New South Wales Supreme Court CITATION : Hodge v TCN Channel Nine P/L & Anor [2006] NSWSC 933 HEARING DATE(S) : 31/10/05, 1/11/05, 2/11/053/11/05,4/11/05,7/11/05, 8/11/04, 9/11/05, 10/11/05, 11/11/05, 14/11/05,15/11/05, 16/11/05, 17/11/05,18/11/05, 23/11/05, 24/11/05 JUDGMENT DATE : 18 September 2006 JURISDICTION : Common Law JUDGMENT OF : Smart AJ at 1 DECISION : See para 945 and 946 CATCHWORDS : Highly defamatory segment broadcast on Australian mainland during prime viewing time alleging sexual misconduct on the part of Head Coach of Australian Swimming towards a pupil - Two imputations not justified, one justified on basis of letter written although not followed up - effect and permissibility of contextual imputations - whether imputations statements of fact or comment - Defence of comment - different legal considerations in NSW and other States - publication determines what law applies as to entitlement to damages - If item published in different States law of those various States applies to publication in such States - entitlement to exemplary damages is a matter of substantive law – Conduct of defendants entitled plaintiff to aggravated damages – No entitlement to exemplary damages in NSW but remedy available in other States – Entitlement to special damages for costs of attempting to mitigate damages – amendment of reasons. Civil Law (Wrongs) Act 2002 (ACT) Crimes Act 1900 Defamation Act 1958 (NSW) Defamation Act 1974 (NSW) LEGISLATION CITED : Defamation Act (NT) Defamation Act 1889 (Qld) Evidence Act 1995 Queensland Defamation Act 1889 WA Criminal Code Carson v John Fairfax & Sons Ltd. 178 CLR 44 Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 Cheng v Tse Wai Chai Paul Court of Final Appeal in Hongkong [2000] 3 HKLR 418, 4 HKSC 1 Chernesky v Armadale Publications Ltd (1998) 90 DLR (3 Edn) 321 Cohen v Mirror Newspapers Ltd (1965) 83 WN 369 David Syme v Hore Lacey (2000) 1 VR 607 John Fairfax & Sons v O'Shane[2005] NSWCA 164 Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 Hepburn v TCN Channel Nine Pty Ltd 1984 1 NSWLR 386 Jackson v John Fairfax Limited 1981 1 NSWLR 36 John Fairfax & Sons Limited v O'Shane [2005] NSWCA 164 John Pfeiffer v Rogerson (2000) 203 CLR 503 Jones v Dunkel 101 CLR 298 Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 CASES CITED : NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 O'Brien v Salisbury (1889) TLR 133 Pervan v North Queensland Newspapers Co Ltd (1993) 178 CLR 304 Polly Peck (Holdings) plc v Trelford 1986 1 QB 1000 Radio 2UE Pty Ltd v Parker (1992) 29 NSWLR 448 Regie Nationale Renault v Zhang (2002) 210 CLR 491 Rigby v Associated Newspapers Ltd 68 SR (NSW) 425 Robinson v Laws (2003) 1 Qd R 8 Sims v Wran (1984) 1 NSWLR 317 Smart v Johnston [NSWSC] unrep 8/10/98 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 Telnikoff v Matusevitch [1992] 2 AC 343 The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 West Australian Newspapers Ltd v Bridge (1978-79) 141 CLR 535 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd 155 CLR 448 PARTIES : Gregory Hodge v TCN Channel Nine P/L and Channel Nine Network Australia Pty Ltd. FILE NUMBER(S) : SC 20276/03 COUNSEL : (P) S Littlemore QC & Ms S Chrysanthou (D) B McClintock SC & Mr M Richardson SOLICITORS : (P) Blake Dawson Waldron (D) Gilbert & Tobin INDEX TO CHAPTER HEADINGS Imputations and Defences 3 The Program 6 Early Years 1995-1996 9 Assertions of Truth 14 EF's Departure from the Hodge home 44 Condition of EF in February 1997 54 Some General Submissions and Conclusions 57 Telephone contact between GH and EF 58 GH's visit to Gulgong 61 GH's letter of about 31 July 1997 to EF 63 Parental Action 72 Resumption of Contact 72 The July 2003 emails from GH 85 15 August 2003 87 Contextual Imputations 125 General 155 Publications outside NSW 156 The Comment Defence 157 Queensland and Western Australia 164 New South Wales 171 The attack on the Comment Defence 176 Deletion of allegedly favourable Answers 187 Falsified Sequences 235 Sequence of Interviews 237 Malice/Absence of Good Faith 243 Some General Observations 248 Effect of Justification of Imputation (H) 254 Damages 254 Aggravated Damages 255 Exemplary Damages 261 Special Damages 262 Some Statutory Provisions – Damages 264 Assessment 264 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST SMART AJ Monday, 18 September 2006 20276/03: Gregory HODGE v TCN CHANNEL NINE PTY LTD and NINE NETWORK AUSTRALIA PTY LTD. JUDGMENT 1 On 13 October 2003 during prime viewing time and on the well-known "A Current Affair" television program a highly defamatory segment concerning Mr Gregory Hodge (GH) was broadcast nationally, excepting Tasmania. At that time he was the High Performance Director for Australian Swimming with responsibilities which included the Australian Olympic team. This was a senior and nationally prominent swimming position. TCN Channel Nine Pty Ltd was the broadcaster and caused the segment to be broadcast in the Sydney, Melbourne, Brisbane and Darwin Metropolitan Television Licence areas. Nine Network Australia Pty Limited produced the segment and distributed it to the affiliates of the Nine Network for distribution and broadcasting in various licence areas throughout Australia, including to WIN Television NSW, Griffith, Queensland, South Australia, South East South Australia, Victoria and Western Australia, NBN, Imparija Television and Gold Coast, Adelaide and Perth. 2 The program contained a series of serious allegations or complaints by Emma Fuller (EF) about the conduct of GH. As a young girl she had shown much promise as a swimmer and it was thought that she had the potential to be a member of the Australian Olympic Swimming team, but she would have to train hard and be well coached. GH became her coach. He was widely regarded as a good swimming coach. There was a substantial body of evidence that he did not engage in inappropriate conduct with the swimmers he was coaching. He specialised in training elite swimmers with particular expertise in training swimmers for sprints. EF lived with her parents in Gulgong. She moved to Sydney in early 1995 to receive the training and coaching she needed to realise her potential. She enrolled at Endeavour High School (EHS) and was able to reside with an aunt and her partner for some months but the personal circumstances of the aunt meant that arrangement could not continue. She next boarded with a swimming family but that arrangement came to an end in December 1995. They could not take her in 1996. From early 1996 until early February 1997 she lived with the Hodge family, who treated her as a member of the family. EF became a close friend of Jodi Hodge, then about 22, the daughter of GH and Mrs Hodge. During 1996 the Hodge and Fuller families became friends. 3 EF, who was born on 3 March 1983, was a high spirited, boisterous and attractive young girl with a sense of fun who appealed to GH. He believed that he could coach her to become a swimming champion. Her swimming potential appealed to him and he went to considerable lengths to develop her swimming talent. He was born in 1947 4 Mrs Hodge, who had initially agreed to have EF stay in the Hodges' home, when no other home could be found for her in the Sutherland area, felt that her husband was becoming absorbed in his swimming training and in EF. Mrs Hodge said she became dissatisfied with EF's conduct. In early February 1997 Mrs Hodge ordered EF to leave after a stormy scene. GH and his wife had a row over the matter. EF returned to her parents' home in Gulgong. GH was concerned that her swimming potential would be lost and visited her at her parents' home when on a country trip. He then sent her an ill-advised letter. The defendants asserted that GH had developed a personal interest in EF that extended well beyond swimming and was inappropriate. 5 From late 1997 until early 2003 there was no contact between the Hodge and Fuller families and between GH and EF. In 2003 EF claimed that GH was pursuing her. That was strongly denied. The mother of the boyfriend of EF emailed and involved the defendants. She played a major role in preparing written complaints for EF to sign. One was delivered to the Chamber Magistrate and the other to Australian Swimming. 6 The broadcasting of the program was to have serious consequences for GH. Shortly after the broadcast GH was restricted by Australian Swimming to operational duties which required no contact with members of the Australian Swimming Squad while the matter was being investigated. GH said he was told he was not allowed to have contact with coaches or athletes. Subsequently he felt obliged to resign from Australian Swimming. He is now employed overseas. Imputations and Defences 7 At the 7A trial in February 2004 the jury found the program bore these imputations: (d) GH was a pervert who had preyed upon EF while she was a child under his care and protection; (e) GH had engaged in constant acts of physical contact of a sexual nature upon EF, a child under his care and protection; (h) GH had so misconducted himself in his sexual attentions towards EF that he was unfit to hold his position in charge of Australian Olympic swimmers. 8 The defendants relied on the following defences: (1) Substantial truth and public interest in NSW and the comparable defences in other States and Territories. (2) Contextual truth under s 16 of the Defamation Act 1974 in New South Wales. This has two branches. First, the defendants relied on such of GH's imputations found to be a matter of substantial truth and said that the publication of any other of the plaintiff's imputations not found to be substantially true would not further have injured the plaintiff's reputation. Secondly, the defendants pleaded these additional contextual imputations: "A. GH when a 46 year old man, developed a sick sexual obsession with an 11 year old girl who was under his care and protection; B. GH when a 46 year old man, took advantage of an 11 year old girl who was under his care and protection by engaging in frequent acts of inappropriate and unwelcome physical contact; C. GH is a sexual pervert; D. GH, when a 46 year old man, engaged in frequent acts of inappropriate and unwelcome physical contact with an 11 year old girl who was under his care and protection by reason of his sexual attraction to her; E. GH engaged in inappropriate and unwelcome physical contact with an 11 year old female swimmer by reason of his sexual attraction to her thus rendering him unfit to hold any position in charge of Australian Olympic Swimmers; F. GH had so misconducted himself that he is unfit to hold his position in charge of Australian Olympic swimmers; G. GH misconducted himself towards EF by stalking her by reason of his sexual obsession with her; H. GH has sexually harassed EF; I. GH lied about his stalking and harassment of EF; J. GH has so misconducted himself towards EF as to warrant an Apprehended Violence Order; K. GH abused his position as guardian of an 11 year old girl by repeatedly touching her in order to gratify himself sexually; L. GH engaged in repeated inappropriate acts of physical contact with a young girl under his care and protection with the intention of making amorous sexual advances on her when she reached the age of consent; M. GH had so sexually misconducted himself towards EF that he is unfit to hold his position in charge of Australian Olympic swimmers; and N. GH had engaged in sexual misconduct in breach of sport coaching guidelines applicable to him." These contextual imputations are pleaded to be matters of substantial truth and to relate to public interest and hence the publication of any of the imputations about GH found not to be true would not further injure the plaintiff's reputation. The roughly comparable Polly Peck plea is made for the interstate jurisdictions: (Polly Peck (Holdings) plc v Trelford 1986 1 QB 1000). (3) The statutory defences of comment, comment of a servant or agent and comment of a stranger in New South Wales and the comparable interstate defences. 9 In his amended Reply GH disputed that any of the imputations was a comment but insofar as any imputation was found to be a comment such comment did not at the time it was made, represent the opinion of the defendants, was not, at the time it was made, the opinion of the defendants' servant or agent who made it and was not published in good faith for public information or the advancement of education. 10 In reply to the code or statutory fair comment defences pleaded in Queensland, Western Australia and the Northern Territory GH said that any comment published by the defendants did not represent the opinion of the defendants or their opinion was distorted by malice. 11 As to the pleas of fair comment upon a matter of public interest pleaded in Victoria, South Australia, Western Australia, Australian Capital Territory and Northern Territory, GH said that the defendants were actuated by express malice in the publication of the matters complained of and the defendants did not have an honest belief in the views they published. 12 In his opening speech Senior Counsel for the plaintiff, after having asserted that the statements in the program were untrue, that the mother of EF's boyfriend had out of antagonism to GH interfered and precipitated the making of the program and that the television station, through its operatives had been guilty of reprehensible conduct with accompanying details stated (T13, lns 12-16): "We are not going to argue in these proceedings that if the allegations were true, they would not amount to a matter of public interest, so it is simply a matter of joining issue on the defence that the imputations are substantially true." The Program 13 The transcript of the segment which gives rise to these imputations is too lengthy to set out in the body of this judgment. A copy is attached. The `plaintiff sues upon the program. That is the primary evidence but the transcript is a useful aide memoire The program opens with EF asserting that GH had a sick obsession with her and a comment by the presenter, "A young swim star's life shattered". The presenter asserts that because of GH's unwanted attention she abandoned her swim career and that now, years later, she says that GH was again trying to become part of her life. EF states that she was bitter towards him for what he had done. 14 She asserted that in 2003 GH was following her all the way home. She complained that in 1995 to early 1997 to correct her stroke in breaststroke, he laid her face down on the ground and sat behind her in between her legs. She said that he'd always "be fixing our costumes around our bottom or even flick them into our bottom" and that he rubbed Vaseline near her breasts and under her swimmers. 15 The reporter stated that when EF was 12 (in 1995) Mr Hodge approached her parents and suggested that she'd benefit from moving into the Hodges' house. EF said that GH kissed her a lot and gave her gifts all the time. 16 The reporter, Ms Amanda Patterson, records "Emma says he even moved his home office into her bedroom." EF added "Most nights he'd be in the room when I'd go to sleep and waking me up in the morning." 17 The program shows excerpts from a video shot by GH during a training camp of swimmers at Thredbo. Some boys had dressed up as girls and were acting up. A psychologist called Bob Montgomery, who was described as Australia's leading authority on stalking behaviour was asked to review the tape. He was critical of GH, saying: "But it's also boys dressed up as girls. So he's prompting children to behave in an overtly sexual way that really is inappropriate" and "The number of incidents in which he exerts control over the children to behave in ways that are overtly sexual, suggestively sexual … yeah, once: a bit funny, a bit off; twice: remarkably coincidental; three, four, five times: you're looking at a consistent pattern. It's an alarming trend in this person's behaviour." 18 EF complained of a handle missing from the bathroom door and just a hole being there. She shoved tissues in it when she had a shower. She also complained of seeing GH naked on a number of occasions and him leaving the bedroom door open when he'd come out of the shower. 19 EF said that Mrs Hodge told her to get out (February 1997), accused her of being the other woman in her husband's life and said "she could not have me (EF) living there as she was always second to me and her husband was putting me first." EF's mother is shown expressing regret at the situation which developed. 20 The program next shows and quotes from a letter of apology sent by Mrs Hodge to the Fuller family: "It is very difficult for me to put into words my remorse at creating this turmoil in your lives; I regret it very deeply. I pray that at some stage in the future Emma may begin to forgive me." 21 The reporter asserted that GH refused to accept that it was over and that he drove five hours to Mudgee to try and see EF and then posted the CD "Truly Madly Deeply" to her at her school. EF added that GH wrote to her saying that this was the way he felt about her. Portion of the CD cover, showing some of the fervent words of that love song, were shown on the program. EF added, "He was saying that he loved me … and had to be with me." 22 The reporter states that at 13 EF gave up swimming and was treated for severe depression and that the mental health co-ordinator who treated her had written that EF had been through a considerable amount of stress and that the love song GH sent her was inappropriate in the context of a guardian, teacher or coaches' relationship. The reporter continues that EF's parents told GH never to contact her and he didn't until now (2003). 23 EF states that she is worried, that she doesn't know what he wants and why he is following her. The program shows and records GH denying that he has been following her and denying that he had contacted her. The reporter asserts that GH is lying and that he sent her this e-mail out of the blue: "I would love to hear from you. It is time we had a big catch up." 24 The reporter asserted that two days later, as EF was leaving work, GH was waiting for her, that as she drove home GH followed her in his car, but she managed to get away and that a few weeks ago he turned up again and this time she couldn't lose him. She was scared. The reporter said that EF's boyfriend stayed on the phone during the entire chase. 25 The program goes on to describe the arrival of EF at her boyfriend's unit, the protective actions of the boyfriend and some of his friends and the purported movements of GH arriving at and leaving the vicinity. 26 GH is recorded denying that he had been sitting outside EF's place of work and followed her home. 27 The program contains some comments from EF's father and Veronica Byrne, the mother of the boyfriend of EF. It details that Mrs Byrne contacted Swimming Australia, whose Chief Executive Officer told EF to submit a formal complaint in writing and that EF had done so. It records that EF had commenced proceedings to secure an interim apprehended violence order preventing GH from contacting her or being within 50 metres from her. 28 EF is recorded saying "He discussed many adult matters with me including his sexual relations with his wife, Sue. Several times he walked naked about the house in my full view. [This latter allegation was later retracted and there remained the allegation of seeing GH naked when he did not shut the bedroom door]. When I had my first menstrual period he purchased tampons and stood outside the bathroom door explaining to me how to insert the tampons." (This allegation was amended by deleting the words "explained to EF how to insert tampons" and substituting "and told EF to stay in the bathroom until she had read the packet and worked out how to use them." 29 EF said that what GH had done was wrong, that a lot of stuff had been ruined for her and that she did not really mind if she ruined Mr Hodge's career. 30 The reporter stated that EF was "not being paid for this story". EF said that she thought that she hated GH. The Early Years – 1995-1996 31 In early 1995 EF moved from her home in the country and, with a view to advancing her swimming, enrolled in Year 7 at Endeavour High School, a High School which facilitates the development of sporting talent. During 1995-1996 EF was a student at EHS. GH taught mathematics at EHS and, for part of that period, taught EF. For about six years from 1991 GH was employed by the Sutherland Shire Council as aquatic director and head swim coach at the Sutherland Leisure Centre. At the same time he was teaching at EHS. When EF started at EHS she started swimming in GH's swimming squad. He had agreed to take her. 32 EF told Ms Patterson during a recorded interview prior to the program: "He (GH) was fine at first – he always seemed a bit overwhelming." EF said that at the beginning GH was: "… very like involved with everyone, like a lot" and that he treated her: "Just like any other normal swimmer that was there and then I moved in with him later on …". None of these statements were shown on the program. 33 She lived with her aunt and uncle for about six months until her aunt, pregnant again after a stillbirth, decided EF would not live with them any longer, citing, in particular, difficulties with coping with the early morning training sessions at the swimming pool. In July 1995 EF moved into the residence of Michael and Julie Smith and remained there until just before Christmas 1995. They decided not to have her board with them in 1996. Mrs Smith found she was exhausted with EF. Mrs Smith was also working as a bank officer. Mrs Smith said she tried to find another swimming family to take EF, but was not able to do so. It is apparent that she did not fit comfortably into the Smith household. There was a clash of personalities. I doubt if Mrs Smith would have tried to find another home for EF with another swimming family if EF's behaviour had been too bad. I accept that she was not an easy person to accommodate. 34 Mr Fuller said that Mrs Smith had told him that his daughter could not stay because of the interaction with her son. Mr Smith also alluded to that problem. Mr Smith said that he told GH that they could not have her living with them (the Smiths) any more and left it at that. GH confirmed that no reason was given. 35 GH said, and I accept, that after Mr Smith told him that his family could not take EF the following year he (GH) made enquiries of other families whether they could take Ms Fuller, without success. GH said that he then discussed the possibility with his wife and they made a joint decision that they could take her. They had a spare bedroom as one of their daughters was away at University. They decided to talk to the Fullers, who accepted the Hodges' offer. 36 EF came to live with the Hodge family at the start of the school year in 1996. GH said that this assertion by the reporter in the program was untrue. "When Emma was 12 GH approached her parents and suggested she would benefit from moving into his house with him and his wife." 37 During 1995 Mr and Mrs Fuller came to know Mr and Mrs Hodge and thought well of them. When the accommodation difficulty arose and after the Hodges had made their provisional decision discussions were held between the Hodges and the Fullers. In EF's interview with Amanda Patterson, these exchanges occurred: "Patterson: When you say he treated you like a normal swimmer when did that change? EF: When I moved in with him it changed, and he also taught at the school I was at. Patterson: Were you his favourite? EF: Yes Patterson: Why did you move in to his house? EF: I was originally living with my aunty and uncle … I couldn't stay there any more so he suggested to my parents that I could go and stay with them for like a while and I ended up staying there." (That was not a frank or correct answer. EF did not disclose to Ms Patterson that she had stayed at the Smiths for the second half of 1995 and the Smiths would not have her back in 1996) "Patterson: … Did he say that you'd be more focused on swimming, how, how did he sell it to your parents? EF: … he said that I'd be more focused there, and I'd have more discipline there because he could monitor my training and my schooling." 38 Initially, EF told Ms Patterson she wanted to live with GH and then added, "well, not really …". In response to a direct suggestion from Ms Patterson EF said she thought it was strange that one of her teachers was inviting her into his home. EF added: "I didn't really want to cause I'd have to wear that at school, all the time that I lived with one of the teachers and he was my coach as well, so I didn't really want to live there at all." EF said that she understood the reason for her to move into the household was "Because I had needed a place to live." She agreed that she went to the Hodges because there was nowhere else for her to stay. 39 EF's mother, Mrs Sue Fuller, said that they knew the Hodges and they seemed perfectly good people. Mrs Fuller would have preferred EF to be at home, but she deferred to what EF and her husband wanted. Mrs Fuller gave this evidence: "Q: … you don't suggest it is true … that GH convinced you that your daughter should live with him? A: No, I didn't suggest that. Q: It is not true that GH convinced you? A: Well I would say it was, yes, I could have felt convinced and happy about it. … Q: What did he say to you by way of convincing you? A: That she needed to continue with her swimming for a start, it was a good opportunity for her, that he had lots of experience with swimmers, they felt comfortable having swimmers board with them." 40 Mrs Fuller pointed out that the Fullers did not ask GH if she could go and live at the Hodges. He suggested that as an alternative so that she didn't have to come home (to Gulgong). 41 Despite the varying answers Mrs Fuller gave, she was not being untruthful. She was a mother who was deeply distressed over all that had happened. She preferred her daughter to remain at Gulgong and felt that she should have insisted. She was not nearly as keen as her husband and EF on EF having a swimming career. In deferring to the wishes of her husband and EF she felt that the Hodges, whom they knew, were good people. GH was a teacher and EF's coach and Mrs Hodge was also a teacher. They had two daughters and a great deal of experience with swimmers and children. In a difficult situation where no other accommodation was available she and her husband, with the agreement of EF, accepted the offer made by the Hodges to have her stay at their home. While she was there the Hodges regarded themselves as EF's guardians. 42 Mr Phillip Fuller, EF's father, told ACA that GH did not convince the Fullers that EF should live with the Hodges. Mr Fuller said that when EF went to live with another family and that did not work the Hodges made the offer because they (the Fullers) were going to bring EF home. Mr Fuller stated that Mr Hodge said he would ask his wife and then the offer was made. Mr Fuller stated that GH did not convince him (Fuller) that EF should live with him and that GH did not say, to his (Fuller's) knowledge, in the context of EF going to live with the Hodge family, that she was not concentrating on her swimming. At the time of these events Mr and Mrs Fuller were having substantial matrimonial difficulties and were not communicating well. They saw things differently. 43 It was GH's preference that EF stay in a home other than the Hodges' home; the Hodges' offer of accommodation was a matter of last resort. He was captivated by her ability and potential as a swimmer and the opportunity to coach her. He thought that she had the ability to become an Olympic champion and did not want that potential not to be realised. He also liked her as a person and, at that stage (late 1995 – early 1996), I would not put it any higher than that. GH was keen that EF continue as a member of his elite squad at the Sutherland Aquatic Centre. In the course of his discussions with Mr and Mrs Fuller about EF living with the Hodge family, GH explained the advantages of that course that is, supervising her swimming and schooling. No improper motive on the part of GH in the making of the offer of accommodation has been established. 44 The assertion made by the reporter, and earlier quoted, does not set out the correct position. Assertions of Truth 45 The defendants asserted in the Amended Particulars of Truth that during the period 1995-1997, when EF was being coached by GH and/or was living in his home and/or he was her maths teacher, he became infatuated with her and engaged in a series of discreditable acts having a sexual overtone. GH denied he became infatuated with EF and submitted that the defendants had not proved their allegation. As to each of the acts referred to in subparagraphs (d) and (f)-(i) of the Amended Particulars of Truth the defendants alleged that GH did or caused them to be done by reason of his sexual obsession with and/or sexual attraction to EF. 46 Particular (d) reads: "Pursuant to the invitation of GH, EF moved in to live with GH and his family, namely his wife and two daughters. During her stay with GH which lasted from approximately early 1996 to early 1997, GH referred to himself as EF's guardian. GH was at the time approximately 46 years of age." 47 The circumstances in which EF came to stay with the Hodges are set out earlier. The offer made to EF's parents for EF to stay with the Hodge family came after GH had unsuccessfully made attempts to find alternative accommodation for EF. Both Mr and Mrs Hodge regarded themselves as EF's guardians. GH was aged 48 when EF came to live in the Hodge household. 48 The defendants have not established that GH made the offer to have EF live with the Hodge family in the Hodges' home and accommodated her there by reason of his sexual obsession with and/or sexual attraction to EF. Nor have the defendants established that in accepting the role of one of EF's guardians and acting as such GH did any of those acts by reason of his sexual obsession with and/or sexual attraction to EF. 49 Particular (f) (i) reads: "During or immediately prior to swimming training and swimming carnivals GH on frequent occasions flicked the bottom part of EF's swimming costume with his fingers into her behind." 50 This activity is described in swimming circles as a "wedgie". EF said that she gave a lot of wedgies to other children in the swimming squad and that they gave them to her, that is, flicked her swimming costume with both little fingers into her bottom (or up her backside). EF said GH did this to other girls in the squad but not to the boys. 51 In cross-examination EF denied that in 1996 her favourite joke was giving wedgies to the other girls in the swimming squad. She said that the other girls were giving her wedgies. Ultimately she conceded that in 1996 her favourite joke with the other swimmers was giving them wedgies. It took some time to obtain the truth from EF. 52 In his evidence in chief GH said that he could not recall ever giving EF a "wedgie". GH said that if his memory is faulty and he did it, it would not have been done for his own sexual gratification, whether to EF or anyone else. GH said that the giving of wedgies was a practice started by EF when she came into the squad. She did it to both girls and boys. GH said that he had seen her chase the boys into the boys' change room to do it to them. GH said it became part of the horseplay within the group and no one took objection to it. Apparently he took no action to stop the practice. In cross-examination GH agreed he may he have done it, but he did not recall doing it. He did not agree that it was an overly sexual thing to touch the costume of a pre-pubescent girl around her buttocks. GH thought it depended on the context and that if he had done it, it would only have been in the context of horseplay. 53 Mrs Sue Hodge gave evidence that EF used to give wedgies and introduced the practice to the squad. It was treated as horseplay. She was not asked, either in chief or in cross-examination, whether she saw her husband giving EF a wedgie. 54 Jodi Hodge, the plaintiff's daughter said that EF's allegation that her father used to flick EF's costume into her bottom was untrue. On the other hand EF frequently gave others wedgies both at home and at the pool. 55 Mr Michael Smith said that after EF left his home he continued to attend the Sutherland pool on a daily basis and he saw GH and EF. Mr Smith said that at the (swimming) club he saw EF on numerous times give other people a "wedgie". He was not asked, either in chief or cross-examination, whether he had seen GH give EF a wedgie. Mr Smith was a strong supporter of GH and thought highly of him. 56 Ms Simone Cox had never seen GH give a swimmer a wedgie. She attended EHS from 1995 to 1997 and she and EF were members of the same swimming squad. She had known GH since she was four years old and had trained with him until she was aged about 16. She described him as a very good coach who enjoyed very high respect. He was very professional. She had never seen him behave in an inappropriate way towards a young female swimmer. 57 She said that before EF joined the squad she had occasionally seen other swimmers give another swimmer a wedgie. When she saw the program she thought it was totally outrageous and that the claims were totally untrue. 58 Kirsten Eileen Thomson, aged 22, said that she was studying Arts at Sydney University. She was a distinguished swimmer, having won a silver medal at the Sydney Olympics and a silver medal at the World Championships in Barcelona. GH was the manager of the team which went to Barcelona. She was again in heavy training. She was coached by him for about six years from 1991 to 1997 at Sutherland Pool. She said that prior to the program GH enjoyed the utmost respect in the Sutherland Shire Community. She regularly observed GH in his conduct both at the swimming pool and at home. She said that she had never seen GH touch anybody, or deal with anybody of either sex, in any way that she thought was inappropriate. She trusted him. She said that she and EF had been pretty close friends. She said that wedgies were quite frequently given by one swimmer to another at training. EF did it to her and other people. It was taken in good fun. 59 Ms Thomson was a member of the NSW Institute of Sport and the Australian Swimming Team. She said that GH was instrumental in improving the women's team and establishing a mentoring program. She did not believe the allegations in the program. She had known him for 13 years and he was not as portrayed in the program. She said that after the program some people in swimming circles, who had previously had a lot of respect for GH, made adverse remarks about him. 60 Ms Thomson said that EF was a lot of fun to be around. EF was very loud and boisterous and demanded a lot of attention from everyone around her. Ms Thomson said that coaches enjoy coaching people with a lot of talent. She described the relationship between a champion swimmer and her coach as a very close bond. That close bond is established before the swimmer becomes a champion. Ms Thomson was not cross-examined. She was an admirer of Mr Hodge. Although she came across as self opinionated in her evidence in chief, she was an outstanding swimmer, articulate and intelligent. 61 Mr Joshua Robert Smith was employed as a quality control officer by Energy Australia. He was also studying electrical engineering at University. He had known GH since about 1993/1994. He was Mr Smith's swimming coach. Mr Smith said that GH had a very good reputation as a good swim coach and a proper swimming coach. GH did not have "any kind of a dodgy reputation at all." Mr Smith said that he was in the same squad as EF. He did not regard himself as a top swimmer. He trained in the mornings with EF in 1995 and 1996. EF lived with his family for six months. 62 Mr Smith said that at training EF had a very fun going sort of attitude. He said that at the club when some of his friends and fellow swimmers were about to dive in for their next event or race for the evening, she ran by and flicked their swimmers. This was called a wedgie, but he regarded it as more of a slap. When asked whether that was taken in good part he replied, somewhat pointedly, "By herself, yes." He had not seen people doing that before EF joined the squad. She did it a lot and it definitely became more common after she joined the squad. 63 Mr Joshua Smith was no admirer of EF, but he impressed me as a decent young man whose evidence was truthful. He was cross-examined briefly on other matters. He did not regard some of the boys dressing up as girls at the Thredbo Training Camp as offensive, but as young people mucking up at the end of the camp and having some fun. That was my impression. 64 On the balance of the evidence the defendants have failed to establish that GH gave her wedgies. Even if he did so occasionally, the defendants have failed to establish that it was done for some improper motive and that it was other than tasteless horseplay. 65 Particular (f)(ii) reads: "During or immediately prior to swimming training and swimming carnivals the plaintiff instructed EF to lay face down on the concrete near a pool, or lay over the swimming blocks, and then he would sit behind her and he would hold her legs and move them." 66 EF said that in breaststroke training GH sometimes would either stand behind her when she was at or on the swimming pool blocks, or when she was on the side of the pool. He held her legs in the place where they should be going. He placed his hands on her ankles, on her legs on her calves and just above her knees. This made her feel very uncomfortable but she did not say anything to GH. That is surprising given her boldness. 67 In cross-examination EF affirmed her allegation that GH held her legs while he sat between them and instructed her in breaststroke technique. She disagreed that it would be physically impossible for somebody to hold her legs and instruct her in breaststroke technique while standing between her legs. (T1122-3). 68 In the program this was said: "EF: He [GH] lie me face down on the ground in breaststroke and sit behind me in between my legs to correct my stroke. Reporter: And hold your legs as you were doing EF: Yeah Reporter: What was that like? EF: It was uncomfortable. It was horrible. None of the other teachers did it." 69 Mrs Sue Fuller said that her daughter often said that when they were training that was what was done and she did not like it. 70 In his answers to interrogatories 1(b)(vi)(ix) and (x) (Exh 26) GH in response to being asked what part or parts of EF's body he touched, replied: "ankles and feet". 71 In his evidence in chief (T63) GH agreed that he sat behind her at the swimming pool and at the starting blocks, holding her legs and moving them. He said that it was part of normal coaching practice when instructing swimmers in how to correctly position their legs when they were doing breaststroke. He did it as part of coaching breaststroke and not for sexual gratification. GH said that he had followed that course with other swimmers and that many other coaches follow that course. It is the course recommended in the coaching manual. It would be impossible to sit between a swimmer's legs and correct a breaststroke kick. He had never tried to do that. 72 In cross-examination (T351) GH said that if he was coaching EF or any other swimmer in the breaststroke kick there would have been occasions when it would have been necessary to place his hands on the quadriceps and hamstring muscles. GH stated that the quadriceps muscles and the calf muscles were just above the knee. They were nowhere near the genitals. GH disagreed that it was inappropriate conduct to touch a 13 year old female on the thighs above the knees. He did not have a satisfactory explanation for why he confined his answer to Interrogatories to touching EF's ankles and feet. GH would have realised that the answer he gave to the Interrogatories was incomplete and that a complete answer might provide the defendants with a further basis on which to attack him in his court case. 73 Ms Jodi Hodge gave evidence that she was a qualified swim coach and had taught breaststroke. She said that she had put her hands on a swimmer to assist in showing them the correct stroke. She explained that breaststroke is difficult for some children to master and being able to turn their ankles and teach them which muscles they are using is beneficial. She had put her hand on the inside of the leg just above the knee. Ms Hodge could not recollect whether she had seen her father teaching EF the breaststroke kick. She had seen her father teaching breaststroke many times. It was not possible to sit between the swimmer's legs and teach the breaststroke kick. 74 Mrs Karen Lynne Stephenson, an Olympic champion (Karen Moras) many years ago, a swimming coach for over 30 years, the manager of the Australian women's swimming team between 1998 and 2003, was appointed as the head manager of the entire Australian swimming team and by the Australian Olympic Committee as section manager for swimming at the Athens Olympics. She is the Operations Manager of the Aquatic Institute at Presbyterian Ladies College, Croydon, and a swimming coach there. She has been employed by PLC for the last 16 years. She knew GH as a colleague in her career as a professional swimming coach and personally since 1998. GH was the head manager and the head coach between 1998 and 2003 when she was manager of the Australian women's team. She said that he had an excellent reputation as a coach and as a manager. She had never heard a bad word about GH and she had got to know his character. She has never seen him behave to any person in a physical or emotional way that she thought inappropriate. No swimmer had indicated to her that GH's behaviour had made that swimmer or anyone else uncomfortable. 75 Mrs Stephenson's reaction to the program was one of shock and disbelief. She could not believe that the man she knew was being accused of the conduct alleged in the program. She said that after the program there was considerable talk among the swimming coaches, with the male coaches being very quick to judge and criticise, with remarks such as he was a sleaze and had coached a lot of young girls. 76 Mrs Stephenson said that in the 1990s and earlier it was common for coaches to lay their hands on a swimmer in the course of instruction. She said that since the A Current Affair program this had changed. 77 Mrs Stephenson said that when she taught breaststroke on dry land she stood behind the swimmers. She said that before the ACA program she laid her hands on the students all the time, that that "was the only way really that you were able to show young children how the kick is performed because it is not a natural movement. We don't walk with our feet turned out at a right angle." She was familiar with the technique which GH described as "proprioception" but did not use it herself, as she did not coach at the same level as GH and younger children probably would not understand that technique. She knew other coaches that used it. 78 Mrs Stephenson described the very close relationship she had with her first coach, the well-known Forbes Carlisle. She spent a lot of time outside the pool with him and he took her on many outings. She too cultivated a close relationship with her swimming students. She added: "In the school holidays, I take them snorkelling, to the pictures, tenpin bowling. It is building a relationship outside the pool. Swimming coaching is not just about swimming, it is about teaching swimmers life skills." 