Seary v Molomby [1999] NSWSC 981

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 1999

PARTIES : Richard Seary Tom Molomby JUDGMENT OF : Sully J

COUNSEL : Tom Molomby - in person Richard Seary - in person SOLICITORS : CATCHWORDS : ACTS CITED : Defamation Act 1974 (NSW) Crimes Act 1900 (NSW) 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 CASES CITED : 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, 362 DECISION : Judgment for the defendant against the plaintiff

48 SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SULLY J

28 September 1999

13617/91 - Richard SEARY v Tom MOLOMBY

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: "(a) The Plaintiff is a murderer. (b) The Plaintiff framed members of the Ananda Marga by committing perjury." 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: "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." 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.