Seary v Molomby
Case
•
[1999] NSWSC 981
•28 September 1999
No judgment structure available for this case.
Reported Decision: (1999) Aust Torts Reports 81-536
New South Wales
Supreme Court
CITATION: Seary v Molomby [1999] NSWSC 981 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): 13617/91 HEARING DATE(S): 16/8/99; 18/8/99; 19/8/99; 23/8/99; 24/8/99; 25/8/99; 26/8/99; 30/8/99; 31/8/99 JUDGMENT DATE:
28 September 1999PARTIES :
Richard Seary
Tom MolombyJUDGMENT OF: Sully J
COUNSEL : Tom Molomby - in person
Richard Seary - in personSOLICITORS: CATCHWORDS: ACTS CITED: Defamation Act 1974 (NSW)
Crimes Act 1900 (NSW)CASES CITED: Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 260-264
Watt v Longsdon (1930) 1 KB 130 at 143-144
James v Baird (1916) S.C (H.L) 158 at 163-164
Austin v Mirror Newspapers Ltd (1958) AC 299
Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR at 749
Browne v Dunn
Godfrey v Henderson (1944) 44 SR (NSW) 447, at 454
Morgan v John Fairfax & Sons ltd (No. 2) (1991) 23 NSWLR 374 at 387E
Morgan per Hunt AJA at (1991) 23 NSWLR 387F
Briginshaw v Briginshaw & anor [1938] 60 CLR 336 at 361, 362DECISION: Judgment for the defendant against the plaintiff
48 JUDGMENT 1 HIS HONOUR: In these proceedings Mr. Richard Seary, [“the plaintiff”], sues to recover damages for libel. The matter of which the plaintiff complains is the entirety of a book entitled “Spies Bombs and the Path of Bliss”. The book, [“the subject book”], was published in 1986, its author being Mr. Tom Molomby, [“the defendant”], whom the plaintiff sued originally as one of two defendants, the other defendant being the author of a Foreword to the subject book. The plaintiff originally sued upon two alleged defamatory imputations, which were pleaded in the following terms:
SUPREME COURT OF
NEW SOUTH WALES
COMMON LAW DIVISIONSULLY J
28 September 1999
13617/91 - Richard SEARY v Tom MOLOMBY
2 On 23 August last the Court, in a reserved judgment, dealt with certain questions that had been separately tried following upon the making of an order in that behalf and pursuant to SCR Part 51. The effect of that judgment was that the plaintiff’s case against the author of the Foreword failed; as did the plaintiff’s case against both defendants in so far as it relied upon the imputation (a) as pleaded. The Court held, however, that the imputation (b) as pleaded was carried in fact by the contents of the subject book; and was, further, defamatory of the plaintiff. 3 Following the delivery of its reserved judgment, the Court heard the balance of the plaintiff’s case against the defendant. That entailed, so far as the plaintiff was concerned, a consideration of the issue of damages; and of the issue of malice as a factor defeating the various defences pleaded by the defendant. The continued hearing entailed, so far as the defendant was concerned, a consideration of the defences of: qualified privilege at Common Law; statutory qualified privilege pursuant to s.22 of the Defamation Act 1974 (NSW), [“the Act”]; comment; justification; and contextual truth. 4 This present judgment will deal first with the defences, considering them in the order in which they were presented in the closing submissions of the defendant; and will then consider malice and damages. 5 Before embarking upon the consideration of any of those particular issues, it is necessary to describe the general background to them. This can be done initially by reproducing paragraph 34 of the judgment delivered on 23 August:
“(a) The Plaintiff is a murderer.
(b) The Plaintiff framed members of the Ananda Marga by committing perjury.”
6 The so-described “case at the centre of” the subject book gave rise to a connected sequence of legal proceedings. Three young men, named Anderson, Alister and Dunn, were charged with conspiracy to murder, and two of them were charged with attempted murder, in connection with the projected bombing which the plaintiff reported to the police. This bombing was to be carried out, according to the plaintiff’s report of it to the police, at Yagoona, an outer Sydney suburb. The three men were committed for trial upon those charges. They were tried, subsequently and upon indictment, on two occasions. At their first trial, the jury could not agree upon any verdict. At the second trial, all three men were found guilty, and were sentenced thereupon to substantial terms of imprisonment. The convictions and sentences were appealed unsuccessfully, both to the New South Wales Court of Criminal Appeal and to the High Court of Australia. 7 Later, and as a consequence of sustained public and political agitation, a judicial inquiry was established and was conducted by Wood J of this Court (as his Honour then was). The report of that inquiry found that reasonable doubt existed as to the soundness of all of the convictions; and thereupon the three men, - (“the Ananda Marga three”, as they have come to be described frequently), - were released after having spent some years in prison. 8 Between the dismissal by the Court of Criminal Appeal of the appeals brought to that Court, and the further appeals to the High Court, a coronial inquest was held into the deaths resulting from the Hilton Hotel bombing. That inquest was terminated by the Coroner, and as by law required, upon the finding by the Coroner of a prima facie case of murder against Messrs. Alister and Dunn. 9 The plaintiff was a crucial prosecution witness in the committal and in the two subsequent trials; and was an equally important witness both at the coronial inquest and at the judicial inquiry conducted by Wood J. 10 This standing of the plaintiff made him a figure of tremendous forensic controversy. Those who appeared professionally at various times for the three accused men sought, as they had, of course, to do, to discredit the plaintiff. He was attacked as a fantasist at best; a cold-blooded liar and perjurer at worst. Any opinion concerning the probity of the prosecutions of the three accused men became, - and as the present hearing demonstrates, continues to be, - inextricably interwoven with opinion about the probity of the evidence given by the plaintiff in the five sets of proceedings earlier described. 11 The subject book, whatever else is to be said fairly about its contents, is a paradigm of that interweaving.
“Then in February 1978, despite an extensive security operation, a bomb exploded in a garbage bin outside the Hilton Hotel in Sydney where various Commonwealth heads of Government, including the Indian Prime Minister, Morarji Desai, were gathered. Three people were killed and several seriously injured. Almost immediately, Ananda Marga was blamed. The Indian Prime Minister himself accused it, though conceding that he had no evidence. An enormous investigation was begun.
Into this unstable and volatile situation came a figure from the shadows, a young man named Richard Seary, a former drug addict, a drifter and dreamer with a shifting sense of reality. Within weeks of the Hilton bombing, he had joined Ananda Marga as a police informer; his mission was to find out if they had anything to do with the Hilton bombing.
Time went by, and though Seary reported regularly, he had nothing about the Hilton bombing. But after some three and a half months he contacted the police late one afternoon, and told them that there was to be a bombing that night. He himself was to drive the car for the expedition. Acting on Seary's information, the police followed the car and pulled it over. There was a bomb in the back seat. Seary said that the others had brought it; they said that, unknown to them, he had brought it. Some days later Seary added to his account of events that night the allegation that during the journey the others had confessed to having done the Hilton bombing.
That is the case at the centre of this book. To what extent its circumstances were the creation of the devious mind of Richard Seary is the essential judgment which the reader will have to make."12 It is convenient to begin by noting the terms in which this defence was pleaded and particularised by the defendant:
The Defence of Qualified Privilege at Common Law
13 The particulars of ‘Public Interest’ referred to in that pleading are stated as follows:
“(i) COMMON LAW
the Defendant published the matter complained of pursuant to the social or moral duty of do (sic) so and specifically, to inform that section of the community that had a special interest in the public and parliamentary debate on the issued particularised herein under ‘Public Interest’. The recipients of the matter complained of had a special interest in receiving the matter complained of because they were members of the public and because the matter complained of related to the matters of public interest stated above, and because of the extreme seriousness of the problems relating to the administration of justice, which affected a substantial section of the Australian community.”14 It is necessary to keep in mind when considering the defence thus pleaded and particularised two propositions, namely:
“(i) the conduct of the Plaintiff as a spy and/or double agent to expose criminal conduct;
(ii) the conduct of the New South Wales judicial system;
(iii) the circumstances in which three members of Ananda Marga namely Dunn, Anderson, and Alister, came to be wrongfully arrested for and accused of crimes as a result of the wrongful or perjured testimony of the Plaintiff;
(iv) investigation of serious crime; and
these matters were all inherently matters of public interest.”
15 The relevant principles of law which have then to be applied to the defence as thus understood are not easy of particular and practical application in the present case; but they are at least reasonably well-settled in theory. They can be summarised conveniently by reference to the relevant portions of the judgment of McHugh J in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 260-264:
(2) that the incidents of that occasion which are said to attract the relevant privilege are the existence of a duty in the defendant to publish the subject book, and a corresponding interest in recipients of the book to have published to them the contents of the subject book, and the defamatory imputation now relevant and conveyed by the subject book.
(1) that the occasion said to have been one of qualified privilege was the occasion of the publication in 1986 of the subject book. (The fact of its having been published by the defendant, although denied on the pleadings, was in fact not disputed at the hearing.)
16 When, as in the present case, the defaming publisher claims the protection derived from a social or moral duty to publish, it is important to be clear about the nature and extent of such duty which the law will accept as attracting the relevant privilege. A useful analysis of both the relevant law and the difficulties of its application is contained in the following passage from the judgment of Scrutton LJ in Watt v Longsdon (1930) 1 KB 130 at 143-144:
“At Common Law, it is a defence to the publication of defamatory matter that the matter was published in good faith on an occasion of qualified privilege. Statements ‘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’ are privileged even though they contain untrue defamatory statements. However, the defence of qualified privilege is generally not available where defamatory matter is published in a newspaper. At common law, the defence is not open unless the recipient of the publication possessed an interest in receiving or was under a duty to receive the communication that corresponded with the interest or duty of the person making the publication. ……
Reciprocity of interest or duty is essential to a claim of qualified privilege at common law. The need for reciprocity usually defeats a claim of qualified privilege where the publication has been made to the general public. Only in exceptional cases does a person have an interest or duty to publish defamatory matter to the world at large. Both in Australia and elsewhere, common law courts have repeatedly held that a person has no legitimate interest or duty to publish defamatory matter to the general public if no more is established than that the subject matter of the publication is one in which the public is interested. In Howe & McColough v Lees , Higgins J said that the word ‘interest’ was not used in any technical sense. However, his Honour said that the person must not be ‘interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news’. In the same case, O’Connor J said that the interest must be ‘of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it’.
As the decided cases show, however, circumstances may exist where the interest of the general public in a particular subject is such that a defence of qualified privilege is available even though the communication is made to the general public by means of a newspaper or other medium of general circulation. If a subject is one of public interest, members of the public have the requisite interest in receiving information on that subject from persons who have a corresponding interest or duty to communicate that information to the general public. ……………
In determining whether a person has a legal, social or moral interest or duty to publish to the world at large, the extent of the publication and the proportion of readers who have a legitimate interest in receiving the communication are relevant factors to be weighed. It has long been established, however, that qualified privilege is not lost simply because the communication is read, seen or heard by persons having no legitimate interest in receiving the communication. If publication in a newspaper or by radio or television is the only reasonable mode of communicating with the public, qualified privilege will not be lost because it is read, seen or heard by persons who have no legitimate interest in receiving the communication.
Although, as the foregoing account of the case law demonstrates, the common law has upheld defences of qualified privilege for publications to the world at large, common law courts have taken a restricted view of the occasions when a person has an interest or duty to publish material to the general public. Protection of reputation has generally been preferred to the right of the public to know. It is not surprising that successive generations of common law judges have been loath to extend the categories of qualified privilege to protect publication in the general media. Although the tort of defamation law became established at an early stage in the history of common law, the defence of qualified privilege, as we know it, was not recognised until the first part of the last century. New legal doctrines take time to win general acceptance in the legal profession, and the low quality and sensational nature of significant parts of the late nineteenth century and twentieth century media have not been conducive to the extension of a defence that protects the publication of untrue defamatory material. However, as Cockburn CJ is reported to have said ‘those who administer [the law of qualified privilege] must adapt to the varying conditions of society’.”
17 But, if “no definite line can be drawn”, various judicial attempts have been made to draw a broadly settled one. Those attempts do not go ultimately, - and probably could never do so, - beyond averring that everything depends upon the circumstances of the particular case. A good example is provided in the following extract from the speech of Earl Loreburn LC in James v Baird (1916) S.C (H.L) 158 at 163-164, as cited in Gatley on Libel and Slander: Ninth Edition: at page [331]:
“The question whether the occasion was privileged is for the judge, and so far as ‘duty’ is concerned, the question is: Was there a duty, legal, moral or social to communicate? As to legal duty, the judge should have no difficulty ; the judge should know the law; but as to moral or social duties of imperfect obligation, the task is far more troublesome. The judge has no evidence as to the view the community takes of moral or social duties. All the help the Court of Appeal can give him is contained in the judgment of Lindley LJ in Stuart v Bell ; ‘the question of moral or social duty being for the judge, each judge must decide it as best he can for himself. I take moral or social duty to mean a duty recognised by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal. …………….. .
Is the Judge merely to give his own view of moral and social duty, though he thinks a considerable portion of the community hold a different opinion? Or is he to endeavour to ascertain what view ‘the great mass of right-minded men’ would take? It is not surprising that with such a standard both Judges and text-writers treat the matter as one of great difficulty in which no definite line can be drawn."
18 In the case of the subject book, the relevant circumstances and considerations are, in my opinion, as follows:
“In considering the question whether the occasion was an occasion of privilege, the court will regard the alleged libel and will examine to whom it was published, when, why, and in what circumstances it was published, and will see whether these things establish a relation between the parties which gives rise to a social or moral right or duty, and the consideration of these things may involve the consideration of questions of public policy.”
19 Once again it is convenient to begin by noting the terms of the defendant’s pleading. They are as follows:
(1) The book was published in 1986. By that time the plaintiff’s probity had been subjected to sustained, repeated, searching, critical and public attack.(2) Findings adverse to the plaintiff’s probity had been made, publicly, by Wood J; and adverse comments about the plaintiff’s probity had been made, publicly, by Murphy J in the High Court of Australia. All of those comments are picked up in terms in the Foreword to the subject book.
(3) By the time the subject book was published, Wood J had delivered his Report; the Ananda Marga Three had been pardoned and released; and the plaintiff had departed the scene, burdened by his experiences, and having to make, as best he could in the wake of those experiences, something of the remainder of his life.
(4) The subject book shone a new, and a very sharp and unflattering light onto the plaintiff. It characterised the plaintiff, in the clearest and most uncompromising fashion, as a wilful perjurer who had not scrupled to lie away the liberty of three innocent men. As I have earlier remarked, the subject book interwove closely and tightly its criticisms of the plaintiff, and its criticisms of the police, and the security intelligence, services, and of the judicial system.
(5) That those views of the defendant, expressed as trenchantly as they were in fact, were views honestly and reasonably held, - as the defendant of course contends, and as I will assume for the purpose of the present particular discussion, - cannot be, in my opinion, decisive of the question whether there was, in the requisite legal sense, a duty, social or moral, to give voice to them. A fortiori , when voice was so given in a book published to the world at large, and under cover of a Foreword, written by an apparently informed and independent author, proclaiming to that same world at large that the defendant “with superb clarity, as in a diagram ……has preserved for ever the injustice wrought on these three innocent men, and the evils of their wrong conviction” .
(6) Nor can it be, in my opinion, decisive that the book was published for lawful commercial gain to the defendant. But that is, in my opinion, a factor of some real weight. It would be wrong to see the publication of the subject book as having been simply an altruistic exercise.
(7) There was no particular, relevant personal relationship between the plaintiff and the defendant. If public policy looks askance, as it has been held repeatedly to do, at the extension of qualified privilege to general defamatory publications by newspapers, telecasts and radio broadcasts, then there would seem to me to be no logical reason why the same approach should not apply to a general defamatory publication in the form of a book. I think that any reasonably well-read and well-informed members of the contemporary Australian community would think that McHugh J’s observations about ‘the low quality and sensational nature of significant parts of the late nineteenth century and twentieth century media’ would all too readily embrace books, and in particular books of occasional political, social and moral content.
(8) The defendant submitted that publication at large of the subject book equated to “a public meeting on a topic of public concern, available to all, but likely to be attended only by those with a special interest in the topic; such a meeting is normally regarded as an occasion of qualified privilege” .