79 In cross-examination Mrs Stephenson was referred to an article written by a Mr David Urquhart, the President of the Australian Swimming Coaches and Teachers Association, and his interpretation of the way stroke correction for breaststroke should be executed. She did not know of the views he held in October 2003. Mrs Stephenson disagreed strongly with Mr Urquhart's views. She was a very impressive witness whose evidence carries much weight. 80 The conduct in question took place in 1995-1996, that is, in a period where physically touching a swimmer above the knee to correct her breaststroke was not considered inappropriate. 81 In the program EF asserted that GH, when correcting her breaststroke sat behind her in between her legs. In their Amended Particulars of Truth the defendants deleted the allegation that GH sat in between her legs. EF attempted to justify what she said in the program thus: "He was behind me in between my legs, so that's behind you in between your legs." 82 She was the further questioned: "Q: What do you mean 'in between your legs? A: Like behind you, in between your legs guiding where they should go." 83 I do not find this explanation very convincing and the defendants by their amendment did not allege that GH sat in between EF's legs. Ms S Cox said that she never felt uncomfortable when GH placed his hands on her hamstring and quadriceps muscles. It helped her to feel the movements and so when she went back into the water it enabled her to better feel for the correct movement. 84 The defendants have not established that in 1995-1996 the method used by GH of correcting EF's breaststroke was not one used quite commonly by some coaches of good repute. It was not regarded as inappropriate in 1995/1996 or early 1997. It was a useful and helpful way of teaching correct breaststroke swimming in 1995/1996, especially to students in an elite swimming squad. The defendants have not established that GH used the method of instruction for the purposes of sexual gratification nor as a result of his sexual obsession with or sexual attraction to EF. 85 Particular (f)(iii) reads: "During or immediately prior to swimming training and swimming carnivals the plaintiff frequently applied Vaseline to parts of EF's body, mostly near her breast." 86 In the program this appears: "Reporter: GH, she says would also rub Vaseline near her breasts. EF: And he'd come up and pull it [her costume] down and rub Vaseline there and he'd rub the Vaseline under our swimmers then place our swimmers back to the way they were. Reporter: Did that bother you? EF: Yeah, it used to feel uncomfortable." 87 EF said that sometimes GH would apply Vaseline to where she had chafe marks. GH applied Vaseline frequently to deal with chafe marks, potential chafe marks and cuts. She could not remember whether he did so daily. She demonstrated and agreed that GH applied Vaseline from below her armpit towards the area above her right breast. She said she felt uncomfortable when he did this. 88 EF said that she told her mother that GH used to apply Vaseline but not that he put his hand inside her costume. She said it would not be true to say he put his hand inside her costume because he pulled it down to put Vaseline on, but he did not put his hand between her flesh and the fabric of the costume. She agreed that she did not tell her mother in 1996 or 1997 that GH rubbed Vaseline near her breasts. 89 GH denied that he frequently applied Vaseline mostly near EF's breast. He did apply Vaseline to her body. GH explained: "The females' swimming costume straps were tight over their shoulders and they would chafe and rub against the neck and shoulders and sometimes under the armpits causing red welts, so the Vaseline was there, applied to both the skin and stitching on the costume to try to help avoid the chafing." 90 GH said this is what he did to EF and other female swimmers. GH said that if the swimmers were having trouble before training he directed them to apply the Vaseline to their own shoulder straps before entering the water. They could use the towel to wipe their hands to get a grip on the water. If the chafing occurred while they were in training and their hands were wet he and other coaches applied the Vaseline where the chafing took place. GH said he applied the Vaseline onto the shoulders or the shoulder straps or under the arms where the chafing had taken place and onto the stitching on the costume. GH said that he did not apply the Vaseline for the purpose of his sexual gratification. When he applied Vaseline it was always on the pool deck, out in the open in front of parents, swimmers and other coaches. 91 In cross-examination GH agreed he told Mr Wilkinson of Media Monitors (T287): "Vaseline. In those days kids got cossie rubs. Stitching rubs. We always used to put vass on the stitching. That was just something that coaches did those days." 92 GH supposed that under the arms where the costume comes around the back is adjacent to the breasts. That is self-evident. GH did not agree that it was inappropriate to put Vaseline under her arms and insisted that it was a common practice by other coaches in 1996. GH applied Vaseline on the bodies and costumes of EF and other female swimmers, where there was chafing, as necessary. 93 There was an abundance of evidence as to the use of Vaseline to prevent or cope with chafes. Ms Simone Cox said that as a swimmer you can't put the Vaseline on your hands yourself so someone else has to put it on for you. She said that if she ever had to have Vaseline applied GH would always ask her beforehand. She never felt uncomfortable. GH applied the Vaseline under the arms where the costume rubbed. 94 Mrs Stephenson said that if the Vaseline is not applied the skin can become infected and that prior to the program coaches applied Vaseline to elite swimmers as well as the swimmers applying it to themselves. The position is different now as no coach wants to be put in GH's situation. 95 While in 1995/1996 GH applied Vaseline under EF's arms where her costume rubbed to ease any chafing potential chafing or cuts, and that included putting Vaseline on the seams of her costume under the arms and that was close to the breast, it was common practice for coaches of elite swimmers to do so in those years and accepted by the swimmers without demur. GH did not single out EF. The defendants have not established that in 1995/1996, in carrying out this routine procedure, GH did so with any sexual motive, nor that GH did anything which was untoward or improper by the standards of those days. There has since been a change in standards and procedures. 96 Particular (f)(iv) (as amended) reads: "On a number of occasions during EF's residence at GH's home, GH stood naked in the main bedroom of his house in view of EF." Originally it was alleged that GH on a number of occasions during this period walked naked around the house. 97 EF said that in 1996 she saw GH naked on a maximum of two or three occasions. He was in the main bedroom standing and bending in front of a cupboard that faces the doorway. The doorway opens on to a hall. EF said that she was in her bedroom just inside the doorway of that room. EF said the doorways look into each other at the end of the hallway. She particularly recalled one occasion because she made eye contact with GH. She said that he was bending down naked and then he stood up. They made eye contact. He continued getting dressed and she turned around in her room and continued what she was doing. She said that she was shocked. GH did not say anything to her about the incident. 98 EF in a letter lodged with the Chamber Magistrate, dated 29 September 2003, stated: "Several times during my residence at Hodges' he walked naked about the house in my full view." 99 A letter dated 29 September 2003 signed by EF and sent to Australian Swimming Incorporated contained the same statement. The letter was prepared and typed by Ms Veronica Byrne, the mother of EF's boyfriend. EF agreed that that statement was wrong and that she did not check the letter sufficiently carefully before signing it. EF's approach was offhand. 100 In the program EF said, "I saw him on a number of occasions naked. He would leave the bedroom door open when he'd come out of shower" and "Several times he walked naked about the house in my full view." 101 EF told the reporter prior to the program that on a number of occasions she saw GH naked where he knew she maybe would walk out and see him. EF told the reporter that she did not know whether GH did it deliberately. EF in response to a direct question from the reporter, stated that she made eye contact with GH on one occasion. EF was questioned about this topic by the reporter and elaborated upon it. 102 EF conceded in her evidence that it was incorrect to say that GH walked naked about the house, but insisted that she had seen GH naked in the house when he left the main bedroom door open. 103 It appeared that TCN9 gave EF a piece of paper on which the words were written "Several times he walked naked about the house in my full view" and that she read them out on the program. They were not correct when she read them out. She should have realised this and not done so. TCN9 should also have realised that EF was being asked to read out a damaging statement which was at least impliedly known to be incorrect. 104 GH denied that he walked around the house naked in full view of EF. In cross-examination GH said he had no recollection of EF ever seeing him naked in the house. GH said you cannot see into the main bedroom from the hallway, except for a small stretch of carpet adjacent to a window and in front of a wardrobe. GH said that EF's bedroom was offset from the hallway. From inside EF's bedroom it was not possible to see into the main bedroom, but it was possible to do so from the doorway of EF's bedroom. 105 Mrs Hodge had never seen her husband at a time when they had children, or at a time when there was any guest in the house, walk naked about the house. Jodi Hodge had never seen her father walk about the house naked. GH and his wife said that GH was never alone in the house with EF. EF said that she told her mother that she saw GH naked in his bedroom, but her mother said no such complaint was made. 106 There is no corroboration from any other witness of the original allegation or the amended allegation. While there does not have to be supporting evidence, the initial allegations to the Chamber Magistrate and Australian Swimming and the words EF read out on the program were incorrect. In a domestic situation a person could accidentally not shut the bedroom door, and any viewing of a naked GH could have been accidental and unintended. It has not been established to the contrary 107 The balance of the evidence favours the conclusion that the defendants have not proved on the balance of probabilities that the amended allegation is substantially true. 108 Particular (f)(v) reads: "During the period when EF was living in GH's house she had her first menstrual period. GH purchased tampons and stood outside the bathroom door and told EF to stay in the bathroom until she had read the packet and worked out how to use them." 109 That formerly read after the words "bathroom door" the words "and explained to EF how to insert the tampons." 110 EF gave evidence that GH told her that she could not use pads any more or miss any more training sessions and that she would have to buy tampons. They were bought for her by GH as he drove home from the pool. She said that she went into the bathroom, closed the door and said to GH that she did not want to use tampons. He told her that she had to use tampons or she could not do swimming training. She said that he was standing outside and said that she would have to read the instructions and use tampons as she could not have any more time off training. He asked if everything was okay. 111 In the letters to the Chamber Magistrate and Australian Swimming it was stated "When I had my first menstrual period, he purchased tampons and stood outside the bathroom door, explaining to me how to insert tampons." The last clause was an inaccurate summary of what occurred, but the subject matter was the insertion of tampons so she could resume swimming training. EF read out the last quoted statement on the program (lines 591-593). That statement suggests more involvement than EF says was the case. That should not have happened as the defendants had been made aware of the position asserted by EF. 112 GH was aware of EF starting to menstruate. He said that in accordance with his well established practice he referred her to Dr Jenny Saunders, the team doctor and the Hodges' family doctor, for advice on how to manage menstruation and training. 113 GH denied that he told EF that she had to use tampons for training and stay in the bathroom until she had read the packet and worked out how to use them. 114 Ms Jodi Hodge said that "pretty quickly" she developed a very close relationship with EF, who asked her if she could wear a pad when she went swimming. Ms Hodge said to EF that was not a great idea and suggested she used a tampon or nothing. Ms Hodge said that from her experience some swimmers wore tampons and some wore nothing. She said that EF used pads on occasions. Ms Hodge said that it was not always the practice for female swimmers who were menstruating to wear tampons. Ms Hodge stated that EF did not use tampons when she was swimming when she had her periods in 1996. EF indicated she was unwilling to wear tampons. 115 Ms S Cox said when she started menstruating she did not wear anything. The blood flow is not strong enough. She said that a lot of female swimmers had the same approach. 116 The balance of the evidence points to young girls who had recently started to menstruate not needing to wear tampons and EF not wearing tampons. Given GH's evidence that he referred girls who had started to menstruate to the team doctor for directions and advice, it is improbable that GH would have entered the field of purchasing tampons for EF and insisting that she wear them. It was put to Ms Hodge, and she agreed, that EF was unwilling to wear tampons. Mrs Hodge spoke of buying pads for EF and Ms Hodge of EF's mother supplying pads for EF which were kept in the bathroom. 117 I cannot overlook the inaccuracies in EF's initial complaints to the Chamber Magistrate and Australian Swimming and repeating them on the program. EF and the defendants should have realised that they were incorrect. 118 The defendants have not established the substantial truth of the amended allegation. I have found it unnecessary to consider the further submission that, if the amended allegation had been established, the conduct of GH was not inappropriate for someone acting as EF's guardian. 119 Particular (f)(vi) reads: "During the period when EF was living in GH's house GH massaged EF while she was lying prone and topless on the bed in his room." 120 EF said that on one occasion at night in 1996 after a training session and after dinner, she had underwear around her lower half and a towel around her and GH was massaging the top part of her neck and back. EF said she was in the main bedroom on the bed. Mrs Hodge was also present. (GH complained that this was not put to him or his wife). EF said her mother telephoned her but she could not recall the telephone call, by which I think she meant the terms of the conversation rather than whether it was made. 121 In a spirited session of cross-examination in which the cross-examiner and EF were at some stage at cross-purposes (T1044-5) EF insisted that GH gave her a massage when she was topless. She was uncovered on the back. She said: "I was lying face down with a towel and the towel was covering my body as well, my legs but it was uncovered at the back." 122 She said that her mother telephoned while the topless massage was happening. EF said she told her mother of that massage but could not remember the year. Mrs Fuller recalled a telephone call she had with EF during 1996 one evening and heard EF say "Don't touch me there. Mrs Fuller asked, "What's going on?" EF replied, "Greg's giving me a massage" (T646). Mrs Fuller said she asked nothing else. The incident took place at a time when at least some members of the Hodge family were likely to be at home. There is no evidence as to who answered the telephone initially. 123 GH pointed out that EF had made no complaint about this incident to the Chamber Magistrate, Australian Swimming or the police. Amongst the many complaints that were made I do not attach any significance to her omitting to mention one complaint. 124 GH denied that he ever massaged EF and he denied ever having massaged EF while she was topless. GH said that he did lay his hands on EF for the purpose of relieving any pain or muscle soreness after EF complained of sore shoulders after training. He and his wife gave EF the occasional "flick rub" on her shoulder. EF would usually be sitting on the floor while the Hodges were in a lounge or chair in the family room area. EF was always dressed or in a swimming costume. 125 Mrs Hodge, in her evidence in chief, said that she knew of no occasion on which EF lay on a bed while undressed to the waist, whether covered with a towel or not, and GH rubbed or massaged her. Mrs Hodge says it could not have happened. There were two bedrooms with lofts with mattresses and not a bed as such. There was not enough space for a massage to take place in either loft; "you can't kneel". EF would not have been permitted to go into the main bedroom. Mrs Hodge said that she was "pretty fussy" about the way she kept her bed and that is probably so. 126 Mrs Hodge said that both she and her husband gave EF a shoulder rub on more than one occasion. These shoulder rubs occurred after EF had complained of sore and stiff shoulders and either GH or Mrs Hodge would rub EF's shoulders. Usually EF sat on the floor and the Hodges sat on the sofa. Sometimes EF sat at the kitchen table and the Hodges stood behind her. Mrs Hodge said that on a couple of occasions she rubbed EF's shoulders briefly while she (Mrs Hodge) was standing in the kitchen. 127 It is improbable that Mrs Hodge would have permitted her husband to massage EF on the bed in the main bedroom. It is also improbable that GH would give EF a massage (or shoulder rub) while EF was topless and lying on the bed in the main bedroom, with Mrs Hodge present in the house. Mrs Hodge would not have permitted that and I doubt if GH would have attempted it with Mrs Hodge present in the house. I do not doubt that on one night when GH was giving EF a shoulder rub Mrs Fuller telephoned and spoke to her daughter and heard her daughter tell GH "don't touch me there." However, the incident as described by EF does not seem one which Mrs Hodge would have permitted. Mrs Hodge was particular about the main bedroom and the bed. 128 The defendants have not established the substantial truth of this allegation. 129 There was other material on the topic of massages or shoulder rubs or flick rubs, but it was not the subject of the Amended Particulars of Truth. 130 GH denied that he ever gave EF a massage some mornings at the pool. He said that they had employed people to do the stretching and warm-up activities for the team. 131 Ms S Cox said that on one occasion after she had hurt her shoulder, GH gave her a massage with her permission to help relax the muscles around her shoulder because they were very much knotted. That did not strike her as inappropriate. 132 I am not persuaded that GH engaged in any inappropriate massaging or rubbing. The defendants have not established the substantial truth of this allegation. 133 Particular (f)(vii) reads: "GH bought many gifts for EF including jewellery such as rings and bracelets." 134 It was not disputed that EF received some small gifts from either the Hodge family or GH. The circumstances and motivation were in issue. 135 EF said GH and she were walking through the markets at the Rocks. There was no one else with them. She saw a moon and star ring which she liked and GH bought it and gave it to her. She could not recall how much it cost. She said that in 1997 he gave her a Savage Garden CD, In 1996/1997 he gave her swimming caps, swimming costumes and tracksuits. The Hodge family gave her a bracelet with the name "Emma" inscribed upon it. When she was at a competition in Brisbane and they were at the markets GH gave her a sketch of herself made by a street sketcher. In cross-examination EF said she had thrown the ring out and that she had also thrown out a gold pendant with charms hanging from it which GH had bought for her. EF said her mother saw the pendant and the charms. They hung from a necklace her parents had given her and she told them that the charms were a gift from the Hodge family. 136 EF agreed that in her letter to the Chamber Magistrate and that to Australian Swimming, she referred to GH buying her many gifts including jewellery such as rings and bracelets. She agreed that it was incorrect to use the plural and that she didn't notice the "s" there when checking the letter. 137 EF said the bracelet might have come from the family, but GH handed it to her. She denied that she was at the markets with GH, Mrs Hodge and Jodi Hodge and the family bought a bracelet for each of Jodi and Katie Hodge and EF. 138 EF said that GH gave her some swimming clothes and that he bought her some swimming clothes (several track suits, several swimming costumes and several caps). She did not know whether her parents later reimbursed GH. 139 On the program EF is recorded as saying: "And he used to give me presents. He has this bracelet made for me with me (sic) own name on it." EF was coached in the giving of this answer by the reporter. 140 GH gave this evidence in cross-examination: "Q: Now, you gave her a ring on one occasion, didn't you? A: Not that I recall Q: You were at the Rocks Market with her alone, weren't you? A: Not that I recall. … Q: And you bought her a ring there, didn't you? A: I don't recall that. Q: You gave her a gold pendant with charms on it. Didn't you? A: I don't recall that. Q: You gave her a caricature of herself, didn't you? A: No, I don't recall. Q: You gave her a number of other gifts over the period that she was living with you, didn't you? A: … as part of the family we exchanged gifts and gave her birthday presents and if we were out buying gifts for the girls … both my wife and I would also buy gifts for Emma to make sure she felt included in the family." 141 GH agreed that he also bought her an Alanis Morrisett CD. 142 Mrs Sue Hodge said that while EF lived with her, GH gave her swimming equipment which sponsors provided. EF's parents provided her with a lot of swimming equipment. The Hodges bought her goggles and caps and were reimbursed by her parents. Mrs Hodge had never seen EF in possession of a gold pendant with charms, but she said that EF had a couple of little rings. Mrs Hodge did not recall EF ever showing her any item of jewellery and telling her that GH bought it for her. Swimming gear received from sponsors was distributed three ways, that is to each of their daughters and to EF. 143 Jodi Hodge said that EF was bought gifts by all the members of the Hodge family. She said that she, Katie (her sister) and EF each received a bracelet on the same occasion. Jodi Hodge confirmed her mother's evidence as to the receipt and distribution of swimming gear. She had never seen EF with a gold pendant with charms attached to it. 144 Mrs Fuller said that she was not aware of any gift to her daughter which was inappropriate. She disclaimed having a complete knowledge of the gifts received by her daughter. 145 I find that each of GH's daughters and EF received about the same time a bracelet with her respective name on it. From the descriptions given these were inexpensive. 146 It is noted that neither Mrs Hodge nor Jodi Hodge recalled the pendant. Ladies often have a keen eye for items of jewellery. The gift of swimming gear was provided out of items received by GH from sponsors. Apart from the sporting equipment, all the gifts alleged appear to be of small, inexpensive items of no great consequence. They were tokens of civility designed to make EF feel part of the Hodge family. It has not been established that any inappropriate gift was made by GH to EF prior to her being told to leave the Hodge family residence, nor that GH made an excessive number of gifts to EF. 147 The defendants submitted that the critical issue was what was GH feeling at the time and that the inference to be drawn from his conduct in 1996 and from his state of mind in 1997 and 2003 was that his conduct in giving frequent gifts, if not always then a lot of the time, did have a sexual motivation. I have not accepted as proven that the frequency of gifts from GH to EF was as great as the defendants suggest. I would draw no inference adverse to GH in respect of the division of sporting or swimming equipment received from sponsors. The defendants have not established that the gifts made by GH to EF were by reason of his sexual obsession with and/or sexual attraction to EF. I am not satisfied that there is a sufficient basis up to the time EF was told to leave by Mrs Hodge to draw the inference sought by the defendants and I do not draw that inference. 148 As to the gifts after EF was told to leave by Mrs Hodge, those items of sporting equipment which were given or offered by GH to EF were, as recognised by EF, an inducement to EF to return to the sport of swimming and swimming training. It has not been proven that there was any sexual motive behind those gifts or offers. GH was keen to oversee the training and development of a person he regarded as capable of becoming a champion. He was not only a good swimming coach but an enthusiast and his enthusiasm extended to his pupils. He rejoiced to see them do well. If his pupils did well, that enhanced GH's reputation. 149 The gift of the CD Savage Garden falls into a different category. The song "Truly Madly Deeply" is a love song. In his letter GH wrote, amongst other things: "I love the Savage Garden CD – I hope you do too – especially the song – madly deeply – it's how I feel about you." 150 The letter as a whole, with its reference to how he feels about EF conveys two main messages, first that she should return to swimming, as he still felt she could go all the way and secondly that he loves her deeply and wants to be with her. I do not accept GH's explanations. The statement that the song madly deeply is "how I feel about you" encapsulated his love for her (EF) and that she has captivated him. I would infer that he felt a sexual attraction to her. A feeling of love of a sexual kind for EF or sexual attraction to her is not necessarily improper but the expression of those feelings either orally or physically by a former coach to a 13-14 year old former pupil whom he is urging to return to her swimming is improper. The problem lies not in being tempted and wrestling with that temptation, but yielding to that temptation in part. 151 Particular (f)(viii) reads: "GH discussed his sexual relations with his wife with EF." 152 EF said that on one occasion GH stated that he and his wife were not getting along, that things weren't very good between them and that he was not getting any, in a sexual sense. This conversation was said to have taken place in a car between EF and GH with no one else present. EF also said that on an occasion GH said that his wife was going to Jenny Craig. This evidence was not completely satisfactory. While EF could recall the topic they discussed she said "I can't recall, [the conversation] word for word, but it's in my mind. I have the memory in my mind of the subject that it was about. I couldn't begin to say the conversation, just my memories." What I have summarised earlier was what she remembered of the substance of the conversation. Her recollection is sketchy and one on which it is difficult to rely. 153 EF is recorded on the program saying: "He discussed many adult matters with me including his sexual relations with his wife, Sue." This statement does not appear in any of the preparatory camera tapes of various interviews from which, in the main, the program was composed. 154 During a conversation with the reporter prior to the program being shown this appears: "Reporter: And he talked to you about his sex life EF: Not so much like his personal sex life, but sex in general he spoke to me about a lot. Yes. Reporter: What would he say? EF: That I can't remember." 155 On one view what EF is recorded as saying in the program does not appear to be consistent with what she is recorded as saying in the camera tape of the principal interview between the reporter and EF. There was no explanation for this. On another view that comment does not preclude GH mentioning briefly the problems, including any sexual problems with his wife. 156 The police on 25 August 2003 made the following record: "The POI [GH] would also discuss his sexual relationship with his wife to the victim and talk about sex in general." 157 In the letter to the Chamber Magistrate and Australian Swimming this is stated: "He discussed many adult matters with me as though I were his peer, including his sexual relations with his wife Sue." 158 That sounds more like Mrs Byrne's language than that of EF, but EF signed the letters. Mrs Fuller said that her daughter made no such complaint to her. Someone may have lifted the words from the letters and had EF say them on the program. They tended to emphasise the allegedly improper conduct of GH. 159 GH denied discussing with EF his sexual relations with his wife, or sex in general. He said that he and his wife were quite private about their sexual relations. He claimed that EF asked some very intrusive personal questions. 160 Jodi Hodge said that her father never discussed such matters, but claimed that EF asked very intrusive and direct questions as to the personal affairs of others. 161 EF's sketchy recollection of the substance of what was said, her guarded answer to the reporter on the camera tape and the evidence of GH and his daughter have resulted in my not being satisfied that the defendants have discharged the onus of establishing that GH discussed his sexual relations with his wife with EF or, I might add, discussed sex in general with EF. The defendants have not established the substantial truth of this allegation. 162 Particular (f)(ix) reads: "GH told EF on a number of occasions that he loved her." 163 GH admitted that he told EF that he loved her, but asserted that this was said for the purpose of reassurance and parenting and never for sexual gratification. GH said that EF wanted constant reassurance and asked if we (the members of the Hodge family) loved her. He replied, "Yes Emma, we all do." GH said he in fact loved EF in a paternal way. There was no sexual element. She was treated as a member of the Hodge family. GH said that EF never became standoffish with him. GH said that in his family he, his wife and both his daughters told each other all the time that they loved each other, and still do. 164 Mrs Hodge said that she told EF that she loved her, in response to a query from EF. GH also told her that he loved her. Mrs Hodge said that the whole family loved EF and she loved EF as if she were her daughter. Jodi Hodge also said that EF was told she was loved by GH and members of his family, when EF sought reassurance. This was a family in which there were frequent statements of love for one another. 165 By the time EF was told to leave the Hodge family house in February 1997, Mrs Hodge believed that GH's interest in and love for EF had developed to what she regarded as an unhealthy stage and as undue and she felt that EF was replacing her as GH's number one priority. No overt act of impropriety has been established up to that time. As from this time, if not a little before this time, the relationship between GH and EF was more than that of coach and student swimmer. EF encouraged an interest by GH in her. 166 Mrs Hodge described EF as warm, friendly, boisterous and very likeable. EF had normal childhood moods. GH said that the Hodge family enjoyed having EF in the house, she was fun to have around. EF agreed that she loved GH, Mrs Hodge, Jodi Hodge and Katie Hodge when Katie was home from University. 167 While it has been established that during 1996 GH told EF that he loved her, in response to her seeking reassurance, it has not been established that he did so by reason of any sexual obsession with or sexual attraction to EF. I do not accept EF's evidence that she did not really understand when GH stated that he loved her nor that it made her feel uncomfortable. I accept that the context, in which statements to that effect were made, was as deposed to by GH, Mrs Hodge and Jodi Hodge. I am not satisfied that GH told EF that he loved her when he was alone with her. The defendants have not established on the balance of probabilities, that such statements were made because of GH's sexual obsession with or sexual attraction to EF. 168 EF returned to the Hodge family home in January 1997. On the evidence I am unable to make a finding as to the context in which the statements, if any, were made from the date of EF's return until early February 1997. 169 Particular (f)(x) reads: "GH frequently kissed EF including on her cheek and close to her lips." 170 GH admitted kissing EF and said it was usually on the cheek and forehead. He said he frequently kissed EF close to her lips but did not have any intent to derive sexual pleasure from such kissing. GH said that in his family in 1996 they would kiss each other goodbye if they were going away anywhere. They would kiss EF if she was going back to her parents' place and they would kiss her when she went out and on her return. If she did well at a carnival or a best time he would give her a kiss, as he did with all his female swimmers. He gave them a kiss and a cuddle and put his arm around them. He kissed EF and his daughters good night. 171 GH's evidence on this topic was supported by Mrs Hodge and Jodi Hodge. The swimmers Nicole Taylor, Kirsten Thomson, Fallon Overshine and Bernadette Bellwood stated that GH kissed other swimmers as a greeting or congratulation. Sometimes, if the swimmer was upset or had a bad swim he would put his arm around the swimmer to console her. GH became excited when a swimmer did well and was very happy for her. The female swimmers mentioned did not regard his conduct as inappropriate. 172 EF told the police on 25 August 2003 that GH regularly gave her cuddles; but never indecently touched or assaulted her. In her letters to the Chamber Magistrate and ASI it was stated: "He would kiss and hug me." 173 In the program this passage appears: "EF: He'd always come and give you a kiss on the cheek, you know, try and put his arms around you." (This is an edited answer taken from an earlier tape) . Reporter: Did he kiss you a lot EF: Yes. Reporter: When did he kiss you EF: At home, when I was going … to bed. Or after swimming events or even sometimes at training." 174 EF said that the kissing at training started in 1996 "pretty much straightaway" and was quite frequent. When he did that she asserted that she felt uncomfortable and nervous. She said that he first kissed her at his home when she first moved in and thereafter in the evenings or mornings or when she was going to bed. This was a daily occurrence. She said that sometimes she felt fine and at other times she felt uncomfortable. EF agreed that hugs and kisses were an everyday event in the Hodge household and "we kissed each other goodnight." 175 Mrs Fuller gave evidence that EF complained to her about GH kissing her as though he was her father. Mrs Fuller spoke to her husband who thought that there was nothing amiss and that they could not do anything without any evidence. Mrs Fuller knew the Hodges were a kissing and hugging family. Mrs Fuller saw nothing inappropriate in the kiss or kisses she saw given to her daughter by GH. Mrs Fuller gave this evidence: "Q: When Mr Hodge stood in for your husband there was nothing inappropriate in him kissing or hugging your daughter was there? A: No." EF, when asked by the reporter (Ms Patterson), denied that GH ever tried to kiss her on the mouth. 176 The defendants have failed to discharge the onus of establishing that the kissing which occurred was inappropriate or wrong conduct or that it was done by reason of GH's sexual obsession with and/or sexual attraction to EF. 177 Particular (f)(xi) reads: "GH gave EF unwarranted physical attention including grabbing the back of her neck and placing his hand on her knee." 178 EF said that at training when GH walked past he touched her on the back or neck and shoulder. EF said that she was not certain of the date of commencement of this conduct, her recollection was that it started when she moved to the Hodges' home, but it may have happened before that too. Such conduct ceased after she left the Hodges' home. 179 EF agreed that in 1996 in her life just about everything was perfect and that she could not have been happier. She said that she complained to her mother about a few things which were happening and being uncomfortable. EF said that she was not able to recall the complaints she made to her mother about the Hodges and the Hodge household. Although pressed EF said that she was not able remember the terms of any specific complaint which she made to her mother. When asked to specify the subject matter of any complaint to her mother in 1996 about GH of which she claimed to have a recollection, she replied: "The way he would touch me frequently would feel uncomfortable." 180 She thought that she mentioned that to her mother. She said that she was unable to remember whether she gave her mother any more detail. She could not remember complaining to her mother in 1996 about any other subject matter. EF added that she did not discuss "a lot of the stuff" that happened with her mother in 1996. 181 EF stated, on being pressed, that she toned down her behaviour in the Hodge household towards the end of 1996 due to a series of events. She could not remember times and dates. She said that being in the car by herself with GH by himself was uncomfortable and that the way he touched her at home when they were by themselves was also uncomfortable. She also stated that it was uncomfortable when GH touched her at swimming. She added, when asked if there was anything else: "Getting rubs from Greg on my neck, or him touching the small of my back, shoulders, the discussions he used to have with me. All those things made me uncomfortable." EF agreed that she did not complain to her mother of all the matters specified earlier in this paragraph. EF said that she did not realise at the time that all these incidents made her feel like this. It was not clear what she meant by "like this". She said that the events mentioned made her feel uncomfortable at the time and she thought it was a bit strange. EF said that she told two of her friends (Belinda Stone and David Ward) about the uncomfortable times at the Hodges' home and no one else. 182 In my opinion if Mrs Fuller had understood that any impermissible or undesirable conduct on the part of GH towards EF had taken place she would, despite the strained relations with her husband and his more relaxed attitude to matters of touching, have raised the matters of such conduct and that EF seemed uncomfortable about them. She does not appear to have done so. 183 GH denied any inappropriate physical contact with EF. GH denied grabbing her by the back of the neck or placing his hand on her knee. He denied EF's allegation that when he walked past her he would touch or grab her unnecessarily. GH said that he had never grabbed or hugged EF or any other swimmer for the purposes of his own sexual gratification. GH said that he had no recollection of placing his hand on her knee. 184 In 1996-1997 EF did not treat the matters of which she now complains as being as substantial as she now suggests. Her complaints have developed with the lapse of time. The defendants probably did not appreciate this in 2003. 185 The defendants have not discharged the onus of establishing that in 1995/1996 and up to 4 February 1997 GH gave EF unwanted or inappropriate physical attention or touching. Nor has it been established that his conduct towards her in 1996 was motivated by reason of his sexual obsession with and/or sexual attraction to EF. EF's departure from the Hodge home 186 The defendants submitted that this episode was one of real significance, that the attitude of GH's wife to EF – her admitted view of EF as a slut, her repeated references to EF as "the other woman" in GH's life and GH's departure from the family home for two days – were clear evidence of GH's sexual interest in EF. 187 EF said that Mrs Hodge asked who had left a sanitary pad wrapper in her bathroom. EF said that Mrs Hodge was quite cranky about it. EF said she replied, "It wasn't me. I didn't leave it in there." EF and Mrs Hodge exchanged some words with Mrs Hodge accusing EF of doing so and EF denying that accusation. EF said that GH intervened in the argument and said "It wouldn't have been Emma because she doesn't use that, she uses tampons, she can't use it for swimming." EF believed that Mrs Hodge said, "Why are you taking her side? I don't use this. It has been left in our bathroom." He said something like "It's not Emma". She said "You are always taking her side. I can't deal with this anymore. It is not my pad wrapper because I am pregnant." EF stated that during the argument Mrs Hodge said, "You slut, you can't live here any more. Get out of my house. Greg is always taking your side. It's like having the other woman in his life." At one stage she spoke to GH. Amongst other things she said she couldn't take it any more. At one stage Mrs Hodge and EF were screaming at each other. EF recalled saying "I am not going to training in the morning, fine, I will leave, I don't like you anyway." EF said she was upset and said silly things. 188 EF recalled that GH and Mrs Hodge were talking but she could not hear what they were saying. EF said she was in her room "getting stuff". She said that GH left the house. EF said that she sat outside the house with Jodi. EF could not recall if Jodi entered the house during the argument or was there all the time. EF telephoned Dianne Ward, her mother and her aunty and uncle. EF said Mrs Hodge was on the phone to EF's mum and that Jodi brought the portable phone out to her. EF denied the suggestion that the argument started because she had spilt some black nail polish on the floor of the main bedroom. There was no mention of black nail polish. She had not spilt black nail polish on the floor. EF said she remained sitting outside on the grass until her uncle collected her. She could not recall the time. She returned to Gulgong with her mother the following day. EF said she was very upset and confused: "Because I just didn't understand why such a big fight had erupted about a pad wrapper and I realised … - I wasn't going back there, I had been kicked out, and I knew that Mum was going to take me home." 189 EF said that when she returned to Gulgong with her parents she was really upset and confused. She received counselling from Eamonn Corvan. EF seemed somewhat distressed as she gave evidence about the incident when she was told to leave. 190 EF agreed that when GH spoke he spoke quietly and in a more composed fashion than his wife. In cross-examination EF said that Mrs Hodge screamed at her and she retaliated once. While EF agreed that she said silly things she claimed that Mrs Hodge said unjustifiable things to her. EF claimed that she could not remember the silly things she said. When reminded that she had been more forthcoming in her evidence in chief she replied, "I said I think that is what I could have said." 191 EF denied that she spoke to Bernadette Bellwood in 1997. 