Tag Heuer

On 10 June 2008, Michael Lassanah and Aaron Oddie entered the Tag Heuer shop in King Street in the centre of Sydney. They went in and looked at some watches and their conduct was perfectly innocent. However, staff in the shop were apparently suspicious and activated a hold-up alarm button, which notified the Police.

The police arrived in numbers and detained and searched Oddie, who has an intellectual disability and Lassanah, who was acting as Oddie’s carer. The Police attended the scene, made them stand in the gutter outside the Shop where they were interrogated and later detained. On the street, the Police allegedly said the following to them:

“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.”

Lassanah and Oddie sued the Shop and the Police for false imprisonment and defamation. They withdrew their defamation claim against the Shop by agreement, in March 2009, but ran a trial claiming defamation and false imprisonment against the Police.

In terms of the defamation, the Police claimed that the matter was said on an occasion of qualified privilege, both at common law and/or under s.30 of the Defamation Act. Lassanah and Oddie claimed malice and asserted that the Police:

• were racially prejudiced against them;
• required them to sit in the gutter on the footpath and interrogated them outside the shop when they could have taken them inside and dealt with it privately;
• spoke unnecessarily loudly so pedestrians could hear;
• failed to make proper inquiries with the Shop staff before arresting, imprisoning and defaming them;
• did not watch the CCTV footage from the shop before detaining and imprisoning them.

The trial ran from 15-19 February 2010 in the District Court of NSW before Her Honour District Court Judge Gibson. Lassanah gave evidence and was cross-examined for 2 days. Oddie’s mother gave short evidence. The Shop had accepted that its employees were mistaken and made an Apology at the trial. But the trial continued.

The plaintiffs won on false imprisonment and defamation. The trial judge concluded that the occasion was not protected by qualified privilege. That the defence was apparently lost once the Police went from repeating allegations of the store manager to making allegations, in circumstances where the trial judge held that it was it clear that the manager’s allegations were misconceived or at worst, mischievous or false [56] (see [219] of trial judge’s findings).

Lassanah won $15,000 for defamation and $15,000 for false imprisonment. Oddie won $20,000 for defamation and $20,000 for false imprisonment. Also, in respect of those damages, the Trial Judge ordered that the Police be 100%  indemnified by the Shop.

The Trial Judge made a raft of findings in the plaintiffs’ favour. These included that Her Honour:

• rejected the police officers’ evidence and found that doubt was cast on the reliability of their evidence [43]-[44];
• found that there was nothing in the CCTV footage that explained the conduct of the Shop’s staff;
• found that there was nothing to support the contention that Lassanah and Oddie were acting suspiciously [46]-[47];
• found that by pressing the alarm button after the plaintiffs had left, the Shop’s staff were “the sole motivating force putting the prosecution in train” [51];
• found that the Shop’s staff then persisted in claiming that Lassanah and Oddie had been “tapping on and trying to open the glass cabinets in their store” [51], while there was no evidence of this happening  and so the Shop’s staff had made false accusations [54];
• held that even if she erred in finding no qualified privilege, the dominant motive for the publication was malice, so such a defence would have been defeated in any event [59].

All well for the plaintiffs at that stage.

However, the Watch Shop, being 100% liable for the actions of the Police, appealed to the NSW Court of Appeal. The matter came before Bergin CJ, Campbell JA and Giles JA. Bergin CJ wrote the judgment, to which the other 2 concurred. It was a lengthy judgment and took a blow-torch to the decision of District Court Judge Gibson. Ultimately, the appeal was allowed and the defamation verdicts were set aside.

Along the way, Bergin CJ found that Gibson DCJ fell into error by making an array of findings of fact that were not open on the evidence, including finding erroneously:

• that the alarm was pressed after the plaintiffs left the Shop [78]-[79];
• that the Police engaged in bullying [82];
• that the police did not inform the plaintiffs what the allegations were [86];
• that the Shop’s employees were `false’ or mischievous [117].

Then as matters of law, Bergin CJ found that Gibson DCJ fell into error:

• in finding that the qualified privilege was lost. Because once it was found that the occasion existed, it became a question of whether the Police were actuated by malice. This was because it was only if the imputations were not “truly connected”  or not “germane and reasonably appropriate to the occasion”, would the occasion of qualified privilege be lost. Otherwise, it is a question of malice, which is entirely separate [103].
• in finding that the Police were actuated by malice, because no improper motive was identified [126], [134].

Rather than ordering a re-trial, the Court concluded that the common law defence of qualified privilege was made out, and the defamation verdicts were set aside and the plaintiffs were just left with their false imprisonment verdicts.