I do not accept that submission. “A public meeting ………..available to all” is precisely that; and a person who uses it as an occasion for the publication of defamatory untruths should not be encouraged to expect, and is in my opinion not entitled to expect, that he can so conduct himself with impunity as of course.
(9) Doing my best to bring into a sensible balance all of the foregoing matters, I have come to the conclusion that the defendant has not established on the probabilities the existence of a social or moral duty incumbent upon him at the time of the publication of the subject book, and apt to attract to that occasion of publication the defence of common law qualified privilege.
The Defence of Statutory Qualified Privilege
20 The particulars of “Public Interest” as noted previously and at paragraph 13 herein are provided in connection with the defence of statutory qualified privilege, as well as in connection with the defence, earlier considered, of qualified privilege at common law. 21 Section 22 of the Act, upon which the defendant now relies, is in the following terms:
“(ii) DEFAMATION ACT SECTION 22
(a) the subject or subjects of the matter complained of were the matters of public interest stated above;
(b) the Defendant ……..(relies) …….. upon that interest and apparent interest;
(c) the reasonable grounds for the defendant’s relief that the recipients of the matter complained of had an apparent interest were that the matter complained of related to the subjects referred to above and the Defendant believed that those recipients were members of that section of the community that had a special interest in the public and parliamentary debate on the issues particularised herein under ‘Public Interest’;
(d) the reasonable grounds for the Defendant’s belief that the recipient were members of that section of the community referred to in (c) above, were that the Defendant prepared the matter complained of in the form of a book of scholarly style and content for those persons to read;
(e) the Defendant’s conduct was reasonable in the circumstances because …… (he) ………believed what ……….(he)………….published to be true and took care to form a belief in the accuracy and fairness of the information and comment contained in the matter complained of. The Defendant ……….(was) ……….satisfied as to the authenticity and accuracy of the sources of the information available when preparing the matter complained of. The Defendant …………….(was)………..satisfied as ……….(to)……… the fairness of the language and the manner in which the matter complained of was composed and presented. The Defendant ……….(was)……….. satisfied that the months of research and meticulous enquiries made not only by ……….(himself)…….. but by the Courts into the accuracy of the Plaintiff’s testimony at various hearings was such that publication of the matter complained of was reasonable.”
22 In Austin v Mirror Newspapers Ltd (1985) AC 299, the Judicial Committee of the Privy Council approved the view, expressed by the New South Wales Court of Appeal in Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749, that the effect of s.22 of the Act is “to substitute reasonableness in the circumstances for the duty or interest which the common law principles of privilege require to be established”. The Privy Council added its own observation that the Act “was clearly intended to widen the scope of the common law defence of qualified privilege” [ (1985) AC, 312D and G ]. 23 In applying s.22, as thus construed, to the defendant’s book, it is necessary to define clearly what constitutes the “subject”, the giving of “information” about which is said to attract the statutory privilege. 24 In my opinion the “subject” of the defendant’s book can be defined as: “whether justice, or injustice, was done to Messrs. Anderson, Alister and Dunn in, and in connection with, the connected sequence of curial and judicial proceedings to which they were parties”. 25 It must next be asked, in the terms of s.22(1)(a), whether the defendant has proved on the balance of probabilities that “the recipient” had an interest, or an apparent interest, in having information on that subject matter. The following points thereupon call for consideration. 26 First, the notion of “the recipient” cannot be given any precise definition because the subject book was put, upon publication, on general sale to the public. The defendant gave, in that connection, the following evidence which was not contradicted and which I therefore accept:
“22(1) Where, in respect of matter published to any person -
(a) the recipient has an interest or apparent interest in having information on some subject;
(b) the matter is published to the recipient in the course of giving to him information on that subject; and
(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances,
there is a defence of qualified privilege for that publication.
(2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest.
(3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward.”
27 The effect of this evidence is, in my opinion, that the recipients of the book comprised, at least:
“Q. Do you remember, off hand, your sales figures on it - I know I have asked you this before, but it was in excess of 3,000 in paper back?
A. No, it was only just over 3,000. If you are asking me my recollection, it was in the very low thousand 3,000. That was the total print run. By no means were all of those sold, because I still have probably 200 at home and at one stage I gave away a considerable number to people I knew who were lecturers at university law schools and they gave them to their students. I couldn’t tell you how many, but in some hundreds. I think they came in boxes of 25 books; 20 hard books, which there are very few, and 25 paper book which were heavy and I remember delivering some number of the books to those people, which reinforced my views about the prospects of the sale of such a book.” (trial transcript 237 (40) - (55)
28 It is not possible further to quantify that total readership. This aspect of the present case is not like, for example, the corresponding aspect of the case of Austin, previously cited. There, the publication was in a major metropolitan daily newspaper, having a circulation, as noted by the Privy Council, in the order of 353,000 copies. Here, the probable reach of the publication was much less extensive. Of course, that is not to say that it was in any sense insignificant. The distribution throughout the general community of, as it would seem from the evidence, in the order of 2,000 copies of the subject book, was more than wide enough to do a great deal of real damage to the reputation of anyone who was imputed by the book to be a proven liar and perjurer who had made a major contribution to an appalling miscarriage of public justice. 29 Secondly, it has to be decided whether the “recipient”, thus understood, had “an interest or an apparent interest” in receiving “information” on the “subject”, as previously defined, of the defendant’s book. 30 In this connection, the advising of the Privy Council in Austin establishes the following propositions:
(b) persons who did not themselves buy the book, but were given it, in whatsoever particular circumstances, to read and who then read it.
(a) persons who actually bought and read the book; and
31 The principles thus established entail, in my opinion, that the defendant has plainly satisfied the requirements of paragraphs (a) and (b) of section 22(1) of the Act. 32 It remains for the defendant, if he is to succeed on the defence of statutory qualified privilege, to satisfy on the probabilities the requirements of paragraph (c) of section 22(1). Once again, it is useful to begin by setting in place some basic propositions. 33 First, paragraph (c) focuses on the defendant’s conduct in connection with the publication, not of the book as a whole, but of the defamatory imputation carried by the published material: “The more serious the imputation, the greater the obligation on the defendant to ensure that his conduct in relation to it was reasonable”: Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374 per Hunt AJA at 387E. 34 Secondly, what conduct is “reasonable in the circumstances” of a given case will depend upon the particular facts of that case. It is, however, possible to define certain factors that are of general application. It is convenient to do so by way of further reference to the judgment of Hunt AJA in Morgan. His Honour says:
“1. Information , in this particular statutory context, embraces both fact and opinion.
2. Interest , in that same context, embraces “any matter of genuine interest” to the readership of the subject book; “and there are as many matters of opinion that will be of general interest to the readership ………as there are facts upon which such opinions are based” . (1986) AC, 313A
35 Thirdly, there being on the facts of the present case no doubt at all that the defendant intended to convey the defamatory imputation in question, the defendant must satisfy the Court on the probabilities that he believed in the truth of that imputation: Morgan per Hunt AJA at (1991) 23 NSWLR 387F. 36 As to the third matter in the foregoing sequence, I am satisfied that the defendant did have in fact that belief. The defendant himself gave clear and positive evidence to that effect. I do not see that the evidence was either wholly destroyed, or shaken in its substance, by cross-examination. I accept that part of the defendant’s evidence. 37 As to the four matters (a)-(d) previously mentioned, I am of the opinion that the factor (d) is clearly established on the face of the published material. Whether the other three factors, (a) - (c) have been established by the defendant on the probabilities, depends upon an analysis of the relevant evidence given at trial. 38 In his evidence in-chief, the defendant said that he had first become interested in the case of the Ananda Marga Three in 1979. He was working at the time for the A.B.C. producing radio programmes. His attention was drawn to the first of the two trials, which was then current. The defendant did not spend any great length of time at this first hearing; but he did drop in to it from time to time. The impression that it made on him, he explained as follows:
“The defendant must also establish:
(a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate), by making proper enquiries and checking on the accuracy of his sources;
(b) that his conclusion (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained;
(c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and
(d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers.” : see at (1991) 23 NSWLR, 388B/C.
39 When it came to his notice that the jury had not been able to agree upon a verdict in the case of any one of the three accused persons, and that there was to be in consequence a second trial, the defendant made it his business to attend parts of that trial also. His best recollection was that he had seen, in that connection, at least a part of the plaintiff’s evidence as it was being given. 40 The defendant said that he had remembered aspects of the two trials over the following years until 1981 when he had conceived the idea of looking again at the trials as potential sources of material from which he might fashion one or more radio programmes of the kind which he was then producing. The defendant did in fact obtain various materials connected with the two trials; and did in due course produce and broadcast two one-hour radio programmes. There ensued some listener feed-back, the tenor of some of which tended to strengthen the defendant’s own growing conviction that there was something amiss in the convictions of the Ananda Marga Three. The defendant described as follows what then ensued:
“I was particularly struck, from the sections of the case that I attended, by some aspects of it which seemed to me somewhat unusual - illogical, is the best single word perhaps. Among which I now remember as perhaps the only clear example what always struck me and still does as the bizarreness of somebody driving a car with two people in it who, on his account, agreed to send off a bomb if they’re stopped, when he has arranged for surveillance of what they are doing, and it is at least reasonably likely that they’re going to be stopped.
I remember walking back from one occasion when I was at that trial when thinking about that event said, thinking of that, it was extremely puzzling and bizarre and anti-logical.”
41 And so, the defendant set to work on the writing of the subject book. The exercise took a long time, being done intermittently and as opportunities arose; and being necessarily interrupted from time to time by developments concerning the cases of the three convicted men, principally in the form of the Hilton bombing inquest and of the subsequent inquiry conducted by Wood J. The defendant described as follows what he had been trying to achieve as he progressed with the writing of the subject book:
“By that stage, I can’t pin it down precisely, but around that time, I had become fairly firmly persuaded that the case was, in fact, a serious miscarriage of justice. When I say ‘by that stage’, I mean after I had done all the work and put those programmes together. At some point around there, perhaps up to a year or so after I made the programmes, again I can’t tie that down exactly, I decided that I should write a book about the case.”
42 The defendant attended the whole of the Hilton bombing inquest. After its conclusion he obtained a transcript and “a large amount of associated material”, the precise details of which the defendant could not recall except to say that it included witness statements of the various witnesses and some additional material such as police running sheets. Thereafter the defendant continued work on the subject book. 43 In due course, the inquiry conducted by Wood J was formally established. The defendant made contact with various of the professional legal representatives of Messrs. Anderson, Alister and Dunn; and was eventually retained formally as part of the team of such representatives acting on behalf of the three petitioners before the inquiry. The defendant’s work in that connection occupied him full-time from August 1984 to February 1985. The defendant was closely involved in the inquiry. Part of that involvement concerned the preparation of the detailed submissions made to Wood J on behalf of the three petitioners. At the conclusion of the inquiry the defendant was in possession of a very large amount of transcript and ancillary documentation deriving from the work done in connection with the enquiry. 44 After the conclusion of the inquiry, the defendant continued to write the subject book, working from time to time in what spare time he had from his other personal and professional preoccupations. After the publication of Wood J’s report, the defendant obtained a copy of the report and studied it closely. He found himself in agreement with parts of it and in disagreement with other parts of it. 45 The defendant finished writing the subject book “somewhere in late 1985”. He was not optimistic about finding a commercial publisher for the work; and, ultimately, he published it himself but had it distributed to the retail trade by a commercial distributor. 46 The defendant, having given the evidence which I have summarised, described as follows his approach, over all, to the writing of the subject book:
“I wanted the book to be a documentation of all the major aspects of the case so that people who were concerned about what I saw as an important public issue, an important question of public interest, those who were willing to spend the effort to search out the book, by whatever means, and willing to spend the time and effort of writing (sic: but read ‘reading’) a fairly sizeable treatment, would have something available to them so that they could find out great and complex details about it which they have no chance of getting from any other source.”
47 The plaintiff rounded out this summary of his approach to the subject book by explaining that he had chosen the illustrations which appear throughout the subject book; and that he had done so having in mind, in particular, what he saw as the importance of recreating in the mind of a reader, in so far as that was possible: “……. the rather over-excited atmosphere of the time, as I judge it in some respects ……”. 48 The defendant went on to explain that he had taken particular care to give as full and as fair an account as he could of the case against the Ananda Marga Three, as well as the case in their favour. He said that his approach had been that it was not possible “with credibility or honesty for that matter, effectively (to) take apart a case without first acknowledging what its strengths are, what its high points are. I thought it was necessary to reproduce in quite extensive form the precise terms of the evidence against the three men in relation to the Yagoona matter; and that is really the reason why there are such extensive verbatim extracts from the transcript of the second trial, being the one which secured the convictions, throughout the chapters which deal with the afternoon of Thursday, 15 June, the question of crossing Carillon Avenue and who got the bomb, the events out at Yagoona and the events back at Newtown with the press releases.” 49 The defendant explained, finally in his evidence in-chief, that there had been of necessity an element of compression in the composition and structure of the subject book; that it had been necessary on that account to make particular judgments concerning the inclusion or the exclusion of various matters of detail; but that he had sought to keep, overall, a fair balance having regard to the over-riding objective of the subject book, which was to bring to the public attention what he, the defendant, himself believed genuinely then, and believes genuinely now, to have been a serious miscarriage of public justice deriving in large part from the perjury of the plaintiff. 50 The defendant was extensively cross-examined. Two or three different particular lines of cross-examination were followed by the cross-examiner; but, in one way or another, they all had to do with a constant theme, namely, the propositions, put repeatedly to the defendant in cross-examination, that he had been, from the first, a partisan ally of the Ananda Marga Three; and that this partisanship had caused him to ignore material available to him in connection with the writing of the subject book and either casting the Ananda Marga movement in an unflattering light; or reflecting favourably, at least to some extent however limited, upon the plaintiff. 51 I have come to the conclusion that the defendant’s evidence is, to speak in general terms, reliable and truthful; and I accept it. I do not accept that the available evidence, considered fairly, demonstrates partisanship on the part of the defendant of so extreme a kind as led to his deliberate suppression in the subject book of material, then available to him, and capable if accepted of contradicting the substance of the imputation which is now in point. 52 I have come to the conclusion that the defendant has established on the probabilities each of the matters referred to in the paragraphs (a), (b) and (c), as set out in paragraph 35 of this judgment. It follows that, in my opinion, the defendant has established the defence of statutory qualified privilege. Whether that defence has been successfully rebutted by proof of malice in the defendant is a separate question to which I shall return later in this judgment.
The writing of the book was a quite vast effort, really. I tried throughout to carefully cross check everything I wrote. I believe I did. Indeed, I would say I went through an exercise of some scupulousness in ensuring that I was, to the best of my ability, accurately representing the events I described and the material I was reproducing.
The account of the inquiry in particular was a very difficult one, because it was an exercise not only in compression, but finding a workable narrative shape to fit it all into. One of the difficulties with detailed analysis is that it often stops dead the momentum of the narrative and there is considerable difficulty in finding an accommodation between those two. I don’t know if I succeeded, but I am very conscious that one of the difficult aspects of the task was to find some accommodation that developed a narrative and also which has an inter-relationship between things in a progress order and also to get successfully into a detailed analysis of things.
I was well conscious there were selections to be made. There were things I decided not to include. There were a number of, for example, arguments in favour of the petitioners’ case. I think a number of findings made in a general case which would be in their interests by Justice Wood which I regarded as, let’s say, second rank, less important, and probably fairly represented in their nature by other matters that I regarded as more important and some of those second rank things are left out. In the nature of the inquiry, I thought that was quite inevitable if any treatment of practical length was to be devised.
The complaint in this case, the imputation complained of, that the plaintiff framed members of the Ananda Marga by committing perjury, is something I have believed for a very long time - it is still my belief now. It certainly was throughout the time of writing and publishing the book. It became intensified by some of the matters which surfaced at the inquiry.
I should say I do not claim now to be able to revisit, to recall, the whole process mentally or physically that I went through in researching the book and writing it. At this distance, any attempt by me to do that is likely to be a recreation of what I thought I would have done rather than what I actually did. I can’t account now for the process by which I originally arrived at that conclusion. I think I was fairly firm in it, at least after the Hilton Inquest - from then on.