192 Bernadette Debra Bellwood said she was employed with Virgin Blue, the airline, as ground crew. She had known GH since December 1993. He was her maths teacher at EHS, her mentor at school and her swimming coach from 1994 to 2000. After 2000 she was employed at the NSW Institute of Sport where GH worked. She was training to be a triathlete. She said he was very highly respected and his reputation was never questioned. She had stayed in the Hodges' house and there was never anything inappropriate in his conduct. She said that he hugged and kissed her on the forehead or cheek when she did her personal best times. He was excited for his swimming students. She did not believe the allegations made by EF to be true. She stayed at the Hodges' home on occasions when EF was living there full time. She described GH as a father figure to EF and saw nothing inappropriate in his conduct. 193 Ms Bellwood said EF complained to her about GH, that he kept tabs on her and was all around her. She had complained she had no room to move. EF described GH as a little bit controlling, but never said he was inappropriate in his conduct. Ms Bellwood stated that EF telephoned her on the day EF had the confrontation with Mrs Hodge and that they used words to this effect: "EF: Hello Bernadette. I've been kicked out of Greg Hodges' house by Sue. I spilt black nail polish and she has kicked me out of the house." BDB: Surely not, there's got to be something more to it. That's not - EF: No, I've been kicked out of the Hodges' house and I've got nowhere to go. BDB: You should call your mother and speak to your mother about it." 194 Ms Bellwood said EF was pretty upset and she was only fairly young and needed to speak to her family and that there was no other reason given as to why she was kicked out of the house. 195 In cross-examination Ms Bellwood agreed that she had prepared a statement at the request of Mr Peter Wilkinson (or his assistant), a media consultant retained by GH. She watched the ACA program on 13 October 2003 with a great deal of attention. She heard EF make the allegation on the program that she had been told by Mrs Hodge to get out of the house because she was the other woman in her husband's life. Ms Bellwood said that once she heard the allegation on the program she became aware that it would be a significant aspect of the program. Ms Bellwood said that about the time of the program she did not discuss its contents with the Hodges. She appreciated when Mr Wilkinson approached her he was seeking material rebutting what EF said on the program. She did not tell Mr Wilkinson that EF had told her that she left the house because of spilling black nail polish. She did not regard this as most material information to mention to Mr Wilkinson. 196 Ms Bellwood said that her birth date was 31 July 1980, so that she would have been aged about 16½ in February 1997. 197 Ms Bellwood's father, Mr G Bellwood, gave evidence as to GH's good reputation as a coach, his good qualities as a man and the absence of any inappropriate behaviour towards his daughter. 198 I do not accept that in February 1997 EF and Ms Bellwood were the good friends suggested by Ms Bellwood. I would describe them as acquaintances. They had different interests and a different focus. I do not regard their age difference of a little over 2½ years as significant. Both had stayed at the Hodges' home and were part of his swimming squad, but otherwise they seemed to have little in common. I find it difficult to accept that EF would have telephoned Ms Bellwood. There were other people to whom she was much closer. On the other hand Ms Bellwood gave evidence of what EF said to her and this cannot be lightly put to one side. On her evidence Ms Bellwood was sceptical of EF's assertion that she had been thrown out of the Hodges' home for having spilt some black nail polish on the bedroom floor. 199 Mrs Sue Fuller stated that in the evening of 5 February 1997 about 10pm Mrs Hodge, who was very upset, telephoned her (Mrs Fuller) and said: "I've just thrown Emma-Louise out in the street. I can't cope anymore. … She is like the other woman in Greg's life. Greg is obsessed with her." 200 Mrs Fuller, who noted how very upset Mrs Hodge was, said that she did not make any enquiries of Mrs Hodge, but said that she would get Debbie (EF's aunt) or Keith (Debbie's partner) to go over and pick EF up. She did so. 201 Mrs Fuller, accompanied by her elder daughter, drove to Sydney. On speaking to EF she replied that she did not know why this had happened. EF was very upset. Mrs Fuller told EF she had to take her home. Mrs Fuller took EF to EHS so that she could say goodbye to her friends. Mrs Fuller saw the principal and EF's form master. She left EF at school and went to Mrs Hodge's house and spoke with her. Mrs Fuller said that they sat down in a dining area and Mrs Hodge, who was very distraught, said that it was like having the other woman living in the house and GH was obsessed with EF. Mrs Hodge showed Mrs Fuller a few cards GH had given EF and said that basically GH had left in the evening when she had thrown EF out and she did not know where he was. Mrs Fuller said that she spent some time consoling Mrs Hodge and telling her that everything would be okay and she (Mrs Fuller) was taking EF home. Mrs Fuller said that neither in their telephone conversation of 5 February 1997 nor at their meeting the following day, did Mrs Hodge mention anything about nail polish. Mrs Fuller collected EF from school, went to Aunty Debbie's home and drove home. Very shortly after that, she received a letter in these terms from Mrs Hodge: "My dear Sue, Phil and Emma: It is difficult for me to put into words my remorse at creating this turmoil in your lives. I regret it very deeply and am truly saddened that Emma's stay with us has ended this way, through no fault of hers, except she was unfortunate enough to 'be there' when I dropped my bundle. Sue, your compassion when your own child is involved (and I have hurt her terribly) is beyond belief and I thank you from the bottom of my heart. You have been calming and thoughtful and it amazes me that you can be so understanding to 'the enemy'. I sincerely hope Em settles back at home quickly and that you begin to enjoy her being there – as it should have been. I pray that at some stage in the future Emma may begin to forgive me. Sue Hodge 6.2.97." 202 Mrs Fuller said that on a number of occasions in the first few weeks she was at home EF told her she did not know why it had happened and why Mrs Hodge would accuse her of being the other woman. 203 Mrs Susan Gai Hodge said that at the start of 1997 there were problems at her place of employment at the Minerva School for students with special needs. She was facing the prospect of having, in 1997, to teach the students she had taught in 1996. She described them as particularly violent and aggressive. The students were aged 16 and some had made threats of violence, including threatening her life. She was unhappy at the prospect of having to teach such students and healthwise she was unwell. When EF returned at the beginning of 1997 she was starting to resent having to parent another child. Mrs Hodge said that on 4 February 1997 she had a very large argument with EF. Mrs Hodge said that she had come home to find black nail polish spilt on her carpet in her bedroom. EF was not supposed to go into her bedroom. Mrs Hodge said that this had happened on a previous occasion and she had asked EF to paint her toenails with a towel under her toes, or on the tiles. Mrs Hodge said that EF had made an attempt to clean up the spilt nail polish and just made a bigger mess and when EF was asked what it was, so as to enable Mrs Hodge to clean it up, EF told her she did not know anything about it and blamed both her husband and Jodi, neither of whom had been home at the time. Mrs Hodge said "I just totally lost it." Mrs Hodge said EF eventually told her (Mrs Hodge) that she (EF) had spilt the polish and tried to clean it up with nail polish remover. Mrs Hodge said that she was furious that EF had lied to her again. 204 Mrs Hodge said that she was not of the belief that there was any sexual involvement between her husband and EF nor that EF was the other woman in her husband's life. Mrs Hodge said that at the time she resented her husband's work coming between her and her husband. He was passionate and obsessive about his work. Mrs Hodge felt she always came second to his work and she had very deep feelings about that. Mrs Hodge said that in the argument with EF she expressed those feelings to her and that it was possible that she told EF she was acting like a slut (T410). Mrs Hodge denied that she called EF a slut. She gave this evidence: (T433) "Q: It was certainly your view of her in the course of the argument. A: No, my view of her was that she had – it was possible that she acted like a slut." I find that, being extremely angry and extremely worked up, Mrs Hodge either told EF that she had acted like a slut or called EF a slut. 205 Mrs Hodge said that her husband was not there when she and EF had a blazing row. That lasted for an hour. Mrs Hodge was 45 and EF was 13. Mrs Hodge said her husband came home at some stage. Jodi came home at a different time. Mrs Hodge was still fairly upset and speaking in a raised voice to EF. When her husband arrived home he went to the family room – then he came up to her (Mrs Hodge) and said she was over-reacting. He spoke in front of EF. That made Mrs Hodge feel worse and she became even more angry. Mrs Hodge said that that was not what she wanted to hear. As a result she and her husband had a major row. They did not have that row in front of EF, but in the main bedroom. GH left. 206 Mrs Hodge said that when she spoke to Mrs Fuller on the day of the blazing row with EF she (Mrs Hodge) did not tell Mrs Fuller that EF was the other woman in her husband's life. 207 Mrs Hodge said that the following morning Mrs Fuller came to her house and they had quite a long conversation. Mrs Fuller was there for several hours. Mrs Hodge said she spoke frankly to Mrs Fuller about her feelings and told Mrs Fuller that she couldn't cope with EF any more and that EF's behaviour was impacting too much on her life and that EF needed to go home. Mrs Hodge said that Mrs Fuller was extremely compassionate and understanding and she said she would take EF home. She said that she wrote her letter the day after she spoke to Mrs Fuller. It was her intention to apologise for her behaviour, that is, for her hysterical outburst. 208 Mrs Hodge was concerned at the time her husband was spending with EF and the attention which he was devoting to her. They were excessive. Mrs Hodge felt that she was taking second place to EF in her husband's life. EF was demanding of attention and saw herself as being the centre of attention. She was a swimmer with much potential and an attractive and extroverted young woman. She appealed to GH and attracted and encouraged his attention. EF likes to get her own way and does not like to be challenged. That was apparent from her behaviour in the witness box as well as from the evidence. 209 Despite her evidence to the contrary Mrs Hodge did tell Mrs Fuller that EF was like the other woman in her husband's life and that her husband was obsessed with EF. Mrs Hodge felt she could not cope any more. She had been placed under too much stress. 210 Mrs Hodge did not mention the spilt black nail polish to Mrs Fuller. Mrs Hodge was concerned about what was developing between her husband and EF and could develop further. She was determined to put a stop to it. 211 GH said that he was very fond of EF as at February 1997, he liked having her live with him (them). He said that on either 4 or 5 February 1997 when he came home he found an altercation taking place between EF and his wife. She accused EF of being a liar and of spilling black nail polish on the pink bedroom carpet and blaming Jodi and himself for it. GH said it was a screaming match. His wife told EF that she would not be staying in their house anymore and she would have to go back to Gulgong. GH said he tried to reason with his wife and calm her down. He told her she was over-reacting and it was a pretty drastic step which could impact on EF's swimming career. His wife said that he was not supporting her. GH said he argued with his wife. They had a small fight (verbal). It did not last long as he left. GH had hoped that his wife and EF could be reconciled. 212 In cross-examination GH said he did not recall hearing his wife accuse EF. His wife told him of the accusation. He understood that had been made before he arrived there. 213 GH said he left his house and stayed with his mother. He did not return until the next day or the day after that. GH said that he does not like confrontation and his wife was in a highly agitated state. He thought it would be best if he left his wife and EF to it. He hoped that with time and space things would settle down and sort themselves out. 214 GH said that he did not recall if, during the argument, EF said that he would not let her go. GH denied that his wife was jealous of EF. I do not accept GH's evidence that what influenced his wife was EF's misbehaviour, her lying and her trying to manipulate and implicate other people. GH wanted to minimise any alleged misconduct of his wife and what had given rise to her conduct. GH did not recall saying it wasn't a sanitary pad wrapper because EF used tampons. GH was anxious to assert that the incident happened because of EF's conduct. 215 Ms Jodi Hodge said that she came home probably about halfway through the fight between her mother and EF. She did not recall the words spoken by her mother in the fight. EF left the house and ran up the street. Jodi said she followed EF and remained with her until she was picked up. Jodi said that she was in and out of the house and that at one stage she and EF went back inside the house. Jodi thought that her father was still in the house when EF left. EF was upset about having to go home to Gulgong. 216 I think that the true cause of the fight between EF and Mrs Hodge was over the time and attention GH was paying EF and the encouragement she was giving him. As earlier stated Mrs Hodge was fearful of what was developing and what was going to eventuate. 217 For both personal and swimming reasons GH was sorry to see EF being kicked out of the home by his wife but when it came to a "showdown" his wife came first. That probably surprised EF. 218 Mrs Hodges' letter refers to her remorse, to EF's stay ending "through no fault of hers", to Mrs Hodge having "dropped her bundle", "I have hurt her [EF] terribly" and the hope that "Emma may begin to forgive me." These are potent, and do not suggest fault on the part of EF. Mrs Hodge's suggestion that she told an untruth in the letter (by saying EF's stay ended through no fault of hers) to protect EF is not accepted as it was incorrect. Mrs Hodge had required EF to leave and would not listen to her husband's suggestion that she (Mrs Hodge) was over-reacting. Mrs Hodge remained of the view that her husband was devoting too much time and paying too much attention to EF. 219 However, while up to 4/5 February 1997 GH got too close to EF much to the distress of Mrs Hodge, and Mrs Hodge felt that EF and her swimming had become of prime importance in her husband's life, the defendants have not established sexual misconduct on GH's part towards EF up to that time. Nor have they established up to that time that his actions were the result of GH's sexual obsession with or sexual attraction to EF. Condition of EF in February 1997 220 The defendants relied upon the clinical notes of Mr Eamonn Corvan, a counsellor at Mudgee Community Health Centre and apparently with Macquarie Area Mental Health Services as providing substantial contemporaneous support of EF's complaint. He records first seeing EF at 1.20pm on 18 February 1997 at Redhill Education Centre (Mother's Work). He records as present EF and himself. Mrs Fuller said that Mr Corvan came out to her place (of work) and she spoke to him. It is improbable that if Mr Corvan came out to Mrs Fuller's place of work that she would not have spoken to him. I would not have expected the counsellor to have the mother present all the time while he was interviewing EF. Mr Corvan may have obtained at least some of the recent history he has recorded from Mrs Fuller, who was on hand and available. Mr Corvan has recorded that EF was referred by Carol Bradley – School Counsellor at MHS (Mudgee High School) – a/c suicidality. 221 Against "Impressions 1 Clinical Syndrome" he has noted: "Depression - ? P T S D" " Issues - Loss of access to swimming career - Suicidality - Relocating back to Mudgee Area - Loss of friends in Sydney - ? possibility of sexual assault/harassment - ↓ sleep ↑ somatic complaints Actions - Establish Safety - Monitor regularly - Ongoing Assessment - Appt with Dr Frikacy ASAP (Psychiatrist) - Support Emma & her mother - Relaxation - Education … " Mr Corvan described EF as an attractive girl for her age. He has noted: "Supportive parents. Emma saw coach as overpowering, manipulative and pushy. Since 2½ weeks ago Emma has been disinterested at school – prone to bad peer associations & ↓ in interest in herself and her schooling." 222 Mr Corvan has noted Mrs Fuller's extreme concern for EF and sets out his plan for EF. 223 Mr Corvan saw EF again on Thursday, 20 February 1997 and recorded that she looked tired and drawn and that she had not slept much since he saw her on Tuesday. He arranged for her to see the doctor (Leal) and took her to the doctor who prescribed Temazepam. She was to see the doctor on the following Monday. 224 In his notes of 24 February 1997 Mr Corvan records an unhappy incident on the Friday night – early Saturday morning - in which EF was involved, that EF was agitated and distraught and eventually agreed to see Dr Caterson on Sunday pm and was given valium with good effect. Mr Corvan records appointments to see the doctor (Leal) and the psychiatrist. Mr Corvan records: "I will discuss the possible 'sexual harassment' issue with Emma when possible & ? refer to S.A Team." 225 Later, on 24 February 1997 Mr Corvan further noted Dr Leal had seen EF and prescribed further Temazepam to assist sleeping. Mr Corvan also recorded: "Emma spoke about her time in Sydney and outlined how she had felt uncomfortable living with her head coach from about 2/12 after moving into his home. She stated that he had been over protective and she felt he had been overstepping the mark of teacher coach and guardian by the way he looked at her and by fixing the top of her swimming 'cossie'. I asked if she felt he was harassing her and she said 'he probably was he pulled up the bottom of my bikini from behind. He'd done that to several ( illegible ) girls and someone said he been charged with sexual assault by a girl. Emma stated she'd approached him about this accusation and he'd said that there was nothing in it and that nothing had happened about it." 226 The evidence suggests that neither EF nor the other girls in the swimming squad wore bikinis at training and the other girls had not seen GH giving wedgies. 227 On 27 February 1997 Mr Corvan recorded that EF was more animated.. His notes indicate a substantial improvement in her condition. 228 EF was distressed at being required to leave the Hodge home. It was a blow to her considerable ego. She thought that she had more influence with GH. She realised that having to return home would make it more difficult to pursue her swimming career. EF thought that the Hodges were too strict and overprotective. EF made the complaints to Mr Corvan which he has recorded. The substantial truth of the complaints which EF made as to inappropriate sexual conduct on the part of GH has not been established. 229 The defendants relied on the clinical notes produced by Mudgee Medical Centre. The doctor has noted: "Under stress ++ at present Thrown out of coaches home by wife. Coach 'touching her' but denies sexual abuse and as one of the Issues "Future of swimming in doubt." GH did not deny some touching – the question was whether what occurred was objectionable in the context. 230 The defendants further relied on the evidence of EF's complaints to her mother. I have considered these. Some General Submissions and Conclusions 231 The defendants submitted that during 1996-1997 EF was a 13 year old girl living away from home under the custody of GH and his wife, that she felt uncomfortable in many situations with GH, that she made some complaints to her mother, who made comparable observations and that after EF was ejected from the Hodge household as the other woman, counselling and medical appointments were arranged and some of the allegations were recorded. While Mrs Fuller regretted that she had not done more, it was difficult for her when her husband, during 1996, did not think that there was a problem. The defendants submitted that it was perfectly understandable that a confused 13 and 14 year old girl would have taken matters no further than she did on her own evidence and that as she matured and reflected on the significance of Mrs Hodge's view that she was the other woman, and of GH's declaration of love for her in a letter sent to her at her school and ultimately of his two attempts to stalk her during 2003 it was not surprising that her consciousness of the wrong done to her by GH would change. There is substance in this submission, but care has to be taken that EF does not rely on incidents as objectionable when they were not so regarded at the time in accordance with standards and practices which then prevailed. 232 EF acknowledged that she felt bitter towards GH for his conduct and what she had lost as a result. What must be taken into account in respect of the period up to early February 1997 is the considerable strength of the evidence against her contentions. That evidence came from some impressive non-family witnesses as well as GH, Mrs Hodge and Jodi Hodge. GH was an enthusiastic coach at the pool and demonstrated his delight when his student swimmers did well by kissing and hugging in what was then considered to be an unobjectionable manner, the other students not objecting. In the home the Hodge family kissed and hugged one another in an unobjectionable manner and EF was treated as a member of the family. I have indicated my views as to the allegations made, and in doing so I have taken into account the whole of the evidence including the heavy reliance placed by the defendants on the events of 1997 and 2003 as indicating GH's state of mind and his sexual obsession with and sexual attraction to EF. 233 I return to the Amended Particulars of Truth. Paragraph (g) reads: "(g) On or after 5 February 1997 EF thereafter returned home to live with her parents at Gulgong. During the next few months GH made the following attempts to contact EF. (i) GH repeatedly telephoned EF at her home; (ii) GH drove to Mudgee and visited EF; (iii) GH sent numerous letters to EF including telling her that he loved her" Telephone Contact between GH and EF 234 GH said that after EF went home she frequently telephoned the Hodge household, speaking to him, Mrs Hodge and, most often to Jodi Hodge. EF told GH that she was unhappy at home and wanted to come back to Sydney where her friends were. EF told Jodi that she was bored and asked Jodi to come and visit her, which Jodi did on 19, 20 and 21 February 1997. 235 GH denied that he continually harassed EF with telephone conversations. GH said that he did not recall ever initiating telephone contact with EF. GH said that on the occasions he did speak to EF he explained to EF that she could not return, that he wanted her to keep swimming, but his wife was not prepared to have EF or any other swimmer in their house for an extended period. 236 During cross-examination GH was questioned about the telephone calls recorded in Exhibit 1, being the Optus records of his work mobile telephone. Those records showed five calls to the Fuller residence between 8 February 1997 to 10 March 1997 and 15 calls between 27 May 1997 and 22 July 1997. Nine of the calls were shown as lasting 30 seconds. Most of the others lasted 1-2 minutes, with three calls lasting for longer periods. EF was overseas for seven weeks between about late March 1997 and about mid May 1997 with her father and brothers. GH was aware of this trip. GH said that he did not recall if he made more calls to the Fuller family from his work telephone (as distinct from his work mobile telephone). Other than the call made on EF's birthday, GH said that he remembered none of these calls, nor to whom he spoke. That evidence of GH was incorrect. 237 GH said he did not know to whom he was trying to speak when he made these calls to the Fuller family number. He did not know whether in June 1997 there was a good reason why he would have called Mr Fuller or Mrs Fuller. GH said he regarded the Hodges as still being good friends with the Fullers. GH said he did not know that there was every reason why he would have called EF. GH said that he did not recall how he was feeling about EF in June or July 1997, or in the months after she left the Hodges house until he paid her a visit in July 1997. 238 I do not accept that GH was correct when he said that he did not recall initiating telephone contact with EF after she left the Hodges' house nor do I accept that GH was correct when he said he did not know to whom he was trying to speak when he telephoned the Fuller residence. I do not accept that he does not recall how he felt about EF in the period from February to July 1997. GH was keen to stay in touch with her. It was EF to whom he wished to speak. 239 In paragraph 27 of Exhibit 8, being GH's instructions or comments to Wilkinson Media in October 2003, it was stated "I did contact her a couple of times. It was about keeping her in swimming." 240 Mrs Fuller was aware that her daughter had telephoned GH a couple of times in February 1997. Mrs Fuller had no telephone contact with GH between February and July 1997. She worked full time during that year. Mr Fuller visited the Hodges house a couple of weeks after EF left, but had no telephone contact with GH that year until July 1997 and he (Fuller) was not aware during 1997 of telephone contact between GH and his daughter. 241 EF was cross-examined to the effect that it was unimaginable that she could have telephoned GH upon her return to Gulgong and expressed a wish to be back living in Sydney in the Hodge household if she believed GH had acted in any way towards her that was inappropriate. EF said that GH made her feel that she should be keeping in constant contact with him. That was where she had been living. She said "I felt our relationship was uncomfortable I didn't understand why … I'm older and fully understand." EF said when she first got home she had not really thought about reviving her swimming career. She said that she never got to the stage where she became intent on reviving her swimming career. 242 The point made by Mr Littlemore in cross-examination has considerable force. As at early February 1997 she claimed that while her relationship with GH was uncomfortable, she did not realise that he was embarking upon inappropriate conduct. This is a view which she has formed as she has grown older. She was a curious mixture of boldness and naiveté 243 The defendants relied upon the number of telephone calls made by GH to the Fuller house, namely 20. The defendants emphasised that GH did not make any telephone calls to the Fuller house while EF was overseas but they resumed on her return. The defendants submitted that GH's failure to be able to recall any of the telephone calls he made and their substance compared with his recollection of her calls and the substance of what was said suggested a desire to conceal the truth. It is curious that GH's recollection should be so one-sided and this does raise questions as to why. The defendants submitted that during the period February – July 1997 (except the 7 weeks EF was overseas) GH kept in regular contact with EF and did so by reason of his obsession with her and his desire to maintain a relationship. The evidence does suggest that GH wanted to keep in contact with EF and that he hoped EF would continue with her swimming. He was keen to coach her. GH's Visit to Gulgong 244 GH visited the Fuller home in Gulgong about 30 July 1997 and gave her various items of swimming apparel and the NSW Institute of Sport handbook. There was some doubt whether the Savage Garden CD with the song Truly Madly Deeply was given to EF on this visit or posted to her about this time. GH met with Mr Fuller and EF. Mrs Fuller was in the house, but only joined the meeting near the end. She said that towards the end of the visit she told him that she never wanted him to come to their house again or make contact with them. Mr Fuller said that his wife asked GH not to come to their house again. She warned him off. Mr Fuller said that his wife did not tell Mr Hodge not to contact EF. 245 GH said that on his visit to the Fullers in late July 1997 he first met EF's father, Mr P Fuller, with whom he enjoyed good relations. They went into the kitchen and Mrs Fuller joined them. He had a conversation with the Fullers. EF later joined them and he had a conversation with her in the presence of her parents. He knew that the Savage Garden Group was a favourite of EF. He gave her some swimming gear to encourage her to maintain her interest in swimming and to believe that she could still achieve her dreams in swimming. He offered to write programs for her father. GH maintained that he had an amicable conversation with the Fullers on that day. That is an incorrect description. It was polite but strained. 246 GH said that he gave EF the CD because the song that he remembered was the hit song of the time and the chorus had something to do with standing on a mountain and achieving success. He said that he would like to have been there to help her achieve that success and also to have been there when she achieved it. He had heard that song played on the radio many times, but he was not able to make out the words. What stuck in his mind was the statement "I want to stand with you on a mountain." GH said that he had not read the words of any of the songs on the CD and that he was not aware that it was a love song. GH said that before he left EF gave him a present for her friend David Ward in Sydney. GH said that when they parted they gave each other a hug goodbye. He said that she initiated the hugging and did not resist hugging him. Mrs Fuller gave him a set of photos of some grave sites at Hill End, which were of interest to him. GH denied that Mrs Fuller told him in Gulgong on 30 July 1997 not to have anything to do with EF. 247 In his opening Senior Counsel for GH told the Court: "In July of that year [1997] Emma's father Philip Fuller told Gregory Hodge to make no further contact with his daughter and the plaintiff complied." 248 GH agreed that this was information he had given to his senior counsel. Subsequently, GH said that he may have the month wrong. That conversation took place after he had sent a letter to EF at her school. The evidence points to that letter being posted on or after 31 July 1997. GH probably made a mistake as to the date when he said that Mr Fuller told him to make no further contact with his daughter. That is not significant. 249 GH is mistaken when he says Mrs Fuller was present from an early stage of the meeting. She was wary of GH. She would not have been able to put Mrs Hodge's assertions out of her mind. GH was hoping to persuade EF to return to swimming and realise her potential, hopefully with his assistance. He said he wanted to assess EF's commitment to swimming. Mr and Mrs Fuller did not permit GH to be alone with EF. GH spoke to EF in the presence of one or both of her parents. 250 Mrs Fuller genuinely believed that she not only told GH never to come to the Fuller house again, but not to make contact with the Fullers. Mrs Fuller wanted the members of her family, and especially EF, to have nothing more to do with GH. Mr Fuller said that his wife did not tell GH not to contact EF. That is also the evidence of GH. Mr Wilkinson's note of his conversation with GH records – "29 Her parents may have told you to stay away. I know I wasn't too welcome." Mrs Fuller's recollection may be correct. However, I am not able to say that Mrs Fuller actually told Mr Hodge that he was not to contact EF. The "warning off" probably amounted to something close to that. GH's Letter of About 31 July 1997 to EF 251 This letter, which was the subject of a great deal of evidence, was heavily relied on by the defendants as evidencing GH's sexual interest in EF. GH wrote that letter over several days on his computer in his office at Homebush at the NSW Institute of Sport. He started it before embarking on a country trip to the north west and central west of New South Wales, which included the visit to the Fullers at Gulgong. He said that as he started the letter EF telephoned him at his office and they had a short talk. GH typed a few further sentences. He suspended typing the letter and embarked on his country trip. On his return to Sydney on Thursday, 31 July 1997 he completed the letter and posted it to EF at school. I set out the letter in full: "Dear Emma Louise, I am writing this to you at school just to be a bit different. I guess not many kids get letters to their school so this makes you a bit special. What a surprise, here I am typing a letter to you on my computer and you just rang. I always enjoy talking to you even if it is only for a short time. This month has been really busy with the National League, a trip to the US for two weeks then the nationals in Melbourne. Simon goes to Pan Pacs this week – well to Singapore for a camp then Pan Pacs in August in Japan – after last year in Japan he's really looking forward to it. Speaking of Simon – he's really up himself lately. When we went to Melbourne he totally ignored Ryan Bennett who felt right out of it whilst Simon hung with the 'top' swimmers – Ryan went home early he had such a shit time. Simon also encouraged the older boys to give the younger swimmers like Jordana Webb and Kirsten a hard time because he really didn't want them there. His dad has also become really uncooperative and critical lately. They never stay with the team and won't let Simon go anywhere or do anything. He still can't go to sleepovers and his mum and dad even stopped him going to the movies during the day on a Sunday !! Well it's now Thursday and I was going to try to get this letter to you before I came to visit. Anyway yesterday I was at your place and it was great to see you. I really wanted to spend some time alone with you, that's why I offered to take you to school – but there wasn't the opportunity to talk to you on your own. I wanted to tell you how disappointed I am that what we tried to do with you in Sydney did not work out – but I still feel you can go all the way in swimming if you want to – if you still want to –if you still want to! I wanted to tell you that I miss the early mornings, the chats, the 'fights' and generally miss your fun attitude. Getting up in the morning on my own again hasn't seemed the same – it was great having your company and it seems strange going back to getting up on my own. Anyway, now that I have quit Sutherland I get up at a reasonable time anyway. Mind you I'm still waking up at 4.00 but at least I can go back to sleep. I gave Dave his game – he's excited to hear you're going to swim in the Council youth games and hopes he can see you that weekend. Apparently you're coming to Sydney for a week in the holidays and he's going up there for a week and he's also going up at Christmas. Belinda tells me that she might be going up again too. It's great that you are all staying in touch. I hope we can keep in touch as well even if you don't want to keep swimming. Over the years I have met many families most of whom we haven't wanted to remain friends with – your family (and you) is very special and I want to stay friends for life. I hope you like your small presents and that the cossies fit – I love the Savage Garden CD – I hope you do too – especially the song madly deeply – it's how I feel about you. I had great run back in the car – 3½ hours including a Maccas stop! More local gossip – Belinda has done her foot in again jumping on a magic castle with her 3 year old cousin – her dad says after 10 weeks physio Glenn has enough of the Stone's money to buy a house – he's ready to kill her. I'm writing this letter a bit at a time – I keep getting interrupted and have to do some real work, so if it's a bit disjointed you'll know why. When you come down at the end of August why don't you and your dad stay with us? How do you feel about that? The photos of the Hodge graves at Hill End are fascinating and when my mum comes back from England next week (she's been there 3 months) I'm going to ask her to explain their history to me. I'm going to close now because I've run out of gossip. Thanks for sitting down and talking to us – I enjoyed the small hug too! Keep in touch Regards Greg." 252 The letter is written in a colloquial style designed to appeal to a 14 year old girl. GH did not see anything inappropriate in the letter he had written, albeit from a 49 year old man to a 14 year old girl. 253 GH said that he did send the letter to EF at school in order to make her feel a bit special. It is unusual for a child to receive a letter at High School. GH said he did not send it to circumvent her parents or in the hope that they would not find out. He insisted that what he had written in the first paragraph of the letter was true. I found GH's statement as to why he was writing to EF at school and his evidence on that point unconvincing. His real reason was that he wanted EF to read and consider the letter before her parents saw it. The second paragraph was true. EF did telephone him at work and he enjoyed talking to her. GH said that he did not recall what was said. The reference to "I always enjoy talking to you even if it is only for a short time' may include GH speaking to EF on some of the thirty second telephone calls. 254 There is then a gossip section about some forthcoming swimming events and some people she knew. GH was aware that EF did not think much of a swimmer called Simon and wrote that Simon was "really up himself lately." GH said that was an expression EF used about Simon. GH also used further earthy language which he thought would appeal to EF. There were further uncomplimentary remarks about Simon and his parents. GH was pandering to EF's known poor regard for Simon. That portion of the letter was in poor taste and inappropriate, but it did not have a sexual overtone. 255 GH explained that he wanted to see EF alone so he could assess her passion for swimming and if she wanted to continue, without any influence from her parents. GH could not recall why he did not take EF to school. He could not recall her parents saying that EF could not go with him. EF's parents did not let GH take EF to school. GH sought to reassure EF that she could still go all the way in swimming and he emphasised the words "if you want to – if you still want to – if you still want to." 256 By the next passage commencing "I wanted to tell you that I miss the early mornings" and ending "I can go back to sleep", GH said that he "was intending to convey to her that we enjoyed her company, I enjoyed her company, she was a good member of our family, she was part of our family and we missed – I missed having her around. I used to drive her to training obviously in the morning and just travelling by yourself … I obviously had to get used to but I did enjoy having her company and having her in the house and having her as part of our family." GH said that in writing these words he was not intending to communicate any romantic message. 257 GH said it was true that he wanted to tell EF how disappointed he was that what they tried to do with her in Sydney did not work out. GH said that he did not know why he wanted to tell her that. What he wanted to talk to EF about when she was alone was her swimming and how she felt about that. GH said he did not know why he wanted to tell EF about missing the early mornings, the chats, the fights and generally her fun attitude, but he did want to tell her that. GH was letting EF know that he valued EF's company. 258 GH denied that in the sentence "Getting up in the morning on my own again hasn't seemed the same – it was great having your company and it seems strange going back to getting up on my own", he was expressing a considerable degree of intimacy. That suggestion is stretching the meaning of the sentence which has to be read in the context of both of them getting up from separate bedrooms and going to swimming training. Of course, it would be good to have somebody else whom you liked getting up at that early hour and travelling with you in the car to swimming training. 259 There was some news about David Ward and Belinda Stone, friends of EF. That was unexceptional. It was followed by this passage (quoted earlier): "I hope we can keep in touch as well even if you don't want to keep swimming. Over the years I have met many families most of whom we haven't wanted to remain friends with – your family (and you) is very special and I want to stay friends for life." 260 The Hodge and Fuller families had been good friends, with the Hodges staying with the Fullers and vice versa. GH believed that he got on well with Mr Fuller. GH said that EF had been a special part of the Hodge family for over 12 months. GH said that he wrote the letter to make EF feel very special and what he wrote was part of that attempt and to convey that there was somebody interested in what she was doing. GH said it was EF and her parents who were special to the Hodges. GH said there was nothing specifically about EF in July 1997 that was very special to him. Generally they (the Hodges) thought that they were still friends with the Fullers and had a relationship with them. I find that hard to accept when a day or so previously Mrs Fuller had asked GH not to come to their house again. 261 As to the words "I love the Savage Garden CD, I hope you do too", GH said that he had not heard the whole record. As to the words "Especially the song Madly Deeply – it's how I feel about you." GH said that when he wrote those last mentioned words: "I was referring to the way I felt about her potential. I had always believed and said to her and her family that I think she could achieve great things in swimming and it was a reference to that, that I still believed in her and that I believed she could achieve the things she dreamed about and her family wanted for her in swimming." 262 GH said that he did not regard the song as a love song, that he did not know the words of the song, that he had not read the words of the song and that he could not really understand the words of the song as they were sung. GH said that he was aware of the first line of the chorus, which referred to "I want to stand with you on a mountain." GH continued: "The mountain is the peak and to achieve a national team, maybe going to the Olympics or just to make an Australian team is the pinnacle in swimming and that is what the reference was to. It was purely to motivate her to reach her pinnacle." 