when LSC Ansted failed to use the expressions "the manager said" or "the employees said" before putting the allegation to Mr Lassanah as recorded in Mr Lassanah's extract earlier at paragraph [16] of this Judgment [WB 320-321]. In those circumstances it is necessary to consider whether that publication which conveyed the same imputations as those found to have been conveyed, was a publication that would not fall under the "umbrella" of qualified privilege.

148 The question is whether those statements were not relevant to the occasion. I have already referred to the not dissimilar circumstances of publications in excess of the information provided in Cush v Dillon; Boland v Dillon and Clark v Molyneux. The whole process in which the police were engaged was their official investigation of serious allegations of robbery and/or attempted robbery. To publish that the Respondents were attempting to steal without prefacing such statement with the statement that it was "alleged by the Shop employees" that they were attempting to steal may be seen to convert a statement of allegation into a statement of fact. However in an investigative process in which the police officers were engaged and contemporaneously publishing statements that it was the manager and/or the employees who had made such allegations, I am satisfied that the publication without the preamble falls under the umbrella of the privilege.

149 To limit the police officers to the precision of ensuring that every statement made relevant to the occasion is pre-ambled by "the employees alleged" or "the manager alleged" in order to retain the privilege in the circumstances of this case would be to constrain them to narrow limits that are in my opinion inconsistent with the approach that has been approved of in Toogood v Spyring . I am satisfied that the statements made by the police officers without the preamble were germane and relevant to the occasion of qualified privilege. The next question is whether that privilege is defeated by malice.

150 The first particular of malice pleaded in the Reply is that the Police were racially prejudiced against Mr Lassanah. As I have said earlier it was very weakly suggested that the reason Mr Lassanah was detained was because he was a black American, which suggestion was denied. There was no evidence that could establish this claim and it is rejected.

151 The next particular of malice in the Reply is that the Police showed ill-will, bias and prejudice by requiring the Respondents to sit on the ground when they should have taken them into the Shop where they would not have been seen or observed by the members of the public in the street. I accept that Mr Oddie was sitting on the ground at one stage of the investigation and even if Mr Lassanah was sitting on the ground at any stage, I am not satisfied that this demonstrated ill-will, bias or prejudice against the Respondents. There is no reason not to accept the evidence of Constable Coates that any direction for the Respondents to sit down was consistent with Police practice and/or safety concerns and is not a matter that establishes malice. This claim is rejected.

152 The next particular of malice in the Reply is that the Police spoke in an unnecessarily loud voice. I am satisfied that Mr Lassanah became quite argumentative when he was approached by the Police and that it is probable that both the Police voices and that of Mr Lassanah were raised from time to time during the period of the Respondents' detention. I am not satisfied that the volume of the Police voices during the exchange is an indication that the Police were actuated by express malice. Rather it was relevant to the purpose of the investigation in which they were officially engaged of trying to complete their inquiries and deal with a rather volatile situation urgently. This claim is rejected.

153 The next particular of malice in the Reply was that there was ill-will, prejudice and bias towards the Respondents evidenced by the Police failure or refusal to make proper notebook entries, including reports in the COPS database. The content of the Police notebooks is referred to earlier. It is apparent that no formal entry was made in the COPS database. It is curious to suggest that the failure to make a formal record in the COPS database warrants a finding of malice. Rather the opposite might be expected if Police had made a formal record against the Respondents where there had been no finding of improper conduct. In any event I am satisfied that the failure to include more detail in their notebooks or to cause a formal entry against the Respondents in the COPS database does not establish or contribute to establishing that the Police were motivated by ill-will, prejudice or bias against the Respondents. This claim is rejected.

154 The next particular of malice in the Reply is that there was a wrongful failure to make proper enquiries of the staff at the Shop before detaining or defaming the Respondents. As has been described earlier LSC Ansted and Sergeant Gibson made enquiries of the Shop employees and manager on more than one occasion and Sergeant Gibson reviewed part of the CCTV. This claim is rejected.

155 The next particular of malice in the Reply is that the Police published the defamatory statements to pedestrians who had no interest in the subject matter of the communications. There were no particulars of the "defamatory statements" allegedly published to the pedestrians. Even assuming they are the same as those published to each of the Respondents, there was no evidence called from any pedestrian that such statements were published to them. The evidence of Constable Lentfer referred to earlier in this judgment (at paragraph [28]) was that the pedestrians would not have been able to hear all of what was said and if they heard anything it would have been only a couple of words or a small part of what was said: [WB 503-504]. If pedestrians heard anything, it would have been a necessary concomitant of the police officers doing their duty in the exigent circumstances, and would not contribute to a finding of malice.

156 The next particular of malice in the Reply is that the Police were biased towards Mr Oddie because of his intellectual disablement. There is no evidence to support such a finding. It is rejected.

157 The next particular of malice in the Reply is that the Police were motivated by bias, ill-will and prejudice because they assumed the Respondents were guilty of stealing from the Shop or attempting to steal from the Shop. The evidence does not establish that the police officers assumed guilt. Rather the evidence establishes that the police officers were investigating whether the Respondents may be guilty of the allegations. This claim is rejected.