My reasons for that belief are in the book and I don’t know that sensibly I could put them in any priority order and there is a cumulative effect, in any event, as between them.”
53 Once again, I shall leave for later consideration in this judgment the question of malice in the defendant. 54 Malice apart, the defendant must establish on the probabilities that the relevant imputation is:
The Defence of Comment
55 In the present case, it seems to me to be clear that the relevant imputation is carried by the subject book as a matter of comment on the part of the defendant. I think that the imputation represents, upon a fair reading of the subject book, a fundamental thesis or conclusion for which the defendant argues upon the basis of the material that he canvasses in the book. 56 The statutory concept of “proper material for comment” is the subject of definition in s.30(1) of the Act. Broadly speaking, material will be regarded as “proper material for comment” if it fits within any one of three nominated categories, namely:
(i) a comment rather than a statement of fact;(ii) that it is a comment referable to what is described in s.30 of the Act as “proper material for comment” ;
(iii) that the comment relates to a matter of public interest; and
(iv) that the comment, at the time it was made, represented the opinion of the defendant.
57 The defendant submits that the imputation now relevant is comment made by him upon the substance of a number of proceedings, reports of which are protected reports within the meaning of s.24 of the Act. Schedule 2 to the Act specifies a number of different kinds of proceedings for the purposes of s.24. Those specified categories of proceedings include:
(a) a statement of fact; or(b) a protected report within the meaning of s.24 of the Act, or
(c) material upon which, for some other reason, comment might be based for the purposes of this particular defence.
58 The defendant submits that the material upon which his defamatory comment is based comprises the whole sequence of judicial and quasi-judicial proceedings to which reference is made early in this judgment; that is to say, the committal proceedings against Messrs. Anderson, Alister and Dunn; their two subsequent trials and the appeal proceedings consequent upon those trials; the inquest into the bombing of the Hilton Hotel; and the inquiry conducted by Wood J. The defendant submits that all of these proceedings fit either of the two specified categories referred to above. 59 In my opinion, these submissions of the defendant are correct. The subject book seems to me to report fairly the substance of each set of the relevant proceedings; and by so doing to constitute within the subject book a body of material correctly described as “proper material for comment” in the requisite statutory sense. 60 There is uncontradicted evidence from the defendant that the comment, at the time it was made, did indeed represent his honest opinion. I accept that evidence. 61 I am satisfied as to the existence of the requisite element of public interest. That there had been a serious miscarriage of public justice leading to the wrongful conviction and imprisonment of these innocent men; and that a prime factor in the occurrence of that miscarriage had been perjured evidence by the plaintiff, given in order to cause that miscarriage; were, in my opinion, clear matters of public interest. 62 I am of the opinion, therefore, that, subject to its rebuttal by reason of malice in the defendant, this particular defence has been established.
“(5) Proceedings in public of a court;
(6) Proceedings in public of an inquiry held under the legislation of any country or held under the authority of the government of any country.”
63 By reason of the provisions of s.15 of the Act, the defendant cannot succeed on this defence unless he establishes on the probabilities that the relevant imputation:
The Defence of Truth
64 For reasons already explained, I am of the opinion that the relevant imputation both relates to a matter of public interest, and was published under statutory qualified privilege. The only remaining issue is, therefore, whether the defendant has established on the probabilities that the imputation is substantially true. 65 In that connection, the appropriate starting point is, I think, a realistic appreciation of the extreme gravity of the allegation which is made against the plaintiff by the relevant imputation. In such a context, it is very much to the point that there be kept carefully in mind the principles, a classic definition of which is to be found in the judgment of Dixon J in Briginshaw v Briginshaw & anor [1938) 60 CLR 336 at 361, 362. The relevant passage reads as follows:
2. either relates to a matter of public interest or is published under qualified privilege.
1. is a matter of substantial truth; and
66 The succinct and helpful written submissions put in by the defendant outline with complete clarity the factual bases for the contention of the defendant that the relevant imputation can be demonstrated, to the requisite standard of proof, to be substantially true. A paraphrase of the defendant’s outline will not do, I think, justice to what is being argued. I have therefore adopted the expedient of attaching to the present judgment a photocopy of the relevant portions of the defendant’s written submissions. 67 It will be seen from what follows that, in coming to a conclusion upon the issue of substantial truth, - (and in coming, later herein, to a conclusion concerning the related defence of contextual truth), - I rely heavily upon the findings made by Wood J in his Honour’s report of May 1985, being the report of the Inquiry, earlier herein referred to, held by his Honour under s.475 of the Crimes Act 1900(NSW). Volumes 1 and 2 of his Honour’s report are exhibit O in the present proceedings, having been so received in evidence upon a tender by the plaintiff. The contents of those two volumes have, therefore, legitimate standing as evidence available for my consideration in connection with the present proceedings. I acknowledge, at once, that it would be entirely inappropriate for me simply to transpose into the different context of the present proceedings, conclusions reached by Wood J in connection with his Honour’s Inquiry; and I have been careful throughout not to make any such simplistic and undiscriminating transposition. I have kept in mind, throughout, that the weight to be given for my present purposes to any of the particular conclusions reached by Wood J must be considered in the light of any relevant evidence particular to the present proceedings. 68 All of that said, I think, nevertheless, that it is proper to give considerable weight to the conclusions reached by Wood J. I say so for the following reasons. 69 First, it is apparent on the face of Exhibit O that Wood J was able to enquire, with a breadth and in a depth wholly beyond the scope of the evidence in the recent hearing in this Court, into the details and complexities of the facts and circumstances out of which there emerged the committal proceedings, the two trials, and the Hilton bombing inquest, to all of which I have previously made reference. 70 Secondly, Wood J had the advantage, which I did not enjoy, of top-level and independent legal professional representation of all interested parties who were heard by his Honour during the course of the Inquiry. One has only to read the list of acknowledgments on page 453 of the report, in order to see at a glance the breadth and the depth of the independent legal professional assistance that was available to his Honour. At the recent hearing before this Court, by contrast, the plaintiff represented himself, as did the defendant. The defendant is, of course, a practising member of the Bar. This gave him, vis a vis the plaintiff, obvious forensic advantages. It gave him, also, professional learning and experience that were, if I may say so, of real assistance to the Court. The plaintiff, on the other hand, had to do the best he could with virtually no legal professional assistance. As the trial transcript will show, the Court had to tread constantly the fine line between giving some assistance to the plaintiff in order that he might be, as it were, pointed in the right direction; and not interfering in such a way as would raise in the mind of the defendant a reasonable apprehension that the Court was losing its necessary impartiality. 71 Thirdly, Wood J had the advantage of seeing the plaintiff in the witness box. The plaintiff’s experience on that occasion moved Wood J to comment: “There can be few if any witnesses who have been subjected to such a prolonged and minute attack in the witness box”. Of course, Wood J did not see the defendant in the witness box, because the defendant actually appeared as one of three counsel representing Mr. Alister at the Inquiry. My experience in the recent trial has been exactly the opposite. I had the advantage of hearing the defendant give evidence; and I had the further advantage of seeing him tested, at least to some extent, by cross-examination. The plaintiff did not, however, go into the witness box, although he did call other lay evidence in support of his case. I am not intending by what I now say to criticise the plaintiff for not having gone into the witness box. All that I am saying is that in fact he did not go into the witness box ; and that the necessary result is that I have not had anything like the opportunity that was available to Wood J for the making of a careful and thorough assessment of the plaintiff’s credit. 72 Fourthly, the defendant, as I understand his position, does not contend that Wood J misapprehended the evidence put before his Honour at the Inquiry. The defendant, as is clear from the subject book, takes issue with various opinions expressed by Wood J; and with what the defendant sees as a failure of Wood J to make affirmative findings critical of the police and intelligence services. But, at least as to those conclusions of Wood J to which I hereinafter refer, the defendant, as I understand his position, does not contend that such conclusions were not reasonably open to his Honour. 73 It is not possible to be quite so clear-cut about the corresponding position of the plaintiff. As I have earlier noted, Exhibit O was tendered by the plaintiff; and parts of Exhibit O were referred to specifically in the plaintiff’s submissions. Of course, the plaintiff would not accept the correctness of the adverse findings about him which Wood J made; but that is not to say that such findings were not reasonably open to his Honour. 74 The particular matters of fact and circumstance to which the defendant points in his written submissions seem to me to reproduce the substance of submissions made to Wood J. 75 In dealing more particularly with the submissions now put by the defendant, it is convenient to begin with a consideration of the submissions that are put under the heading: “(iii) The Journey to Yagoona”. 76 The issue thus raised by the defendant in the present proceedings seems to me to equate to an issue which was raised before Wood J, and which his Honour describes at pages 356 and 357 of his Honour’s report in the following way:
“Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”
77 There follows a detailed canvass by Wood J of the relevant evidence given to his Honour’s Inquiry. His Honour then sums up as follows his conclusions:
“The Journal
At the committal, Seary produced a bound notebook which he described as part of a diary of his life, and loose papers which he said were notes for entries to be later included in the diary. Together these documents came to be known as his journal.
The loose notes included a nine-page account of the events of 15th June, which Seary said at the committal, and at the inquest, was probably written on 17th June, 1978. In this section were included conversations, implicating the Petitioners in the Hilton bombing, which were almost identical with the record of interview given on 22nd June. The similarities between these documents is shown in the comparative table within appendix M. This was the record of interview in which Seary first provided the evidence of Ananda Marga implication in the bombing.
It was submitted by the Petitioners that only one inference was open. Seary, it was said, composed an entirely fictional account which he wrote into this journal, and then learned by heart.”
78 I do not see in the evidence available to me anything that would lead logically to a conclusion differing from that expressed by Wood J. Simply to read the passages of the subject book to which the defendant refers in his written outline, re-states rather than resolves the issue. 79 Turning next to that part of the defendant’s outline under the heading: “(ii) The Reporting of the Plot to the Police”, it will be seen that the substance of what is there argued by the defendant turns in a very real sense upon one’s approach to Tape 9. The report of Wood J gives extended and careful consideration to the authenticity of the tape recordings, including Tape 9, of debriefings by the police of the plaintiff. At pages 393 and 394 of his Honour’s report, and dealing with a subject described as “Debriefing Anomalies”, Wood J expresses the following conclusions:
“It is difficult to know what to make of this journal. There are internal inconsistencies if it was intended as a factual account, and there are indications suggestive of a building of the story in the way seen in the records of interview. On the other hand, there are some obstacles to the Petitioners’ submissions. For example, it was Detective Inspector Sheather who decided to interview Seary in relation to the Hilton bombing and who asked to see Seary on 22nd June. No prior warning had been given which would have allowed a drafting and rehearsal of the allegations. Further, had Seary been minded to frame the Petitioners from a rehearsed script, it was unlikely he would have produced the document at the committal, albeit reluctantly. It may be that the writings were made after the event given his predilection for reducing his thoughts to paper. It may also be that this was done bona fide in an attempt to ensure accuracy in his disclosures.
No additional material was produced before the Inquiry to assist in the resolution of this issue. I think it proper, however, to regard the journal as yet another curious facet in the Seary disclosures, particularly as he was equivocal as to its true nature and accuracy. When it was first produced, it was claimed to be part of a continuous diary or record of his life. During the Inquiry it was described as a series of separate notes written as ‘a way of expressing my thoughts’. The notes, he said, were neither complete, nor necessarily accurate records of the events recorded. He later said that there was some purposeful inaccuracies because ‘there was always a chance that someone else would read it and I did not want to keep a perfectly accurate record of what went on because I did not want people to know’. He added that ‘if it wasn’t completely factual, I could deny it, if other people saw it’. This may have been true. Equally, in my view, it was an indication of a willingness to invent an answer on the spur of the moment to deflect an embarrassing question.”
80 Subject to one consideration, I do not see anything in the evidence before this Court that would enable it to come to any more precise a conclusion than that reached by Wood J. 81 The one additional consideration has to do with Tape 9 itself. It was urged by the defendant that I should listen to it for myself. I have attempted to do so, using in the attempt two different tape recording machines. In each case, the tape would not reproduce any of the sounds encoded on it. As best I cant judge, the reason for this malfunction has to do in some way with the tape rather than with the machine. 82 There remain the submissions put under the heading: “(i) The Plot Alleged by the plaintiff” 83 Once again, the anomalies and the inconsistencies to which the submissions refer were the subject of submissions to, and of extensive consideration by, Wood J. So far as I can see from the relevant portions of his Honour’s report, Wood J accepted that these anomalies and inconsistencies cast shadows of doubt over the plaintiff’s version of relevant events; but stopped short of anything in the nature of a positive finding that the plaintiff had given perjured evidence in connection with those events. 84 Once again, I am unable to see in the evidence before this Court anything that compels, logically, any different conclusion. 85 Before concluding what I have to say about this particular defence, I wish to draw attention to some of the final conclusions expressed by Wood J in connection with the credit and the reliability of the present plaintiff. 86 Speaking of the plaintiff’s general reliability, his Honour expressed this final view:
“When Seary’s evidence in relation to the petitioners is carefully examined, in the light of the additional information and documents available to the Inquiry, cause for concern arises. There are inconsistencies apparent in the different versions he recorded, in his own writings, in debriefing sessions, in records of interview, and in sworn evidence given in the various Courts and administrative Inquiries before which the matter has come. In some respects, the material he has provided appears bizarre and improbable. In other respects, it appears not to accord with known facts. Explanations have been given which are not always capable of ready acceptance, or which are themselves contradictory. The information Seary provided implicating the Petitioners has tended to become more detailed. Most noticeably, after several days of silence the Petitioners’ criminal activity was expanded beyond the Yagoona affair to the Hilton bombing.
These matters cannot be considered in isolation from the independent evidence, which for the reasons identified in chapter 10, gives rise to a circumstantial case against the Petitioners on which a jury properly instructed could have convicted. The questions that ultimately arise, however, are these:
Were the Petitioners and police carefully manoeuvred into position by Seary, and the extrinsic facts skilfully manipulated by him, so that a well forged circumstantial case might appear? Alternatively, did the events transpire in the general way that Seary described, leaving him in a position where, convinced of the petitioners’ guilt yet fearful that the Crown case may not be water-tight, he was prepared to embellish and fill in the areas where he suspected problems might arise?
Although I incline to the latter view, I am satisfied that the first alternative cannot be excluded. ……………………”
87 Wood J then turned more particularly to the assessment of the evidence given by the plaintiff in connection with the Yagoona incident. As to that, Wood J expressed these conclusions:
“I am satisfied that the evidence concerning Seary’s background and his everyday dealings, and the expert evidence, showed him to be a person of considerable intelligence and imagination, who craved recognition and status, and who was willing to exaggerate, bend the truth, and lie in appropriate circumstances. I am not satisfied that he was proved to be a mentally disturbed and committed liar or fantasiser, or to be incapable of giving truthful evidence. I am, however, satisfied that a very serious question mark exists in relation to his general reliability, and that if he was minded to fabricate a case against the Petitioners, he could have done so with considerable persuasion.”
88 Relevantly for present purposes, Wood J expressed as follows, and in the concluding section of his Honour’s report, what his Honour described as his: “Overall Conclusion”:
“I am satified that significant inconsistencies and anomalies were identified in the evidence, debriefings and writings of Seary, concerning the Yagoona affair. I am further satisfied that there is a real possibility of his evidence in relation to this matter being false. This may have occurred either in pursuance of a contrived plan on his part, to entrap and frame the Petitioners for crimes of which they were innocent, or out of a misguided desire on his part to strengthen the Crown case against the Petitioners in respect of crimes of which they were guilty. Each is available as a rational inference.”
89 The views expressed in the three extracts which I have just quoted, express precisely the conclusions that I myself have reached upon the much more contained material placed before me in the present proceedings. There is every reason to suspect that the plaintiff did what is imputed to him by the relevant imputation upon which he now sues. But that suspicion, entirely reasonable as I think it to be on the basis of the available material, falls short, and a long way short, of that degree of persuasion which I would need to feel before I was prepared to make an affirmative public finding that the assertions in the relevant imputation are in fact substantially true. So that there will be no misunderstanding upon the point, I wish to emphasise in the plainest terms that what I have just said does not in any way imply a view on my part that there is room for an affirmative finding that the relevant imputation is substantially untrue. I say no more than that I am not satisfied to the requisite standard that the defendant has established this particular essential element of his defence of truth. It follows necessarily that, in my opinion, that defence has not been made good by the defendant.