263 GH said that he did not intend that to be some form of indirect reference or code to tell EF that he loved her in a sexual way. 264 GH agreed that he was aware that the song "Madly Deeply" was a hit song. He did not have it. What he was saying was that he enjoyed listening to the group Savage Garden. He did not mean to the specific CD he had given EF. When he wrote to EF "I love the Savage Garden CD", he was telling her the truth. It did not follow that he had listened to it. He was not referring in his letter to loving the cover art. GH said that while he had heard the song he was not familiar with it. He had not paid attention to any lyrics of any pop songs. He had listened to the music but he did not understand or know the lyrics. GH said that prior to giving the CD to EF he did not know the song "Truly Madly Deeply" was a love song. GH said when he listened to music he did not make judgments about what the song was about. He agreed that the song was addressed by one lover to another lover. GH said he did not know in July 1997 that it was a love song. He did not know in July 1997 that the title of the song was "Truly, Madly, Deeply". GH said he did not think about any particular words, but that he just thought about the way he wanted to use the song to motivate EF. GH said that in July 1997 it was not obvious to him that the words "Madly, Deeply" referred to being madly deeply in love with someone. 265 GH agreed that in his letter he did not make any reference to the mountain in the chorus or any reference to standing with EF on a mountain. 266 GH disagreed that when EF read the words "especially the song madly deeply – it's how I feel about you" she would think that he (GH) was telling her that he loved her madly, deeply. GH said at the time he wrote his letter he did not have any feelings about EF nor an emotional attitude towards her. He had a belief in her ability to keep swimming if she wanted to. His concern was as to her potential to reach the heights in swimming. GH said he did not know what the words "madly, deeply" have to do with achievement in swimming. GH said that everything depends on how you want to use those words. They were about his firm belief in her ability. Although she was back in her own country town with limited opportunities, that did not necessarily mean she had to give up what she wanted to do. GH said that this was the message the letter, and particular parts of the letter, were trying to convey to EF. I reject GH's evidence that the words "madly deeply" were about his firm belief in her swimming ability. They had nothing to do with his belief in her swimming ability or with swimming. They, and the other words quoted in conjunction with the words of the song, reflected his attachment to and love for EF. 267 I do not accept that GH did not realise that the hit song "Truly, Madly Deeply", was a love song. Nor do I accept that he was using it as a motivational song. His evidence on this point was very strained. The song is unmistakeably a love song. I do not believe that GH was unaware of the general thrust of that song. It begins with the words: "I'll be your dream I'll be your wish I'll be your fantasy I'll be your love Be everything you need I love you more with every breath Truly madly deeply do …" The chorus is: "I want to stand with you on a mountain I want to bathe with you in the sea I want to lay like this forever Until the sky falls down on me." 268 One lover is pledging all encompassing love to the other. The chorus is to the effect that the lover narrating the song wants to stand with the beloved on a mountain, that is at a high point. There is also a reference to wanting to "lay like this forever." It was inappropriate for GH, having given EF the Savage Garden CD containing the song to follow it up with a letter stating "I love the Savage Garden CD – I hope you do too especially the song madly deeply – it's how I feel about you." The statement that the song madly deeply is how he felt about EF when taken with the terms of the love song is inappropriate. From the terms of the letter EF would not have understood that GH was relying only on the line "I want to stand with you on a mountain". It is not uncommon to refer to love as a feeling. It is unusual to refer to a hope that a person will rise to the top of their sport and you will be with that person on that occasion, or on her rise to that occasion, as a feeling or "as how I feel about you". 269 Given the terms of the letter and of the song I am unable to accept that the CD was intended to be used for motivational purposes and that reliance was to be placed only on the line "I want to stand with you on a mountain". That line should not be taken out of the context in which it appears. In the song that appears to be one of the outcomes desired by the singer. The love of which the song speaks includes a sexual love. While the letter deals with swimming matters and encourages EF to pursue her goals in swimming, there is also an intended personal element, that is, in conjunction with the song truly, madly deeply, of GH's love for EF. 270 I am unable to accept GH's evidence that his interpretation of the song was that it was about achievement and helping EF to achieve what she had dreamt about. 271 After some more gossip and a statement that he keeps being interrupted, GH invites EF and her father to stay with the Hodges when they come down to Sydney at the end of August 1997. GH asks: "How do you feel about that?" GH said he was asking EF how she liked the idea of coming back to Sydney and staying at the Hodge family home. GH submitted that if he had wanted EF not to disclose his letter to her parents he would not have extended that invitation. GH did not know whether EF would disclose that letter to her parents. 272 GH wanted to encourage EF to continue with her swimming of her own accord and establish his own contact with her. By reference to and use of the Savage Garden CD he also communicated his own feelings. 273 The letter concludes with the sentence "Thanks for sitting down and talking to us – I enjoyed the small hug too!" GH said he enjoyed getting a goodbye hug from EF as she had been part of their family and he received the same enjoyment he would get from having a hug from anyone he was friendly with. It was not a sexual enjoyment. The exclamation mark had no significance. He did not intend or want to convey that he had enjoyed the physical contact. Generally, the evidence which GH gave about the letter appeared to be well rehearsed, but it was unconvincing. 274 GH said that the way the letter, the CD and the song Madly Deeply were dealt with in the program hurt him as it was saying that he had a sexual attraction to this young girl, in effect, that he was a paedophile and a pervert. He was disgusted and angry. In the program EF stated that GH had a sick obsession with her. The program sets out some of the amorous words of the song and GH's statement saying that this was the way he felt about her. In the context of the whole program which suggested sexual misconduct by GH the references to the song and the letter also made that suggestion. 275 GH said that some time after he sent that letter Mr Fuller telephoned him and told him that he did not want him to contact EF again. Mr Fuller did not say why. GH said that he replied that he would not. 276 GH agreed that he intended that EF would open and read the letter before her parents knew anything about it. GH wanted to get his message across, without parental intervention. The letter was not sent to EF at school to make EF feel special. That was window dressing to justify by-passing the parents and, as mentioned, so that EF would be able to read and consider the letter before her parents knew about it. 277 EF said that she felt angry and upset when she read the letter. She objected to GH writing with "all this emotion and like there was nothing wrong" when she had been kicked out of his house. She said that she was upset by the reference to the CD. She understood what the song meant, but did not understand why "it was being written to me". She took the letter home. Mrs Fuller gave evidence that EF brought the letter home. She discussed the letter with the counsellor, Eamonn Corvan. She regarded it as "a most inappropriate letter for an older person to write to a young girl." Mr Fuller took a similar view of the letter. Mrs Fuller said EF was very upset about the letter. 278 EF said that she received a number of letters from GH after she left the Hodges' home. At least some were apparently handwritten and according to EF extended over a number of pages. EF said that she did not keep these letters. She did not have an accurate recollection of their contents. She gave a broad indication of what she recollected they said. GH admitted to having sent but one letter, namely, that of late July 1997. In the absence of these alleged other letters reliance should not be placed on this point. Parental Action 279 Particular (h) of the Amended Particulars of Truth reads: "(h) In approximately February-March 1997 EF's parents contacted GH and requested him not to contact EF. Following this GH forwarded a letter to EF at her school containing expressions of love for EF (the love letter)". [Part of that letter is then set out]. 280 Mrs Fuller asked GH not to come to the Fuller's house in late July 1997 and Mr Fuller asked GH not to contact EF after receipt of the "love letter"; this was probably in August 1997. 281 Nothing of consequence happened between late 1997 and early 2003. GH and EF had nothing to do with each other, nor did their families. Resumption of Contact - 2003 282 In early 2003 in the course of a telephone conversation between EF and Jodi Hodge, EF gave Jodi Hodge her email address. Ultimately Jodi Hodge supplied that address to her father at his request. It is not necessary to rehearse the intermediate events, although the subject of cross-examination. On 28 April 2003 GH send this email to EF at her place of employment: "Hi ELF, It's greg hodge here How are you these days? If you get the chance I would love to hear from you – it is time we had a big catch up. …" Contact details at his work were supplied. 283 GH said he had forgotten all about EF's father's message to him six years earlier not to contact her. GH said he subsequently remembered after seeing the program and recalling the earlier events. Notwithstanding the defendants' contentions to the contrary, I did not regard GH's answer as improbable. 284 EF said that when she read the email (probably on 29 April 2003) she felt anxious and did not want to contact GH. She discussed the email with her parents and with her boyfriend, Craig Yelavich and Matthew Barlow. This was corroborated by her mother and Messrs Yelavich and Barlow. Both Mrs Fuller and Mr Yelavich thought that EF discussed it with them on 28 April 2003, the date of the email. They have been guided by that date. This mistake as to the date is of no consequence. EF raised the matter of the email with her mother and Mr Yelavich as soon as she opened it and that was their belief. 285 Particular (i) of the Amended Particulars reads: "(i) GH on at least two occasion during 2003 stalked EF in a manner which warranted an Apprehended Violence Order being made: (i) On 28 April 2003, GH forwarded an email to EF asking her to 'catch up', (ii) Shortly after 28 April 2003, GH lay on the grass outside of the workplace of EF situated at 198-222 Young Street, Waterloo. EF saw GH and returned back into her office. EF thereafter left her work and commenced driving to her home, namely her boyfriend's apartment situated at The Kingsway, Cronulla. EF observed that GH was stalking her in his black Mercedes sports car until approximately the suburb of Taren Point. (iii) GH forwarded an email to EF at her work on 11 July 2003. The email purported to be a work related email seeking travel related advice on behalf of the Australian Swimming Team. GH knew that neither EF nor her employer Transways provided the assistance sought by GH. GH thereafter forwarded an email at about 3.06pm on Friday, 11 July 2003 to Jim Dooling, a senior employee of EF's employer noting that EF had not responded to his earlier email to her. Mr Dooling thereafter replied to GH by email advising that EF was not at work that day and that in any event GH's enquiry was out of the field of expertise of EF's employer. (iv) On about 15 August 2003, GH was waiting outside the workplace of Ms Fuller situated at 198-22 (sic) Young Street, Waterloo. EF was escorted to her car by her superior and she thereafter drove to her home, namely her boyfriend's apartment situated at The Kingsway, Cronulla. GH followed her all the way to her home in his car." I shall deal with the incident mentioned in sub-para (ii) first. 286 EF said that shortly after receipt of the email bearing date 28 April 2003, and she could not remember the exact day but she thought it was a couple of days after the email she left work about 4.30pm and walked out towards her car. There is a blank strip of grass across the road (Young Street) in front of the Peugeot dealership there. The Peugeot building is immediately behind the strip of grass. The strip of grass covers a sloping bank. EF said she noticed a man sitting on the strip of grass and that man was GH. EF said that she immediately walked back inside the office where she worked. She felt worried. She tried to contact her father, but could not raise him. She telephoned Mr Yelavich and had a conversation with him. On telling him that GH was sitting out the front of her work Mr Yelavich told her to get in her car and drive straight home. Her car was parked on the same side of the street as the Transways building, that is, pointing north. She walked out of the Transways office and got into her car. As she did a U-turn she noticed in the rear vision mirror GH was in a black Mercedes sports car immediately behind her and that the number plate contained the letters GSH. That car was very close to her. EF said that she proceeded south down Young Street. She had to stop at the intersection (probably with McEvoy Street). She crossed over and continued down Young Street. She looked into the rear vision mirror and saw that GH's car was behind her. As she continued to drive home, GH's car was close behind her. I will not detail all the roads along which she travelled. She arrived at Taren Point Bridge, with GH's car having been behind her on the journey. During the journey she sent text messages to Mr Yelavich who had previously telephoned her a lot. On each occasion she told him where she was. 287 After crossing Taren Point Bridge she veered off the main road and turned down a side street at a set of lights. She said it was the first street that you can turn into after the bridge. She did a U-turn in the side street. She said that as she waited at the lights she saw GH go through the lights. She was stopped. She rejoined the main road, staying in the lefthand lane to go to Cronulla. She saw GH in the middle lane. GH moved across the lanes to the right and she veered to the left to go to Cronulla. She did not see GH again on that day. She proceeded to Mr Yelavich's unit in St Andrews Place, Cronulla. She related to Mr Yelavich what had happened, Mr Barlow being present. She also spoke to her mother and her father by telephone and told them what had happened. 288 It was pointed out that there were variations and discrepancies in some of the details of the various complaints made by EF. The central complaint was that GH was across the road from where she worked, that seeing GH when she walked out from her workplace she returned there, eventually left the office again, went to her car and drove home with GH following (to Taren Point) in his black Mercedes sports car with personalised number plates. 289 GH also relied on shortcomings in the evidence of Mrs S Fuller and Mr P Fuller. I have noted these matters but they do not cause me to alter my findings that EF told her parents that GH was outside her workplace and followed her. GH also relied on the error made by Mrs Fuller and Craig Yelavich as to the date on which EF spoke to them about the email of 28 April 2003. The point was whether it was on 28 or 29 April 2003. 290 Mr Yelavich, who said that he was not very good on dates, stated that a couple of days after the email was received, about 4.35pm EF telephoned him and said that GH was sitting out the front of her work, that she was scared and that she did not know what to do. Mr Yelavich made some suggestions. A short time later he telephoned her and verified that she was in her car driving home. EF said that GH was following her. Mr Yelavich said he was in Unit 1 in the block of units in the Kingsway and St Andrews Place at that time. Three friends, Messrs Barlow, Unkuri and Birney were also there. Mr Yelavich said he made a number of telephone calls. 291 Mr Barlow said he was present along with Messrs Birney, Yelavich and Unkuri. Mr Barlow stated Mr Yelavich took a telephone call, was quite frantic and said "Pull up out the front and we'll see you when you get here." He later saw EF arrive at the flat. In reply to Mr Yelavich she said that she was all right, that she did not know what he [GH] wants and that she thought she lost him at Taren Point. Mr Barlow said that EF looked frightened and scared. Mr Barlow was not cross-examined about the incident. Mr Unkuri was sharing a flat with EF at the time of this incident and for a period of 11-12 months in 2003. Mr Unkuri said that he recalled Mr Yelavich receiving a telephone call. Mr Unkuri was not asked and did not say who was present in the flat, nor was he cross-examined about the incident. He was vigorously cross-examined about an alleged later incident of 15 August 2003. Mr Nathan Birney did not give evidence about the incident which allegedly happened about 30 April 2003. 292 EF's parents and Messrs Yelavich and Barlow, and to a very much lesser extent Mr Unkuri provided evidence of prompt complaint by EF. The variations, discrepancies and shortcomings in the evidence of those witnesses did not cause me to doubt the core of their evidence. 293 GH denied that on 30 April 2003 he lay on the grass outside EF's work and that he followed her in his car. GH insisted that he was not at EF's workplace on that date and did not knowingly follow her in her car. GH said that on the afternoon of 30 April 2003 he was in Richmond, New South Wales. That was a work journey. When he left Richmond he drove to his home in Oyster Bay. He could not remember which route he took, but neither of the two possible routes passed through Waterloo. He said that he did not pass through Waterloo on his way home. He had driven in Young Street Waterloo and on his way home from the city he would invariably be in that vicinity. GH accepted that in 2003 he normally drove a small black Mercedes Benz sports car. GH said that there were many cars of the same make, model and colour. GH said he did not know the type of car EF drove at that time and that on 30 April 2003 he did not know the name of EF's employer. 294 GH said that early on 1 May 2003 he left Sydney to attend the annual swimming coaches' convention on the Gold Coast. He was there for about a week. 295 In cross-examination GH was shown an email which he sent on 30 April 2003 at a stated time of 12.27pm. If that time was correct he left for Richmond after that time. GH said he went to Castlereagh first and then to Richmond. He was not sure how long he was in those places in total. GH gave a series of guarded answers. He said that as he recalled he did not, in returning home from Richmond go via Cronulla, nor Caringbah nor Miranda. He did not recall coming back from Richmond via Waterloo, nor did he recall being in Young Street Waterloo on 30 April 2003. 296 GH was shown the telephone records for his work mobile telephone and they showed that at 5.18pm on 30 April 2003 at Miranda that telephone was used. The correctness and reliability of that record was challenged and it was pointed out that there was no presumption of regularity. 297 It emerged that when GH returned his laptop computer in early 2004 when he left Australian Swimming he deleted all the entries on it. AS GH put it he "provided them with a clean computer". GH claimed that he did not know whether there were entries on that computer detailing what he had done on 30 April 2003. He was aware that what he did on 30 April 2003 was in issue in these proceedings. He agreed that these proceedings were underway when he deleted the entries on the laptop computer. When asked if he knew when he deleted the entries that what he had done on 30 April 2003 was a relevant matter in these proceedings he replied that he did not. He claimed that he did not recall what he said to Mr Alan Jones on radio as to what he was doing on 30 April 2003. GH said he could not recall whether, from the program in October 2003 until he deleted the entries on his computer, he was aware that the events of 30 April 2003 were highly relevant to this case. This is not easy to accept as the program referred to the sending of the email as to catching up and an incident two days later. 298 GH said that his purpose in retaining Mr Wilkinson, an experienced journalist, was to present himself and his family to the viewing public so they could see and hear and make a judgment on what he and his family were like. 299 GH agreed that he gave information to Mr Wilkinson about EF's allegations that he had been stalking her. He then said he may have given information to Mr Wilkinson about EF's allegations. He said he did not know that Mr Wilkinson would give that information to members of the media. GH, with possible future questions in mind, said that Mr Wilkinson was not engaged to do anything with the information he gave him. GH said he engaged Mr Wilkinson to help set up media interviews and manage the media siege the Hodges were facing, so he had no authority to use any information GH grave him. GH claimed that he could not recall what information he gave to Mr Wilkinson. 300 GH agreed that he conducted a press conference on 15 October 2003 in the presence of Mr Wilkinson. That conference was attended by a lot of media representatives, 301 GH agreed that he had many conversations with Mr Wilkinson. He said that he could not recall telling Mr Wilkinson that on 30 April 2003 he had been at the Peugeot dealer in Young Street, Waterloo. A note was produced from the files of Wilkinson Media under the heading "Charles Mirander, Telegraph" (presumably referring to some article written or to be written by Mr Mirander in the Daily Telegraph about the Hodge matter). That note of Wilkinson Media recorded: "Be in a car at the Peugeot dealer" and "In the car. At the dealer. At the corner." GH said that he did not have any recollection of saying any of those things. GH said there was no impediment to Mr Wilkinson coming to court. 302 GH was shown a second document produced from the files of Wilkinson Media. He agreed that it appeared to provide information that he gave to Mr Wilkinson in response to EF's allegations. It is not stated from what document Mr Wilkinson was working, but it appears to be from the letter to the Chamber Magistrate. Item 8 states: "Flicking costume. She was well known for giving other kids wedgies. I never ever did it. She was renowned for doing." GH agreed that this was something he told Mr Wilkinson. Item 27 states: "I did contact her a couple of times, it was about keeping her in swimming." He agreed that that related to the period February to July 1997. That revealed that GH's earlier stated recollection to the contrary was faulty. Item 28 records: "I did send her an Alanis Morrisett CD. Her favourite artist. I think it was a birthday card plus a CD." Item 29 states: "Her parents may have told you to stay away. I know I wasn't too welcome." GH agreed that Item 29 records something that he told Mr Wilkinson in October 2003. While he recalled in October 2003 that Mr and Mrs Fuller had told him not to go near their daughter, he "had forgotten about the conversation until all this came up." 303 Item 30 reads: "April 2003. true." That is a reference to GH sending an email to EF. In the letter to the Chamber Magistrate this allegation was made (para No 36 on Exh 9). "Three days later I left my place of work to go home. When I approached my car I saw GH laying on the grass across the road looking at me. I was terrified when I saw him. I immediately turned around and went back into the office." In Mr Wilkinson's notes (being Item 31 in those notes) this is recorded, "lying on the grass. I was at the Peugeot dealer I had no idea where her office was. If I did happen to be in the vicinity and she was paranoid." I doubt whether there should be a full stop after "was" where secondly appearing and then a new sentence. Item 32 in Mr Wilkinson's notes reads: "I would only have been following her on the way home to a certain point." 304 Young Street was approximately 14 metres wide from kerb to kerb. On the view which I had and using Exhibit AS, I noted the approximate position where EF said her car was parked, being the third vehicle or three car lengths up from the main driveway to the Transways building and on the street. EF was approximately near the driver's door of that vehicle and standing on the roadway when she allegedly saw GH. On the view I recorded: "Standing near the driver's side door of the third vehicle from the driveway and looking across towards the Peugeot premises and the grass bank in front of it, it would depend on exactly where the person was standing, the number of vehicles parked opposite and the precise alleged position where Mr Hodge was said to be lying, also the size of the vehicles." 305 I was trying to assess, with the aid of counsel, how much EF could have seen and how clearly. That was difficult to assess without having the details mentioned. EF did not have a close-up view of the person lying on the grass bank and the possibility of a mistaken identification has to be taken into account. EF knew GH very well and even from a distance she would have been able to recognise and identify him. If her view was partly obstructed by cars parked on the other side of the road a mistake could occur. 306 GH explained that it was his recollection that Mr Wilkinson asked him questions over the telephone in relation to EF's allegations. GH said that the document was a combination of Mr Wilkinson's summation of various allegations followed by some comments he (GH) may have made to Mr Wilkinson. GH said he did not necessarily agree that he made the comments recorded. GH specifically agreed with some of the information recorded. GH said he did not say to Mr Wilkinson "I was at the Peugeot dealer." GH protested that the document (Exhibit 8) on which he was being questioned was not his document. The matters recorded by Mr Wilkinson deal directly with and are by their terms, responsive to the allegations made. Exhibit 8 appears to be a contemporaneous record and is the best record of what was said by GH to Mr Wilkinson in October 2003. It is considerably more reliable than GH's recollection some two years later. Mr Wilkinson had a real interest in recording correctly the substance of what he was being told so he could assess how best to represent his client. 307 The defendants asked the Court to infer that on 16 October 2003 GH made representations to the effect that he had been at the Peugeot dealer in Young Street on 30 April 2003. The defendants relied heavily on Exhibit 8 and also on Exhibit 7 including the passages previously quoted and the heading "Charles Mirander, Telegraph" and the date 16 October 2003. On the next day, 17 October 2003 an article appeared in the Daily Telegraph (Exhibit 11) stating: "On the day she claims he was sitting outside her office, [GH] says he had taken the car to be serviced at an authorised dealer next door and was eating a sandwich on the lawn waiting for the garage representative to return to his desk." 308 In his answer to Interrogatory 11 (Exh 26) GH admitted that on or before 16 October 2003 Peter Wilkinson spoke with Charles Mirander and that he did not know whether Peter Wilkinson used words to the effect quoted, and neither did Mr Wilkinson. GH said that he did not seek a correction of Mr Mirander's article nor ask Mr Wilkinson to do so. 309 In order to adequately represent GH it was reasonable for Mr Wilkinson to want to know the position as to of the statements made in the letter to the Chamber Magistrate (and that to Australian Swimming). Some of the allegations in the former letter appear in the program. Mr Wilkinson has used a word, or a few words, to identify the allegations and then recorded the information supplied by GH in response. It is hard to accept Mr Wilkinson inventing or misunderstanding words to the effect "I was at the Peugeot dealer" or mistakenly recording those words for some other words. Those words have a telling simplicity and directness. Mr Wilkinson was trying to advance GH's interests and assist him. 310 In the Today interview on TCN Channel 9 at 08.11am on 14 October 2003 GH stated: "… until just – This has blown up I didn't even know what area her work was. And I certainly don't know where she lives. I now know it's Alexandria. My wife has a Peugeot and there's a Peugeot dealer in that area. I bought my Mercedes – and I have a Mercedes Roadster and I drive around with the roof off. And I think, Steve, what's happened, is there's been some unintentional crossing paths." GH added: "… And I just think this is purely unintentional and we will refute this in court." 311 GH said that he had never used the Peugeot premises in Young Street himself to buy anything. He had never had his wife's car serviced there. GH said that the only time that he had been in the Peugeot premises was to look at a car in the front office window spaces. He was uncertain when that visit was. 312 The Today interview took place about 14 hours after the ACA segment was shown. GH was aware from the program that it was being alleged that two days after the email GH was waiting for her outside the office where she worked, that when she walked outside he was sitting on the grass, that she was scared, that she ran back inside her office, that he was still outside and that as she drove GH followed her. While there had been mention by the reporter of witnesses on two occasions during the program, it was not clear which of two incidents was being covered on the first occasion witnesses were mentioned. At the time of the Today interview GH was unlikely to have known what evidence was held or available to the defendants as to his presence in Young Street. The reference to there being a Peugeot dealer in the area and his wife having a Peugeot provided some explanation for his being in the area. Later, when speaking with Mr Wilkinson reference was made by GH to being at the Peugeot dealer. 313 The defendants cross-examined GH to suggest that he was in the vicinity of Transways, Young Street on 29 April 2003 from at least 4pm onwards. His work mobile phone records showed calls at 4.08pm from Rosebery and 5.37pm from Waterloo. GH was in Brisbane that day and he dialled his voice mail from Chandler pool at 1.03pm. GH agreed that the records suggested that he was in the Rosebery-Waterloo region for about 1½ hours. GH produced an itinerary showing that he was due to arrive back late from Brisbane that day. The mobile records show that GH made a call from Brisbane Airport at 1.33pm. GH may have been put on an earlier flight than that shown in his itinerary. What is reasonably clear from the mobile records is that GH was in Sydney by 4.08pm. While it was said that on occasions telephone calls did not register on the closest cell to the caller but on the nearest cell with available capacity, it was not suggested that calls originating in the Brisbane area would register on cells in the Sydney area. 314 However, it is one thing to say that GH appears to have been in the Rosebery-Waterloo area or nearby on 29 April between 4.08pm and 5.37pm and quite another to say that he was in the vicinity of Transways, Young Street, Waterloo waiting for, or to observe EF. A study of the records does not establish the latter proposition. 315 GH's stance in October 2003 was that he was at the Peugeot dealer and had no idea where the office at which EF worked was located and that she was paranoid. The version of the trip to Richmond and the route home, other than via Waterloo came later. It is probable that GH was outside the Peugeot premises in Young Street, Waterloo on 30 April 2003. GH was guarded as he answered the questions as to EF's allegations and his movements on 30 April 2003. Presence outside the Peugeot premises on 30 April 2003 does not amount to stalking if GH had legitimate business there. It was obvious during his evidence that GH wanted to place himself away from Young Street Waterloo. 316 On reaching the suburb of Taren Point, GH and EF went in separate directions. It would have taken EF a little time for her to execute the manoeuvres she described and which are earlier summarised. It does not seem probable that at the time EF crossed the bridge GH was close behind her. There are a number of possibilities including that EF is mistaken that GH was following her, GH may have just missed a change of lights, with EF's car just scraping through on the change, or other traffic may have intervened. This is not an exhaustive list. The evidence does not enable me to say what happened. What is established is that GH did not follow EF past the suburb of Taren Point to her destination. 317 When GH sent his email message on 28 April 2003 to EF at Transways, he would have known EF was not figuring prominently in swimming and pursuing her swimming. The email was warm and friendly. What was the purpose of the "big catch up." Finding the location of Transways would not have been difficult. In 2004 GH deleted the entries on his laptop computer as to his activities on 30 April 2003. Neither the trip to Castlereagh and Richmond nor the hours GH was away from Sydney on that trip have been corroborated sufficiently. I think that GH probably followed EF for part of the way to her destination, starting in Young Street, Waterloo, but I am unable to say for how far, save that any following probably ended some distance before the Taren Point bridge. From the email sent by GH it can be concluded that GH strongly desired to renew his acquaintanceship with EF. The evidence does not justify a finding that that was with a view to a sexual relationship or because of a sexual obsession with or sexual attraction to EF. The July 2003 emails from GH 318 The Australian Swimming Team was in Germany training and proposing to proceed to Spain for the World Championships in Barcelona. GH was advised that the team may need an ATA Carnet which permits temporary admission of goods (import and re-export) for certain purposes. He was advised that a good customs agent in Australia should be able to provide all the necessary information and do all the necessary legwork for the team. GH was advised by a subordinate officer that this document had not been required on previous trips and that the team had not previously had any trouble clearing Customs at other World Championships, as none of the goods the team carried with it were for resale but for the team's private use. GH explained that the particular problem he faced was that the goods the team wanted to take into Spain included consumables, such as breakfast cereals and medical supplies and other items they were going to use. They would not have these when they left and a question of paying tax on them would arise. 319 GH had not heard of an ATA Carnet and needed urgent help. The team was due to travel to Barcelona on 16 July 2003 and GH had to avoid the team's goods being impounded by Spanish Customs. GH said that he remembered that EF worked for a company called Transways and that it was involved in freight forwarding. He only knew it was involved in the industry. He did not know exactly what it did. GH said that he thought that it was appropriate to contact EF because he thought that she would like to assist the Australian Swimming Team. GH sent this email at 6.38am (Sydney time) on 11 July 2003 to EF at Transways, under the subject Re ATA Carnet: "Dear Ms Fuller, your company has been suggested to me to possibly provide advice for the Australian Swim Team We are advised by contacts in spain that we may need an ATA Carnet to prevent out team gear being impounded and taxed. This has never been a problem when we travelled to Europe before Can you please tell me: 1. what is an ATA Carnet-our national office is unaware of such a document 2. if we only have equipment which is for team use and not for commercial sale do we need this document note: we have massage tables, medical supplies, scientific equipment, boxes of packed food snacks etc to be used during our stay in barcelona for 12 days We would appreciate any advice you can provide in this matter or give us a contact who might have expertise in this area." 320 GH agreed that the opening sentence of the email was incorrect. GH said he addressed the email to "Dear Ms Fuller" as it was a formal communication. 321 The matter was urgent, so that when GH did not receive a prompt reply he sent a further email to the contact address of Transways given on the website. He received prompt advice by return from the addressee given on the website, Mr Jim Dooling, suggesting two contacts he might make and advising that the matter was out of Transways field of expertise and that EF was away that day. 322 GH agreed that he had no idea of EF's duties or qualifications at the time he sent the email. He would not have expected her to have any position of seniority at Transways. GH did not know whether EF would be aware of matters relating to freight forwarding or carnets or be able to help him, but he thought that Transways may be able to help. GH said that he expected a response to his email, not necessarily from EF, but from someone on behalf of Transways. GH agreed that he had no idea whether EF could help, but he thought her company would be able to help. 323 GH said that he sent the initial email to EF in the hope that she or Transways may be able to help directly or indirectly by her or Transways suggesting others whom he could contact. GH desired to renew contact with EF and he saw this as a good opportunity to achieve both objectives. Sending an email to someone as junior as EF, without any knowledge of her responsibilities and skills, to help solve the problems which had arisen was an odd way of attacking them. They were of importance to the team and not a minor matter. 15 August 2003 324 GH denied that on Friday, 15 August 2003 he waited outside EF's work and denied that he then followed her car all the way to her destination. GH said that on the afternoon of 15 August 2003 he was working in his office at Homebush, leaving about 4.30pm. 325 GH relied on the telephone records (Exh 13, p96) indicating that at 3.49pm a telephone call was made on GH's work mobile, a telephone call made using the Olympic Park cell, which lasted for 29.29 minutes. GH could not recall whether he made this call while driving. The next call was made at 5.20pm, using the Caringbah cell. That call lasted 16 seconds. 326 GH said that he drove to Caringbah Pool for a previously arranged meeting with a coach called Tracey Menzies. GH said that he arrived at the Caringbah Pool about 5pm or just after 5pm. Ms Menzies was away sick. He stayed there for about 10 or 15 minutes, speaking to the staff. GH said that on his way to the pool he would have crossed over the Tom Ugly's bridge and at Sylvania turned left on to the Kingsway and followed the Kingsway all the way along to Caringbah Pool. There was another route he could have used. Neither route would take him through Waterloo or along Young Street, Waterloo. GH said that he did not see EF driving a car and he did not follow EF to his knowledge and that he still does not know what car she was driving or does drive. That also applied as at 30 April 2003. GH said it could have happened on 15 August 2003 that he followed her car, because he was travelling on the Kingsway that day. 327 GH said that after he left the Caringbah Pool he telephoned Tracey Menzies about 5.15pm and left a message on her voice mail that he had called. GH said that Caringbah Pool was about 50 metres down a side street from the Kingsway. GH said he turned back onto the Kingsway and drove towards his brother's home at Gunnamatta Bay. He said that normally he would have continued along the Kingsway to almost the Cronulla Shopping Centre, that is, until Wilbar Avenue where he would have made a righthand turn, and proceeded towards the railway line, along the underpass and then to Gunnamatta Bay and Tonkin Park. 328 GH said that the traffic was very heavy on 15 August 2003 and built up back past the entrance to Wilbar Avenue. GH said he decided to take a short cut and turn right down St Andrews Place, the street close to and immediately before Wilbar Avenue and less than 100 metres before it. GH said that St Andrews Place was "dead-ended about 300 metres down the street" by the railway line. GH said that he had not entered St Andrews Place previously and did not know that street dead ended. GH said he drove down St Andrews Place and used the turning circle close to the railway line. GH said he drove back to the intersection of St Andrews Place and the Kingsway, stopped, then turned onto the Kingsway and proceeded to his brother's home. GH said that while he was in St Andrews Place nobody approached towards his car and he did not hear anyone shout at him. No one asked him what he was doing there. GH estimated that it was about 3 to 4kms along the Kingsway from the Caringbah Pool street intersection to the Wilbar Avenue intersection. When he was driving along that stretch of the road he said he did not see EF in another car and that he did not follow her knowingly. GH said that he did not know that EF had a boyfriend and that she lived with him in the boyfriend's flat and that he was in the vicinity of her boyfriend's flat. GH said that was a coincidence. GH denied that on 30 April 2003, 1 May 2003 and 15 August 2003 he stalked EF. 329 Tracey Menzies was away sick from work on 13, 14 and 15 August 2003. It seems odd that she did not cancel the appointment on 15 August 2003 and allowed GH to drive to the Caringbah Pool when she would not be there. GH denied that she cancelled the appointment in advance. He knew some of the staff at the Caringbah Pool and spoke with them. 330 EF said that she left work about 4.30pm on 15 August 2003 via the back door. She said that she saw GH walk across the driveway (the rear one). She walked back inside and spoke to her boss, Mr S Davies, words to this effect "Greg is outside again". He enquired whether there was anything he could do to help her. She replied that she was going to ring Craig Yelavich and did so. She told him that GH was outside again and Mr Yelavich told her to get in her car and come straight home and that he would call her soon. EF said she tried to call her mother and her father but she was not sure if she got through. She reversed out of the driveway onto the street so as to face south. As she went forward GH's car was in front of her moving forward. It was a black Mercedes with the number plate lettering GSH. Both GH's car and EF's car proceeded down Young Street with EF's car behind GH's car. They stopped at McEvoy Street and proceeded across the intersection and further along Young Street. GH pulled to the side and allowed EF to pass and then pulled back behind her. She continued to drive south and, on looking in her rear vision mirror saw GH in his car behind her. She followed a route, omitting intermediate streets, which took her along General Holmes Drive into Brighton. She could still see GH's car. She travelled past Brighton to Sans Souci. During this time Mr Yelavich called her more than once and she spoke to him. EF could still observe GH at Sans Souci. She told Mr Yelavich that she was really upset, that she was going to stop looking (for GH) and just drive straight home. As she neared her destination Mr Yelavich told her that as she came down the Kingsway not to turn into St Andrews Place but to continue past the unit so he could see if GH drove past after her. EF said she turned into Wilbar Avenue and turned straight into the petrol station as was then possible. Now that cannot be done as a median strip has been installed. She added that Mr Yelavich had told her to drive through the petrol station and park on the Kingsway below the unit. 331 EF said that as she was walking up to St Andrews Place she saw Messrs Yelavich, Barlow, Unkuri and Birney running towards the end of St Andrews Place and Mr Yelavich said, "There he is, there is his car". EF said that when she first saw GH's car it was in St Andrews Place, but facing to drive out of St Andrews Place and driving out. When she observed GH he was about five to 10 metres from the intersection of St Andrews Place and the Kingsway. She observed GH look at them and she asked what he wanted and why was he there. GH probably did not hear her. EF said she walked out onto the street and estimated that she was about two metres from him. She said that as they got nearer GH took off very quickly and Mr Yelavich threw a bottle at the car, but it did not hit the car. EF said GH turned left on to the Kingsway. She did not see him again after that. The group went up to Mr Yelavich's flat. EF spoke by telephone to her mother and father. EF estimated that the incident in St Andrews Place happened around 5.30pm. EF said that on this evening she spoke to her mother more than once and her father more than once. 332 EF said that she told her parents that she had seen GH as she was leaving work again, how he was outside of the car (sic), then she had left work and GH was in front of her and that he had pulled off to the side of the road and he had followed her all the way home, she had not seen GH all the way home, but when she got home GH was in the street. EF said that her father said that he was going to drive down straightaway and that everything was going to be okay. She said she saw him the following day. She said that it was at Mr Yelavich's unit at St Andrews Place. She said that they could have gone to her house (unit). Her father was there for the whole of the day. Her house was not far away. She said that on the following day she and her father went to the Cronulla Police Station and spoke to an officer, but they wished to see Det Adam Johnson with whom they had previously dealt in another matter. He was not there. EF went back to the police on another occasion and spoke to Det Johnson. 