158 The next particular of malice in the Reply is that there was a failure of the police officers to watch and examine the CCTV footage prior to detaining the Respondents. Even if that were so it would not establish malice. The fact is that there were allegations made in an urgent response to a hold-up alarm that the Respondents had attempted to steal and they were identified as attempted thieves by the Shop employees. The fact that they were detained whilst part of the CCTV footage was contemporaneously viewed was not and could not in the circumstances of this case contribute to a finding of malice. This claim is rejected.

159 As the Trial Judge recognized in paragraph [307] of the Judgment, the police officers were in a "very difficult position". They were unaware of the nature of the detail of the allegations until they arrived on the scene and were then met with a nervous and suspicious manager who made serious allegations that two people had attempted to rob the Shop, that had been the subject of a robbery the week before. The efficiency with which the police dealt with this difficult situation, detaining the Respondents for no longer than eight to nine minutes according to the Trial Judge, to complete the process of receipt of information from the Shop employees, to review part of the CCTV, to identify the Respondents and record their particulars, to communicate the allegations to the Respondents, to conduct CNI searches and physical searches and release the Respondents, demonstrates that they had no interest in detaining the Respondents any longer than necessary to conclude the process. 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. Nor is there any basis for finding malice in the Appellant which might be sheeted home to the Police.

160 I am satisfied that the defence of qualified privilege at common law is made out.

161 It is necessary to consider the defence of statutory qualified privilege under s 30 of the Defamation Act 2005. The question is whether the conduct of the Police in publishing the matter was reasonable. Having regard to the allegations made to the police officers when they arrived at the Shop I am satisfied that they were duty-bound to perform their statutory functions to investigate those allegations. Although the Respondents submitted otherwise, it does not automatically follow that the conduct of the Police in publishing the matter was not reasonable because the Trial Judge has found that the detention of the Respondents was wrongful (a matter in respect of which leave to appeal was refused). In this regard the Trial Judge found that it was the Appellant's conduct that prolonged the detention by obliging the Police to carry out investigations. The Trial Judge found that the Appellant had "caused and procured" the Respondents' wrongful detention (at [173]-[174]). Accordingly the circumstances of the publication by the Police need to be considered having regard to those matters in s 30(3) of the Defamation Act 2005.

162 There is no doubt that the defamatory imputations were serious (s 30(3)(c)). It was certainly in the public interest that the matter be published expeditiously having regard to the urgency of the situation and the serious nature of the allegations that had been made after the activation of the hold-up alarm (s 30(3)(e)). The sources of information were from an apparently reputable business and reputable employees (s 30(3)(g)). The police officers certainly took steps to verify the information by checking the information with the employees including reviewing part of the CCTV footage (s 30(3)(i)).

163 I am satisfied that the Trial Judge's description in paragraph [307] is apt to this consideration. There is no doubt that the police officers were in a difficult situation; a suspicious and nervous manager of a reputable shop making serious allegations of attempted robbery; a difficult confrontation with a Respondent who was indignant and argumentative in a public street in an urgent situation where it was not clear whether any implements or other items may have been secreted on the Respondents; and reviewing of CCTV footage in a hurried environment and further interviewing of the employees of the Shop who persisted with the allegations of an attempted robbery. The police officers formed their own view and exercised their own discretions consistently with their public duty and released the Respondents. I too am satisfied that the Police did their "best" and I am satisfied that in all the circumstances the conduct of the Police in publishing the matter was reasonable.

164 I am satisfied that the defence of qualified privilege under s 30 of the Defamation Act 2005 is made out.

Leave refused

165 During the hearing of the Appeal the Court refused leave in respect of the quantum of contribution and/or indemnity and advised the parties that brief reasons for that refusal would be provided in due course (tr 41; 13/09/11). Leave was refused for two reasons. The first was because of the small amounts in issue. Those amounts are even smaller now that the defamation verdicts and judgments are to be set aside. It is now limited to the verdicts and judgments of $15,000 and $30,000 in respect of the false imprisonment claim. The second reason for refusing leave was because the parties approached the Cross-Claim in respect of contribution and/or indemnity on an "all or nothing" basis and did not address the Trial Judge as to whether a percentage (other than 0% or 100%) should be awarded (at [265]).

Proposed Orders

166 The orders that I propose are: (1) Appeal in relation to the defences of qualified privilege allowed; (2) Verdicts and judgments entered by the Trial Judge in favour of the First and Second Respondents on the defamation action be set aside; and (3) Verdict and Judgment be entered in favour of the Third Respondent on the defamation action. The parties are granted liberty to file an agreed costs order with the Registry by no later than 1 December 2011. If the parties are unable to agree on a costs order they are to file and serve written submissions of no more than 3 pages by no later than 7 December 2011. The question of costs will be dealt with on the papers.

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Decision last updated: 28 November 2011