“I am satisfied that an inference exists that Seary manipulated the Petitioners (and the police), and carefully caused the events to be so ordered as to present an apparently strong case against them. I form this conclusion, having regard to my assessment of his general reliability and his evidence concerning the Yagoona affair, notwithstanding the strength of the independent evidence. While I am unable to say that this is the correct inference to be drawn, it is sufficient for my inquiry to state that it is a rational inference that cannot be excluded.”
90 The defendant has pleaded nine contextual imputations; pleading, also, that as to each such contextual imputation:
The Defence of Contextual Truth
91 The nine contextual implications which are thus pleaded by the defendant are as follows:
1. The imputation is a matter of substantial truth; and2. Related to a matter of public interest; or, in the alternative, was published under qualified privilege; and
3. That by reason of the substantial truth of the contextual implication, publication of the plaintiff’s imputation (b) did not further injure the reputation of the plaintiff.
92 Once again, it is for the defendant to establish, according to the requisite legal standard as previously herein discussed, those matters which must be established in order to make good his defence of contextual truth. I would say at once that, in my opinion, any contextual imputation of the above kinds would relate, in the circumstances of the present particular case, to a matter of public interest in the sense discussed and accepted more than once in what has previously been written herein. 93 As to contextual imputation (i): Wood J, in a section of his Honour’s report entitled: “Seary as the Hilton Bomber?” examines exhaustively this suggestion. His Honour notes that no proposition that he was the Hilton bomber was put fairly and squarely to the plaintiff in accordance with the rule of practice established by the decision in Browne v Dunn. His Honour notes that, instead, the plaintiff had been cross-examined about particular circumstances suggestive of there being reason to think that he, himself, had been the Hilton bomber. 94 After his Honour’s exhaustive canvass of the topic, Wood J expresses the following conclusion:
“(i) The plaintiff had so conducted himself as reasonably to be suspected by lawyers acting for Tim Anderson, Paul Alister and Ross Dunn of placing the bomb at the Hilton Hotel.
(ii) The plaintiff was a perjurer;
(iii) The plaintiff was a liar;
(iv) The plaintiff was a fantasist:
(v) The plaintiff was a thief;
(vi) The plaintiff knowingly received the proceeds of drug thefts from pharmacies;
(vii) The plaintiff was a drug addict;
(viii) The plaintiff was knowingly concerned in acts of supply of illegal drugs, including heroin, LSD, cocaine and indian hemp;
(ix) The plaintiff attempted to procure the bombing of the Homebush Abbatoir.”
95 The evidence before this Court certainly does not improve, in my opinion, upon the position as thus described. 96 I am not satisfied to the requisite legal standard that the defendant has established the substantial truth of this particular contextual imputation. 97 As to Contextual Imputation (ii): The written submissions of the defendant further particularise the alleged perjury. It is said to lie in the following particular pieces of the plaintiff’s evidence on prior occasions:
“I am quite unpersuaded on the evidence before me, that there is a prima facie circumstantial case implicating Seary and the Hilton bombing. No direct evidence of his involvement was led, and there was nothing to suggest that additional material was available to the police which called for further inquiry in this regard. The only conclusion reasonably open is that the identity of the Hilton bomber or bombers remains at large.”
98 As to each of the matters thus particularised, with the exception of that in particular (j), I would not be prepared to make an affirmative finding that the plaintiff had committed perjury in the precise respects propounded by the defendant. In broad terms, I would reach such a conclusion by a process of reasoning similar to that which I have canvassed at length in the immediately preceding section of this judgment. 99 The matter particularised (j) is, in my view, in a different category. Wood J examined exhaustively this particular matter. His Honour came to the conclusion that he “must prefer the evidence of the other witnesses who gave a consistent account of Seary’s activities that was totally contrary to his own evidence”. Upon that basis, and for reasons developed in detail at pages 258-270 of his Honour’s report, Wood J reached the conclusion that: “It is clear that he lied in relation to this matter”. 100 There is nothing in the remainder of the evidence before me that causes me to differ from that conclusion. Upon this aspect of affairs, I would be prepared to make an affirmative finding that the plaintiff gave false evidence on oath to Wood J. 101 As to Contextual Imputation (iii): I am satisfied that this has been established, if by nothing else, by reason of the conclusion to which I have come in respect of contextual imputation (ii). 102 As to Contextual Imputation (iv): In my opinion, this imputation, also, has been established. The material in Exhibit O contains a wealth of evidence supportive of this contextual imputation. It is to be borne in mind, of course, that to say of a person that it is substantially true to describe him as “a fantasist”, does not permit, without more, of the drawing of a rational inference that he did what is alleged against him in the imputation (b) upon which the present proceedings are based. 103 As to Contextual Imputation (v): The plaintiff has never denied, as I understand the available evidence, that he stole a motor vehicle for use in connection with the Yagoona affair. That alone would establish the substantial truth of this contextual imputation. 104 As to Contextual Imputations (vi), (vii) and (viii): These are related contextual imputations in that they all concern some aspect or other of the plaintiff’s history, or suggested history, of drug abuse. 105 These matters, too, were ventilated at the Inquiry conducted by Wood J. Once again, the allegations were the subject of a careful and exhaustive review by his Honour who concluded:
(a) Anderson asked him the previous week-end to find Cameron’s address.(b) He looked up the address overnight at home in an old phone book.
(c) Anderson and Alister synchronised watches.
(d) He was unaware of the conversation on Tape 9 being recorded.
(e) He had not learned by heart the account of the confession by Alister and Dunn to the Hilton bombing which he gave to the police.
(f) Alister and Dunn had confessed on the journey to Yagoona to having done the Hilton bombing.
(g) He did not know to which papers the press releases were directed.
(h) Alister and Dunn resolved on the journey to Yagoona to detonate the bomb if apprehended.
(j) He had not, while a member of Hare Krishna, suggested to other members that they should bomb the Homebush Abbatoir.
106 I see nothing in the other material before me that would entail, logically, any different conclusion. I am not satisfied that these contextual imputations have been shown by the defendant to be substantially true. 107 As to Contextual Imputation (ix): Once again, this matter is one that attracted a great deal of attention at the Inquiry conducted by Wood J. Once again, I see nothing in the evidence before me to indicate, logically, any different conclusion from that reached by Wood J and as recorded in the relevant portions of Exhibit O, and as follows:
“I am not satisfied that he could fairly be described ever to have been a heroin addict. It is clear that he was a drug abuser, but I think that his involvement in this field has been exaggerated by him in his dealings with others.
I take the view that by the time of his recruitment the police were entitled to regard him as a person who had severed his association with narcotics. I am convinced that any continued use of drugs during the period March to July 1978 would have been detected by the police and by the rehabilitation experts with whom he was in close contact at the Queen Elizabeth II Centre. In the result I am unable to conclude that his early history of drug abuse should be held against him. If anything it indicated some strength of character in his successful separation from the drug scene.”
108 I have found that the contextual imputations (ii) in part, (iii), (iv), (v) and (ix) are substantially true. The question has then to be considered whether the combined effect of those substantially true contextual imputations is such that their effect upon the plaintiff’s reputation is not further injured by the imputation (b) on which the plaintiff now sues. 109 There is no way in which this question can be answered with scientific exactness or according to some scientific method. What is involved is a question of degree; and the striking of a comparative balance that strives to reflect the probabilities in the real world. 110 It scarcely needs to be said that the contextual imputations, the substantial truth of which I am satisfied to have been established, would naturally damage the plaintiff’s reputation, and damage it significantly, in the eyes of right-thinking members of the community. But, for my own part, I have not been persuaded that such damage to the plaintiff’s reputation would, as it were, simply outweigh or otherwise neutralise the effect of the imputation (b) upon which the plaintiff now sues. The notion that a person would deliberately contrive to have innocent people convicted of very serious criminal offences, and would so contrive by the giving of extensive, and extensively calculated, perjured evidence, strikes me as a notion that right-thinking and reasonable members of the community would regard with an abhorrence greater, at least to some extent, than the abhorrence with which they would regard a person of whom the relevant contextual imputations were substantially true. 111 In my opinion, therefore, the defendant has not established on the probabilities the defence of contextual truth.
“I am accordingly satisfied that at some time during 1972, the possibility of damaging the Homebush Abattoirs by means of explosives was discussed between persons who were either members or associates of the Hari Krishna movement in Sydney. Whether it was Seary who initiated the discussion or someone else, I am unable to say. I am, however, satisfied that he was involved in the discussions, and that he drove at least three persons out to the Abattoirs in order to show them where the explosives might be placed. It is equally clear that the proposal was rejected as totally unacceptable to responsible members of the movement.
Whether the discussions were seriously entertained by those involved, or were simply the products of macabre jest, or wild talk among young men attracted to an alternative society, is not apparent. That in discussion, Seary fanned the embers of a more radical involvement of the movement in Sydney however cannot be gainsaid.”
112 In finding, as I have hitherto done, that the defendant has established the defences of statutory qualified privilege and of comment, I have expressly reserved in each case the question of malice. If the plaintiff is able to establish malice in the defendant in connection with the publication of the subject book, carrying as it does the imputation (b) upon which, in particular, the plaintiff sues, then those defences would be defeated. 113 It is usual, in the language of the law, to equate malice with improper motive. To put the point in that way is, however, simply to raise the question of how improper motive itself is to be defined relevantly to the law of defamation. The learned authors of Tobin and Sexton: Australian Defamation Law and Practice propound, on the basis of the relevant authorities, seven particular instances of malice in the sense now relevant. They are:
Malice
114 In my opinion, none of the matters referred to above as (a), (b), (c), (d) and (f) could be found reasonably on the evidence to hand. 115 As to the matter (g), I do not think that a fair view overall of the course of the recent trial could justify a finding in the plaintiff’s favour on this particular type of malice. As Tobin and Sexton point out: “An inference of malice drawn from the conduct of the litigation by the conduct of the trial by the particular defendant is: “an inference that the courts are likely to be wary of drawing from the conduct by the defendant, normally through his legal representatives, of the litigation, as any other approach might well inhibit a defendant in his pleading of defences to which he was otherwise entitled”. 116 As to the matter (e), it is, I think, fair to say that the plaintiff, in his submissions on the issue of malice, looked principally to this type of conduct. 117 Conduct of this kind needs to be assessed with some care. As was said by Jordan CJ in Godfrey v Henderson (1944) 44 SR (NSW) 447, at 454:
“(a) Knowledge of the falsity of the defamatory material or absence of belief in its truth;
(b) Recklessness as to whether the matter complained of was true or false;
(c) Failure to inquire as to the truth of the defamatory material;
(d) Introduction of material irrelevant to the occasion of qualified privilege;
(e) Manner and extent of publication, including the language in the matter complained of;
(f) Publication of other defamatory material published by the defendant concerning the plaintiff;
(g) Conduct of the litigation by the defendant, including the conduct of the trial.”
118 There can be, in my view, no denying that the terms of the subject book are very strong. The book is polemical in tone. It argues with clarity, directness, and sometimes with an evident passion, for a point of view in which it is clear the defendant firmly believed at the time he wrote the book; and, indeed, in which he still believes as firmly. The book is rightly seen by the plaintiff as scathing in its treatment of him so far as concerns his conduct in connection with every stage of the proceedings involving Messrs. Alister, Dunn and Anderson. Those considerations, however, cannot be conclusive on the question of actual malice. What is to be looked for in that particular connection is the true motive of the defendant in writing the subject book, carrying as it does the defamatory imputation (b). 119 I am comfortably satisfied that it could not be fairly found on the available evidence that the defendant, in writing the subject book, was actuated by express malice, i.e. some express and improper purpose, concerning the plaintiff. I think that the reasonable inference to draw from the available evidence is, overwhelmingly, that the defendant was utterly convinced that a grievous miscarriage of justice had occurred in the cases of Messrs. Alister, Dunn and Anderson; that the fact of the miscarriage, its particular circumstances, and its implications for the administration of public justice, all required that there be something done to bring all of those matters to the public attention; and that he was particularly well placed to provide that public information. 120 That the subject book is combative in tone and uncompromisingly pungent in its style, does not establish improper motive in the author. There is, so far as I can see, nothing else in the available evidence which, when brought properly to account, would add the element or elements necessary to constitute actual malice. 121 I conclude, therefore, that the plaintiff has not made good his case on the issue of malice.
“It is of the utmost importance in the case of statements made on occasion of qualified privilege, that the privilege which the law casts around such statements should not be nullified by a readiness to treat as evidence of express malice destroying the privilege anything which does not definitely, and as a matter of common sense, point to the actual existence of some express malice which was really operative in the making of the statement; and substantial evidence is required, not surmise or a mere scintilla.”
122 Because I have upheld two in particular of the defences as pleaded, there will be, in the ultimate event, judgment for the defendant against the plaintiff. It is a nice question whether, in those circumstances and in this particular kind of case, I ought to say anything at all about the views that I would have been inclined to take on the question of damages had that question become a live one for me. I think it would be appropriate to follow the comparable practice in personal injuries cases, and say something, however brief, on the question of damages. 123 I do not think that it is necessary in that connection to enter upon a wide-ranging discussion of relevant principle. In my opinion, the plaintiff’s case does not establish quantifiable damage in the sense of quantifiable loss actually sustained. The plaintiff did attempt to introduce some evidence which seemed to me to be aimed at the proposition that the effects upon him of the defamatory imputation had been such as to deprive him of income which he otherwise would and could have earned in an amount that was fairly precisely quantifiable. I do not think that the evidence goes far enough to establish such a case. 124 As I have earlier remarked, the plaintiff himself did not give evidence. He did call, however, evidence from two witnesses on the issue of damage to his reputation; and as to the effect, more generally, upon him of the defamatory imputations. I see no reason not to accept the substance of that evidence. 125 I would have thought it proper to approach the question of damages upon the basis that the defamation of the plaintiff was a serious one, both in its particular terms, and in terms of the circulation given to it. I would have thought it entirely reasonable to approach the matter upon the basis that the publication had caused real hurt to the plaintiff and real damage to his reputation. But I would have thought it reasonable, also, to take sensible account of the practical effects of the way in which the plaintiff’s reputation had been canvassed in public before the publication of the subject book and of the particular defamatory imputation carried by it. 126 Taken for all in all, I would have thought that in this particular case an award in the order of $20,000 would have been a just reflection of the harm done by the particular defamatory imputation.
Damages
127 For the whole of the foregoing reasons, there will be judgment for the defendant against the plaintiff. 128 I will hear the parties on the question of costs. 129 The exhibits will remain in Court for a period of 28 days from today. If within that period there is an appeal against any part of this judgment, then the exhibits will remain in Court pending further order; otherwise the exhibits may then be handed out to the party respectively entitled to them.
Conclusion and Orders
**********JUDGMENT 1 HIS HONOUR: In these proceedings Mr. Richard Seary, [“the plaintiff”], sues to recover damages for libel. The matter of which the plaintiff complains is the entirety of a book entitled “Spies Bombs and the Path of Bliss”. The book, [“the subject book”], was published in 1986, its author being Mr. Tom Molomby, [“the defendant”], whom the plaintiff sued originally as one of two defendants, the other defendant being the author of a Foreword to the subject book. The plaintiff originally sued upon two alleged defamatory imputations, which were pleaded in the following terms:
SUPREME COURT OF
NEW SOUTH WALES
COMMON LAW DIVISIONSULLY J
28 September 1999
13617/91 - Richard SEARY v Tom MOLOMBY
2 On 23 August last the Court, in a reserved judgment, dealt with certain questions that had been separately tried following upon the making of an order in that behalf and pursuant to SCR Part 51. The effect of that judgment was that the plaintiff’s case against the author of the Foreword failed; as did the plaintiff’s case against both defendants in so far as it relied upon the imputation (a) as pleaded. The Court held, however, that the imputation (b) as pleaded was carried in fact by the contents of the subject book; and was, further, defamatory of the plaintiff. 3 Following the delivery of its reserved judgment, the Court heard the balance of the plaintiff’s case against the defendant. That entailed, so far as the plaintiff was concerned, a consideration of the issue of damages; and of the issue of malice as a factor defeating the various defences pleaded by the defendant. The continued hearing entailed, so far as the defendant was concerned, a consideration of the defences of: qualified privilege at Common Law; statutory qualified privilege pursuant to s.22 of the Defamation Act 1974 (NSW), [“the Act”]; comment; justification; and contextual truth. 4 This present judgment will deal first with the defences, considering them in the order in which they were presented in the closing submissions of the defendant; and will then consider malice and damages. 5 Before embarking upon the consideration of any of those particular issues, it is necessary to describe the general background to them. This can be done initially by reproducing paragraph 34 of the judgment delivered on 23 August:
“(a) The Plaintiff is a murderer.