333 In cross-examination on her letter to the Chamber Magistrate EF accepted that, while she mentioned that GH was approached by her and Mr Yelavich, she did not mention that there were other people who also approached. She said that maybe she did not regard that as important. 334 EF said that on 15 August 2003 when she saw the man she identified as GH he was walking along the footpath which crossed the driveway. The man did not have a hat on and he was not wearing sunglasses. The man and she did not make eye contact. She did not claim that he looked at her. This passage appears in her cross-examination:: "Q: How long was it before you turned and went back into the building, after you saw this man, whoever it was? A: After I saw Greg Hodge I turned and went straight back in the building. Q: In a matter of seconds? A: Yes. Q: To a count of what? OBJECTION HIS HONOUR: Q: Are you able to give a more accurate estimate than just seconds? A: As soon as I saw him walking past I turned around and walked back inside. LITTLEMORE: Q. Instantaneously? A: I saw him, went that's Greg Hodge and I walked back inside. Q: Less than a second? A: A second, yes. Q: For one second you saw a man who was not looking at you --- OBJECTION WITNESS: Yes but after I clearly --- LITTLEMORE: Please madam, I have not asked you a question." 335 In the context it is not clear whether EF is saying that after she saw GH she turned and went back inside the building in about a second, or that she saw GH for a total of a second. Counsel did not wish her to explain further. EF's identification also depends on what she claims she saw from her car, namely, GH driving his Mercedes sports car. 336 EF said that when she said she saw Messrs Yelavich, Barlow, Unkuri and Birney running towards the end of St Andrews Place, she meant its intersection with the Kingsway. She said she saw them running along the footpath of St Andrews Place. Her car was parked on the Kingsway very close to St Andrews Place. She had hopped out of her car and was on the Kingsway. She felt unable to give a reliable estimate of how far she was from the corner. She saw the young men running as she came up to the corner. It all happened very fast. They met at the corner on the same side of St Andrews Place as the block of flats. EF said she saw GH's car as she walked up to the corner. She said that she saw the young men and GH's car approaching the corner. It was "we" said "What do you want, why are you here?" She said that GH stopped at the intersection briefly. 337 EF said that she came to the corner about the same time as the young men, that on her left she saw GH's black motor car, that in her sight he drove the short distance to the intersection, paused there and drove off quickly to his left. EF said GH was looking at them and the traffic. Having said that she could not remember whether GH was wearing sunglasses she corrected that answer immediately and said GH was not wearing sunglasses. She said that she answered the question whether he was wearing sunglasses hastily. 338 EF insisted that she had a clear vision of GH; the sun was not going down. She did not agree that it was dusk at the time of the incident. EF said it could have been near dusk, but it was still light. She could not say whether the windows on GH's car were tinted, but she said she could see GH through the windows. 339 Cross-examining counsel took EF to what he contended were these prior inconsistent statements: (a) She told Australian Swimming in the letter to them that Mr Yelavich ran down to her car when she arrived to tell her that GH was already in the street. EF said that that was Mr Yelavich's overall purpose, to come down to say GH was in the street and to see if she was okay. She agreed that Mr Yelavich did not run right to her car but to the corner, her car not being very far east of the corner. (b) She told Ms Patterson that Greg Hodge was already pulled up in her boyfriend's street before she hopped out of her car. EF agreed GH was not already pulled up before she got out of her car, This is part of a garbled statement in which EF combines a number of matters in summary form: "… A few days after that email [11 July 2003] he followed me home again and come right to the, I had my boyfriend on the phone also then and he knew at that stage what the car looked like and what his number plate was and I said if he follows me all the way home, he was going to come down and he was already pulled up in my boyfriend's street before I'd hopped out of my car." (the letter "I" where secondly appearing should probably read "he") and "So, he'd already – he'd obviously been there before because he was in the street before I'd pulled up and I didn't even go into the street …" The words "pulled up" were incorrect but GH was in St Andrews Place (her boyfriend's street) and would have had to slow down. GH said that he did a three point turn. (c) As to the words "a few days after the email he followed me home again" EF admitted that it was incorrect to say "a few days". It was about 35 days. The two events of the email of 11 July 2003 and the alleged following were separate and the latter was after the email. What EF said was inaccurate. 340 I do not think that any of these errors is of consequence. They indicate a lack of accuracy in recounting some of the lesser details, but they do not affect the essential thrust of what was being said. 341 EF was questioned about her delay in failing to report the matter to the police prior to seeing Det Johnson on 25 August 2003. Her family and she had spoken to Mr Johnson between 15 and 25 August 2003. She did not know why she did not see the detective at an earlier date. 342 Mr C A Yelavich had been involved with EF for about 3 years. They are presently living together. In April 2003 he was living at Unit 1 in St Andrews Place, Cronulla. He moved up to Unit 16 on level 3 shortly before August 2003. He shared both units with Matthew Barlow 343 Mr Yelavich said that he normally got home from work between 3.30 and 4.00pm. On Friday 15 August 2003 he was at home having a beer after work. Three friends were there. Mr Yelavich said that he received a text message from EF. He telephoned her back, using a friend's phone. She told him that she felt good about coming out of work, GH was not there but when she proceeded to drive home he pulled out and started to follow her, that she was scared, that GH was following her and that she did not know what to do. This account varies appreciably from that given by EF in evidence as to the early events. I think that EF's account is probably correct. There was her prompt complaint to Mr S Davies. Mr Yelavich has confused some of the details. Mr Yelavich said that he tried to keep her calm. He told EF to relax and take it easy. He tried to get her to pull over but was unsuccessful. She did not want to pull up. She was too scared. She just wanted to get home. Mr Yelavich said there were about five calls over a period from about 4.40pm to 5.15pm. The initial text message was sent about 4.30pm. During those calls he asked, "Is he still following you? Are you all right? Can you see him? Are you far enough away from him" She answered "Yes" to the question "Is he still following you?" As to the question "Can you still see him?" she answered "Yes" on the first occasion and on another occasion, "No". 344 Mr Yelavich said that during one of the later calls he told EF to turn into Wilbar Avenue, the street after St Andrews Place, then to turn into the garage, make a U-turn in the garage and park directly in front of his balcony so he could see exactly where she was, what she was doing and if GH was following her. Mr Yelavich said he was on his balcony, which was on the Kingsway and observed EF do exactly what he instructed. He was aware of EF getting out of her car but he was keeping a lookout for GH's car. Mr Yelavich was looking west along the Kingsway and saw a black Mercedes coming east down the Kingsway and turning right into St Andrews Place. Mr Yelavich said he yelled out to EF did she see him and to stay there as he would be down in a second. He and his three friends ran down the fire stairs. Mr Yelavich said that when he got to the bottom he could not see any black Mercedes, so he proceeded around the corner to EF and spoke with her. As they turned to go back to the corner, Mr Yelavich saw the black Mercedes coming along St Andrews Place back to the Kingsway. He said they all went towards the car, yelling out questions. Mr Yelavich said that he was on the street by that stage. He was about two metres from the car. He saw the face of the occupant, who looked shocked. As they got closer he sped off west along the Kingsway. Mr Yelavich said he threw a beer bottle at the car and missed. Mr Yelavich said it was a very short time from the point at which he saw EF park her car until he saw the black Mercedes. 345 In cross-examination Mr Yelavich said that the best estimate of that time he could make was one to two minutes maximum. He was not concentrating on the time. He heard EF tell her mother that GH had followed her home. 346 Mr Yelavich agreed that no one was following at the point of time EF went past, did a U-turn and parked in front of his balcony. He agreed that a couple of minutes later he saw a black Mercedes Benz driving east in the Kingsway, which turned right into St Andrews Place. Mr Yelavich stated that he was not 100 per cent on the time. It was a short time after EF pulled up. Mr Yelavich agreed that he told Channel Nine that EF came down the Kingsway, turned around, came past and he saw no one was following her at that point and then a couple of minutes later he saw a black Mercedes coming down the Kingsway and turning into St Andrews Place. Mr Yelavich agreed that he had always said that GH was not following EF when he saw GH's car. 347 Mr Yelavich said that St Andrews Place was quite a narrow street. He estimated that it was about 10 metres wide, if that. Mr Yelavich said his first glimpse of GH's car was from the footpath and then he proceeded on to the road. He was quite close to the building alignment. Mr Yelavich estimated that it was 1½ metres to the kerb and agreed that there was then half the width of the road to GH's car. Mr Yelavich said he was not as far as 10 metres from the car when he first saw it. GH had to stop at the intersection. 348 Mr Yelavich agreed that he told Channel Nine in answer to the question what was it like seeing him [GH] face to face, "I can't tell you, a bit of a blur. I was pretty angry and upset." Mr Yelavich said the yelling (by EF and him) was a bit of a blur, as he was in an emotional state, angry and frustrated. Mr Yelavich did not agree that a blur was a reference to an uncertain sight. Mr Yelavich said that what he saw of GH's face was not a bit of a blur; GH looked "real shocked" to see EF and him. They and three of his friends were approaching the car. 349 Mr Yelavich said that it was quite light while he was still outside. The sun set in Sydney at 5.25pm on 15 August 2003. 350 Mr M M Barlow was aged 22. He had known Mr Yelavich for over nine years and EF for over four years. He recalled a particular occasion in August 2003. He arrived at unit 16 about 3.30pm. Mr Yelavich was already home. Messrs Unkuri and Birney arrived a little later. He thought that they had two beers. They were having a chat. He recalled Mr Yelavich making or receiving a number of telephone calls. Mr Barlow said that there were definitely over five telephone calls. He recalled Mr Yelavich telling EF to drive down the Kingsway, go past St Andrews Place and pull up out the front. Mr Barlow, who was on the balcony saw EF hop out of her car which was parked directly in front of their balcony on the Kingsway and on the same side of the road. 351 Mr Barlow said that after seeing EF's car parked in the Kingsway he looked up the Kingsway and saw a black Mercedes sports car turning into St Andrews Place. Mr Barlow estimated that it was between thirty seconds and one minute after he saw EF's car arrive that he saw the Mercedes. Mr Yelavich spoke. Mr Barlow said that after he saw the Mercedes the young men ran down the fire stairs out on to St Andrews Place. They went around the corner to the Kingsway to see EF, met up with her about two to three metres back from the kerb and enquired whether she had seen the black Mercedes. She replied "No". They all started turning around, walking back to the kerb on St Andrews Place. They saw a black Mercedes sports car pull up. EF yelled out, "Greg, why are you doing this?" GH looked at them, his face dropped and he sped off left up the Kingsway. Mr Barlow said that the closest they got to the Mercedes was on the edge of the road. He estimated that they were about three metres away from the Mercedes. He saw the face of the driver of the Mercedes. His head and jaw dropped. He was shocked. Mr Barlow said that EF and all of them were saying "What are you doing, what are you following her home for?" Mr Barlow saw Mr Yelavich throw a bottle at the car. 352 In cross-examination Mr Barlow agreed that it was dusk when he saw GH's car. He did not recall whether the car windows were tinted. Mr Barlow said that the driver of the Mercedes was wearing spectacles but the lenses were not tinted. 353 The cross-examination of Mr Barlow was brief. He was an impressive witness, whose evidence was reliable. 354 Mr M H Unkuri, aged a day short of 23 years when he gave evidence, had known Mr Yelavich for 8-9 years and EF for about four years. He had shared a flat with EF in 2003. Mr Unkuri said that on 15 August 2003 he was at the flat of Messrs Yelavich and Barlow. Mr Unkuri estimated that he arrived at the flat about 3pm. Messrs Barlow and Yelavich were there. Mr Birney came about twenty minutes after him (Unkuri). They were having a beer. He said that at some point Mr Yelavich received a telephone call. Mr Unkuri thought that Mr Yelavich made more than three telephone calls and stated that Mr Yelavich stated, "Try and lose him around Taren Point" or something like that. Mr Unkuri appears to be mixing up the alleged incidents of April and August 2003. Mr Unkuri saw EF's car coming down the Kingsway. Mr Unkuri said that EF did a U-turn and parked in front of the building. Mr Unkuri said that the black Mercedes "sort of" was following EF down the Kingsway and then went into St Andrews Place. 355 Mr Unkuri was not quick witted. He did not understand what was meant by a T-junction, when the word was used as to the Kingsway and Wilbar Avenue. Further, he did not understand when, after he said that Mr Yelavich was standing on the corner of St Andrews Place and the Kingsway, cross-examining counsel asked "Was he on the carriageway itself or on the footpath?" He replied, "I am not sure, what's the carriage?" Counsel responded, "The road surface." 356 Mr Unkuri did not strike me as dishonest, but as a young man who was not able to cope with a vigorous cross-examination requiring him to recall a lot of detail. I was not surprised that he could not prepare an accurate diagram or plan in the witness box. 357 As earlier indicated, I thought that in his reference to Taren Point Bridge in relation to the second alleged incident of 15 August 2003, he was confusing the two alleged incidents. There are two other matters in Mr Unkuri's evidence calling for critical comment. It is improbable that Mr Unkuri is correct when he said that he saw the black Mercedes 10, 20 seconds after he saw EF's car arrive. Mr Unkuri said that he saw the Mercedes coming down the Kingsway and noticed that it was following EF. 358 Mr Unkuri said that it was not dusk when he saw GH's car in St Andrews Place, it was daylight saving. When it was pointed out to Mr Unkuri that there was no daylight saving in August, he replied that it was still early afternoon. Mr Unkuri has made an obvious mistake. Because of the mistakes made and his confusion his evidence has to be approached with caution and reserve. However, it can be accepted that he was present in Mr Yelavich's unit on the afternoon of 15 August 2003 and heard Mr Yelavich on the telephone giving instructions to EF as to where she should drive her car and pull up when she arrived in the vicinity of his flat, and that he saw EF travel in her car down the Kingsway and start to turn it around. It can also be accepted that at some stage he saw a black Mercedes sports car on the Kingsway, that he went down the fire stairs with the other three young men that he became aware of where EF had parked her car, that he saw EF and that he saw the black Mercedes sports car in St Andrews Place as it travelled to the intersection, approached that car with the other men and EF, saw the driver and then the car speed off to the left from the intersection of St Andrews Place and the Kingsway. His evidence as to the state of the light and his estimate of the time differences as mentioned earlier are not correct. Mr Unkuri was also incorrect in agreeing with the suggestion that St Andrews Place was about 15 metres wide, if that was meant to be a kerb to kerb distance. 359 Mr N J Birney, aged 23, had known Mr Yelavich for about six to eight years and EF for about three. Messrs Yelavich and Barlow were friends of his. He recalled a particular occasion in August 2003 arriving at their flat after work. It was between 3.00pm and 4.30pm. They and Mr Unkuri were present. Mr Birney recalled that Mr Yelavich was on and off the telephone to EF. He heard Mr Yelavich say, "Are you okay, Emma," "Where are you," "How far away from home are you," "Is he still behind you," "can you see him", and things like that. Mr Birney said that he was on the balcony. He saw EF pull up out the front on the Kingsway and park and that within a minute or two he saw a black Mercedes come into St Andrews Place from the Kingsway. Mr Birney said that the four of them ran down the fire stairs. Mr Yelavich went to EF who was very upset. They were near the corner of the Kingsway and St Andrews Place. Mr Birney said that the four men looked for the black Mercedes but could not see it. They started to walk back slowly to the front door of the units. Then he saw the car. It was coming back out of St Andrews Place. They yelled out at the driver words to the effect of what are you doing chasing Emma home. He estimated that the closest he got to the car was about five metres or less than five metres. Mr Yelavich was in front of him. Mr Birney said he saw the face of the occupant of the car as he looked straight at him. Mr Birney said that he saw the car speed out of the corner. 360 In cross-examination Mr Birney believed he had said in his evidence in chief that within a minute of EF parking her car GH pulled into St Andrews Place. On counsel's assurance that he had earlier in his evidence stated within a minute or two (as he had) Mr Birney accepted that he had earlier said that, but added, "It could have been thirty seconds." Mr Birney said that he was not looking at his watch and he had never written down anywhere how long after EF parked her car he saw the Mercedes. Mr Birney said he did not see the path EF's car took before she parked. 361 Mr Birney said that when he saw the Mercedes again it was not going slowly. It did not stop at the intersection of St Andrews Place and the Kingsway. Mr Birney did not see the driver look to his right at the intersection. He said the driver did not stop, look and check at the Kingsway. Mr Birney said the driver looked at his group, then looked to the Kingsway and kept going. 362 Mr Birney was not able to say what time the incident happened, other than that it happened sometime after 4.30pm. Mr Birney thought he got to Mr Yelavich's flat about 4.00pm. The men were having a beer. 363 Mr S A Davies was in August 2003 the New South Wales Sales Manager at Transways. He had known EF before she started working in 2002 for Transways. He was EF's immediate superior. She was basically employed in clerical duties which included generally dealing with customers on the telephone and by email, organising shipments for customers with overseas offices on email and typing quotations. Mr Davies recalled a particular day in August 2003, but could not fix the precise date. He was in his office and it was late in the afternoon, going home time. He thought it would have been around five-ish. EF had left the office for the day but came back in very soon, looking very anxious. It was the tone of her voice and she was speaking quickly. She said to one of the girls in the main office area, "He's back, he's there again, he's back." Mr Davies spoke to EF and she said, "It's my old swim coach. He's out there, he has been there before. I have had a few problems in the past and he is turning up again." She declined his offer to walk her out to her car. She walked out to an area at the back of the Transways office where cars are parked. 364 Mr Davies said that in 2003, if a person went to the Transways website that person could obtain contact names and numbers. The services detailed included those of service provider, customs clearance and freight forwarding, sea freight, total supply chain solutions. EF was not involved in initiating new contacts, but it was possible, but not standard, that new contacts might come to her. She told him that she had previously worked for some sort of freight company involving her uncle. 365 Mr Davies said that he was pretty sure that she initially left through the front entrance. Mr Davies could not recall whether EF said the man was sitting or waiting out there. All he recalled EF saying was the man was out there. 366 Mr Davies said that he recalled the incident happened during Transways peak season from late July to November. He could not recall of his own independent recollection that it took place in August 2003. 367 Mr Davies was an honest witness who was doing his best to tell the truth. I have one reservation about the accuracy of his evidence.. Having seen the front and rear driveways or aprons on to which the Transways premises abut, I doubt, if EF's car was parked in an area at the rear of the premises, she would have initially left by the front entrance. That is possible, but not probable. 368 Mrs Sue Fuller said that she received a telephone call from her daughter in the afternoon of 15 August 2003 to the effect that she went down to get in her car to drive home and that on the way home she saw that a black Mercedes, being GH's car, was following her. Her daughter sounded agitated and upset. That may explain why she related only part of what had occurred. Mrs Fuller telephoned the Cronulla police station. She telephoned the Cronulla and Miranda Police Stations the following morning, but Det Johnson was not there. 369 Mrs Fuller said that she telephoned her daughter later (in the early evening) on 15 August 2003. In that conversation Mrs Fuller said she asked her daughter if she was home safely and if she was OK and that her daughter replied Yes, but GH was outside her house and had followed her home. Mrs Fuller was unsure whether her daughter meant her flat in Gosport Street or Mr Yelavich's flat in the Kingsway. The reference to "outside her house" was probably a reference to GH having been in St Andrews Place a little earlier. Mrs Fuller said that on the evening of 15 August 2003 her husband prepared to go to Sydney and left for Sydney early on the following morning. 370 It was not suggested to Mrs Fuller that the telephone calls of which she gave evidence did not occur. 371 Mrs Fuller agreed that the Fullers wanted the advice of Det Johnson before they made any complaint to the Police; the Fullers wanted to know what they should do about the events of 15 August 2003. 372 Mrs Fuller was cross-examined about a note made by the duty officer of the Child Protection Investigation Directorate on 11 September 2003 recording advice from a Mr Perry that about six months after living with Mr Hodge, Louise Fuller's mother came to the school and unexpectedly withdrew Louise from the school and that no explanation was given. Mrs Fuller said that the advice recorded was incorrect. Mrs Fuller said that she told the Principal (and Mr Wand, a teacher) what had happened that Sue Hodge had thrown Emma Louise out of the house, that she (Mrs Hodge) believed that GH was obsessed with EF and that she (Mrs Fuller) was taking EF home. The Principal to whom Mrs Fuller spoke apparently retired in 1997 and there is no statement from Mr Wand. Apparently Mr Perry was the Principal of EHS in 2003. 373 On the present state of the evidence and so far as relevant I proceed on the basis of the position as stated by Mrs Fuller. 374 Mr P Fuller gave evidence that on 15 August 2003 his daughter telephoned and said that she had been followed again. She was very distressed. He replied that he would come to Sydney. He did so the following day. 375 Mr Fuller said that approximately mid-afternoon on 16 August 2003 he went to the Hodges' house and had a conversation with Sue Hodge at the front door. Mr Fuller said that he told her that GH had been following EF and she responded to the effect of what did he see in that girl, there were better looking women on the pool deck than EF. Mrs Hodge said that she did not want anything to do with the matter. Mr Fuller replied that she was part of the solution and that they needed to find a solution to this problem. Mr Fuller said that he asked her to call GH as he (Fuller) needed to talk to him. Mrs Hodge invited him inside at that point and she went to telephone GH. In cross-examination Mr Fuller said that Mrs Hodge asked about what car GH was driving and that he replied that he had been told it was a black Mercedes with personalised plates. Mr Fuller also agreed that he told Mrs Hodge that he wanted her husband to stop following his (Fuller's) daughter. 376 While waiting for GH to arrive, Mrs Hodge and Mr Fuller spoke further. Mrs Hodge asked him if GH had intercourse with EF and he replied no. Mr Fuller said that probably in the second instance he said that EF had always denied anything improper. 377 Mr Fuller told Mrs Hodge that GH had contacted EF prior to this occasion on which he had come down, GH had followed her once before and he had contacted her with emails as to Australian Swimming shifting materials through EF's place of work. Mrs Hodge asked Mr Fuller what EF's place of work did; he replied that she was a freight forwarder and Mrs Hodge remarked that there was nothing that ever went through that sort of system for Australian Swimming. 378 Mr Fuller said that when GH arrived he asked him (Fuller) why he was there and that GH was a little bit aggressive. Mr Fuller stated that he said he was not there to be aggressive, that he just wanted GH to keep away from his daughter and that GH replied that he would (keep away) and that he had not been near Mr Fuller's daughter. Mr Fuller said that he responded that his daughter had witnesses to say that he had been and that they had emails. Mr Hodge told his wife that there was a problem with something overseas and that they had to look for an alternative avenue to send it and that was why the emails were sent. Mrs Hodge said that Australian Swimming never sent anything that way. (That was a reference to the July 2003 emails). 379 Mr Fuller stated that he said he was not interested in any of his (GH's) excuses, that he (Fuller) just wanted him (GH) to stay away from his daughter and that he (Fuller) wanted GH to reaffirm that. Mr Fuller stated that GH said he would not go near his daughter, that he (Fuller) replied that that was good, that he would take GH's word, that his daughter had been to the police station and that if GH went near his (Fuller's) daughter again he (Fuller) would return. 380 During cross-examination Mr Fuller said that when speaking with Mrs Hodge she said that she did not want to know anything about it and turned her back on him, but Mrs Hodge came back when he said that GH had been witnessed following his daughter. 381 Mr Fuller agreed that when he said words to the effect of "Tell Greg to stay away from Emma, stop following Emma," she said "Tell Greg" and he then asked her to call GH. 382 Mr Fuller agreed in cross-examination that when GH arrived home he (Fuller) said to GH that he had been following his daughter and he (Fuller) wanted it to stop and that GH said he had not been following his (Fuller's) daughter. Mr Fuller agreed that he said to GH words to the effect that he had been following EF and she was scared and that during the conversation GH said that he had not been following her and she was in no danger from him. Mr Fuller agreed that GH also said that if it gave Mr Fuller any peace of mind he would make sure that he did not have anything to do with her, and that he would not contact her, or words to that effect. Mr Fuller agreed that he said that if GH gave him that guarantee, if GH assured him of that, there would be nothing more of this, or words to that effect. 383 Mr Fuller denied shaking GH's hand and he was in two minds whether Mrs Hodge offered him a cup of tea, initially denying that she did so and then stating that he could not remember if that happened. 384 Mr Fuller agreed that both Mr and Mrs Hodge asked him when GH was alleged to have followed EF. Mr Fuller stated that he told them the first instance was about April and that he told them about the emails, and the day before. Mr Fuller insisted that there was a discussion about emails but he did not know at that point the dates of the emails and the exact date of the earlier alleged visit and he told the Hodges that. 385 Mr Fuller agreed that he had this exchange with Ms Patterson of Channel Nine: "Q: …So you've told him straight, haven't you. Tell me about that? A: I just went down this last time he contacted her and went to his house and just said, 'I think we've proven we are not vindictive people. I am not here to do you any harm. I just want you to leave my daughter alone.' I said, 'Turn up again and we will do something about it', and that's all I said and I left." 386 Mr Fuller said that he believed he had told Ms Patterson the truth. A little earlier in his cross-examination Mr Fuller said that this was not a correct account. It is apparent that Mr Fuller's account to Ms Patterson was but a brief summary of what occurred. It does not detail the discussions with Mrs Hodge which took place, nor the later discussions after GH arrived, between GH, Mrs Hodge and Mr Fuller. 387 Mrs S G Hodge said that when Mr Fuller came to her house on the afternoon of 16 August 2003 she did not recognise him at first. When she opened the door it was quite dark behind him and he was in shadow. She said this conversation occurred: "Mr Fuller: I want you to tell your husband to stop following my daughter. Mrs Hodge: And who might your daughter be Mr Fuller: You know damn well its Emma Louise Mrs Hodge: Don't you think you need to speak to Greg Mr Fuller: I don't need to speak to Greg. You just tell him Mrs Hodge: I don't see what purpose there is in you telling me. I have nothing to do with it. You need to speak to Greg." 388 Mrs Hodge said that she asked Mr Fuller to come in and that she would telephone GH as this was not something they should be discussing on the front door step. Mr Fuller came in and stood in the front vestibule. She telephoned GH. 389 Mr Fuller denied that Mrs Hodge asked him who might his daughter be and the reply attributed to him. Mr and Mrs Hodge knew Mr and Mrs Fuller well and the Hodges had stayed with the Fullers at Gulgong and the Fullers with the Hodges at Oyster Bay. Even given that it was dark and Mr Fuller was in shadow I doubt whether she failed to recognise him even at first. That is a minor point and it does not matter who is correct. Although there are some differences in expression both Mrs Hodge and Mr Fuller agree that Mr Fuller raised the subject of GH following EF, that she did not want to deal with the matter, that GH should be contacted and asked to attend, that Mrs Hodge asked Mr Fuller inside, that he stood in the vestibule and she telephoned GH. 390 Mrs Hodge said that she asked Mr Fuller when GH was supposed to have followed EF. She said that Mr Fuller said he had no dates and then further said, "There's always been something weird about their relationship." She stated she asked him what he meant by that and he replied, Oh, nothing, EF had always denied anything improper. Mrs Hodge said that she replied that that was just outrageous and ridiculous. 391 Mrs Hodge stated that when GH arrived home Mr Fuller said to GH that he had been following his daughter and he (Fuller) wanted it to stop, that GH said he had not, that Mr Fuller said that GH had been seen following EF and that she was scared, that GH said he had not been following her and she was in no danger from him, that GH further said that if it gave Mr Fuller peace of mind GH would make sure he did not have anything to do with her and would not contact her. She said that Mr Fuller replied that if GH gave him that guarantee, if GH assured him of that, there would be nothing more of this. Mrs Hodge said Mr Fuller and GH shook hands, she offered Mr Fuller a cup of tea and he declined, saying that his daughter Sascha was in the car. 392 In cross-examination Mrs Hodge denied that Mr Fuller said that GH had been sending emails. She claimed that she did not become aware of GH's emails to EF of 28 April 2003 and July 2003, until during the trial. 393 GH said that on the afternoon of 16 August 2003 he was shopping when he received a telephone call from his wife that Mr Fuller was at their place accusing GH of following EF and she asked him to come home straightaway, which he did. 394 GH stated that Mr Fuller said that he (GH) had been waiting outside EF's work and following her. 395 GH stated that he replied that this was not true. GH said that when he asked Mr Fuller when this was supposed to have happened, the latter replied that he did not have any dates. GH said that he responded that this must be a misunderstanding and that he had no idea of what it was about. Mr Fuller said that all he wanted was for GH to leave EF alone. GH stated that he assured Mr Fuller that EF was in no danger from him, that he did not mean any harm to EF, that he was not interested in contacting her or doing anything to EF. GH said that Mr Fuller said that if GH did it again they would pursue it and that as long as that was okay (that is, leaving EF alone), then it would be fine. GH said that they shook hands and Mr Fuller left. He went out to a car in which there was one person, probably a woman. 396 GH described Mr Fuller as very calm. GH said that Mr Fuller said words to the effect he was not trying to be aggressive and that he wanted GH to stop trying to contact his daughter in any way. GH said he tried to assure Mr Fuller that he had not been contacting EF. He was not sure of the exact words he used. He said he tried to let Mr Fuller know that he (GH) had not been near EF. When it was put to GH that Mr Fuller said that he "had been told that you have (been near EF) and there were witnesses and emails", GH replied that he was not sure of the exact words of the conversation. GH said he was not sure that Mr Fuller referred to any emails. GH said that he was clear that he had asked Mr Fuller when this was supposed to have happened and Mr Fuller could not give him any dates. GH said that Mr Fuller did not say it happened on the day before. 397 GH said that, if they had a conversation about emails, he may have told Mr Fuller that the emails were purely business in connection with an Australian Swimming tour to Barcelona, but he did not recall that conversation. GH did not recall indicating to Mr Fuller that the reason why he emailed EF was to do with freight forwarding and the Carnet. 398 GH did not recall his wife suggesting to him that such a matter was not his concern in his position at Australian Swimming. GH added that when he returned home any conversation at that point was between Mr Fuller and himself. His recollection was that very little was said between his wife and Mr Fuller once he got home 399 GH said that he did not recall his wife being angry with him. GH did not recall his wife asking him why he needed to approach a freight forwarder, nor telling her that there was something special that needed to be attended to out of the ordinary. 400 GH said that he did not recollect Mr Fuller saying he was not there to listen to excuses or explanations. However he did recollect the part of the conversation about it not happening again (that is, contact with EF). GH said that he did not know that he said, "I would not go near your daughter." Rather he said "I mean no harm to her." "She is in no danger from me", or words to that effect. 401 GH said that there were two things he recollected in Mr Fuller's response. "One was that if it hadn't occurred, he would do something about it …; the second one was that if I had assured him that, then that would be the end of the matter." That was GH's recollection of how the conversation finished. 402 In response to what EF said to him, the tone of EF's voice and that she sounded upset, Mr Fuller resolved on the night of 15 August 2003 to drive to Sydney and to speak directly to GH. Mr Fuller believed that GH had contacted EF by emails in April and July 2003 and had followed her in April 2003 and on 15 August 2003. Mr Fuller preferred to deal with problems by a direct personal approach. He was not worried by personal confrontation. That is not surprising for a builder who, in the normal course of business, would have to deal with clients, subcontractors and tradesmen. 403 Mr Fuller did not, as at 16 August 2003, know the exact dates of the emails and the first incident of following in April 2003. However, the second incident took place the day before he went to the Hodges. I am persuaded that Mr Fuller told the Hodges that the first incident of following happened in April 2003 and about the emails sent by GH to EF and that the last incident of following happened on the day before. He also told them that he did not know the date of the first incident on which he believed his daughter was followed by GH. It is improbable in the circumstances that Mr Fuller would not have said that the last incident (of following or alleged following) happened on the day before. That incident, or alleged incident, was the catalyst for his trip to Sydney and his visit to the Hodges' house. 