(b) The Plaintiff framed members of the Ananda Marga by committing perjury.”
6 The so-described “case at the centre of” the subject book gave rise to a connected sequence of legal proceedings. Three young men, named Anderson, Alister and Dunn, were charged with conspiracy to murder, and two of them were charged with attempted murder, in connection with the projected bombing which the plaintiff reported to the police. This bombing was to be carried out, according to the plaintiff’s report of it to the police, at Yagoona, an outer Sydney suburb. The three men were committed for trial upon those charges. They were tried, subsequently and upon indictment, on two occasions. At their first trial, the jury could not agree upon any verdict. At the second trial, all three men were found guilty, and were sentenced thereupon to substantial terms of imprisonment. The convictions and sentences were appealed unsuccessfully, both to the New South Wales Court of Criminal Appeal and to the High Court of Australia. 7 Later, and as a consequence of sustained public and political agitation, a judicial inquiry was established and was conducted by Wood J of this Court (as his Honour then was). The report of that inquiry found that reasonable doubt existed as to the soundness of all of the convictions; and thereupon the three men, - (“the Ananda Marga three”, as they have come to be described frequently), - were released after having spent some years in prison. 8 Between the dismissal by the Court of Criminal Appeal of the appeals brought to that Court, and the further appeals to the High Court, a coronial inquest was held into the deaths resulting from the Hilton Hotel bombing. That inquest was terminated by the Coroner, and as by law required, upon the finding by the Coroner of a prima facie case of murder against Messrs. Alister and Dunn. 9 The plaintiff was a crucial prosecution witness in the committal and in the two subsequent trials; and was an equally important witness both at the coronial inquest and at the judicial inquiry conducted by Wood J. 10 This standing of the plaintiff made him a figure of tremendous forensic controversy. Those who appeared professionally at various times for the three accused men sought, as they had, of course, to do, to discredit the plaintiff. He was attacked as a fantasist at best; a cold-blooded liar and perjurer at worst. Any opinion concerning the probity of the prosecutions of the three accused men became, - and as the present hearing demonstrates, continues to be, - inextricably interwoven with opinion about the probity of the evidence given by the plaintiff in the five sets of proceedings earlier described. 11 The subject book, whatever else is to be said fairly about its contents, is a paradigm of that interweaving.
“Then in February 1978, despite an extensive security operation, a bomb exploded in a garbage bin outside the Hilton Hotel in Sydney where various Commonwealth heads of Government, including the Indian Prime Minister, Morarji Desai, were gathered. Three people were killed and several seriously injured. Almost immediately, Ananda Marga was blamed. The Indian Prime Minister himself accused it, though conceding that he had no evidence. An enormous investigation was begun.
Into this unstable and volatile situation came a figure from the shadows, a young man named Richard Seary, a former drug addict, a drifter and dreamer with a shifting sense of reality. Within weeks of the Hilton bombing, he had joined Ananda Marga as a police informer; his mission was to find out if they had anything to do with the Hilton bombing.
Time went by, and though Seary reported regularly, he had nothing about the Hilton bombing. But after some three and a half months he contacted the police late one afternoon, and told them that there was to be a bombing that night. He himself was to drive the car for the expedition. Acting on Seary's information, the police followed the car and pulled it over. There was a bomb in the back seat. Seary said that the others had brought it; they said that, unknown to them, he had brought it. Some days later Seary added to his account of events that night the allegation that during the journey the others had confessed to having done the Hilton bombing.
That is the case at the centre of this book. To what extent its circumstances were the creation of the devious mind of Richard Seary is the essential judgment which the reader will have to make."12 It is convenient to begin by noting the terms in which this defence was pleaded and particularised by the defendant:
The Defence of Qualified Privilege at Common Law
13 The particulars of ‘Public Interest’ referred to in that pleading are stated as follows:
“(i) COMMON LAW
the Defendant published the matter complained of pursuant to the social or moral duty of do (sic) so and specifically, to inform that section of the community that had a special interest in the public and parliamentary debate on the issued particularised herein under ‘Public Interest’. The recipients of the matter complained of had a special interest in receiving the matter complained of because they were members of the public and because the matter complained of related to the matters of public interest stated above, and because of the extreme seriousness of the problems relating to the administration of justice, which affected a substantial section of the Australian community.”14 It is necessary to keep in mind when considering the defence thus pleaded and particularised two propositions, namely:
“(i) the conduct of the Plaintiff as a spy and/or double agent to expose criminal conduct;
(ii) the conduct of the New South Wales judicial system;
(iii) the circumstances in which three members of Ananda Marga namely Dunn, Anderson, and Alister, came to be wrongfully arrested for and accused of crimes as a result of the wrongful or perjured testimony of the Plaintiff;
(iv) investigation of serious crime; and
these matters were all inherently matters of public interest.”
15 The relevant principles of law which have then to be applied to the defence as thus understood are not easy of particular and practical application in the present case; but they are at least reasonably well-settled in theory. They can be summarised conveniently by reference to the relevant portions of the judgment of McHugh J in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 260-264:
(2) that the incidents of that occasion which are said to attract the relevant privilege are the existence of a duty in the defendant to publish the subject book, and a corresponding interest in recipients of the book to have published to them the contents of the subject book, and the defamatory imputation now relevant and conveyed by the subject book.
(1) that the occasion said to have been one of qualified privilege was the occasion of the publication in 1986 of the subject book. (The fact of its having been published by the defendant, although denied on the pleadings, was in fact not disputed at the hearing.)
16 When, as in the present case, the defaming publisher claims the protection derived from a social or moral duty to publish, it is important to be clear about the nature and extent of such duty which the law will accept as attracting the relevant privilege. A useful analysis of both the relevant law and the difficulties of its application is contained in the following passage from the judgment of Scrutton LJ in Watt v Longsdon (1930) 1 KB 130 at 143-144:
“At Common Law, it is a defence to the publication of defamatory matter that the matter was published in good faith on an occasion of qualified privilege. Statements ‘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’ are privileged even though they contain untrue defamatory statements. However, the defence of qualified privilege is generally not available where defamatory matter is published in a newspaper. At common law, the defence is not open unless the recipient of the publication possessed an interest in receiving or was under a duty to receive the communication that corresponded with the interest or duty of the person making the publication. ………
Reciprocity of interest or duty is essential to a claim of qualified privilege at common law. The need for reciprocity usually defeats a claim of qualified privilege where the publication has been made to the general public. Only in exceptional cases does a person have an interest or duty to publish defamatory matter to the world at large. Both in Australia and elsewhere, common law courts have repeatedly held that a person has no legitimate interest or duty to publish defamatory matter to the general public if no more is established than that the subject matter of the publication is one in which the public is interested. In Howe & McColough v Lees , Higgins J said that the word ‘interest’ was not used in any technical sense. However, his Honour said that the person must not be ‘interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news’. In the same case, O’Connor J said that the interest must be ‘of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it’.
As the decided cases show, however, circumstances may exist where the interest of the general public in a particular subject is such that a defence of qualified privilege is available even though the communication is made to the general public by means of a newspaper or other medium of general circulation. If a subject is one of public interest, members of the public have the requisite interest in receiving information on that subject from persons who have a corresponding interest or duty to communicate that information to the general public. ………
In determining whether a person has a legal, social or moral interest or duty to publish to the world at large, the extent of the publication and the proportion of readers who have a legitimate interest in receiving the communication are relevant factors to be weighed. It has long been established, however, that qualified privilege is not lost simply because the communication is read, seen or heard by persons having no legitimate interest in receiving the communication. If publication in a newspaper or by radio or television is the only reasonable mode of communicating with the public, qualified privilege will not be lost because it is read, seen or heard by persons who have no legitimate interest in receiving the communication.
Although, as the foregoing account of the case law demonstrates, the common law has upheld defences of qualified privilege for publications to the world at large, common law courts have taken a restricted view of the occasions when a person has an interest or duty to publish material to the general public. Protection of reputation has generally been preferred to the right of the public to know. It is not surprising that successive generations of common law judges have been loath to extend the categories of qualified privilege to protect publication in the general media. Although the tort of defamation law became established at an early stage in the history of common law, the defence of qualified privilege, as we know it, was not recognised until the first part of the last century. New legal doctrines take time to win general acceptance in the legal profession, and the low quality and sensational nature of significant parts of the late nineteenth century and twentieth century media have not been conducive to the extension of a defence that protects the publication of untrue defamatory material. However, as Cockburn CJ is reported to have said ‘those who administer [the law of qualified privilege] must adapt to the varying conditions of society’.”
17 But, if “no definite line can be drawn”, various judicial attempts have been made to draw a broadly settled one. Those attempts do not go ultimately, - and probably could never do so, - beyond averring that everything depends upon the circumstances of the particular case. A good example is provided in the following extract from the speech of Earl Loreburn LC in James v Baird (1916) S.C (H.L) 158 at 163-164, as cited in Gatley on Libel and Slander: Ninth Edition: at page [331]:
“The question whether the occasion was privileged is for the judge, and so far as ‘duty’ is concerned, the question is: Was there a duty, legal, moral or social to communicate? As to legal duty, the judge should have no difficulty ; the judge should know the law; but as to moral or social duties of imperfect obligation, the task is far more troublesome. The judge has no evidence as to the view the community takes of moral or social duties. All the help the Court of Appeal can give him is contained in the judgment of Lindley LJ in Stuart v Bell ; ‘the question of moral or social duty being for the judge, each judge must decide it as best he can for himself. I take moral or social duty to mean a duty recognised by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal. …………….. .
Is the Judge merely to give his own view of moral and social duty, though he thinks a considerable portion of the community hold a different opinion? Or is he to endeavour to ascertain what view ‘the great mass of right-minded men’ would take? It is not surprising that with such a standard both Judges and text-writers treat the matter as one of great difficulty in which no definite line can be drawn."
18 In the case of the subject book, the relevant circumstances and considerations are, in my opinion, as follows:
“In considering the question whether the occasion was an occasion of privilege, the court will regard the alleged libel and will examine to whom it was published, when, why, and in what circumstances it was published, and will see whether these things establish a relation between the parties which gives rise to a social or moral right or duty, and the consideration of these things may involve the consideration of questions of public policy.”
19 Once again it is convenient to begin by noting the terms of the defendant’s pleading. They are as follows:
(1) The book was published in 1986. By that time the plaintiff’s probity had been subjected to sustained, repeated, searching, critical and public attack.(2) Findings adverse to the plaintiff’s probity had been made, publicly, by Wood J; and adverse comments about the plaintiff’s probity had been made, publicly, by Murphy J in the High Court of Australia. All of those comments are picked up in terms in the Foreword to the subject book.
(3) By the time the subject book was published, Wood J had delivered his Report; the Ananda Marga Three had been pardoned and released; and the plaintiff had departed the scene, burdened by his experiences, and having to make, as best he could in the wake of those experiences, something of the remainder of his life.
(4) The subject book shone a new, and a very sharp and unflattering light onto the plaintiff. It characterised the plaintiff, in the clearest and most uncompromising fashion, as a wilful perjurer who had not scrupled to lie away the liberty of three innocent men. As I have earlier remarked, the subject book interwove closely and tightly its criticisms of the plaintiff, and its criticisms of the police, and the security intelligence, services, and of the judicial system.
(5) That those views of the defendant, expressed as trenchantly as they were in fact, were views honestly and reasonably held, - as the defendant of course contends, and as I will assume for the purpose of the present particular discussion, - cannot be, in my opinion, decisive of the question whether there was, in the requisite legal sense, a duty, social or moral, to give voice to them. A fortiori , when voice was so given in a book published to the world at large, and under cover of a Foreword, written by an apparently informed and independent author, proclaiming to that same world at large that the defendant “with superb clarity, as in a diagram ……has preserved for ever the injustice wrought on these three innocent men, and the evils of their wrong conviction” .
(6) Nor can it be, in my opinion, decisive that the book was published for lawful commercial gain to the defendant. But that is, in my opinion, a factor of some real weight. It would be wrong to see the publication of the subject book as having been simply an altruistic exercise.
(7) There was no particular, relevant personal relationship between the plaintiff and the defendant. If public policy looks askance, as it has been held repeatedly to do, at the extension of qualified privilege to general defamatory publications by newspapers, telecasts and radio broadcasts, then there would seem to me to be no logical reason why the same approach should not apply to a general defamatory publication in the form of a book. I think that any reasonably well-read and well-informed members of the contemporary Australian community would think that McHugh J’s observations about ‘the low quality and sensational nature of significant parts of the late nineteenth century and twentieth century media’ would all too readily embrace books, and in particular books of occasional political, social and moral content.
(8) The defendant submitted that publication at large of the subject book equated to “a public meeting on a topic of public concern, available to all, but likely to be attended only by those with a special interest in the topic; such a meeting is normally regarded as an occasion of qualified privilege” .
I do not accept that submission. “A public meeting ………..available to all” is precisely that; and a person who uses it as an occasion for the publication of defamatory untruths should not be encouraged to expect, and is in my opinion not entitled to expect, that he can so conduct himself with impunity as of course.
(9) Doing my best to bring into a sensible balance all of the foregoing matters, I have come to the conclusion that the defendant has not established on the probabilities the existence of a social or moral duty incumbent upon him at the time of the publication of the subject book, and apt to attract to that occasion of publication the defence of common law qualified privilege.
The Defence of Statutory Qualified Privilege
20 The particulars of “Public Interest” as noted previously and at paragraph 13 herein are provided in connection with the defence of statutory qualified privilege, as well as in connection with the defence, earlier considered, of qualified privilege at common law. 21 Section 22 of the Act, upon which the defendant now relies, is in the following terms:
“(ii) DEFAMATION ACT SECTION 22
(a) the subject or subjects of the matter complained of were the matters of public interest stated above;
(b) the Defendant ……..(relies) …….. upon that interest and apparent interest;
(c) the reasonable grounds for the defendant’s relief that the recipients of the matter complained of had an apparent interest were that the matter complained of related to the subjects referred to above and the Defendant believed that those recipients were members of that section of the community that had a special interest in the public and parliamentary debate on the issues particularised herein under ‘Public Interest’;
(d) the reasonable grounds for the Defendant’s belief that the recipient were members of that section of the community referred to in (c) above, were that the Defendant prepared the matter complained of in the form of a book of scholarly style and content for those persons to read;
(e) the Defendant’s conduct was reasonable in the circumstances because …… (he) ………believed what ……….(he)………….published to be true and took care to form a belief in the accuracy and fairness of the information and comment contained in the matter complained of. The Defendant ……….(was) ……….satisfied as to the authenticity and accuracy of the sources of the information available when preparing the matter complained of. The Defendant …………….(was)………..satisfied as ……….(to)……… the fairness of the language and the manner in which the matter complained of was composed and presented. The Defendant ……….(was)……….. satisfied that the months of research and meticulous enquiries made not only by ……….(himself)…….. but by the Courts into the accuracy of the Plaintiff’s testimony at various hearings was such that publication of the matter complained of was reasonable.”
22 In Austin v Mirror Newspapers Ltd (1985) AC 299, the Judicial Committee of the Privy Council approved the view, expressed by the New South Wales Court of Appeal in Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749, that the effect of s.22 of the Act is “to substitute reasonableness in the circumstances for the duty or interest which the common law principles of privilege require to be established”. The Privy Council added its own observation that the Act “was clearly intended to widen the scope of the common law defence of qualified privilege” [ (1985) AC, 312D and G ]. 23 In applying s.22, as thus construed, to the defendant’s book, it is necessary to define clearly what constitutes the “subject”, the giving of “information” about which is said to attract the statutory privilege. 24 In my opinion the “subject” of the defendant’s book can be defined as: “whether justice, or injustice, was done to Messrs. Anderson, Alister and Dunn in, and in connection with, the connected sequence of curial and judicial proceedings to which they were parties”. 25 It must next be asked, in the terms of s.22(1)(a), whether the defendant has proved on the balance of probabilities that “the recipient” had an interest, or an apparent interest, in having information on that subject matter. The following points thereupon call for consideration. 26 First, the notion of “the recipient” cannot be given any precise definition because the subject book was put, upon publication, on general sale to the public. The defendant gave, in that connection, the following evidence which was not contradicted and which I therefore accept:
“22(1) Where, in respect of matter published to any person -
(a) the recipient has an interest or apparent interest in having information on some subject;
(b) the matter is published to the recipient in the course of giving to him information on that subject; and
(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances,
there is a defence of qualified privilege for that publication.
(2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest.
(3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward.”
27 The effect of this evidence is, in my opinion, that the recipients of the book comprised, at least:
“Q. Do you remember, off hand, your sales figures on it - I know I have asked you this before, but it was in excess of 3,000 in paper back?
A. No, it was only just over 3,000. If you are asking me my recollection, it was in the very low thousand 3,000. That was the total print run. By no means were all of those sold, because I still have probably 200 at home and at one stage I gave away a considerable number to people I knew who were lecturers at university law schools and they gave them to their students. I couldn’t tell you how many, but in some hundreds. I think they came in boxes of 25 books; 20 hard books, which there are very few, and 25 paper book which were heavy and I remember delivering some number of the books to those people, which reinforced my views about the prospects of the sale of such a book.” (trial transcript 237 (40) - (55)
28 It is not possible further to quantify that total readership. This aspect of the present case is not like, for example, the corresponding aspect of the case of Austin, previously cited. There, the publication was in a major metropolitan daily newspaper, having a circulation, as noted by the Privy Council, in the order of 353,000 copies. Here, the probable reach of the publication was much less extensive. Of course, that is not to say that it was in any sense insignificant. The distribution throughout the general community of, as it would seem from the evidence, in the order of 2,000 copies of the subject book, was more than wide enough to do a great deal of real damage to the reputation of anyone who was imputed by the book to be a proven liar and perjurer who had made a major contribution to an appalling miscarriage of public justice. 29 Secondly, it has to be decided whether the “recipient”, thus understood, had “an interest or an apparent interest” in receiving “information” on the “subject”, as previously defined, of the defendant’s book. 30 In this connection, the advising of the Privy Council in Austin establishes the following propositions:
(b) persons who did not themselves buy the book, but were given it, in whatsoever particular circumstances, to read and who then read it.
(a) persons who actually bought and read the book; and
31 The principles thus established entail, in my opinion, that the defendant has plainly satisfied the requirements of paragraphs (a) and (b) of section 22(1) of the Act. 32 It remains for the defendant, if he is to succeed on the defence of statutory qualified privilege, to satisfy on the probabilities the requirements of paragraph (c) of section 22(1). Once again, it is useful to begin by setting in place some basic propositions. 33 First, paragraph (c) focuses on the defendant’s conduct in connection with the publication, not of the book as a whole, but of the defamatory imputation carried by the published material: “The more serious the imputation, the greater the obligation on the defendant to ensure that his conduct in relation to it was reasonable”: Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374 per Hunt AJA at 387E. 34 Secondly, what conduct is “reasonable in the circumstances” of a given case will depend upon the particular facts of that case. It is, however, possible to define certain factors that are of general application. It is convenient to do so by way of further reference to the judgment of Hunt AJA in Morgan. His Honour says:
“1. Information , in this particular statutory context, embraces both fact and opinion.
2. Interest , in that same context, embraces “any matter of genuine interest” to the readership of the subject book; “and there are as many matters of opinion that will be of general interest to the readership ………as there are facts upon which such opinions are based” . (1986) AC, 313A
35 Thirdly, there being on the facts of the present case no doubt at all that the defendant intended to convey the defamatory imputation in question, the defendant must satisfy the Court on the probabilities that he believed in the truth of that imputation: Morgan per Hunt AJA at (1991) 23 NSWLR 387F. 36 As to the third matter in the foregoing sequence, I am satisfied that the defendant did have in fact that belief. The defendant himself gave clear and positive evidence to that effect. I do not see that the evidence was either wholly destroyed, or shaken in its substance, by cross-examination. I accept that part of the defendant’s evidence. 37 As to the four matters (a)-(d) previously mentioned, I am of the opinion that the factor (d) is clearly established on the face of the published material. Whether the other three factors, (a) - (c) have been established by the defendant on the probabilities, depends upon an analysis of the relevant evidence given at trial. 38 In his evidence in-chief, the defendant said that he had first become interested in the case of the Ananda Marga Three in 1979. He was working at the time for the A.B.C. producing radio programmes. His attention was drawn to the first of the two trials, which was then current. The defendant did not spend any great length of time at this first hearing; but he did drop in to it from time to time. The impression that it made on him, he explained as follows:
“The defendant must also establish:
(a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate), by making proper enquiries and checking on the accuracy of his sources;
(b) that his conclusion (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained;
(c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and
(d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers.” : see at (1991) 23 NSWLR, 388B/C.
39 When it came to his notice that the jury had not been able to agree upon a verdict in the case of any one of the three accused persons, and that there was to be in consequence a second trial, the defendant made it his business to attend parts of that trial also. His best recollection was that he had seen, in that connection, at least a part of the plaintiff’s evidence as it was being given. 40 The defendant said that he had remembered aspects of the two trials over the following years until 1981 when he had conceived the idea of looking again at the trials as potential sources of material from which he might fashion one or more radio programmes of the kind which he was then producing. The defendant did in fact obtain various materials connected with the two trials; and did in due course produce and broadcast two one-hour radio programmes. There ensued some listener feed-back, the tenor of some of which tended to strengthen the defendant’s own growing conviction that there was something amiss in the convictions of the Ananda Marga Three. The defendant described as follows what then ensued:
“I was particularly struck, from the sections of the case that I attended, by some aspects of it which seemed to me somewhat unusual - illogical, is the best single word perhaps. Among which I now remember as perhaps the only clear example what always struck me and still does as the bizarreness of somebody driving a car with two people in it who, on his account, agreed to send off a bomb if they’re stopped, when he has arranged for surveillance of what they are doing, and it is at least reasonably likely that they’re going to be stopped.
I remember walking back from one occasion when I was at that trial when thinking about that event said, thinking of that, it was extremely puzzling and bizarre and anti-logical.”
41 And so, the defendant set to work on the writing of the subject book. The exercise took a long time, being done intermittently and as opportunities arose; and being necessarily interrupted from time to time by developments concerning the cases of the three convicted men, principally in the form of the Hilton bombing inquest and of the subsequent inquiry conducted by Wood J. The defendant described as follows what he had been trying to achieve as he progressed with the writing of the subject book:
“By that stage, I can’t pin it down precisely, but around that time, I had become fairly firmly persuaded that the case was, in fact, a serious miscarriage of justice. When I say ‘by that stage’, I mean after I had done all the work and put those programmes together. At some point around there, perhaps up to a year or so after I made the programmes, again I can’t tie that down exactly, I decided that I should write a book about the case.”
42 The defendant attended the whole of the Hilton bombing inquest. After its conclusion he obtained a transcript and “a large amount of associated material”, the precise details of which the defendant could not recall except to say that it included witness statements of the various witnesses and some additional material such as police running sheets. Thereafter the defendant continued work on the subject book. 43 In due course, the inquiry conducted by Wood J was formally established. The defendant made contact with various of the professional legal representatives of Messrs. Anderson, Alister and Dunn; and was eventually retained formally as part of the team of such representatives acting on behalf of the three petitioners before the inquiry. The defendant’s work in that connection occupied him full-time from August 1984 to February 1985. The defendant was closely involved in the inquiry. Part of that involvement concerned the preparation of the detailed submissions made to Wood J on behalf of the three petitioners. At the conclusion of the inquiry the defendant was in possession of a very large amount of transcript and ancillary documentation deriving from the work done in connection with the enquiry. 44 After the conclusion of the inquiry, the defendant continued to write the subject book, working from time to time in what spare time he had from his other personal and professional preoccupations. After the publication of Wood J’s report, the defendant obtained a copy of the report and studied it closely. He found himself in agreement with parts of it and in disagreement with other parts of it. 45 The defendant finished writing the subject book “somewhere in late 1985”. He was not optimistic about finding a commercial publisher for the work; and, ultimately, he published it himself but had it distributed to the retail trade by a commercial distributor. 46 The defendant, having given the evidence which I have summarised, described as follows his approach, over all, to the writing of the subject book:
“I wanted the book to be a documentation of all the major aspects of the case so that people who were concerned about what I saw as an important public issue, an important question of public interest, those who were willing to spend the effort to search out the book, by whatever means, and willing to spend the time and effort of writing (sic: but read ‘reading’) a fairly sizeable treatment, would have something available to them so that they could find out great and complex details about it which they have no chance of getting from any other source.”
47 The plaintiff rounded out this summary of his approach to the subject book by explaining that he had chosen the illustrations which appear throughout the subject book; and that he had done so having in mind, in particular, what he saw as the importance of recreating in the mind of a reader, in so far as that was possible: “……. the rather over-excited atmosphere of the time, as I judge it in some respects ……”. 48 The defendant went on to explain that he had taken particular care to give as full and as fair an account as he could of the case against the Ananda Marga Three, as well as the case in their favour. He said that his approach had been that it was not possible “with credibility or honesty for that matter, effectively (to) take apart a case without first acknowledging what its strengths are, what its high points are. I thought it was necessary to reproduce in quite extensive form the precise terms of the evidence against the three men in relation to the Yagoona matter; and that is really the reason why there are such extensive verbatim extracts from the transcript of the second trial, being the one which secured the convictions, throughout the chapters which deal with the afternoon of Thursday, 15 June, the question of crossing Carillon Avenue and who got the bomb, the events out at Yagoona and the events back at Newtown with the press releases.” 49 The defendant explained, finally in his evidence in-chief, that there had been of necessity an element of compression in the composition and structure of the subject book; that it had been necessary on that account to make particular judgments concerning the inclusion or the exclusion of various matters of detail; but that he had sought to keep, overall, a fair balance having regard to the over-riding objective of the subject book, which was to bring to the public attention what he, the defendant, himself believed genuinely then, and believes genuinely now, to have been a serious miscarriage of public justice deriving in large part from the perjury of the plaintiff. 50 The defendant was extensively cross-examined. Two or three different particular lines of cross-examination were followed by the cross-examiner; but, in one way or another, they all had to do with a constant theme, namely, the propositions, put repeatedly to the defendant in cross-examination, that he had been, from the first, a partisan ally of the Ananda Marga Three; and that this partisanship had caused him to ignore material available to him in connection with the writing of the subject book and either casting the Ananda Marga movement in an unflattering light; or reflecting favourably, at least to some extent however limited, upon the plaintiff. 51 I have come to the conclusion that the defendant’s evidence is, to speak in general terms, reliable and truthful; and I accept it. I do not accept that the available evidence, considered fairly, demonstrates partisanship on the part of the defendant of so extreme a kind as led to his deliberate suppression in the subject book of material, then available to him, and capable if accepted of contradicting the substance of the imputation which is now in point. 52 I have come to the conclusion that the defendant has established on the probabilities each of the matters referred to in the paragraphs (a), (b) and (c), as set out in paragraph 35 of this judgment. It follows that, in my opinion, the defendant has established the defence of statutory qualified privilege. Whether that defence has been successfully rebutted by proof of malice in the defendant is a separate question to which I shall return later in this judgment.
The writing of the book was a quite vast effort, really. I tried throughout to carefully cross check everything I wrote. I believe I did. Indeed, I would say I went through an exercise of some scupulousness in ensuring that I was, to the best of my ability, accurately representing the events I described and the material I was reproducing.
The account of the inquiry in particular was a very difficult one, because it was an exercise not only in compression, but finding a workable narrative shape to fit it all into. One of the difficulties with detailed analysis is that it often stops dead the momentum of the narrative and there is considerable difficulty in finding an accommodation between those two. I don’t know if I succeeded, but I am very conscious that one of the difficult aspects of the task was to find some accommodation that developed a narrative and also which has an inter-relationship between things in a progress order and also to get successfully into a detailed analysis of things.
I was well conscious there were selections to be made. There were things I decided not to include. There were a number of, for example, arguments in favour of the petitioners’ case. I think a number of findings made in a general case which would be in their interests by Justice Wood which I regarded as, let’s say, second rank, less important, and probably fairly represented in their nature by other matters that I regarded as more important and some of those second rank things are left out. In the nature of the inquiry, I thought that was quite inevitable if any treatment of practical length was to be devised.
The complaint in this case, the imputation complained of, that the plaintiff framed members of the Ananda Marga by committing perjury, is something I have believed for a very long time - it is still my belief now. It certainly was throughout the time of writing and publishing the book. It became intensified by some of the matters which surfaced at the inquiry.
I should say I do not claim now to be able to revisit, to recall, the whole process mentally or physically that I went through in researching the book and writing it. At this distance, any attempt by me to do that is likely to be a recreation of what I thought I would have done rather than what I actually did. I can’t account now for the process by which I originally arrived at that conclusion. I think I was fairly firm in it, at least after the Hilton Inquest - from then on.
My reasons for that belief are in the book and I don’t know that sensibly I could put them in any priority order and there is a cumulative effect, in any event, as between them.”
53 Once again, I shall leave for later consideration in this judgment the question of malice in the defendant. 54 Malice apart, the defendant must establish on the probabilities that the relevant imputation is:
The Defence of Comment
55 In the present case, it seems to me to be clear that the relevant imputation is carried by the subject book as a matter of comment on the part of the defendant. I think that the imputation represents, upon a fair reading of the subject book, a fundamental thesis or conclusion for which the defendant argues upon the basis of the material that he canvasses in the book. 56 The statutory concept of “proper material for comment” is the subject of definition in s.30(1) of the Act. Broadly speaking, material will be regarded as “proper material for comment” if it fits within any one of three nominated categories, namely:
(i) a comment rather than a statement of fact;(ii) that it is a comment referable to what is described in s.30 of the Act as “proper material for comment” ;
(iii) that the comment relates to a matter of public interest; and
(iv) that the comment, at the time it was made, represented the opinion of the defendant.
57 The defendant submits that the imputation now relevant is comment made by him upon the substance of a number of proceedings, reports of which are protected reports within the meaning of s.24 of the Act. Schedule 2 to the Act specifies a number of different kinds of proceedings for the purposes of s.24. Those specified categories of proceedings include:
(a) a statement of fact; or(b) a protected report within the meaning of s.24 of the Act, or
(c) material upon which, for some other reason, comment might be based for the purposes of this particular defence.
58 The defendant submits that the material upon which his defamatory comment is based comprises the whole sequence of judicial and quasi-judicial proceedings to which reference is made early in this judgment; that is to say, the committal proceedings against Messrs. Anderson, Alister and Dunn; their two subsequent trials and the appeal proceedings consequent upon those trials; the inquest into the bombing of the Hilton Hotel; and the inquiry conducted by Wood J. The defendant submits that all of these proceedings fit either of the two specified categories referred to above. 59 In my opinion, these submissions of the defendant are correct. The subject book seems to me to report fairly the substance of each set of the relevant proceedings; and by so doing to constitute within the subject book a body of material correctly described as “proper material for comment” in the requisite statutory sense. 60 There is uncontradicted evidence from the defendant that the comment, at the time it was made, did indeed represent his honest opinion. I accept that evidence. 61 I am satisfied as to the existence of the requisite element of public interest. That there had been a serious miscarriage of public justice leading to the wrongful conviction and imprisonment of these innocent men; and that a prime factor in the occurrence of that miscarriage had been perjured evidence by the plaintiff, given in order to cause that miscarriage; were, in my opinion, clear matters of public interest. 62 I am of the opinion, therefore, that, subject to its rebuttal by reason of malice in the defendant, this particular defence has been established.