404 As to whether GH was, on 15 August 2003, waiting outside EF's place of employment and whether he followed her in his car to Cronulla, I note: (a) The question whether EF had sufficient opportunity to make a reliable identification of GH depends not only on her sighting him on the footpath but her evidence of seeing him in his black Mercedes sports car with personalised number plates immediately in front of her as she left work and subsequently behind her. EF knew GH very well. (b) On seeing, or allegedly seeing, GH as she initially left the offices of Transways she immediately returned to those offices in an upset state and complained that GH was waiting outside for her. Mr S A Davies recalled the complaint and offered assistance. EF said that she was going to telephone her boyfriend, Mr C Yelavich, and she did so. Mr Yelavich said he received a text message to telephone EF and did so, using a friend's telephone. He said that she told him that she felt good about coming out of work, GH was not there but when she proceeded to drive home he pulled out and started to follow her and that she did not know what to do. This does not fit with EF's version of events and perhaps Mr Yelavich is confusing the order of events with that on 30 April 2003. Mr Yelavich said that there were about five calls (made by him) over the period from about 4.40pm to about 5.15pm. Mr Yelavich said that during one of the later calls he told EF to turn into Wilbar Avenue, then into the service station, make a U-turn and park in front of his balcony. (c) Mr Barlow said that Mr Yelavich made a number of telephone calls (over five) and appeared to be talking to EF. Mr Barlow could only hear what Mr Yelavich was saying. Mr Unkuri thought that Mr Yelavich made more than three telephone calls. Because of his apparent confusion and the mistakes he made, his evidence was not so valuable. Mr Birney recalled that Mr Yelavich was on and off the telephone. (d) The black Mercedes sports car of GH came down the Kingsway and turned into St Andrews Place. Mr Yelavich agreed that no one was following EF at the time she went past his unit. Mr Yelavich said he was not one hundred per cent on the time between EF pulling up and the black Mercedes turning right into St Andrews Place, that the time was quite short and the best estimate he could make was a minute to two minutes. He told Channel Nine "a couple of minutes". Mr Yelavich said that when he saw GH's car he was not following EF. Mr Barlow estimated that it was between thirty seconds and one minute after he saw EF's car arrive (parked) that he saw a black Mercedes sports car turn into St Andrews Place. Mr Unkuri's time estimate is not correct. Nor do I accept his assertion that he saw the Mercedes following EF down the Kingsway. He has telescoped the various events. Mr Birney was not sure of the time lapse between EF parking her car and GH pulling into St Andrews Place. Initially he had said within a minute or two. He added that it could have been thirty seconds. He was not looking at his watch. Mr Barlow was a quality witness and more accurate and careful than the other young men. His estimate that it was between thirty seconds and a minute after he saw EF's car arrive that he saw the Mercedes turn into St Andrews Place is probably correct. (e) The four young men ran down the fire stairs after the Mercedes was seen turning into St Andrews Place. They temporarily lost sight of the Mercedes as it went down to the bottom (or dead end) of the street. They sighted it as it approached the intersection of the Kingsway and approached the Mercedes. They wanted to speak with the driver whom they believed was GH, ascertain why he was pursuing EF and stop that happening. GH saw them and looked at them. I do not accept that he did not see them. GH realised that he could be in difficulties and drove off as speedily as he could. (f) GH states that he drove from Homebush to Caringbah Pool either via Alford's Point and Bankstown or via King George's Road, the Princes Highway and Tom Ugly's Bridge. He does not admit to any possibility that he was in Waterloo or driving home. If, as GH claims, EF fabricated the allegation that he was at Waterloo and followed her home, she mounted an elaborate charade with the complaint to Mr Davies, her assertion that GH was following her, her seeming panic and her conduct (including her voice) revealing she was scared and then appearing very upset to the four young men. She also reported her complaints and fears to her parents. One alternative is that EF believed that the person she saw on the footpath was GH but in fact it was not, and that she is mistaken. One difficulty about her being mistaken is that she knew GH very well and said that she saw him in his black Mercedes with its personalised number plates. This was at close quarters initially. While a mistake in identification was a possibility, it was an improbable one in such circumstances. What is so unusual is not only that the charade took place but that EF chose to mount such a charade on the day that GH was going to be not only in the area where she lived but in St Andrews Place. There was no suggestion of EF knowing that GH was going to be in the area near her boyfriend's unit where she spent a lot of time. It was also unusual that GH should turn into her boyfriend's street from thirty seconds to two minutes after she arrived at her boyfriend's unit, after allegedly staging such an elaborate charade. He had allegedly driven from Homebush to the Caringbah Pool and then along the Kingsway. It would be hard to know in advance how long GH was going to be at the Caringbah Pool. GH said he was expecting to be with Tracey Menzies. (g) The explanation of GH for turning down St Andrews Place was somewhat unusual. He knew the Cronulla area. He visited his brother from time to time. He usually went via the Kingsway and Wilbar Street. That led to travelling under the railway line. It was the way in the area in question to pass from one side of the railway line to the other. I do not accept that GH turned down St Andrews Place in the mistaken belief that by doing so he could travel to his brother's home. (h) GH asserts that he did not and does not know the car EF drove, that he did not know (of his own knowledge) how long before or after EF arrived at her boyfriend's flat he turned into St Andrews Place. GH denies that he knew that EF had a boyfriend. He said did not know the name of EF's boyfriend nor where her boyfriend lived, nor that she lived with him nor that she lived anywhere else. GH said that on 15 August 2003 when he was seen in the vicinity of EF's boyfriend's flat, that was an accident (or coincidence). There is no direct evidence that GH knew of EF's boyfriend, his name and where he lived and that EF went there and spent a lot of time there. These are weighty considerations. I do not know what, if any, enquiries GH made. 405 I do not accept that it was just a remarkable coincidence that GH arrived in St Andrews Place within 30 seconds to two minutes of EF arriving at her boyfriend's unit. On the whole of the evidence it is more probable than not in the late afternoon on 15 August 2003 GH was waiting outside the premises of Transways and that he followed EF to the vicinity of the Kingsway and St Andrews Place arriving shortly after her, that is, within thirty seconds to two minutes. I accept that for part of the journey, for example, along the Kingsway, GH was not close behind EF but followed at a distance. 406 GH wanted to resume contact with EF. His desire for a "big catch up" had not waned. EF captivated him but it has not been established that this was by reason of his sexual obsession with and/or sexual attraction to EF. 407 Particular (j) of the Amended Particulars of Truth reads: "(j) Shortly prior to publication of the matter complained of the Plaintiff falsely denied to Ms Amanda Patterson, a journalist employed by the First Defendant that: A. he had been following Emma Fuller; B. he had been sitting outside Emma Fuller's place of work; C. he had followed her home." 408 GH stated that his denials were true. GH said that he had not been sitting, standing or lying or waiting outside EF's work at all in 2003. GH stated that he had not knowingly followed EF or preceded her or accompanied her in traffic in 2003. 409 I have earlier made findings as to these matters. There is a considerable overlap in Items A and C above. The following which occurred was travelling in a car behind EF's car on her journeys to her boyfriend's unit. 410 Particular (k) of the Amended Particulars of Truth reads: "(k) The Australian Swimming Coaches and Teachers Association Code of Conduct (1996-1997) provided that: 3.2 A coach member of a SCTA shall not engage in sexual relations with any minor. Sexual misconduct consists of any behaviour that utilises the influence of the coaching position to encourage inappropriate intimacy between coach and athlete'. 3.3 Coaches/Teachers of age athletes shall not engage in sexual relations with athletes that they coach, even of legal age. 3.4 To forgo all forms of overt and covert approaches to athletes." 411 GH admitted being a member of ASCTA in 1996 and 1997 and being bound by the code of ethics. There is no express allegation that GH breached the code. There is affirmative evidence that GH and EF did not engage in sexual relations. GH submitted that the defendants have failed to establish that he breached the code of ethics. 412 While the Code prohibits a coach member of ASCTA engaging in sexual relations with any minor or athletes they coach, even of legal age, it does not expressly prohibit sexual misconduct, although there is an explanation of what that means. A prohibition should probably be implied. There is no explanation of what is meant by the phrase "inappropriate intimacy". Amongst the affective behaviours of Best Swimming Coaches are listed: · Good motivation · Patient, supportive and interested in swimmers as people · Practice was fun · Cared about me off the pool · Could always go to coach about anything · A great friend · Warm, compassionate, understanding and honest · Cared for the development of the swimmer · Friend 1st … coach 2nd. GH said that he endeavoured to achieve with all his charges the recommended behaviour. I have not listed all the instances given. GH said that throughout Australia you see coaches having regular physical contact with the athletes. GH said that he gave all his students one on one attention "and a lot of that was through physical attention through a coaching nature." The close relationship between a coach and a swimmer and having regard to the desired affective and physical attention means that it will sometimes be difficult to determine what is inappropriate intimacy. There was the added difficulty in the present case that EF lived in the coach's home and his family endeavoured to treat her as one of the family. 413 The copy of the Code of Conduct admitted into evidence does not bear a date. From the terms of the document it was probably intended to take effect as from 1 July 1995. It was described by the defendants in their Amended Particulars as the Code of Conduct 1996-1997. GH said that he was not familiar with the code of ethics. In cross-examination GH denied that the letter he wrote to EF at school was a clear indication of inappropriate intimacy between him and an athlete formerly under his coaching. The letter conveyed that GH enjoyed EF's company. While some of the letter is tasteless there is one section which exhibits inappropriate intimacy namely "I love the Savage Garden CD – I hope you do too – especially the song madly deeply – it's how I feel about you." 414 The statement "it's how I feel about you" coupled with the words of the song exhibited inappropriate intimacy. The letter was not well received by EF. GH's statement of the use he intended to make of the song was strained and not credible. 415 I proceed on the basis that the Code of Conduct was new in 1996 and that coaches were not very familiar with it. A code of conduct is not needed to know that a former coach should not send a letter to a former pupil containing the words I have quoted in the preceding paragraphs. 416 Particular (l) of the Amended Particulars of Truth relies on The Australian Swimming Coaches Association – ASI Code of Conduct 2003. This was in substantially the same terms as the code referred to in para (k) of the Amended Particulars of Truth. It refers to A Coach/Teacher Member of ASCTA/ASI. No elaboration is required. 417 Particular (m) of the Amended Particulars of Truth provides: (m) The NSW Institute of Sport Coach Code of Ethics 1997/98 provided that: 7. Do not engage in sexual harassment of athletes or physical contact with athletes which is unwelcome and/or represents an abuse of power which has a sexual element to it: 8. Refrain from physical contact with athletes except where necessary for the development of the athletes skill or athletic ability." 418 As with particulars (k) and (l) the defendants did not specifically allege that GH had breached the nominated code. It was probably implied. The way in which the proceedings were conducted made it clear that breaches were being alleged. In cross-examination GH agreed that in 1997, 1998 he was aware of the Athlete & Coach Handbook 1997/98 of the NSW Institute of Sport, Swimming Program. Appendix D is the Institute Coach Code of Ethics. This includes as items 7 and 8, the provisions quoted above, as well as other guides to ethical and good behaviour on the coach's part. On page 3 of the Handbook there is a message from GH. 419 GH denied that he infringed Item 7 when EF was living in his home, on the visit to Gulgong and when he wrote the letter of late July 1997. GH specifically denied engaging in sexual harassment or physical contact with EF which was unwelcome and/or represented an abuse of power which has a sexual element. GH relied on the evidence in support of his denials of paragraphs (f), (g), (h) and (i) of the Amended Particulars of Truth. I have earlier made findings as to the matters alleged in each of these sub-paragraphs. In July 1997 and subsequently EF was not an "athlete". She had not revived her swimming career. These provisions apply in respect of "athletes". They are not expressed to apply to former athletes. 420 Particular (n) of the Amended Particulars of Truth reads: "(n) The Australian Swimming Inc. Member Protection Policy provides at clause 12.1(e) that it is a breach of the policy to engage in any form of harassment whereby harassment includes: '… any behaviour by a person … to whom this Policy applies which is offensive abusive belittling or threatening and which is directed at a person or a group of people because of a particular characteristic of that person or group of people. The behaviour must be unwelcome and the sort of behaviour a reasonable person would recognise as being unwelcome and likely to cause the recipient to feel offended, humiliated, or intimidated. Whether or not the behaviour is Harassment is to be determined from the point of view of the person receiving the Harassment [clause 8.1].' " 421 The defendants did not lead evidence of this Policy nor when it came into operation. This particular has not been proven. 422 Particular (o) of the Amended Particulars of Truth reads: "(o) At all relevant times the Plaintiff was bound to comply with the codes/guidelines referred to in paragraphs (k) to (n) above." 423 GH did not dispute that he was bound to comply with the various codes as and when they came into operation. The codes should not be regarded as retrospective. GH disputed that he was in material breach of the codes. Of course, a code was not needed to establish that there should not be, as between coach and swimmer, undue intimacy or undue or unwelcome touching of the body of the swimmer by the coach. 424 I return to the Imputations: Imputation (d): the plaintiff was a pervert who had preyed upon EF while she was a child under his care and protection. 425 The plaintiff denies this imputation. EF lived in his home in 1996 to early February 1997 and he was her maths teacher in 1995. 426 By the admissions by GH and by the evidence it has been established that GH: (a) instructed EF in breaststroke at swimming training. This included standing behind her while she lay flat on the pool deck or over the starting blocks and on occasions placing his hands on muscles above her knees to help her understand how to execute the breaststroke kick correctly and what it should feel like. This was not an uncommon practice among a number of coaches of good repute in 1995 and 1996. Nowadays coaches generally confine themselves to holding the feet and the ankles. (b) applied Vaseline to EF where her swimming costume chafed her skin including under the straps of the costume and under the seams or borders of the costume under the armpits and close to her breasts. This was a common practice among coaches and swimmers in 1995 and 1996 and generally did not cause offence or make the female swimmers feel uncomfortable. The Vaseline was applied by the coaches, including GH, out on the pool deck in public view. Nowadays male coaches are wary about applying Vaseline to female swimmers. (c) gave EF shoulder rubs. This was done when EF complained that she was sore or stiff with EF either wearing her costume or adequate clothing. (d) gave EF gifts of small value from time to time, some being on her birthday or at Christmas or when GH was making gifts to his daughters. (e) told EF that he loved her; EF sought reassurance. (f) gave EF kisses on the cheek and forehead and hugs. 427 GH contended that he engaged in the conduct mentioned in his role as her teacher/swim coach/guardian and not for any sexual gratification. I have held that the defendants have not established that the acts mentioned were done for the purpose of sexual gratification. I have placed weight upon the evidence of Mrs Stephenson as to the practices which prevailed in 1995/1996 and prior to that and the changes which have since taken place and to which the ACA program was an appreciable contributor. 428 I have found that portions of GH's letter of late July 1997 (Exh G) were inappropriate. 429 The email of 28 April 2003 evidenced GH's desire to keep in touch with EF, as did GH's waiting for and following of EF on or about 30 April. Similarly, the email of 11 July 2003 evidenced GH's desire to keep in touch with EF. The emails to EF could not be described as innocent enquiries despite the terms in which they were couched. The waiting for and following of EF on 15 August 2003 could not be described as innocent, but was the product of GH's desire to resume contact with EF. The sending of the letter of late July 1997 and the emails and the waiting for and following of EF on 30 April 3003 and 15 August were inappropriate and should not have occurred. The letter and the emails caused EF apprehension and some distress. The incidents of 30 April 2003 and 15 August 2003 caused her to become scared, substantially upset her and caused her much distress. She was not inclined to understate their effect. 430 Returning to the terms of Imputation (d) it has two interconnected elements; first that GH was a pervert and secondly, that he preyed upon EF while she was a child under his care and protection. Of course, the events from July 1997 onwards did not happen while EF was under GH's care and protection. By 2003 EF was not a chid. In view of Mrs Stephenson's evidence as to the practices of coaches and swimmers in 1995-1996 and prior thereto, the actions of GH in 2003 should not be used to throw light on the intentions underlying GH's actions in 1995 and 1996. The defendants have not established that GH preyed upon EF while she was a child under his care and protection. 431 The Shorter Oxford English Dictionary, 3rd Edn, 1984 Reprint categorises "pervert" as a verb and demonstrates that it is used in a number of different contexts. One meaning is to turn (a person, the mind etc) away from right opinion or action; to lead astray; to corrupt. The Macquarie Dictionary 1982 Reprint, describes pervert as a verb and seems to accept that it may also be used as a noun. It also gives a number of meanings. These include "to turn away from the right course", "to lead astray morally", " to debase". In the program it has a sexual meaning. 432 The defendants have not established that GH acted as a pervert who preyed upon EF while she was a child under his care and protection. As to imputation (d), the defence of justification fails. 433 Imputation (e): GH had engaged in constant acts of physical contact of a sexual nature upon EF, a child under his care and protection. GH denies this imputation. 434 I will not repeat the matters I have set out under Imputation (d) or the earlier findings I have made. 435 EF was not a child under the care and protection of GH from the time she left the Hodges' home about 4/5 February 1997. 436 The defendants referred to the definitions of sex and sexual in The Macquarie Dictionary (3rd edition) and submitted that in the context of the allegations contained in the matter complained of the relevant meaning for the word "sex" (or "sexual") involved "The instinct or attraction drawing one sex towards another, or its manifestation in life and conduct." 437 The underlying thrust of the imputation is that GH was guilty of improper conduct. This is reflected in the clauses "constant acts of physical contact of a sexual nature upon EF, a child under his care and protection." Further, the matter complained of, taken as a whole leaves no room for doubt that impropriety is being alleged and sexual impropriety at that. For impropriety to exist there must be more than the instinct or attraction suggested. In the present case the defendants have not established (either directly or by inference) that the actions of GH were other than in accordance with prevailing standards in 1995/1996/early 1997 for a teacher/swim coach/guardian. The defendants have not established that GH's actions in 1995/1996/early 1997 were for the purposes of sexual gratification. Nor have the defendants established that GH engaged in constant acts of physical contact of a sexual nature upon EF, a child under his care and protection. As to Imputation (e) the defence of justification fails. 438 Imputation (h): that GH had so misconducted himself in his sexual attentions towards EF that he was unfit to hold his position in charge of the Australian Olympic swimmers. GH denied the truth of this imputation. 439 I will not repeat what I have written as to the other imputations nor the findings I have previously made. As to the matters summarised in sub-paragraphs (a) to (f), under the title of Imputation (d) and repeated in relation to Imputation (h) GH repeated that he did the acts specified in those sub-paragraphs in his role as her teacher/swim coach/guardian and not for any sexual gratification. 440 As to the visit to the Fuller house in July 1997, the letter GH sent to EF (in late July 1997) his emails to EF on 28 April 2003 and his emails to EF and Jim Dooling about 11 July 2003, GH said that none of these acts were done by reason of his sexual obsession with and/or sexual attraction to EF. GH admitted that he was bound by the codes mentioned in sub-paragraphs (k), (l) and (m) and (n) of the Amended Particulars of Truth. 441 GH pointed to those items in the Amended Particulars of Truth which had not been proved. 442 The imputation is not that GH has so misconducted himself towards EF that he was unfit to hold his position in charge of the Australian Olympic Swimmers, but that he so misconducted himself in his sexual attentions towards EF that he was unfit to hold his position in charge of the Australian Olympic Swimmers. 443 GH wanted to maintain close contact with EF as she captivated him. Part of his letter of late July 1997 to EF when coupled with the gift of the Savage Garden CD amounted to misconduct of a sexual nature. The letter when taken with the CD had a sexual message. After a lapse of eight years and in the absence of the letters allegedly written by GH to EF after early February 1997 and a reliable indication of their contents, no weight can be placed on her statement that the letters were sent or her generalised recollection of their terms. 444 When GH sent his email of 28 April 2003 to EF stating he would love to hear from her and that it was time they had a big catch-up that indicated his desire to renew close contact with her. By that time EF was 20 years of age. The request by EF's parents not to have contact with her was almost six years previously and EF had been in touch with Jodi Hodge. The email of itself did not involve sexual attentions by GH towards EF, but it was capable of being part of a chain of events that did involve sexual attentions. Waiting for and following EF about 30 April 2003 was part of GH's desire to meet up with EF. While this did involve misconduct on the part of GH, I am not satisfied that this involved misconduct by GH to EF of a sexual nature nor that his misconduct had a sexual element. It may have had but this has not been proved on the balance of probabilities. 445 GH's email of 11 July 2003 to EF evinced a desire on the part of GH to maintain close contract, but did not of itself involve sexual attentions by GH but could be part of a chain of events that did involve sexual attentions. Waiting for and following EF about 15 August 2003 was an instance of GH's desire to meet up with EF. This was misconduct. However, I am not satisfied that this misconduct had a sexual element. It may have had, but that has not been proved on the balance of probabilities. Suspicion cannot replace proof. As to imputation (h) in view of the facts which have not been proved on the balance of probabilities the question arises whether the letter of late July 1997 sent by GH to EF allied with the gift of the Savage Garden CD including the song Truly Madly Deeply is sufficient to justify that imputation. I have found that an extremely difficult question and one on which my mind has waivered. I appreciate that the letter was not followed up, that GH complied with Mr Fuller's request not to contact EF and that there was a gap of six years between the letter and the program. I have concluded that that letter allied with the gift of the Savage Garden containing the song Truly Madly Deeply is sufficient to justify imputation (h). I accept that other minds may reach a different conclusion and I shall consider imputation (h) under "Comments". 446 I am not prepared to hold that GH's conduct in 2003 throws light on GH's coaching practices in 1995-1996 when such practices were quite common and used by some coaches of good repute. I have kept in mind the evidence of Mrs Stephenson as to how coaching practices have changed. Contextual Imputations 447 The defendants relied upon a number of contextual imputations. In New South Wales the position as to these is governed by s 16 of the Defamation Act 1974 which provides "16 Truth: contextual imputations (1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of. (2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest or is published under qualified privilege, (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest or are published under qualified privilege, and (ii) are matters of substantial truth, and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff." Under that section a contextual imputation is one arising from the publication other than an imputation pleaded by the plaintiff. Section 16(2) sets out the matters which must be established. 448 In Jackson v John Fairfax & Sons Ltd 1981 1 NSWLR 36 at 39 Hunt J held: "The defence of contextual truth accepts that the matter complained of conveys the imputation pleaded by the plaintiff and that no other defence has been established in relation to that imputation; it asserts that the imputation pleaded by the defendant is also conveyed by the matter complained of (such imputation being called the contextual imputation); the defence then asserts that, even though the plaintiff's imputation is otherwise indefensible, such is the effect of the substantial truth of the defendant's contextual imputation upon the plaintiff's reputation that the publication of the imputation of which he complains did not further injure his reputation." Notwithstanding these remarks I have found it more convenient to now deal with the contextual imputations. At 39-40 Hunt J held: 1. The imputation and the contextual imputation must be conveyed by the matter complained of at the same time. 2. Each must differ in substance from the other. The imputation pleaded by the plaintiff must be taken to include all other imputations which do not differ from it in substance. 449 In Hepburn v TCN Channel Nine Pty Ltd 1984 1 NSWLR 386 Hunt J further considered s 16 of the Defamation Act. At 400 the judge held that for the s 16 defence to prevail these requirements had to be met: 1. The combined effect of such of the contextual imputations as were appropriate to be combined differed in substance from the plaintiffs imputations to which they were pleaded as a defence. 2. The combined effect of the defendant's contextual imputations as were appropriate to be combined must be conveyed by the matter complained of at the same time as and in addition to the plaintiff's imputation to which they were pleaded as a defence. 3. The combined effect of the defendant's contextual imputations which are appropriate to be combined must be such that their substantial truth so affects the plaintiff's reputation that the plaintiff's imputation to which they are pleaded did not further injure the plaintiff's reputation. 450 The defendants submitted that each of the contextual imputations pleaded arise from the matter complained of and that each was substantially true. 451 Contextual imputation A reads: GH, when a 46 year old man, developed a sick sexual obsession with an 11 year old girl. Line 50 of the program states that when they met EF was eleven and GH was 46 and lines 2 and 41 refer to EF's statement, "He had a sick obsession with me." In formulating this imputation the defendants have added the word "sexual" so that it becomes "a sick sexual obsession". The defendants relied upon the various allegations of the conduct by GH as against EF while she was staying with his family in support of the allegation of "sexual obsession". I have earlier expressed my views on most of the allegations when dealing with the Amended Particulars of Truth. 452 In support of the truth of contextual imputation A the defendants relied upon the entirety of the matters covered in their submissions dealing with the truth defence. The defendants wrote that the 1997 and 2003 conduct was relied upon to establish GH's state of mind and feelings during 1995 and 1996 when he engaged in what the defendants described as inappropriate touching, (breaststroke training, the application of Vaseline, wedgies, massage, hugging and kissing, general touching), inappropriate behaviour (standing naked in bedroom with door open, tampons, gifts), inappropriate speech (discussions concerning Mrs Hodge, references to love for EF and EF's contemporaneous complaints). 453 GH denied this imputation. GH submitted that this contextual imputation was false. It was concerned exclusively with GH's state of mind and did not assert that he committed any act of molestation. GH further submitted that it was less grave than GH's imputation (e) – that GH engaged in constant acts of physical contact of a sexual nature upon a child under his care and protection – it was swamped by imputation (e). I accept that a sick sexual obsession, bad as that is, is generally less serious especially for the victim than constant acts of physical contact of a sexual nature. Constant acts of physical contact of a sexual nature may well be the result of a sick sexual obsession. Such acts evidence a sick sexual obsession. On the way the defendants put their case, contextual imputation A has to be considered in combination with the other appropriately combined contextual imputations. 454 At the beginning of 1995 GH was either in his 48th year or aged 48. EF turned 12 in March 1995. GH's interest in EF developed after she moved into the Hodges' home at the beginning of 1996. What captivated GH was a combination of EF's swimming ability (including her potential and the opportunity to coach her to champion status) and EF's personality traits. These included her fun attitude. She lightened up a tedious day and helped to make swimming training fun. I have previously expressed my views upon the various amended particulars of truth on which the defendants rely. The defendants have not established that GH developed a sick sexual obsession with EF. 455 Contextual imputation B reads: GH, when a 46 year old man, took advantage of an 11 year old girl under his care and protection by engaging in frequent acts of inappropriate and unwelcome physical contact. 456 The defendants relied upon the same material specified as to contextual imputation A. 457 The defendants relied upon EF consistently describing herself as feeling "uncomfortable" during 1995-1996 when GH engaged in the conduct referred to when dealing with contextual imputation (A). The defendants also pointed out that EF and her mother also described as inappropriate various aspects of GH's conduct including touching and the letter of late July 1997. 458 GH denied the imputation. GH submitted that this contextual imputation was false, that it omitted any overt sexual motive and was therefore lesser in gravity than any of the plaintiff's imputations, that if it does amount to an imputation of sexual misconduct, it is not materially different from GH's imputation (e) – GH engaged in constant physical contact of a sexual nature upon a child under his care and that in those circumstances it is swamped by GH's imputation (e) 459 In my opinion contextual imputation B does not amount to an allegation of sexual misconduct. It is a less serious allegation than imputation (e). Inappropriate and unwelcome physical contact differs from constant acts of physical contact of a sexual nature. 460 I have earlier expressed my views upon the various allegations made by EF when dealing with the Particulars. There was touching of and physical contact with EF on the part of GH which was not regarded as inappropriate or unwelcome by 1995-1996 standards. In those years physical contact and touching other than for the purpose of sexual gratification was quite common among some coaches of good repute when dealing with the female athletes in their squads of swimmers. By the date of the hearing such practices had ceased and would now be regarded as inappropriate and unwelcome. 461 The defendants have not proved the truth of this imputation when applied to the years 1995, 1996 and up to February 1997, or at all. 462 Contextual imputation C reads: GH is a sexual pervert. GH denied this imputation. 463 The defendants relied upon the allegation by EF at lines 2 and 41 of the program that the plaintiff had a sick obsession with her as well as the alleged conduct by GH as against EF including A. during the period when EF was under GH's care B. the forwarding by GH to EF of the letter saying that the song "Madly Deeply" was how he felt about her C. the stalking of EF by GH (30 April and 15 August 2003) 464 The defendants relied upon the same material as specified as to contextual imputation A. The defendants stated that this imputation focused squarely on GH's mental state and his attitude to EF and was not tied to particular acts. The defendants submitted that a consideration of GH's letter of late July 1997, the fact that GH's wife suggested EF was the "other woman" and the stalking in 2003, as well as the inappropriate conduct alleged in their Amended Particulars of Truth and proven, established the substantial truth of this imputation. It was contended that it was the disparity in the ages of GH and EF that rendered his sexual interest perverse. The defendants pointed out that at the s 7A trial GH's senior counsel stated that a "pervert" was someone who inflicted unnatural and inappropriate sexual attentions upon a young person, a young girl of tender years. Also at T110-111 GH said that his understanding of stalking people was harassing people, deliberately contacting them with some kind of desire or intention to harm them physically, sexually or emotionally. GH, with that understanding of the word denied that he stalked EF on 30 April 2003, 1 May 2003 or 15 August 2003. 465 GH denied that he followed EF knowingly on 30 April 2003 and 15 August 2003. GH insisted that his arrival in St Andrews Place on 15 August 2003 was a coincidence and unintentional and arose in the circumstances which he narrated. GH said that if, on 15 August 2003, somebody had approached his car shouting at him, he may not have heard them because he had the roof of his car up, it was winter and it was dusk and he always travelled with the radio on, usually on a music station and usually fairly loud and, when he is driving, he concentrates on what he is doing. 466 GH denied that he did any act for sexual gratification or by reason of his sexual obsession with and/or sexual attraction to EF. 467 GH submitted that the contextual imputation was false and that it was incapable of arising from the program because there was no general condition of sexual perversion conveyed by the program – only that formulated in GH's imputation (d). 468 The program focuses upon the alleged conduct of GH towards EF and the defendants rely upon that conduct to establish that GH was a pervert. I would treat imputation (d) as meaning that GH was a pervert and adding the assertion that he preyed upon EF while she was a child under his care and protection. The assertion contains the elements of being a child and being under his care and protection. The latter part of the assertion points to a breach of trust. That assertion adds an extra degree of heinousness to the imputation. Imputation (d) is a composite imputation. The ordinary reasonable listener would understand the program to be asserting that GH was a pervert and secondly a person who had engaged in very serious sexual misconduct with EF when she was a child. 469 I think that the ordinary reasonable listener would hold that this contextual imputation was not tied to particular facts and would not limit the imputation to being focused on GH's mental state and his attitude to EF. That attitude is a manifestation of his alleged general condition. Although the matter is borderline, I think that this contextual imputation does arise from the matter complained of and sufficiently differs in substance from imputation (d). 470 I have earlier expressed my views as to the allegations contained in the Amended Particulars of Truth. While parts of GH's letter of late July 1997 were inappropriate and should not have been written, and reveal GH's attachment to EF and have sexual elements and the email of 11 July 2003 should not have been sent and the following on 30 April 2003 and 15 August 2003 should not have occurred, it has not been established that GH intended any sexual harm to EF. GH was obsessed with EF as a result of the combination of factors earlier mentioned, that is, her swimming ability (including her potential and the opportunity to coach her to champion status) and her personality traits. I am not persuaded that there was a sexual element in other than the letter of late July 1997. 471 The defendants have not established the substantial truth of the contextual imputation that GH was a sexual pervert. 472 Contextual imputation D reads: GH when a 46 year old man engaged in frequent acts of inappropriate and unwelcome physical contact with an 11 year old girl who was under his care and protection by reason of his sexual attraction to her. 473 The defendants again placed reliance upon line 50 and lines 2 and 41 of the program. They also relied on the various allegations of the conduct by GH as against EF whilst she was under his care and protection and subsequent conduct, in support of the allegation of GH having a sexual attraction to EF and in particular GH's letter of late July 1997 to EF, saying that the song Madly Deeply was how he felt about her. This was nearly six months after EF left the Hodges' home. 474 The defendants relied upon the same particulars as specified as to contextual imputation A. They submitted that while this contextual imputation does require the defendant to establish "frequent acts of inappropriate and unwelcome physical contact" it is focused upon GH's motives for these acts, namely his sexual attraction to EF. The defendants submitted that GH's letter of late July 1997, the fact that Mrs Hodge suggested EF was the other woman, the stalking in 2003 and the inappropriate conduct summarised in its Amended Particulars of Truth established the substantial truth of the element of the truth of the element of his sexual attraction to EF. 475 GH denied this imputation. GH says that all his acts were done in his role as EF's teacher/swim coach/guardian and not for any sexual gratification. Again, I have earlier expressed my views upon the various allegations in the Amended Particulars of Truth. 476 GH submitted that this contextual imputation was false. GH further submitted that this was not a proper contextual imputation. It was no different from the defendants' contextual imputation B. The final words, attributing the only possible motivation for the acts specified adds nothing to it. Any sexual act is sexually motivated, and adding this sine qua non does not give a distinct character to the imputation. GH also submitted that this contextual imputation was not materially different from GH's imputation (e). 477 While in many cases "engaging in frequent acts of inappropriate and unwelcome physical contact" would be done by reason of "GH's sexual attraction to her" that is not necessarily so. This is particularly so where there has been a change or evolution in standards over a number of years. If at the time it occurred the physical contact was in accordance with standards accepted by some coaches of good repute, it was not inappropriate or unwelcome. A technical approach should not be taken. What is unwelcome may not necessarily be inappropriate. In the present case even if the physical contact which occurred was regarded as inappropriate and unwelcome, it has not been established that it was done because of GH's sexual attraction to EF. 478 I think that contextual imputation D does materially differ from contextual imputation B. However, the defendants have not established the substantial truth of contextual imputation D. 479 I think that contextual imputation D does not materially differ from the plaintiff's imputation (e) because of the words in (e) "of a sexual nature" which describe the nature of the physical contact. 480 Contextual imputation (E) reads: GH engaged in inappropriate and unwelcome physical contact with an 11 year old female swimmer by reason of his sexual attraction to her, thus rendering him unfit to hold any position in charge of Australian Olympic Swimmers. 481 The defendants again placed reliance upon lines 50, 2 and 41 of the program. They relied on the various allegations of the conduct by GH as against EF whilst she was under his care and protection and his subsequent conduct in support of GH having sexual attraction to EF, in particular that part of GH's letter to EF saying the song, Madly Deeply was how he felt about her. 482 The defendants relied on the reference in the program (lines 239-245) to the 1997 NSW Institute of Sport handbook warning coaches not to engage in sexual harassment of athletes (As from 1 May 1997 GH held a senior position with the NSW Institute). The defendants relied upon the reference in the program to the statement of Mr Glenn Tasker of Australian Swimming confirming that ASI had received a complaint and takes these matters very seriously and was seeking legal advice and would take appropriate action. 483 The defendants contended that these references support the allegation that GH was unfit to hold any position in charge of Australian Olympic Swimmers. The last submission is a little opaque. Neither the NSW Institute nor ASI would tolerate sexual harassment of any athletes by any of their officials or coaches. The primary question is whether there has been sexual harassment of an athlete by the person so accused. 484 As to the first part of imputation E the defendants relied upon the submission made in respect of contextual imputation D. As to the unfitness element the defendants relied upon the ASCTA Code of Conduct 1996-1997, by which GH agreed he was bound. 485 The defendants relied heavily upon the definition in the Code "Sexual misconduct consists of any behaviour that utilises the influence of the coaching position to encourage inappropriate intimacy between coach and athlete". 486 The defendants submitted that GH's conduct towards EF in 1995-1996 (as summarised in the Amended Particulars of Truth) and the evidence in support and/or GH's conduct towards EF in 1997 consequent upon her departure from the Hodges' home constituted behaviour which utilises the influence of GH's coaching position to encourage inappropriate intimacy between coach and athlete. The defendants further submitted that GH sent the letter of late July 1997 to EF under the guise of his coach/athlete relationship with EF (noting that she was to swim in the Council Youth Games; a less than demanding meeting). The defendants contended that the true purpose of the letter was to encourage inappropriate intimacy between GH and EF. 487 The defendants also relied on the NSW Institute of Sport Coach Code of Ethics which provides at para 7: "Do not engage in sexual harassment of athletes or physical contact with athletes which is unwelcome and/or represents an abuse of power which has a sexual element." The defendants pointed out that GH personally signed the Handbook containing the Code of Ethics. 488 The defendants submitted that GH's conduct towards EF in 1995-1996 constituted sexual harassment under this Code of Ethics and that the conduct was and/or represented an abuse of power which had a sexual element to it. The defendant relied on the materials summarised as to contextual imputation A. 489 The defendants also relied on the conduct of GH towards EF consequent upon her departure from the Hodges' home, submitting that this constituted sexual harassment or physical contact which was either unwelcome and/or represented an abuse of power which had a sexual element to it. After EF left the Hodges' home there was no physical contact. I would not regard either the meeting about 30 July 1997 or any of the following in 2003 as involving physical contact. I would not regard the meeting of about 30 July 1997 at Gulgong as constituting sexual harassment. GH was trying to encourage and persuade EF to continue with her swimming. At least one parent was present throughout the time GH met with EF at Gulgong. GH stated that the handbook containing the Code of Ethics was prepared about the middle of 1997. 490 GH denied that he committed a breach of para 7 of the Code of Ethics while EF was living in the Hodges' home, or on the visit to Gulgong and when he wrote the letter of late July 1997. I do not think that in 1995, 1996 and early 1997 EF conveyed to GH that the physical contact which occurred was unwelcome. That complaint has developed over time. Nor has it been established that it had a sexual element to it. The letter was a breach of the Code of Ethics. GH's explanation for the terms of the letter when taken with the words of the song was spurious. 491 If a swimming coach engaged in inappropriate and unwelcome physical contact with an 11 year old girl by reason of his sexual attraction to her this would render him unfit to hold any position in charge of Australian Olympic swimmers. 492 GH denied this contextual imputation. GH submitted that this contextual imputation was false, that it merely glued together GH's imputations (e) and (h), that thus it was subsumed in them and that justifying contextual imputation E involved no distinct exercise. It was further submitted that it did not match or swamp GH's imputation (d). 493 There is not much difference between the combined effect of GH's imputations (e), and (h) and contextual imputation E. GH's imputation (e) speaks of "consistent acts of physical contact of a sexual nature" whereas the defendants contextual imputation E speaks of "inappropriate and unwelcome contact … by reason of his sexual attraction to her" (EF) The differences lie in the use of the word "constant" and in the descriptions of "acts of physical contact of a sexual nature" and that of "inappropriate and unwelcome contact … by reason of his sexual attraction to her." These differences are minimal. As to the latter part of contextual imputation E namely that he is unfit to hold any position in charge of Australian Olympic swimmers because of his inappropriate and unwelcome physical contact with an 11 year old female swimmer by reason of his sexual attraction to her, this is matched by the description of imputation (h) that GH had so misconducted himself in his sexual attentions towards EF that he was unfit to hold his position in charge of Australian Olympic swimmers. In my opinion there is no material difference between contextual imputation E and the combined effect of imputations (e) and (h). It is the effect of all the appropriately combined contextual imputations to which I must have regard. 494 I have earlier expressed my view that by the standards of 1995-1996–early 1997, the acts of GH were not inappropriate, that EF did not make it known to GH that the acts were unwelcome and that this complaint has developed since then. I have also held that it has not been established that the physical contact arose out of GH's sexual attraction to EF. The defendants have not established the truth of this contextual imputation. 495 Contextual imputation F reads: GH had so misconducted himself that he is unfit to hold his position in charge of Australian Olympic swimmers. 496 The defendants relied upon EF's allegation at lines 2 and 41 of the programs that GH had a sick obsession with her as well as the alleged conduct of GH as against EF contained in the program including: (a) during the period when EF was under GH's care; (b) the forwarding by GH to EF of the letter saying that the song Madly Deeply was how he felt about her; (c) the stalking of EF by GH about 30 April 2003 and 15 August 2003. 497 The defendants also contended that the references to the NSW Institute of Sport Handbook and to Mr Glenn Tasker and Australian Swimming( and his comments – see earlier) support the allegation that GH was unfit to hold any position in charge of Australian Olympic swimmers. 498 The defendants relied upon the entirety of the matters covered in the Amended Particulars of Truth and the evidence in support and summarised as to contextual imputation A and the 1997 and 2003 conduct to establish GH's state of mind and feelings towards EF during 1995-1996 when he engaged in the alleged conduct covered in the Amended Particulars of Truth (inappropriate touching, inappropriate behaviour and inappropriate speech). As to the unfitness element the defendants relied on the matters covered for contextual imputation E – see above. 499 The defendants stated that this contextual imputation was not tied to any specific acts of physical or other conduct during 1996. They submitted that the composition and forwarding of the letter of late July 1997 alone was sufficient to establish the truth of this contextual imputation. So also, they submitted, was the stalking in 2003. They submitted that it was of no moment that the official guidelines from 1996 and 1997 did not cover former swimmers. The defendants contended that if GH stalked a twenty year old former swimmer while he was the High Performance Director of Australian Swimming, he was unfit to hold his position in charge of Australian Olympic Swimmers. 500 GH denied this imputation. I have earlier expressed my views upon the allegations of inappropriate touching, inappropriate behaviour and inappropriate speech. 501 GH submitted that this contextual imputation was false, that it was indistinguishable from GH's imputation (h) and the "misconduct" lacked the adjectival element of GH's imputation (h) so as to be ineffective. 502 Contextual imputation F arises from the program. I refer to lines 2 and 41 and the statement of a sick obsession with EF, lines 66 and 67 and the statement "you're following her in your car", line 311 and the statement "subjected to obsessive abnormal behaviour", lines 329-343 and the reference to sending her the CD and part of the text of the song Truly Madly Deeply and the statement that GH wrote to EF saying that was the way he felt about her, lines 354-356 and EF's statement that it made her upset, angry and disgusted that someone would send that letter to somebody so young, and lines 375-377 and the statement "I don't know why he's following me all these years later and he's following me all the way home. He knows, like, where I live". There are then brief descriptions of what occurred when GH followed her. 503 I regard contextual imputation F as materially different from imputation (h). The composition and sending of GH's letter of late July 1997 containing the statement that he hoped EF also loved the song Madly, Deeply, it was how he felt about her, was an act of misconduct and so were the acts of GH following EF about 30 April 2003 and 15 August 23003. These acts of misconduct by GH towards EF rendered GH unfit to hold his position in charge of Australian Olympic swimmers. 504 I do not regard contextual imputation F as ineffective because it lacks a necessary adjectival element. The meaning of the word "misconduct" is clear enough and the acts of misconduct are identified in the program. Misconduct does not have to be sexual. 505 The defendants have established the truth of contextual imputation F. 506 Contextual imputation G reads: GH misconducted himself towards EF by stalking her by reason of his sexual obsession with her. 507 GH denied this imputation. The defendants submitted that in the program the allegation is made that GH repeatedly stalked (followed) EF, that this together with the allegations of GH's conduct towards EF whilst she was under his care, together with the allegations of subsequent conduct. Including the forwarding of the letter containing the reference to the Savage Garden song support the allegation that GH misconducted himself towards EF by stalking her by reason of his sexual obsession with her. 508 The defendants relied upon the entirety of the events in 2003 and on GH's earlier conduct (particularly GH's letter of late July 1997) insofar as it establishes GH's sexual obsession with EF. 509 GH submitted that this contextual imputation was false, that the program was incapable of conveying any imputation of stalking – as the jury found in relation to GH's imputation (f). 510 Imputation (f) as left to the jury was in these terms: "GH was a dangerous stalker who was a threat to the safety of EF" That is a materially different imputation from contextual imputation G. The latter contains no reference to GH being a dangerous stalker or being a threat to the safety of EF. 511 GH further submitted that even if this imputation could validly be pleaded it was less grave than his surviving imputations (d), (e) and (h) and was thus ineffective as a defence. It is not necessary for me to express a view on this submission. 512 It has been established that GH followed EF, but the defendants have not established that the following of EF was by reason of GH's sexual obsession with her. 513 Contextual imputation H reads: GH has sexually harassed EF. 514 GH denies this imputation. 515 The defendants contended that in the program the allegation is made that GH repeatedly stalked (followed) EF, that this together with the allegations of GH's conduct towards EF whilst she was under his care, the allegations of subsequent conduct including the forwarding of the letter containing the reference to the Savage Garden song, support the allegation that GH sexually harassed EF. 516 The defendants relied upon the entirety of the matters upon which it relied in advancing its truth defence. They repeated that they relied upon GH's conduct in 1997 and 2003 to establish GH's state of mind and feelings towards EF during 1995-1996 when he engaged in the conduct summarised as to contextual imputation A, namely, inappropriate touching inappropriate behaviour and inappropriate speech. 517 The defendants submitted that the substantial truth of the imputation was made out by the evidence. They submitted that stalking had a sexual element and that even one instance of stalking constitutes sexual harassment. They submitted that the inappropriate behaviour and the inappropriate dialogue between GH and EF and the conduct in 1997, in particular the forwarding of the letter of late July 1997 also constituted sexual harassment. I have earlier expressed my views as to the alleged inappropriate touching, the alleged inappropriate behaviour and the alleged inappropriate speech. Apart from GH's letter of late July 1997, the defendants have not established that GH was guilty of sexual harassment of EF in 1997. 518 The terms of the song Madly Deeply from the Savage Garden CD and portion of GH's letter of late July 1997, together amount to sexual harassment. That letter had a number of purposes. GH sought to ingratiate himself with EF with some swimming gossip and trivia, encourage EF to press on with her swimming and to declare his love for EF and his desire to be with her. The song Truly Madly Deeply had pronounced sexual overtones and GH wrote that the song was how he felt about EF. EF found it hard to take when she had been evicted from the Hodges' home. Nothing came of the letter other than Mr Fuller telling GH that he was not to contact EF. GH complied. It has not been established that GH intended her any sexual harm. The letter taken with the CD containing the song constitutes a form of sexual harassment. Normally it would be dealt with in much the manner Mr Fuller dealt with it, that is, by telling GH not to contact EF in the future, and GH so agreeing. 519 Contextual imputation I reads: GH lied about his stalking and harassment of EF. 520 The defendants pointed out that the program contains a denial by GH that he had been following EF (lines 498-519) and that EF's allegations that GH did stalk her thereby gives rise to the imputation relied upon. 521 The defendants relied upon the alleged lies told by GH in the program and in the camera tape to the effect that he had not been following EF, that he had not been sitting outside her place of work, that he had not seen her recently and that he had not contacted her recently save that he did refer to the July emails, but not the "catch up" email of 28 April 2003. The camera tape recorded many of the exchanges between the TCN reporter and GH, only some of which appeared in the program. The defendants alleged that in substance these alleged lies were maintained throughout the Apprehended Violence Order (AVO) proceedings and until this trial. 522 In her Statement of Facts and Issues of 23 March 2004, in the AVO proceedings EF asserted: "22. On 30 April 2003 at about 4.30pm Greg Hodge was seated on a grass embankment opposite an entrance-way to Emma Fuller's place of employment, Transways Express (Freight Forwarding) in Young Street, Waterloo, NSW. 23. Emma Fuller left her work and proceeded towards her car. On Greg Hodge making eye contact with her she returned to her place of employment. 24. At this time she recognised Greg Hodge. 25. At this time Greg Hodge recognised her. 26. She later got in her car and undertook a "u" turn. 27. She then proceeded towards Sydney Airport. 28. On 30 April and at all relevant times Greg Hodge had access to and regularly drove a black Mercedes sports car with registration plates which included the initials 'GSH'. 29. Greg Hodge drove this vehicle behind Emma Fuller's vehicle on 30 April 2003 in the afternoon of that day. 30. He did this knowing that Emma Fuller was in a vehicle in front of him. 31. Emma Fuller communicated her belief that she was being followed by Greg Hodge to Craig Yelavich. 32. Greg Hodge followed Emma Fuller until after crossing the Captain Cook Bridge." … "38. On 15 August 2003 at about 4.40pm Greg Hodge was walking in the driveway immediately outside Emma Fuller's place of work at Waterloo. 39. Emma Fuller observed Greg Hodge and communicated with Stewart Davies and Craig Yelavich. 40 Emma Fuller drove her vehicle out of the car park and as she was exiting into Young Street, Waterloo, NSW, Greg Hodge drove his black Mercedes past her and continued in front of her for a little time. 41. Greg Hodge pulled to the side of the road and then pulled out after the vehicle driven by Emma Fuller had passed his vehicle. 42. Greg Hodge drove directly behind Emma Fuller for some time. 43. At about this time Emma Fuller commenced regular contact with Craig Yelavich by mobile phone. She indicated that she was being followed by Greg Hodge. 44. Emma Fuller drove from Waterloo to the Kingsway Cronulla to the address of her boyfriend Craig Yelavich near the corner of the Kingsway and St Andrews Place. 45 Greg Hodge drove from Waterloo to the corner of the Kingsway and St Andrews Place on the afternoon of 15 August 2003. 46. Greg Hodge turned into St Andrews Place and then returned to the Kingsway. 48. St Andrews Place is a 'dead end' street and the only way out once entering it is to return to the Kingsway. 49. Greg Hodge was confronted in his vehicle by a number of persons at the corner of St Andrews Place and the Kingsway. He drove off at high speed." … 51. When initially approached by journalists of 'A Current Affair', Greg Hodge denied making any contact with Emma Fuller." 523 The solicitors for GH advised by letter of 23 March 20094 that they were contesting the matters set out above. Many of the allegations in these paragraphs were denied by GH. There were only a few which appeared to be common ground. 524 The AVO proceedings did not proceed to a hearing and were resolved by consent with orders being made by consent, but without admissions. 525 For the underlying facts the defendants relied upon the events that took place in 2003 from 28 April 2003. These are covered in section 4 of their written submissions dealing with the Truth Defence – 2003, with the defendants relying upon the entirety of their submissions on this matter. I have earlier expressed my views on the major incidents of 2003. 526 GH denied this imputation. He submitted that the defendants had not proved the particulars of truth necessary to support this allegation. GH submitted that this imputation was false and was, in any event, replete with defects in that it agglomerated the allegations of stalking and harassment, but the real gist of the imputation is that GH lied. It was submitted that this was an act of little moment, and certainly incapable of matching or swamping any of the plaintiff's surviving imputations (d), (e) and (h). 527 I agree that the real gist of the imputation is that GH lied. The email of 28 April 2003 was sent after a lapse of nearly six years (July 1997 to April 2003) to a young adult. EF chose not to reply to the email. The email of 11 July 2003 was ill judged and could be classed as, and was a form of harassment. 528 GH was waylaid by the defendants' operatives as he arrived for work in circumstances where questions were thrown at him and he had little opportunity to consider his answers. The reporter declined his invitation to come into his office and talk about the matter. GH was naturally wary when an AVO was mentioned. The reporter had prepared a series of questions based upon allegations made to her by others, put them in rapid succession and asserted that witnesses (unnamed) said he did follow her home. The impromptu, on the run interview was unfair to GH. GH was wrong to say that he had not been following EF, nor seen her nor contacted her but he did not have an opportunity to consider his position and his answers. GH did say he had sent her boss an email. GH declined to answer the allegations the reporter wanted to put to him, saying that he would wait for the AVO and deal with it legally. 529 In the unfair circumstances created by the defendants' operatives, the question of lies is of little moment. It pales into insignificance when matched against imputations (d), (e) and (h). 530 Contextual imputation J reads: GH had so misconducted himself towards EF as to warrant an AVO. 531 The defendants submitted that the program (lines 455-495) contains an allegation that GH stalked EF. The program does contain allegations of GH being outside her place of employment and following her in his car on two occasions and on the latter occasion to her destination (her boyfriend's unit – described as home). The defendants submitted that this allegation of stalking together with the other allegations of GH's conduct against EF contained in the program gave rise to the contextual imputation. 532 The defendants relied upon the entirety of the matters it advanced in support of its truth defence in 2003 as to the events from 28 April 2003 to 16 August 2003. They submitted that if, as was alleged, GH stalked EF twice in the manner claimed, this is conduct which warranted the granting of an Apprehended Violence Order. 533 GH denied this imputation. He asserted that he did not email EF about 28 April 2003 and about 11 July 2003 by reason of his sexual obsession with and/ore sexual attraction to EF. GH submitted that the defendants had not proved the necessary particulars of truth. 534 GH submitted that the jury had rejected GH's imputation (g) namely: "that GH was the subject of an interim apprehended violence order." The jury held that this was conveyed by the program but was not defamatory of GH. 535 GH submitted that the sting of imputation (g) was not that an AVO had been made, but that one was properly made, that is, that GH's conduct warranted the order, and hence this contextual imputation was untenable. 536 At lines 25-26 of the program it is stated that police today served GH with an interim violence order following a formal complaint by EF. At lines 576-580m the reporter states "She's also commenced legal proceedings to secure an interim apprehended violence order preventing Greg Hodge from contacting or being with (within) 50 metres from her. In a sworn statement under oath Emma has sought protection against any harassment or intimidation." At that stage the reporter held up a document. At lines 581-585 the reporter continued, "Police will now summons Hodge to appear in Court later this month. Emma Fuller's document [film of document] details more than fifty incidents dating back to when she was twelve years old." 537 At lines 598-599 GH is quoted as saying "… if I'm supposed to be served with an AVO then there is a legal process that follows, okay." 538 Part 15A of the Crimes Act 1900 draws a distinction between an apprehended violence order and an interim apprehended violence order. "Stalking" is defined in s 562A as meaning "the following of a person about or the watching or frequenting of the vicinity of or an approach to a person's place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity." 539 Section 562AI provides that a court may, on complaint, make an apprehended personal violence order if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear or in fact fears: "… (b) the engagement of the other person in conduct amounting to harassment or molestation of the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order (c) the engagement of the other person in conduct in which the other person (i) intimidates the person, or (ii) stalks the person being conduct that, in the opinion of the court, is sufficient to warrant the making of the order." The order may impose such prohibitions or restrictions on the behaviour of the defendant as appear necessary or desirable to the court. 540 Section 562BB(1) of the Crimes Act provides that a court may make an interim apprehended violence order if it appears to the court that it is necessary or appropriate to do so in the circumstances. An interim order may be made whether or not the defendant is present at the proceedings and even if the defendant has not been given notice of the proceedings. Section 562BB(4) provides that if an interim order is made by a court "(a) the court is to summon the defendant at a further hearing of the matter by the court as soon as practicable after the order is made, and (b) the court may, at the further hearing or an adjourned further hearing, confirm the interim order (with or without variation) or revoke the interim order (whether or not the defendant appears at any such further hearing." 541 In Smart v Johnston (NSWSC, Dunford J, 8 October 1998, unreported) it was held that it was a denial of procedural fairness to refuse a defendant an opportunity to cross-examine a complainant and/or lead evidence on an application for an interim order. However, the cross-examination and the evidence must be directed on such an application not to the general issue of whether the complaint has been established on the balance of probabilities (which would be the issue at the final hearing) but to the much more limited issue as to whether it is "necessary or appropriate" to make an interim order. 542 For an interim order the court considers what is "necessary or appropriate". It does not make a final determination. The scope of the inquiry and the matters it considers are limited. It is required to fix a further hearing as soon as practicable. It is at the further hearing that it is required to address the issue set out in s 562A1 of the Crimes Act 1900. 543 Even allowing for some looseness in terminology the program does not relevantly refer to an apprehended violence order, but to an interim apprehended violence order. In one part of the program (lines 25-26) there is a reference to the police having served an interim apprehended violence order on GH. In another part of the program there is an extended reference to EF having commenced legal proceedings to secure an interim apprehended violence order and a summary of the relief which she seeks (lines 576-586). My primary opinion is that contextual imputation J does not arise out of the program. 544 If a broader and looser view was taken of contextual imputation J regard should be had to the jury's view that it was not defamatory of the plaintiff to state that he was the subject of an interim apprehended violence order. The program conveys that EF contends that she relies on a large number of incidents to support her claim for relief. It does not go as far as conveying that GH had so misconducted himself towards EF as to warrant an Apprehended Violence Order. The use of the word "interim" suggests that the matter remains to be resolved. 545 I reject contextual imputation J. The defendants may not rely upon it. 546 Contextual imputation K reads: GH abused his position as guardian of an 11 year old girl by repeatedly touching her in order to gratify himself sexually. 547 The defendants referred to lines 2, 41 and 50 of the program as to the ages of EF and GH, and GH having a sick obsession with EF. The defendants relied upon the various allegations of GH's conduct as against EF whilst she was staying with him and his family in support of the allegation of GH's intention of making amorous sexual advances on her when she reached the age of consent. In particular, the defendants relied on the forwarding by GH to EF of the letter saying the song Madly Deeply was how he felt about her shortly after EF resided with GH, to infer GH's sexual gratification in respect of his earlier conduct towards EF. ("Shortly after" embraces a period of nearly six months, that is from about 5 February 1997 to about 31 July 1997). 548 The defendants relied upon the entirety of the matters covered in the parts of their submissions dealing with the truth defence, that is, in 1995, 1996 and up to early February 1997 the alleged inappropriate touching, the alleged inappropriate behaviour and the alleged inappropriate speech; in 1997 EF's departure from the Hodges' home, the telephone contact thereafter between GH and EF, GH's visit to Gulgong, the forwarding of the letter of late July 1997 to EF at her school, the further contact between the Fullers and GH in 1997. The defence relied upon the 1997 and 2003 conduct of GH to establish GH's state of mind and feelings towards EF during 1995-1996 when he engaged in the alleged inappropriate touching, the alleged inappropriate behaviour and the alleged inappropriate speech. 549 The defendants repeated their earlier submissions as to the inappropriate touching. I have earlier expressed my views as to those matters. The defendants stated that the balance of this contextual imputation was focused upon GH's motives for these acts, namely, his sexual feelings for EF. The defendants submitted that if GH had such feelings it was quite clear that he was touching her in order to gratify himself sexually and that a consideration of the letter of late July 1997, GH's wife suggesting that EF was the "other woman", the stalking in 2003 as well as the inappropriate behaviour and the alleged inappropriate speech established the substantial truth of this element of the imputation. 550 GH denied this imputation. GH conceded certain touching and kissing. He asserted that he did so in his role as her teacher/swim coach/guardian and not for any sexual gratification. 551 The defendants have not established that in 1995, 1996 and up to early February 1997 GH engaged in inappropriate touching, inappropriate behaviour and inappropriate speech and that in his conduct in that period he acted for the purpose of his own sexual gratification. Such touching as happened was in accordance with the then current standards and practices used by some coaches of good repute. 552 I have not overlooked the events from the beginning of February 1997 and in 2003, but they throw no light on the intentions or motives with which GH acted in 1995, 1996, early 1997 (up to 4 February 1997). The defendants have not established the truth of this contextual imputation. 553 GH submitted that this contextual imputation was false and that it was no different from plaintiff's imputation (e). There is substance in the latter submission as the differences appear to be minor, but it is unnecessary for me to express a concluded view as the defendants have not established the truth of the contextual imputation. 554 Contextual imputation L reads: GH engaged in repeated inappropriate acts of physical contact with a young girl under his care and protection with the intention of making amorous sexual advances on her when she reached the age of consent. 555 The defendants referred to lines 2, 41 and 50 of the program. They relied upon the various allegations of GH's conduct as against EF whilst she was staying with him and his family in support of the allegation of GH's intention of making amorous sexual advances on her when she reached the age of consent. In particular, the defendants relied upon the forwarding by GH to EF of the letter saying that the song Madly Deeply was how he felt about her shortly after EF resided with GH to infer GH's sexual gratification in respect of his earlier conduct towards EF. 556 As to "the inappropriate acts of physical contact" element, the defendants relied on their submissions as to contextual imputation B. These were summarised earlier. 557 As to the second limb of the imputation, the defendants relied upon GH's 1997 conduct and the stalking in 2003. They relied upon GH sending his letter of July 1997 to EF's school, the letter stating that GH wanted to spend some time alone with EF and hoping to keep in touch even if EF did not continue with her swimming. The defendants contended that the letter was suggestive of an intent on GH's part to "groom" EF. Reliance was also placed on his alleged frequent telephone contact with EF in 1997. The defendants submitted that GH's stalking of EF was suggestive that he had the intention along the lines of this contextual imputation for the reason that when GH did rediscover EF he approached her, even though it took the form of stalking. It was submitted that the stalking must have been at least in GH's mind the prelude to some kind of sexual advance. 558 GH denied this imputation and asserted that any acts of physical contact were in his role as teacher/swim coach/guardian and not for any sexual gratification. I have earlier expressed my views as to the acts of physical contact which occurred. They were not inappropriate by the standards and practice of 1995, 1996 and up to 4 February 1997. The defendants have not established that the acts of physical contact took place with the intention of GH making amorous sexual advances on (or to) EF when she reached the age of consent. 559 GH submitted that this contextual imputation was false and that it was incapable of being carried by the program. I agree that the contextual imputation was not capable of being carried by the program (the matter complained of). Further, the substantial truth of this contextual imputation has not been proved. 560 Contextual imputation M reads: GH so sexually misconducted himself towards EF that he is unfit to hold his position in charge of Australian Olympic Swimmers 561 The defendants relied upon the allegation of EF at lines 2 and 41 of the program that GH had a sick obsession with her as well as the alleged conduct by GH as against EF contained in the program, including: A. during the period when EF was under GH's care; B. the forwarding by GH to EF of the letter saying that the song Madly Deeply was how he felt about her, and C. the stalking of EF by GH. 562 The defendants referred to line 50 of the program. They relied on the various allegations of GH's conduct as against EF while she was staying with him (or the Hodge family), and thereafter, in support of the allegation of sexual misconduct. The defendants pointed to the reference (lines 239-245 of the program) to the NSW Institute of Sport Handbook warning coaches not to engage in sexual harassment and the reference (lines 655-663) to Mr Glenn Tasker and Australian Swimming as supporting the allegation that GH was unfit to hold any position in charge of Australian Olympic Swimmers. 563 GH denied this imputation. He admitted either formally or in evidence that in breaststroke training he held her ankles (and feet) and on occasions placed his hand on muscles above the knee; that he applied Vaseline where her swimmers chafed her skin and that when applying Vaseline to the costume seams under her arms this was close to her breasts; that he gave EF shoulder rubs; that he gave EF gifts; that he told EF that he loved her, and that he gave EF kisses on the cheek and forehead. GH insisted that such acts were done in his role as EF's teacher/swim coach/guardian and not for any sexual gratification. The defendants did not prove to the contrary. 564 GH asserted that he did not visit the Fuller house in July 1997, send EF a letter in late July 1997 or email her about 28 April 2003 and 11 July 2003 by reason of his sexual obsession with and/or sexual attraction to EF. He denied knowingly following EF but I have not accepted his evidence on that point. 565 Part of the letter of late July 1997 when taken with the song "Truly, Madly, Deeply does evince sexual misconduct and I am unable to accept GH's explanation. As at the end of July 1997 EF was not pursuing elite swimming and was no longer in GH's squad. He tried to persuade her to continue with her swimming pointing out that it all depended on her and her application to training. The letter of late July 1997 has troubled me. While it was not followed up in 1997 and some years intervened, I would, on balance, conclude that in sending that letter to EF allied with the gift of the Savage Garden CD containing the song Truly Madly Deeply GH has so sexually misconducted himself towards EF that as at October 2003 he is (or was) unfit to hold his position in charge of Australian Olympic Swimmers. In expressing these views I have proceeded on the basis of GH's submission that a contextual imputation is a statement of fact. 566 The emails were ill judged and demonstrated GH's desire to keep in contact with EF. It has not been established by the defendants, on the balance of probabilities, that GH had any intention to harm EF nor has it been established that any following of EF by GH was the result on the part of GH of any sexual obsession with or attraction to EF. I have looked at the totality of GH's conduct in reaching my conclusions. 567 The defendants submitted that this contextual imputation was false and no different from the plaintiff's imputation (h). I agree that there is no material difference between the plaintiff's imputation (h) and contextual imputation M. 568 Contextual imputation N reads: GH had engaged in sexual misconduct in breach of sport coaching guidelines applicable to him. 569 The defendants relied upon the same matters as are summarised under contextual imputation M to support the contention that contextual imputation N arises from the program. 570 As to the sexual misconduct element the defendants relied upon the submissions as to contextual imputation M and summarised earlier. As to the coaching guidelines elements the defendants relied upon the breach of ASCTA Code of Conduct (p4, Exh 6) namely "Sexual misconduct consists of any behaviour that utilises the influence of the coaching position to encourage inappropriate intimacy between coach and athlete", and also the breach of 1997/1998 NSW Institute of Sport Athlete & Coach Handbook – Coach Code of Ethics (para 7, p32, Exh 5) "Do not engage in sexual harassment of athletes which is unwelcome and/or represents an abuse of power which has a sexual element to it." The defendants also relied upon the submissions for contextual imputation E (and summarised earlier). 571 The defendants submitted that the entirety of the conduct relied upon in respect of the truth defence amounts to sexual misconduct which breached the provisions mentioned. The defendants again relied upon the 1997 and 2003 conduct to establish GH's state of mind and feelings towards EF during 1995-1996 because the guidelines applied to relationships between coaches and swimmers (as opposed to former swimmers). 572 GH denied this contextual imputation. I repeat the paragraphs under contextual imputation M, summarising GH's position. GH submitted that this contextual imputation was false. He also submitted that it was invalid as a defence because its sting was not some breach of coaching rules, but because sexual misconduct is reprehensible and that this contextual imputation was no different from any of the other contextual imputations imputing sexual misconduct, notably B, D, E, F, G, J, K, L and M. It is also of lesser gravity than GH's surviving imputations (d) and (e). There is substance in both these submissions. 573 Turning to the factual aspect, it is difficult to separate the various facets of the relationship between GH and EF. They overlap. EF was staying in the Hodge family home and was treated, as expected, as one of the family. She went with the family, and as one of the family, on sundry outings and shopping trips. In such circumstances and with all of this contact, relations between GH and EF were bound to become very close. For Mrs Hodge they became too close and she felt that EF had replaced her as the person of prime importance in GH's life. EF encouraged GH to give her attention. The relations between GH and EF became too intimate, but they did not lead to sexual relations or lovemaking activity or talk or other sexual misconduct while EF was living with the Hodge family and was a member of GH's swimming squad. The defendants have not established the substantial truth of this imputation. General 574 The defendants asked the Court to consider the combined effect of the contextual imputations whose substantial truth had been established. While the defendants have established the truth of contextual imputation F and parts of contextual imputations G, H and I, these do not match or balance the three imputations found by the jury. The gravamen of the imputations found by the jury was major sexual misconduct by GH towards EF. This related to an extended period from 1995 to about August 1997 and from April 2003 to August 2003. I have found one act of sexual misconduct by GH, namely, the letter sent by GH to EF at school in late July 1997, especially when taken in conjunction with GH's gift of the Savage Garden CD. 575 In my opinion GH's imputations to which the contextual imputations were pleaded were likely further to injure GH's reputation and appreciably so. Publications outside of NSW 576 In The Herald & Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1 Gillard AJA discussed, helpfully, the Polly Peck defence at some length. At [279] that judge said: "Where there are a number of defamatory imputations pleaded by the defendant, the defendant publisher must establish the truth of all of the imputations in order to establish the defence. The defence fails if not all defamatory imputations are justified. There is no defence of partial justification at common law. However, it is possible where there are distinct charges which are pleaded to by the plaintiff to plead justification in respect of one charge only … But it is not a defence. It is relevant to the question of damages. The Polly Peck defence is justification of all the pleaded imputations. Fail one and the defence fails. 577 At [287] Gillard AJA continued: "Where there is a Polly Peck defence pleaded unless the jury find that the defamatory words were the same or similar to the defamatory imputations pleaded by the defendant, the defence is not available. The publisher by pleading its own imputations, is keeping all its eggs in one basket. Unless the jury find the imputations as pleaded then the defence is not available. Further, the defence fails unless the jury find that each defamatory imputation relied upon by the publisher is true in substance and in fact." It will be necessary to consider these observations as to the common law position and whether the statutory provisions make a difference. 578 In Popovic the defendant did not seek to justify the plaintiff's imputations. Instead they pleaded three meanings and contended that in those meanings the article was true in substance and in fact. 579 In the present case the defendants not only attempted to justify the imputations, but relied on a large number of contextual imputations, and their combined effect. The defendants did not establish the substantial truth of most of the contextual imputations. This relieves me of the need to consider the place of the Polly Peck defence in the various jurisdictions in Australia where the common law applies. 580 At [306] Gillard AJA summarised the principles which apply to pleading a defence of justification. They include that it is no defence to prove that part of a defamatory libel is true. 581 In view of my findings when dealing with the contextual imputations the Polly Peck defences to the publications outside New South Wales fail, even if they were available. Such a defence is not available in Queensland: Robinson v Laws (2003) 1 Qd R 8. It has been modified in Victoria: David Syme v Hore Lacey (2000) 1 VR 607. The Comment Defence 582 The defendants maintained the defence of comment in respect of imputations (d) and (h). That defence was not pressed in respect of imputation (e). GH submitted that of his three imputations, only imputation (h) could be held to be comment. 583 The common law defence of fair comment on a matter of public interest is applicable without modification in Victoria, South Australia and the Australian Capital Territory. Statutory defences which are generally similar are available in Queensland and Western Australia. In Western Australia and the Northern Territory a statutory defence of fair comment exists in addition to the common law. 584 In New South Wales the Defamation Act 1974 abolishes the common law defence but provides a statutory defence which is based upon common law principles. The statutory defences differ from the common law in various respects, but more of the differences later. The principles of the common law still inform the statutory defences as to what is comment, what is a proper matter for comment and what is public interest. 585 In Popovic at [263] Gillard AJA adopted the summary of the elements of the common law defence of fair comment propounded by Lord Nicholls in Cheng v Tse Wai Chu Paul, Court of Final Appeal in Hong Kong [2000] 3 HKLR 418; [2000] 4 HKC 1 at 4: 1. The comment must be on a matter of public interest which is not to be confined within narrow limits. 2. The comment must be recognisable as comment, as distinct from an imputation of fact … 3. The comment must be based on facts which are true or protected by privilege … If the facts on which the comment purports to be founded are not proved to be true or published on a privileged occasion, the defence of fair comment is not available. 