“(5) Proceedings in public of a court;
(6) Proceedings in public of an inquiry held under the legislation of any country or held under the authority of the government of any country.”
63 By reason of the provisions of s.15 of the Act, the defendant cannot succeed on this defence unless he establishes on the probabilities that the relevant imputation:
The Defence of Truth
64 For reasons already explained, I am of the opinion that the relevant imputation both relates to a matter of public interest, and was published under statutory qualified privilege. The only remaining issue is, therefore, whether the defendant has established on the probabilities that the imputation is substantially true. 65 In that connection, the appropriate starting point is, I think, a realistic appreciation of the extreme gravity of the allegation which is made against the plaintiff by the relevant imputation. In such a context, it is very much to the point that there be kept carefully in mind the principles, a classic definition of which is to be found in the judgment of Dixon J in Briginshaw v Briginshaw & anor [1938) 60 CLR 336 at 361, 362. The relevant passage reads as follows:
2. either relates to a matter of public interest or is published under qualified privilege.
1. is a matter of substantial truth; and
66 The succinct and helpful written submissions put in by the defendant outline with complete clarity the factual bases for the contention of the defendant that the relevant imputation can be demonstrated, to the requisite standard of proof, to be substantially true. A paraphrase of the defendant’s outline will not do, I think, justice to what is being argued. I have therefore adopted the expedient of attaching to the present judgment a photocopy of the relevant portions of the defendant’s written submissions. 67 It will be seen from what follows that, in coming to a conclusion upon the issue of substantial truth, - (and in coming, later herein, to a conclusion concerning the related defence of contextual truth), - I rely heavily upon the findings made by Wood J in his Honour’s report of May 1985, being the report of the Inquiry, earlier herein referred to, held by his Honour under s.475 of the Crimes Act 1900(NSW). Volumes 1 and 2 of his Honour’s report are exhibit O in the present proceedings, having been so received in evidence upon a tender by the plaintiff. The contents of those two volumes have, therefore, legitimate standing as evidence available for my consideration in connection with the present proceedings. I acknowledge, at once, that it would be entirely inappropriate for me simply to transpose into the different context of the present proceedings, conclusions reached by Wood J in connection with his Honour’s Inquiry; and I have been careful throughout not to make any such simplistic and undiscriminating transposition. I have kept in mind, throughout, that the weight to be given for my present purposes to any of the particular conclusions reached by Wood J must be considered in the light of any relevant evidence particular to the present proceedings. 68 All of that said, I think, nevertheless, that it is proper to give considerable weight to the conclusions reached by Wood J. I say so for the following reasons. 69 First, it is apparent on the face of Exhibit O that Wood J was able to enquire, with a breadth and in a depth wholly beyond the scope of the evidence in the recent hearing in this Court, into the details and complexities of the facts and circumstances out of which there emerged the committal proceedings, the two trials, and the Hilton bombing inquest, to all of which I have previously made reference. 70 Secondly, Wood J had the advantage, which I did not enjoy, of top-level and independent legal professional representation of all interested parties who were heard by his Honour during the course of the Inquiry. One has only to read the list of acknowledgments on page 453 of the report, in order to see at a glance the breadth and the depth of the independent legal professional assistance that was available to his Honour. At the recent hearing before this Court, by contrast, the plaintiff represented himself, as did the defendant. The defendant is, of course, a practising member of the Bar. This gave him, vis a vis the plaintiff, obvious forensic advantages. It gave him, also, professional learning and experience that were, if I may say so, of real assistance to the Court. The plaintiff, on the other hand, had to do the best he could with virtually no legal professional assistance. As the trial transcript will show, the Court had to tread constantly the fine line between giving some assistance to the plaintiff in order that he might be, as it were, pointed in the right direction; and not interfering in such a way as would raise in the mind of the defendant a reasonable apprehension that the Court was losing its necessary impartiality. 71 Thirdly, Wood J had the advantage of seeing the plaintiff in the witness box. The plaintiff’s experience on that occasion moved Wood J to comment: “There can be few if any witnesses who have been subjected to such a prolonged and minute attack in the witness box”. Of course, Wood J did not see the defendant in the witness box, because the defendant actually appeared as one of three counsel representing Mr. Alister at the Inquiry. My experience in the recent trial has been exactly the opposite. I had the advantage of hearing the defendant give evidence; and I had the further advantage of seeing him tested, at least to some extent, by cross-examination. The plaintiff did not, however, go into the witness box, although he did call other lay evidence in support of his case. I am not intending by what I now say to criticise the plaintiff for not having gone into the witness box. All that I am saying is that in fact he did not go into the witness box ; and that the necessary result is that I have not had anything like the opportunity that was available to Wood J for the making of a careful and thorough assessment of the plaintiff’s credit. 72 Fourthly, the defendant, as I understand his position, does not contend that Wood J misapprehended the evidence put before his Honour at the Inquiry. The defendant, as is clear from the subject book, takes issue with various opinions expressed by Wood J; and with what the defendant sees as a failure of Wood J to make affirmative findings critical of the police and intelligence services. But, at least as to those conclusions of Wood J to which I hereinafter refer, the defendant, as I understand his position, does not contend that such conclusions were not reasonably open to his Honour. 73 It is not possible to be quite so clear-cut about the corresponding position of the plaintiff. As I have earlier noted, Exhibit O was tendered by the plaintiff; and parts of Exhibit O were referred to specifically in the plaintiff’s submissions. Of course, the plaintiff would not accept the correctness of the adverse findings about him which Wood J made; but that is not to say that such findings were not reasonably open to his Honour. 74 The particular matters of fact and circumstance to which the defendant points in his written submissions seem to me to reproduce the substance of submissions made to Wood J. 75 In dealing more particularly with the submissions now put by the defendant, it is convenient to begin with a consideration of the submissions that are put under the heading: “(iii) The Journey to Yagoona”. 76 The issue thus raised by the defendant in the present proceedings seems to me to equate to an issue which was raised before Wood J, and which his Honour describes at pages 356 and 357 of his Honour’s report in the following way:
“Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”
77 There follows a detailed canvass by Wood J of the relevant evidence given to his Honour’s Inquiry. His Honour then sums up as follows his conclusions:
“The Journal
At the committal, Seary produced a bound notebook which he described as part of a diary of his life, and loose papers which he said were notes for entries to be later included in the diary. Together these documents came to be known as his journal.
The loose notes included a nine-page account of the events of 15th June, which Seary said at the committal, and at the inquest, was probably written on 17th June, 1978. In this section were included conversations, implicating the Petitioners in the Hilton bombing, which were almost identical with the record of interview given on 22nd June. The similarities between these documents is shown in the comparative table within appendix M. This was the record of interview in which Seary first provided the evidence of Ananda Marga implication in the bombing.
It was submitted by the Petitioners that only one inference was open. Seary, it was said, composed an entirely fictional account which he wrote into this journal, and then learned by heart.”
78 I do not see in the evidence available to me anything that would lead logically to a conclusion differing from that expressed by Wood J. Simply to read the passages of the subject book to which the defendant refers in his written outline, re-states rather than resolves the issue. 79 Turning next to that part of the defendant’s outline under the heading: “(ii) The Reporting of the Plot to the Police”, it will be seen that the substance of what is there argued by the defendant turns in a very real sense upon one’s approach to Tape 9. The report of Wood J gives extended and careful consideration to the authenticity of the tape recordings, including Tape 9, of debriefings by the police of the plaintiff. At pages 393 and 394 of his Honour’s report, and dealing with a subject described as “Debriefing Anomalies”, Wood J expresses the following conclusions:
“It is difficult to know what to make of this journal. There are internal inconsistencies if it was intended as a factual account, and there are indications suggestive of a building of the story in the way seen in the records of interview. On the other hand, there are some obstacles to the Petitioners’ submissions. For example, it was Detective Inspector Sheather who decided to interview Seary in relation to the Hilton bombing and who asked to see Seary on 22nd June. No prior warning had been given which would have allowed a drafting and rehearsal of the allegations. Further, had Seary been minded to frame the Petitioners from a rehearsed script, it was unlikely he would have produced the document at the committal, albeit reluctantly. It may be that the writings were made after the event given his predilection for reducing his thoughts to paper. It may also be that this was done bona fide in an attempt to ensure accuracy in his disclosures.
No additional material was produced before the Inquiry to assist in the resolution of this issue. I think it proper, however, to regard the journal as yet another curious facet in the Seary disclosures, particularly as he was equivocal as to its true nature and accuracy. When it was first produced, it was claimed to be part of a continuous diary or record of his life. During the Inquiry it was described as a series of separate notes written as ‘a way of expressing my thoughts’. The notes, he said, were neither complete, nor necessarily accurate records of the events recorded. He later said that there was some purposeful inaccuracies because ‘there was always a chance that someone else would read it and I did not want to keep a perfectly accurate record of what went on because I did not want people to know’. He added that ‘if it wasn’t completely factual, I could deny it, if other people saw it’. This may have been true. Equally, in my view, it was an indication of a willingness to invent an answer on the spur of the moment to deflect an embarrassing question.”
80 Subject to one consideration, I do not see anything in the evidence before this Court that would enable it to come to any more precise a conclusion than that reached by Wood J. 81 The one additional consideration has to do with Tape 9 itself. It was urged by the defendant that I should listen to it for myself. I have attempted to do so, using in the attempt two different tape recording machines. In each case, the tape would not reproduce any of the sounds encoded on it. As best I cant judge, the reason for this malfunction has to do in some way with the tape rather than with the machine. 82 There remain the submissions put under the heading: “(i) The Plot Alleged by the plaintiff” 83 Once again, the anomalies and the inconsistencies to which the submissions refer were the subject of submissions to, and of extensive consideration by, Wood J. So far as I can see from the relevant portions of his Honour’s report, Wood J accepted that these anomalies and inconsistencies cast shadows of doubt over the plaintiff’s version of relevant events; but stopped short of anything in the nature of a positive finding that the plaintiff had given perjured evidence in connection with those events. 84 Once again, I am unable to see in the evidence before this Court anything that compels, logically, any different conclusion. 85 Before concluding what I have to say about this particular defence, I wish to draw attention to some of the final conclusions expressed by Wood J in connection with the credit and the reliability of the present plaintiff. 86 Speaking of the plaintiff’s general reliability, his Honour expressed this final view:
“When Seary’s evidence in relation to the petitioners is carefully examined, in the light of the additional information and documents available to the Inquiry, cause for concern arises. There are inconsistencies apparent in the different versions he recorded, in his own writings, in debriefing sessions, in records of interview, and in sworn evidence given in the various Courts and administrative Inquiries before which the matter has come. In some respects, the material he has provided appears bizarre and improbable. In other respects, it appears not to accord with known facts. Explanations have been given which are not always capable of ready acceptance, or which are themselves contradictory. The information Seary provided implicating the Petitioners has tended to become more detailed. Most noticeably, after several days of silence the Petitioners’ criminal activity was expanded beyond the Yagoona affair to the Hilton bombing.
These matters cannot be considered in isolation from the independent evidence, which for the reasons identified in chapter 10, gives rise to a circumstantial case against the Petitioners on which a jury properly instructed could have convicted. The questions that ultimately arise, however, are these:
Were the Petitioners and police carefully manoeuvred into position by Seary, and the extrinsic facts skilfully manipulated by him, so that a well forged circumstantial case might appear? Alternatively, did the events transpire in the general way that Seary described, leaving him in a position where, convinced of the petitioners’ guilt yet fearful that the Crown case may not be water-tight, he was prepared to embellish and fill in the areas where he suspected problems might arise?
Although I incline to the latter view, I am satisfied that the first alternative cannot be excluded. ……………………”
87 Wood J then turned more particularly to the assessment of the evidence given by the plaintiff in connection with the Yagoona incident. As to that, Wood J expressed these conclusions:
“I am satisfied that the evidence concerning Seary’s background and his everyday dealings, and the expert evidence, showed him to be a person of considerable intelligence and imagination, who craved recognition and status, and who was willing to exaggerate, bend the truth, and lie in appropriate circumstances. I am not satisfied that he was proved to be a mentally disturbed and committed liar or fantasiser, or to be incapable of giving truthful evidence. I am, however, satisfied that a very serious question mark exists in relation to his general reliability, and that if he was minded to fabricate a case against the Petitioners, he could have done so with considerable persuasion.”
88 Relevantly for present purposes, Wood J expressed as follows, and in the concluding section of his Honour’s report, what his Honour described as his: “Overall Conclusion”:
“I am satified that significant inconsistencies and anomalies were identified in the evidence, debriefings and writings of Seary, concerning the Yagoona affair. I am further satisfied that there is a real possibility of his evidence in relation to this matter being false. This may have occurred either in pursuance of a contrived plan on his part, to entrap and frame the Petitioners for crimes of which they were innocent, or out of a misguided desire on his part to strengthen the Crown case against the Petitioners in respect of crimes of which they were guilty. Each is available as a rational inference.”
89 The views expressed in the three extracts which I have just quoted, express precisely the conclusions that I myself have reached upon the much more contained material placed before me in the present proceedings. There is every reason to suspect that the plaintiff did what is imputed to him by the relevant imputation upon which he now sues. But that suspicion, entirely reasonable as I think it to be on the basis of the available material, falls short, and a long way short, of that degree of persuasion which I would need to feel before I was prepared to make an affirmative public finding that the assertions in the relevant imputation are in fact substantially true. So that there will be no misunderstanding upon the point, I wish to emphasise in the plainest terms that what I have just said does not in any way imply a view on my part that there is room for an affirmative finding that the relevant imputation is substantially untrue. I say no more than that I am not satisfied to the requisite standard that the defendant has established this particular essential element of his defence of truth. It follows necessarily that, in my opinion, that defence has not been made good by the defendant.
“I am satisfied that an inference exists that Seary manipulated the Petitioners (and the police), and carefully caused the events to be so ordered as to present an apparently strong case against them. I form this conclusion, having regard to my assessment of his general reliability and his evidence concerning the Yagoona affair, notwithstanding the strength of the independent evidence. While I am unable to say that this is the correct inference to be drawn, it is sufficient for my inquiry to state that it is a rational inference that cannot be excluded.”
90 The defendant has pleaded nine contextual imputations; pleading, also, that as to each such contextual imputation:
The Defence of Contextual Truth
91 The nine contextual implications which are thus pleaded by the defendant are as follows:
1. The imputation is a matter of substantial truth; and2. Related to a matter of public interest; or, in the alternative, was published under qualified privilege; and
3. That by reason of the substantial truth of the contextual implication, publication of the plaintiff’s imputation (b) did not further injure the reputation of the plaintiff.
92 Once again, it is for the defendant to establish, according to the requisite legal standard as previously herein discussed, those matters which must be established in order to make good his defence of contextual truth. I would say at once that, in my opinion, any contextual imputation of the above kinds would relate, in the circumstances of the present particular case, to a matter of public interest in the sense discussed and accepted more than once in what has previously been written herein. 93 As to contextual imputation (i): Wood J, in a section of his Honour’s report entitled: “Seary as the Hilton Bomber?” examines exhaustively this suggestion. His Honour notes that no proposition that he was the Hilton bomber was put fairly and squarely to the plaintiff in accordance with the rule of practice established by the decision in Browne v Dunn. His Honour notes that, instead, the plaintiff had been cross-examined about particular circumstances suggestive of there being reason to think that he, himself, had been the Hilton bomber. 94 After his Honour’s exhaustive canvass of the topic, Wood J expresses the following conclusion:
“(i) The plaintiff had so conducted himself as reasonably to be suspected by lawyers acting for Tim Anderson, Paul Alister and Ross Dunn of placing the bomb at the Hilton Hotel.
(ii) The plaintiff was a perjurer;
(iii) The plaintiff was a liar;
(iv) The plaintiff was a fantasist:
(v) The plaintiff was a thief;
(vi) The plaintiff knowingly received the proceeds of drug thefts from pharmacies;
(vii) The plaintiff was a drug addict;
(viii) The plaintiff was knowingly concerned in acts of supply of illegal drugs, including heroin, LSD, cocaine and indian hemp;
(ix) The plaintiff attempted to procure the bombing of the Homebush Abbatoir.”
95 The evidence before this Court certainly does not improve, in my opinion, upon the position as thus described. 96 I am not satisfied to the requisite legal standard that the defendant has established the substantial truth of this particular contextual imputation. 97 As to Contextual Imputation (ii): The written submissions of the defendant further particularise the alleged perjury. It is said to lie in the following particular pieces of the plaintiff’s evidence on prior occasions:
“I am quite unpersuaded on the evidence before me, that there is a prima facie circumstantial case implicating Seary and the Hilton bombing. No direct evidence of his involvement was led, and there was nothing to suggest that additional material was available to the police which called for further inquiry in this regard. The only conclusion reasonably open is that the identity of the Hilton bomber or bombers remains at large.”
98 As to each of the matters thus particularised, with the exception of that in particular (j), I would not be prepared to make an affirmative finding that the plaintiff had committed perjury in the precise respects propounded by the defendant. In broad terms, I would reach such a conclusion by a process of reasoning similar to that which I have canvassed at length in the immediately preceding section of this judgment. 99 The matter particularised (j) is, in my view, in a different category. Wood J examined exhaustively this particular matter. His Honour came to the conclusion that he “must prefer the evidence of the other witnesses who gave a consistent account of Seary’s activities that was totally contrary to his own evidence”. Upon that basis, and for reasons developed in detail at pages 258-270 of his Honour’s report, Wood J reached the conclusion that: “It is clear that he lied in relation to this matter”. 100 There is nothing in the remainder of the evidence before me that causes me to differ from that conclusion. Upon this aspect of affairs, I would be prepared to make an affirmative finding that the plaintiff gave false evidence on oath to Wood J. 101 As to Contextual Imputation (iii): I am satisfied that this has been established, if by nothing else, by reason of the conclusion to which I have come in respect of contextual imputation (ii). 102 As to Contextual Imputation (iv): In my opinion, this imputation, also, has been established. The material in Exhibit O contains a wealth of evidence supportive of this contextual imputation. It is to be borne in mind, of course, that to say of a person that it is substantially true to describe him as “a fantasist”, does not permit, without more, of the drawing of a rational inference that he did what is alleged against him in the imputation (b) upon which the present proceedings are based. 103 As to Contextual Imputation (v): The plaintiff has never denied, as I understand the available evidence, that he stole a motor vehicle for use in connection with the Yagoona affair. That alone would establish the substantial truth of this contextual imputation. 104 As to Contextual Imputations (vi), (vii) and (viii): These are related contextual imputations in that they all concern some aspect or other of the plaintiff’s history, or suggested history, of drug abuse. 105 These matters, too, were ventilated at the Inquiry conducted by Wood J. Once again, the allegations were the subject of a careful and exhaustive review by his Honour who concluded:
(a) Anderson asked him the previous week-end to find Cameron’s address.(b) He looked up the address overnight at home in an old phone book.
(c) Anderson and Alister synchronised watches.
(d) He was unaware of the conversation on Tape 9 being recorded.
(e) He had not learned by heart the account of the confession by Alister and Dunn to the Hilton bombing which he gave to the police.
(f) Alister and Dunn had confessed on the journey to Yagoona to having done the Hilton bombing.
(g) He did not know to which papers the press releases were directed.
(h) Alister and Dunn resolved on the journey to Yagoona to detonate the bomb if apprehended.
(j) He had not, while a member of Hare Krishna, suggested to other members that they should bomb the Homebush Abbatoir.
106 I see nothing in the other material before me that would entail, logically, any different conclusion. I am not satisfied that these contextual imputations have been shown by the defendant to be substantially true. 107 As to Contextual Imputation (ix): Once again, this matter is one that attracted a great deal of attention at the Inquiry conducted by Wood J. Once again, I see nothing in the evidence before me to indicate, logically, any different conclusion from that reached by Wood J and as recorded in the relevant portions of Exhibit O, and as follows:
“I am not satisfied that he could fairly be described ever to have been a heroin addict. It is clear that he was a drug abuser, but I think that his involvement in this field has been exaggerated by him in his dealings with others.
I take the view that by the time of his recruitment the police were entitled to regard him as a person who had severed his association with narcotics. I am convinced that any continued use of drugs during the period March to July 1978 would have been detected by the police and by the rehabilitation experts with whom he was in close contact at the Queen Elizabeth II Centre. In the result I am unable to conclude that his early history of drug abuse should be held against him. If anything it indicated some strength of character in his successful separation from the drug scene.”
108 I have found that the contextual imputations (ii) in part, (iii), (iv), (v) and (ix) are substantially true. The question has then to be considered whether the combined effect of those substantially true contextual imputations is such that their effect upon the plaintiff’s reputation is not further injured by the imputation (b) on which the plaintiff now sues. 109 There is no way in which this question can be answered with scientific exactness or according to some scientific method. What is involved is a question of degree; and the striking of a comparative balance that strives to reflect the probabilities in the real world. 110 It scarcely needs to be said that the contextual imputations, the substantial truth of which I am satisfied to have been established, would naturally damage the plaintiff’s reputation, and damage it significantly, in the eyes of right-thinking members of the community. But, for my own part, I have not been persuaded that such damage to the plaintiff’s reputation would, as it were, simply outweigh or otherwise neutralise the effect of the imputation (b) upon which the plaintiff now sues. The notion that a person would deliberately contrive to have innocent people convicted of very serious criminal offences, and would so contrive by the giving of extensive, and extensively calculated, perjured evidence, strikes me as a notion that right-thinking and reasonable members of the community would regard with an abhorrence greater, at least to some extent, than the abhorrence with which they would regard a person of whom the relevant contextual imputations were substantially true. 111 In my opinion, therefore, the defendant has not established on the probabilities the defence of contextual truth.
“I am accordingly satisfied that at some time during 1972, the possibility of damaging the Homebush Abattoirs by means of explosives was discussed between persons who were either members or associates of the Hari Krishna movement in Sydney. Whether it was Seary who initiated the discussion or someone else, I am unable to say. I am, however, satisfied that he was involved in the discussions, and that he drove at least three persons out to the Abattoirs in order to show them where the explosives might be placed. It is equally clear that the proposal was rejected as totally unacceptable to responsible members of the movement.
Whether the discussions were seriously entertained by those involved, or were simply the products of macabre jest, or wild talk among young men attracted to an alternative society, is not apparent. That in discussion, Seary fanned the embers of a more radical involvement of the movement in Sydney however cannot be gainsaid.”
112 In finding, as I have hitherto done, that the defendant has established the defences of statutory qualified privilege and of comment, I have expressly reserved in each case the question of malice. If the plaintiff is able to establish malice in the defendant in connection with the publication of the subject book, carrying as it does the imputation (b) upon which, in particular, the plaintiff sues, then those defences would be defeated. 113 It is usual, in the language of the law, to equate malice with improper motive. To put the point in that way is, however, simply to raise the question of how improper motive itself is to be defined relevantly to the law of defamation. The learned authors of Tobin and Sexton: Australian Defamation Law and Practice propound, on the basis of the relevant authorities, seven particular instances of malice in the sense now relevant. They are:
Malice
114 In my opinion, none of the matters referred to above as (a), (b), (c), (d) and (f) could be found reasonably on the evidence to hand. 115 As to the matter (g), I do not think that a fair view overall of the course of the recent trial could justify a finding in the plaintiff’s favour on this particular type of malice. As Tobin and Sexton point out: “An inference of malice drawn from the conduct of the litigation by the conduct of the trial by the particular defendant is: “an inference that the courts are likely to be wary of drawing from the conduct by the defendant, normally through his legal representatives, of the litigation, as any other approach might well inhibit a defendant in his pleading of defences to which he was otherwise entitled”. 116 As to the matter (e), it is, I think, fair to say that the plaintiff, in his submissions on the issue of malice, looked principally to this type of conduct. 117 Conduct of this kind needs to be assessed with some care. As was said by Jordan CJ in Godfrey v Henderson (1944) 44 SR (NSW) 447, at 454:
“(a) Knowledge of the falsity of the defamatory material or absence of belief in its truth;
(b) Recklessness as to whether the matter complained of was true or false;
(c) Failure to inquire as to the truth of the defamatory material;
(d) Introduction of material irrelevant to the occasion of qualified privilege;
(e) Manner and extent of publication, including the language in the matter complained of;
(f) Publication of other defamatory material published by the defendant concerning the plaintiff;
(g) Conduct of the litigation by the defendant, including the conduct of the trial.”
118 There can be, in my view, no denying that the terms of the subject book are very strong. The book is polemical in tone. It argues with clarity, directness, and sometimes with an evident passion, for a point of view in which it is clear the defendant firmly believed at the time he wrote the book; and, indeed, in which he still believes as firmly. The book is rightly seen by the plaintiff as scathing in its treatment of him so far as concerns his conduct in connection with every stage of the proceedings involving Messrs. Alister, Dunn and Anderson. Those considerations, however, cannot be conclusive on the question of actual malice. What is to be looked for in that particular connection is the true motive of the defendant in writing the subject book, carrying as it does the defamatory imputation (b). 119 I am comfortably satisfied that it could not be fairly found on the available evidence that the defendant, in writing the subject book, was actuated by express malice, i.e. some express and improper purpose, concerning the plaintiff. I think that the reasonable inference to draw from the available evidence is, overwhelmingly, that the defendant was utterly convinced that a grievous miscarriage of justice had occurred in the cases of Messrs. Alister, Dunn and Anderson; that the fact of the miscarriage, its particular circumstances, and its implications for the administration of public justice, all required that there be something done to bring all of those matters to the public attention; and that he was particularly well placed to provide that public information. 120 That the subject book is combative in tone and uncompromisingly pungent in its style, does not establish improper motive in the author. There is, so far as I can see, nothing else in the available evidence which, when brought properly to account, would add the element or elements necessary to constitute actual malice. 121 I conclude, therefore, that the plaintiff has not made good his case on the issue of malice.
“It is of the utmost importance in the case of statements made on occasion of qualified privilege, that the privilege which the law casts around such statements should not be nullified by a readiness to treat as evidence of express malice destroying the privilege anything which does not definitely, and as a matter of common sense, point to the actual existence of some express malice which was really operative in the making of the statement; and substantial evidence is required, not surmise or a mere scintilla.”
122 Because I have upheld two in particular of the defences as pleaded, there will be, in the ultimate event, judgment for the defendant against the plaintiff. It is a nice question whether, in those circumstances and in this particular kind of case, I ought to say anything at all about the views that I would have been inclined to take on the question of damages had that question become a live one for me. I think it would be appropriate to follow the comparable practice in personal injuries cases, and say something, however brief, on the question of damages. 123 I do not think that it is necessary in that connection to enter upon a wide-ranging discussion of relevant principle. In my opinion, the plaintiff’s case does not establish quantifiable damage in the sense of quantifiable loss actually sustained. The plaintiff did attempt to introduce some evidence which seemed to me to be aimed at the proposition that the effects upon him of the defamatory imputation had been such as to deprive him of income which he otherwise would and could have earned in an amount that was fairly precisely quantifiable. I do not think that the evidence goes far enough to establish such a case. 124 As I have earlier remarked, the plaintiff himself did not give evidence. He did call, however, evidence from two witnesses on the issue of damage to his reputation; and as to the effect, more generally, upon him of the defamatory imputations. I see no reason not to accept the substance of that evidence. 125 I would have thought it proper to approach the question of damages upon the basis that the defamation of the plaintiff was a serious one, both in its particular terms, and in terms of the circulation given to it. I would have thought it entirely reasonable to approach the matter upon the basis that the publication had caused real hurt to the plaintiff and real damage to his reputation. But I would have thought it reasonable, also, to take sensible account of the practical effects of the way in which the plaintiff’s reputation had been canvassed in public before the publication of the subject book and of the particular defamatory imputation carried by it. 126 Taken for all in all, I would have thought that in this particular case an award in the order of $20,000 would have been a just reflection of the harm done by the particular defamatory imputation.
Damages
127 For the whole of the foregoing reasons, there will be judgment for the defendant against the plaintiff. 128 I will hear the parties on the question of costs. 129 The exhibits will remain in Court for a period of 28 days from today. If within that period there is an appeal against any part of this judgment, then the exhibits will remain in Court pending further order; otherwise the exhibits may then be handed out to the party respectively entitled to them.
Conclusion and Orders
**********(a) Truth
The evidence for this purpose may conveniently be considered in three sections:
(i) the plot alleged by the plaintiff(ii) the reporting of the plot to the police
(iii) the journey to Yagoona
(i) The plot alleged by the plaintiff
Tape 8 produced to the Enquiry showed the plaintiff on the morning of Thursday 15 June 1978 giving to his police contact Krawczyk an account of his being approached by Anderson quite inconsistent with his later evidence. (Ex A page 322.7-323.5). There is major significance in the fact that the account on the tape accords with Anderson’s account in evidence (except for the difference of one day, which could easily be explained as a mistake in memory by Anderson some time after the event), because Anderson’s account was given at a time when he did not know the contents of the tape. The effect of the plaintiff’s account on the tape being inconsistent with his evidence at trial is not only to throw doubt on that evidence. Its concurrence with Anderson’s account is extremely unlikely to be due to mere coincidence; the strong probability is that the plaintiff’s original account on tape 8 is the truth, and therefore that his evidence on this point at trial was false. This also involves his account that he got the address from a phone book at home overnight being false. The improbabilities and illogicalities in his account of the plot (Ex A pages 65-67), and his addition to his evidence at the second trial of the synchronisation of watches, obviously untrue (Ex A page 64.3), reinforces this.
(ii) The reporting of the plot to the police
The plaintiff’s conversation with Senior Constable Krawczyk on tape 9 (Ex A pp.330-337) from internal evidence alone is not the spontaneous event which both parties claim. (The implausible opening, announcing as if for the first time something already announced on the phone, the two breaks which could not conceivably have occurred without the knowledge of both parties, and for which there is no rational innocent explanation, the reference in the conversation after the breaks to matters not referred to previously in the recording i.e. “that address”, “the test”, “the right address” (part of Ex BJ from the Enquiry). The expert evidence of Mr. Craig makes it clear that what occurred at the breaks was not merely stopping and restarting, but rewinding the tape of a recording which had originally passed beyond the breaks, and re-recording over the later material.
The plaintiff’s evidence at the trial that he was unaware of this conversation being recorded is clearly false. There is no rational explanation for stopping or editing the recording in any way if the conversation were truly spontaneous. The strong probability is that the conversation is part of a scheme of deception.
Upon reporting to Mr. Perrin, the plaintiff said that he was to pick up Alister and Dunn, and afterwards drop them off respectively at Burwood and Lewisham (Ex A pp.80-81). In his record of interview the morning after the Yagoona expedition, he said, speaking of the end of the meeting at Queen Street:
“At that point, they gave me no indication as to who I would actually be transporting and whether or not they would have the device on their person. As it turned out, I collected three passengers at the 11.00 p.m. rendezvous.
These people were the three persons who were at the aforesaid meeting, namely Govinda, Narada and Vishvamitra. I was not to be told my full getaway routes until the operation was completed.”
In tape 9, he said “I can tell you who made the bomb”, yet in his record of interview the next morning, in answer to the question “Do you have any idea who manufactured the explosive device?”, he replied “No”.
These clear divergences about central aspects of his account, all within a day of each other, are the signs of a story evolving in some respects on the run. A similar situation occurs with the press releases. The plaintiff gave evidence that he did not know to which papers they were addressed. That Mr. Krawczyk had written their names in his notebook just after the plaintiff left police headquarters shows that this denial was false.
(iii) The journey to Yagoona
The plaintiff’s account to the police on 22 June 1978, repeated in effect in evidence at the trial, that Alister and Dunn had confessed to having done the Hilton bombing, was plainly learned by heart. There is no other explanation for the lengthy close similarity with his journal. See Ex A 268-170, 413-424. He falsely denied this. His account that on the journey Alister and Dunn resolved to detonate the bomb if apprehended, but that he nevertheless kept driving, though knowing that the police had been alterted, is extremely unlikely.
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Last Modified: 01/04/2002
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Seary v Molomby [1999] NSWSC 981
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