4. The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer (or viewer) should be in a position to judge for himself or herself how far the comment was well founded. 5. The comment must be one which could have been made by an honest person however prejudiced he might be, and however exaggerated or obstinate his views. See also John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 at [16 ] per Giles JA. 586 I would also follow this summary of the position at common law. In the instant case the comment was on a matter of public interest. Swimming, including training and coaching and the methods used is a matter of public interest, especially at State, national and international levels. 587 During oral argument it became reasonably apparent that the real contest was whether imputation (d) was a statement of fact or comment, imputation (e) being accepted as a statement of fact and imputation (h) as probably comment although no formal concession was made that imputation (h) was comment. I think it is. It is an expression of opinion. I proceed on that basis. It is not easy to resolve into which category the ordinary reasonable listener and viewer would place imputation (d). I bear in mind that such listener and viewer hears and sees the program but once. He will form a general impression of the program and some, but not all, of the facts are likely to be retained for periods of varying lengths. 588 In NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 at 345, Priestley JA pointed out that a defendant is entitled to require the tribunal of fact to consider the published matter which made the defamatory imputation in order to determine whether the matter made an imputation which was comment or not. 589 In Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 at 172 Mason P said: "The pleaded imputation is itself a statement extrapolating something from the matter complained of. The statement will seldom be found in the very words used … The imputation will often be implicit in the text (citation omitted) … Words, a fortiori words not found in the text, are necessarily to be read in context." See also per Young CJ in Eq at 175. 590 Accordingly, I read the imputation in the light of the matter complained of, that is, the context. That is important where, as here, the program is likely to create a general impression. 591 While the defendants accepted that they were required to establish that imputation (d) was an expression of opinion they submitted that the defence of comment also protects inferences of fact, deductions or conclusion and relied upon this passage from O'Brien v Salisbury (1889) 6 TLR 133: "The comment may sometimes consist in the statement of a fact, and may be held to be comment if the fact so stated appears to be a deduction or conclusion come to by the speaker from the facts stated or referred to by him … and from which his conclusion may reasonably be inferred." See also O'Shane at [25] and [26]. 592 I repeat imputation (d): "GH was a pervert who had preyed upon EF while she was a child under his care and protection." The defendants in submitting that this imputation was a comment contended that the word "pervert" was an expression of opinion which arose from various expressions of opinion in the program. There was ample material in the program to support the statement that GH was a pervert and the related statement that he preyed upon EF while she was a child under his care and protection. The word "pervert" is not used as such, but the behaviour of GH described in the program would be understood by ordinary reasonable listeners and viewers as being that of a pervert. This was the conclusion to be drawn from what is stated in the program. As to the second part of the imputation, "who had preyed on EF while she was under his care and protection", it could not be and was not disputed that EF was a child, and that she was under GH's care and protection. These were facts and the conduct described amounted to preying upon her. That was also factual. The latter part of the imputation, namely "who had preyed upon EF while she was a child under his care and protection" was a statement of fact. The program was primarily about the behaviour of GH towards EF and how he had mistreated her, including sexually. GH submitted that perversion and preying upon a child are factual concepts. 593 In O'Shane at [27] Giles JA pointed out that many defamatory words have elements of facts, conclusions from facts and expressions of opinion. I regard the statement that GH was a pervert as a conclusion arrived at by the reasonable listener and viewer from the material in the program. While the description of GH as a pervert is the general allegation and that is bad enough, the further statement that GH preyed upon EF as a child under his care and protection, is even more defamatory and memorable. The imputation is a mixture of fact and comment and its characterisation by the ordinary reasonable listener and viewer is one of difficulty. The defendants have not, taking imputation (d) as a whole, established that it would be treated by such listener and viewer as comment. I proceed on the basis that it is a statement of fact. 594 I turn to imputation (h) which I repeat: GH had so misconducted himself in his sexual attentions towards EF that he was unfit to hold his position in charge of the Australian Olympic swimmers. 595 The defendants submitted that this imputation derived in part from the references to GH's position at Australian Swimming, lines 24, 52, 415 and the NSWIS handbook, lines 239-245 of the program and the comment at lines 612 to 617. 596 The defendants relied on the facts stated in the program and in particular the references to: Breaststroke (lines 97-111); wedgies (l 139-140); Vaseline (l 147-155); kissing (l 183-197) gifts (l 197-205); the Thredbo video (l 228-236 and 248-252) and parts of the video which were shown; bathroom door (l 261-262); seeing GH naked (l 264-5, 590); Mrs Hodge's confrontation with EF and her reference to the "other woman", her letter of apology (l 268-306 and 318-323); GH's conduct in 1997 including his telephone calls, visit to Mudgee (Gulgong), his letter and the Savage Garden CD (l 326-349); EF's treatment for depression and Mr Corvan's letter (l 363-369); GH sending emails to EF and following her in 2003 (l 63-67, 369-408, 423-543); EF's commencement of legal proceedings to secure an interim AVO preventing GH from contacting her or coming near her (l 576-578; and the tampons (l 591-593). 597 The defendants contended that the truth of the facts stated and identified had been established. They also relied upon the references to the NSWIS handbook (lines 239-245) and the terms of the handbook verifying what is stated in the program. 598 The defendants have not established the substantial truth of many of the facts stated. The defendants have not established the substantial truth of the following: (a) that GH sat in between EF's legs to correct her breaststroke; (b) that GH gave EF wedgies; (c) that GH applied Vaseline inappropriately to EF; (d) that, inappropriately GH kissed EF; (e) that the gifts GH gave her were other than minor and not inappropriate; (f) that the events at the end of camp social in the hotel at Thredbo were other than horseplay of no consequence; (g) GH used the hole in the bathroom door to watch people in the bathroom. (h) that EF saw GH naked; (i) that when EF had her first menstrual period, GH purchased tampons and stood outside the bathroom door explaining to her how to insert tampons. Nor has the truth of the amended allegation been established; and (j) that he drove five hours to Mudgee to try and see EF. It is undisputed that GH visited EF's home at Gulgong near Mudgee and that he spoke with EF, her father and her mother. GH did this in the course of a country trip during which he attended to a number of matters. An alternative way of looking at the matters referred to in items (a), (c), (d), (e) and (g) would be that the facts stated were incomplete. 599 As to the State and Territories which still apply the common law the defence of comment as to imputation (h) fails. 600 If I am wrong in my view that imputation (d) is a statement of fact and it should be classified as comment, that defence should also fail at common law. As to imputation (d) the defendants again relied on the facts in the matter complained of and in particular those relied on to support imputation (h) (other than the NSWIS handbook). The defendants have not established the substantial truth of many of the facts on which the comment was based as previously stated. In Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 324 the High Court referred to the general common law rule that comment, to be fair, must be based on facts which are true. 601 At p 344 McHugh J, albeit in part a dissenting judgment, pointed out it is the subject matter, or substratum of fact which must be indicated or notorious, not the detailed facts which will support the comments. To the illustration of the public performance of a singer, actor or sports person, I would add the publication of a book or a musical composition or the showing of film. All these are regularly subject to critical reviews, some of which may be stringent. I do not understand the six majority justices to disagree. At 330 they remarked that there was a clear substratum of fact on which the publication was based, consisting of the statements made in Parliament and that was all that was required. 602 In Telnikoff v Matusevitch [1992] 2 AC 343 at 355 Lord Keith, after reviewing the judgments in the Court of Appeal and the decision of the Supreme Court of Canada in Cherneskey v Armadale Publishers Ltd (1978) 90 DLR (3d) 321, adopted this passage from Gatley, 8th Edn, para 792: "… the defendant who relies on a plea of fair comment does not have to show that the comment is an honest expression of his views. In alleging any unfairness the plaintiff takes on him or herself the onus, also taken by an allegation of malice, to prove that the criticism is unfair either from the language used or from some extraneous circumstance." 603 The approach of Lord Keith, with whom the other members of the House (except Lord Ackner who dissented on another point) agreed and which preferred the minority view in Chernesky of Dickson J, met with the approval of six Justices (at 329) in Pervan. 604 As the comment defence has failed at common law because the facts are not truly stated it is unnecessary to deal with the allegation of malice at this stage. Queensland and Western Australia 605 Section 14(1) of the Defamation Act 1889 (Qld) provides that it is lawful: "(b) to publish a fair comment respecting the public conduct of any person who takes part in public affairs, or respecting the character of any such person so far as the person's character appears in that conduct; (h) to publish a fair comment respecting any communication made to the public on any subject 606 Section 16(1) provides that it is a lawful excuse for the publication of defamatory matter: "(c) if the publication is made in good faith for the public good; … (h) if the publication is made in good faith in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit and if, so far as the defamatory matter consists of comment, the comment is fair.' 607 Section 16(2) provides: "For the purposes of this section, a publication is said to be made in good faith if the matter published is relevant to the matters, the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill-will to the person defamed or by any other motive, and does not believe the defamatory matter to be untrue." Under s 17 the burden of proof of the absence of good faith lies upon the party alleging such absence. 608 Section 16(1)(h) is expressed in the same terms as s 377(8) of the Queensland Criminal Code which was considered by the High Court in Pervan. Six justices of the High Court at 327 held that the correct approach to s 377(8) was that expressed by Sugerman JA in Rigby v Associated Newspapers Ltd (1966) 68 SR (NSW) at 425 when dealing with the NSW equivalent (s 17(h)): "It is true that at common law the defence of fair comment requires that the comment be upon facts truly stated, or notorious to the writer and those persons to whom the comment is published. But in my opinion it would be contrary to the tenor of s.17 to impose such a requirement upon it. In so far as s.17 concerns itself with the truth of defamatory matter it does so under its requirement of good faith. And what is there required is not that the defamatory matter shall be in fact true but that it shall not be believed to be untrue. It appears to me that that is the proper approach to the matter of fair comment under s.17 – not that it must necessarily be comment upon facts which are true but that it must be comment upon facts which at least are not believed to be untrue and whose statement as facts is therefore protected, subject to other requirements of 'good faith', by the section." 609 Section 17(h) of the Defamation Act 1958 (NSW) was in virtually the same terms as s 16(1)(h) of the Queensland Defamation Act 1889 and s 377(8) of the Queensland Criminal Code. In Cohen v Mirror Newspapers Limited (1965) 83 WN 369 at 373-374 Asprey J dealt with a plea based upon s 17(h) of the Defamation Act 1958 (NSW). Asprey J remarked that this was not a plea of fair comment but a plea of qualified protection. He held that the issue thereunder was not whether the facts upon which the comment was made were true or false, but be the facts true or false, whether the matter complained of was published for the purpose of the discussion of a subject of public interest, and whether the matter complained of, so far as it consisted of comment, was comment fairly made in the circumstances. 610 In Clines v Australian Consolidated Press Ltd (1966) 84 WN 86 the Court of Appeal considered s 17 of the Defamation Act 1958 (NSW). The Court held that that Act amended the common law and was not in all aspects declaratory of common law principles. Wallace P at 90 stated: "For example, par (h) of s 17 has never been recognised as an occasion of qualified privilege under the common law whilst the treatment of fair comment is a departure. The occasions of qualified privilege have not hitherto been regarded as immutably settled. They have varied to conform with changes in economic conditions and habits of thought." At 99 (lines 1 and 2) Wallace P pointed out that Parliament had in s 17 specifically stated and defined what was lawful excuse. Wallace P at 99-100 continued: "… falsity does not directly intrude into issues under s 17 although careless disregard of truth or falsity may conceivably indicate that the defendant was actuated by ill-will or by some other improper motive as Windeyer J pointed out in Uren's case (1960) 40 ALJR 142. On good faith, the direct reference is to non belief in the truth of the publication." 611 As to s 17(c) of the Defamation Act 1958 (NSW) which corresponds to s 16(1)(c) of the Defamation Act 1889 (Qld) Wallace P at 100 said: "… I find it difficult to envisage a situation where the publication of false defamatory statements of fact could be for the public good." 612 At 101 Wallace P stated: "But under par (h) [of s 17] of the code a defendant may (in the other relevant circumstances) publish a false defamatory statement of fact in the course of discussing a matter of public interest providing (inter alia) he does not believe the defamatory matter to be untrue. The qualification set out above which applies to this statement in relation to careless indifference to truth or falsity and to which Windeyer J referred must of course be kept in mind." 613 Section 17(h) of the Defamation Act 1958 (NSW) and s 16(1)(h) of the Defamation Act 1889 (Qld) raise the issue whether the program was "for the purposes of" a discussion. At 101 on this aspect Wallace P commented, "Relevant factors might include (a) whether it was a first or originating publication on this subject …; whether a discussion of any type in fact took place before or after the publication; or (c) whether the publication was a mere exposure." 614 The program was a first or originating publication. Consequent upon the publication the subject matter of the program was raised on various programs conducted by TCN 9, on radio and an article appeared in the Daily Telegraph. GH held a meeting with representatives of the media. GH consistently denied any improper conduct. It was reported that Australian Swimming had launched an investigation, a formal written complaint having been lodged by EF. That organisation took immediate steps to limit the role of GH pending the outcome of the investigation. GH occupied an important and high profile position within Australian Swimming. Once the written complaint was lodged and the program was screened there was bound to be considerable discussion and reactions from members of the public. The subject was of considerable public interest. 615 I have dealt at some length with s 17(h) and the NSW decisions on s 17(h) because of the similarity of language between that provision and 16(1)(h) of the Defamation Act 1889 (Qld). Some of the issues raised by Wallace P are similar to those which arise in relation to the Defamation Act 1889 (Qld) and the judge's comments are helpful. 616 The legislative provisions in Western Australia are in almost identical terms to those in Queensland – see s 355 of the Criminal Code (WA) and s 14 of the Defamation Act 1889 (Qld). The equivalent of s 16(1)(h) of the Queensland Act is s 357(8) of the Criminal Code (WA). Each of those provisions is expressed in virtually identical terms. Section 16(2) of the Queensland Act also has its virtually identical equivalent at the end of s 357 of the Criminal Code (WA). 617 In West Australian Newspapers Ltd v Bridge (1978-79) 141 CLR 535 the High Court held that s 357(8) was limited in its application to criminal proceedings and did not provide a defence in civil proceedings for defamation. At 549 Barwick CJ said, "The rights of parties in relation to defamation as a tortious cause of action are regulated in Western Australia by the common law." 618 On the other hand, as pointed out by Jacobs J at 544, ss 354-356 apply to civil proceedings. Different terminology was used in ss 355 and s 357 of the WA Criminal Code. Jacobs J undertook a detailed review of the provisions of the Queensland Criminal Code and the Defamation Act 1889 (Qld), but it is unnecessary to refer to it. 619 The result of all this is that in Western Australia, by virtue of s 355(2) and (8) of the WA Criminal Code the equivalent of s 14(1)(b) and (h) of the Queensland legislation apply, but not the equivalent of s 16(1)(h) of the Queensland Defamation Act, 1889. 620 The statutes of Queensland and Western Australia provide that if the comment is defamatory and not fair, its publication is unlawful, and that whether a comment is fair is a question of fact. Thus the legislation does no more than set out heads of public interest which may be the subject of fair comment. The question "whether the matter complained of constitutes an expression of opinion and if so, whether the comment is fair" are left to be determined according to common law principles. Tobin & Sexton, Australian Defamation Law and Practice notes, p 8590, that the common law defence of fair comment is available in Western Australia in addition to the statutory defence. 621 In the Northern Territory s 6A of the Defamation Act (NT) provides that fair comment shall be privileged if it is published in respect of some six listed matters. Section 6A(b) is in virtually the same terms as s 14(1)(b) of the Queensland Act, but s 6A does not include the equivalent of s 14(1)(h) of the Queensland Act. As Tobin and Sexton note at p 8600, it should not be assumed that s 6A is an exhaustive list of matters of public interest upon which comment may be made. The Northern Territory Act does not contain the final words of the Code sections that if the comment is not fair and is defamatory, its publication is unlawful. 622 In Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225, Hunt J, after considering the legislative provisions in Queensland, Tasmania and Western Australia and a number of authorities concluded at 233E: "… both in principle and pursuant to authority, that malice does not provide a conclusive answer to the defences of statutory fair comment enacted by the codes of the States of Queensland, Tasmania and Western Australia." 623 After examining the Northern Territory Act and its history, Hunt J construed s 6A as granting an absolute privilege and consequently held that malice similarly could not amount to a conclusive answer to the defence it provides (at p234D). 624 Hunt J, after referring to the objective test at common law of fair comment, pointed out that a plaintiff will succeed if the tribunal of fact is satisfied that "notwithstanding a proper answer to the objective test, the comment published by the defendant was not in fact the commentator's real opinion … or it was distorted by malice in the sense that the malice had warped his judgment" (citations omitted). Hunt J held that all of these common law concepts should also apply to the defence of statutory fair comment. 625 Hunt J further held: "Notwithstanding the obiter dicta expressed by Sugerman JA … to the contrary in Uren … I am satisfied that both at common law and in relation to the defence of statutory fair comment, the plaintiff bears the onus of establishing that the comment is unfair." At p 237 Hunt J concluded: "I conclude that the concepts and principles of the common law do apply to the defence of statutory fair comment provided by the Codes, so that, although proof of malice or absence of good faith in the publication of the comment is not a conclusive answer to that defence, malice is nevertheless relevant (once more leaving to one side any question of onus of proof) as one of the elements to be considered and weighed in determining whether the comment was or was not in fact the commentator's real opinion and whether it has been distorted in the sense that the malice warped his judgment." He also held that malice cannot be a conclusive answer to common law fair comment. 626 GH submitted that in Queensland, Western Australia and the Northern Territory common law principles apply to determine whether matter is "comment" and whether it is based upon proper material for comment which is set out, or adequately referred to in the matter complained of. GH contended that generally speaking the legislation (NT), Codes (Queensland and Western Australia) list matters of public interest for the purpose of the defence. 627 The defendants submitted that in Queensland the matter complained of is defensible as comment under s 14(1)(b) and (h) and s 16(1) of the Defamation Act and that GH has not established a lack of good faith in defeasance. The defendants also contended that in Western Australia the matters complained of were defensible under s 355(2) and (8) of that State's Criminal Code. They acknowledged that there was no equivalent to the s 16(1)(h) Queensland defence under the Western Australian statute. The defendants relied on their submissions as to the relevant evidence in dealing with common law fair comment; these have been summarised earlier. 628 The facts were not truly stated in the program and in some instances the errors should have been picked up by the defendants. The statutory defences of fair comment or involving fair comment in Western Australia, Queensland and the Northern Territory fail having regard to the findings I have made in these reasons and in light of the principles discussed. As mentioned, the common law defences of fair comment fail. New South Wales 629 In view of my factual findings s 30(3)(b) of the Defamation Act 1974 is significant. Relevantly it provides: "(3) The defences under this Division are available as to any comment if, but only if: (b) the material on which the comment is based is to some extent proper material for comment which might reasonably be based on that material to the extent to which it is proper material for comment." 630 In Sims v Wran (1984) 1 NSWLR 317 at 324-325 Hunt J held that s 30(3) permits the tribunal of fact to hold that in so far as it is satisfied that the truth or existence of all the factual material has not been established, the statement is nevertheless a comment if the opinion which has been expressed is one which might reasonably be based on the factual material which has been established to be true or to exist. At 325 Hunt J continued: "The introduction of the concept of reasonableness in lieu of that of honesty as the test to determine whether a particular statement is a comment places a far greater burden upon the defendant in establishing his defence. That greater burden was no doubt intended by the legislature to offset the advantage which the statutory variant gives to the defendant by permitting the continued availability of the defence of comment notwithstanding the defendant's failure to establish the truth or the existence of the whole of the material upon which his comment was based. 631 In order to answer the question whether the opinion expressed is one, which might reasonably be based upon the factual material, which has been established to be true or to exist, I should state what facts referred to in the program have been established to be true or to exist. 632 As to breaststroke instruction, the application of Vaseline, kissing and gifts, these activities occurred but not inappropriately. The Thredbo video incidents at the end of camp social at Thredbo and recorded by video have been blown out of all proportion. That was youthful horseplay and caused no harm. The circumstances as to the bathroom door handle and the hole have been explained and nothing can be laid at the door of GH over that. 633 There was a confrontation between Mrs Hodge and EF in which Mrs Hodge ordered EF to leave and referred to EF as the "other woman" in her husband's life. Mrs Hodge asserted that she was always second to EF and that GH was putting EF first before Mrs Hodge. Mrs Hodge did send a fulsome apology to Mr and Mrs Fuller and EF. Mrs Hodge sought that EF may forgive her. 634 There were quite a number of telephone calls from GH to EF in 1997; he did visit Mudgee (Gulgong) in the course of a country trip and speak to EF's parents and EF. He either delivered or posted the Savage Gardens CD to EF and wrote his letter of late July to her at school. 635 In February 1997 EF was treated for depression. She received some counselling, albeit reluctantly. Because of the worries that EF may be suicidal and her security was important the depression could be treated as severe. 636 In 2003 GH sent EF emails (28 April and 11 July) and he did follow her on 30 April 2003 and 15 August 2003, but it has not been established that was because of sexual obsession with, or sexual attraction to her or for his sexual gratification. GH wanted to be in contact with EF, but the purpose of that contact has not been established. 637 The statement at lines 24-25, "Today the police served him with an interim apprehended violence order following a formal complaint by EF" was wrong. No such order had been made. I bear in mind that the jury found that while the program conveyed that GH was the subject of an interim apprehended violence order, this was not defamatory of GH. 638 Later in the program (lines 576-592) there is a reference to EF commencing legal proceedings to secure an interim apprehended violence order preventing GH from contacting or being within 50 metres from her and that in a sworn statement EF had sought protection against any harassment or intimidation. A document was held up which was said to detail more than 50 incidents. These statements were sufficiently (if not entirely) accurate to be regarded as substantially true, taking a broad view the words used. 639 With this television program the ordinary reasonable listener and viewer could not be expected to, and would not recall exactly what had been said earlier. That listener and viewer would probably have at least gained the impression from the program overall that there may be substance in EF's complaints, but that the matter had to be finally resolved. I doubt if the ordinary reasonable listener and viewer would have recalled the earlier comment with sufficient accuracy to realise that the latter statement corrected the earlier one. That was not stated. 640 It is not easy to see how the first statement at lines 24-25 was made when some minutes later a statement was made which accorded more closely with the correct position. 641 Lines 158-170 of the program create the wrong impression as to how EF came to live in the Hodges' home. They are incomplete. 642 The reference to the 1997 NSWIS handbook and the contents are accurate. It has not been established that EF saw GH naked on a number of occasions, nor that GH would leave the bedroom door open when he came out of the shower. 643 The statement that GH drove five hours to Mudgee to try and see EF is inaccurate and incomplete. GH did give a CD containing the song Truly Madly Deeply and wrote to EF saying this was the way he felt about her. Mr P Fuller, EF"s father, did go to the Hodges house on 16 August 2003 and tell GH to leave his daughter alone or he would do something about it. 644 EF had an interview with Mr G Tasker, Chief Executive Officer, Australian Swimming and she submitted a formal complaint in writing after that. 645 The defendants did not establish that GH discussed with EF his sexual relations with his wife. EF withdrew the statement that she read, at the behest of the defendants' operatives, that several times GH walked naked about the house in her full view (lines 590-591) and modified her allegation in the program about the remarks made by GH as to the fitting of tampons. 646 While Mrs Hodge was much distressed by her belief that GH was putting swimming and EF before her, it does not follow that this was due to any sexual obsession with or sexual attraction to EF on the part of GH. GH was devoted to swimming coaching and was excited by what he regarded as her potential and his opportunity to coach a pupil who could become a champion. He wanted to be with her on that journey and when she attained champion status. GH also much enjoyed her company and responded to her personality traits, especially her fun attitude. 647 By 2003 there was no longer the prospect of EF being a swimming champion, but GH wanted to maintain contact with her but EF did not want to maintain contact with him. I doubt if GH fully appreciated the effect which his wife ordering EF to leave the Hodges' home had upon EF's attitude and response to him. While in earlier years GH and EF spent a great deal of time and effort in developing EF's swimming and they had a common interest, this had gone by 2003. His true purpose in wanting to renew contact with her is not clear. While it may have been sexual, this is one of several possible purposes. 648 The sending by GH to EF at school of his letter of late July 1997 establishes that GH misconducted himself in his sexual attentions towards EF. That letter has sexual overtones and contains a sexual message but it was not followed up by GH in 1997. Mr Fuller asked, or told, GH not to contact EF and for over five years six months GH did not do so. EF renewed contact with Jodi Hodge with whom EF appeared to enjoy good relations, and they exchanged email addresses. By the time GH sent the "big catch up" email in April 2003, EF was 20 years of age. The emails by GH about 28 April 2003 and 11 July 2003 indicate a desire of GH to be in contact with EF. 649 While GH's letter of late July 1997 to EF should not have been sent, can the opinion reasonably be held six years later in October 2003, having regard to the terms of the letter and the subsequent circumstances, that GH had so misconducted himself in his sexual attentions towards EF that he was unfit to hold his position in charge of Australian Olympic swimmers. This is a difficult and troubling question which I would answer in the affirmative. A reasonable parent of a female swimmer could reasonably take strong exception to such a letter being sent to his or her daughter, whether a member or former member of an elite swimming squad. (The ordinary reasonable person could reasonably take a similar view). Such parent could also reasonably take strong exception to the sending of the emails of 28 April 2003 and 11 July 2003. Based on the letter of late July 1997 alone, and even more so if the emails of 28 April 2003 and 11 July 2003 are taken into account, the opinion could reasonably be held that GH was unfit to hold his position in charge of Australian Olympic swimmers. If the impermissible following is taken into account that opinion could be held even more strongly. The test is an objective one and the answer does not depend on my personal view. Others may take the view that the impermissible following by GH evinced sexual attraction to EF. The Attack on the Comment Defence 650 GH submitted that the only part of the program conveying the comment represented by imputation (h) is in lines 45-47, being that of Veronica Byrne: "He's a creep. He shouldn't be able to do that (to) people. He's supposed to be leading our elite sports people. What's he doing? Why's he hurting her?" 651 The defendants did not rely on these lines. They submitted that imputation (h) derived in part from the references to GH's position, for example, lines 24, 53 and 415 (high performance director of Australian Swimming in charge of Australian Olympic swimmers) the reference to the NSWIS handbook and lines 611-617: "Reporter: Now Greg Hodge is very senior in Australian Swimming, you could ruin this man's career. EF: What he's done is wrong and I mean, a lot of stuff for me has been ruined so I don't really mind." 652 The defendants accepted that reference to unfitness in imputation (h) does not appear in the program, but arose from the matters stated in the program, especially the matters referred to in the previous paragraph. The defendants reasserted that the imputation was clearly comment and could not be construed as a statement of fact. In Greek Herald Pty Limited v Nikolopoulos, supra at 172, Mason P noted that the imputation, which is a statement extrapolated from the matter complained of, will often be implicit in the text. If all the facts in the program had been substantially true there would be a considerable volume of material to support the imputation. In my opinion there is sufficient substantially true material in the program to enable imputation (h) to be implied. In addition to the matters specifically identified by the defendants the program sets out some of the lyrics from the song Truly Madly Deeply and contains the statements of EF that [GH] wrote to her saying that this was the way he felt about her and that GH was saying that he loved her and wanted to be her and had to be with her (lines 348-349). The program also sets out the terms of the email of 28 April 2003 from GH by filming it and repeating its terms (lines 401-406 and 436-440). The program refers to the following on 30 April 2003 and 15 August 2003 (described as "a few weeks ago"). 653 GH pointed out that the defence of comment of a stranger will be defeated if the defendants did not publish the matter in good faith for public information. The other leg of s 34 of publication for public education is inapplicable. 654 GH submitted that as a contextual imputation can only be a statement of fact and never an expression of opinion and the defendants have pleaded a contextual imputation practically identical to GH's imputation (h) and asserted it to be a true statement of fact, they had placed themselves in a quasi estoppel that prevents them from arguing that imputation (h) is a comment. I do not agree that the defendants are estopped from arguing that imputation (h) is a comment. That is its correct characterisation. Regard must be had to the combined effect of the contextual imputations. There is a significant difference between contextual imputation F and GH's imputation (h), the latter referring to GH's sexual attentions towards EF and the former not doing so, using the clause "so misconducted himself". I have earlier taken the view that contextual imputation E is virtually the equivalent of a combination of GH's imputations (e) and (h), the differences being minimal. 655 GH submitted that if the Court held that imputation (h) was an expression of opinion the defendants, although required to do so by the rules of Court, did not particularise the name of any alleged commentator/s in their defence. GH submitted that during the hearing the defendants opportunistically made passing reference to each person appearing in the program as potential authors of the comment: Amanda Patterson, Ray Martin, Veronica Byrne, each member of the Fuller family and Bob Montgomery, and so on. GH submitted that the defendants sought to keep all options open in the hope that the Court may do their work for them 656 The former Supreme Court Rules applied to the pleadings in this matter. Under Part 67 r 17(2)(c) the defendants were required to allege that the comment was that of the defendants or the comment was that of a servant or agent of the defendants or that the matter was not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendants or of any servant or agent of the defendants. 657 Part 67 r 17(5) provides "Where a defendant relies on a defence under s 33 of the Defamation Act 1974 (which section relates to comment of a servant or agent of the defendant), the particulars required by Pt 16 r 1 shall include particulars identifying the servant or agent of the defendant whose comment it is alleged to be." The Rules do not require the stranger to be identified. This is probably due to the terms of the defence provided by s 34. In Sims v Wran 1984 1 NSWLR 317 at 326, Hunt J explained that the purpose of the particulars required under Pt 67 r 17 was to enable the plaintiff with his reply pursuant to s 33(2) of the Defamation Act to give particulars of the facts and matters upon which he relies to establish that at the time when the comment was made, the servant or agent did not have the opinion represented by the comment as required by Pt 67, r 19(1)(d). 658 In para 14 of the Amended Defence, the defendants pleaded that imputations (d), (e) and (h) amounted to comment and that comment was the comment of the defendants or alternatively of their servants or agents and further and/or in the alternative the comment was not, and did not, purport to be the comment of the defendants or of any servant or agent of the defendants. (I have earlier recorded that the defendants withdrew the contention that imputation (e) was comment). 659 The defendants did not in their defence under s 33 of the Defamation Act 1974 include particulars identifying the servant or agent whose comment it was alleged to be. That is somewhat difficult, when the imputation is implicit and arises from the text. 660 In NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340, Priestley JA at 343-344 discussed whether the defence of comment should be directed to the imputations relied on by the plaintiff or to the published matter by which they are made. After referring to the cases in which divergent views had been expressed, Priestley JA at 344, having referred to the Privy Council's decision in Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 said: "… their Lordships held that the comment a defendant relies on in the defence of comment is 'that which is embodied in the imputations pleaded by the plaintiff:' see at 735. They also held that the comment alleged by the defendant as a defence must necessarily be one that 'conveys such of the defamatory imputations pleaded as the jury finds to be established." (Also at 735) 661 Priestley JA explained what Clarke JA meant in the earlier case of Radio 2UE Pty Ltd v Parker. 662 Meagher JA at 349 regarded the decision of the Privy Council in Lloyd as settling the matter. Meagher JA regarded the NSW Court of Appeal as adding confusion in Radio 2UE v Parker by both paying lip service to the Privy Council and expressing views inconsistent with it. Meagher JA felt that, in any event, the problem did not arise in Perkins. The defence of comment had to fail in any event. Meagher JA remarked: "If an imputation is in substantially similar form to the actual publication it clearly does not matter (in the real world) to which of the two the defence of comment is pleaded." 663 In the present case imputation (h) arose by necessary implication from the terms of the program. It was one of the conclusions to be drawn and an opinion formed. 664 GH submitted that the comment (if such it be) is of GH's unfitness to lead the Olympic Swimming team by reason of his sexual attentions to EF then to attribute that opinion to any person, the Court must be able to attribute to that person words conveying the imputation. I do not agree with that approach. There is no good reason why such a comment may not be the product of the opinions of a number of people and represent in summary the totality of their opinions and statements or be implicit in the text and arise out of it. That is the position in the present case. 665 The defendants submitted that in respect of both imputations (d) and (h) to a large extent they relied upon the comment of strangers. These submissions were in part based on the Court finding in respect of all States that the imputations were based on facts truly stated, but I have not so found. 666 The defendants further submitted that insofar as the imputations derived from expressions of opinion by Ms Patterson, the evidence established that these were also honestly held. Ms Patterson was a servant or agent of the defendants. Under s 32 of the Defamation Act 1974 (NSW) GH has to show that Ms Patterson did not have the opinion represented by the comment. GH has not done so. 667 It is necessary to return to what has earlier been held to be proper material for comment and sufficient to support imputation (h). In approaching sections 32, 33 and 34 of the Defamation Act 1974 it is necessary to allow for the case where the proper material for comment is in part or mainly documentary and even more so when the document, or documents respectively, is that or are those, of the plaintiff or his or her agents. 668 It is apparent from the terms of the program that Ms Patterson held the opinion that GH, because of his sexual attentions towards EF, was unfit to hold his position in charge of Australian Olympic swimmers. The contrary has not been proved. Despite the mistakes it has not been shown that Ms Patterson did not hold that opinion honestly. From the program it is also apparent that EF and Mrs Veronica Byrne held the same opinion. 669 GH submitted that the defendants did not publish the statement of Mrs Byrne in good faith for public information. 670 GH pointed out that the catalyst that induced the defendants to compile and publish the program was the email of 16 August 2003 of Veronica Byrne to TCN9 A Current Affair. The email reads: " SUBJECT: STORIES IDEAS: Harassment 1. Comment about: a young lady with whom I am currently associated, is being stalked by the Head Manager of the Australian Swimming team, Mr Greg Hodge. The young lady was a promising swimmer being coached by Hodge until his unhealthy obsession with her finished her career. The young lady nor her family want no money from him, nor do they want to harm his family. They just want peace and Hodge out of their lives. He had been causing her terror for seven years. She has been to the police and local court, seeking an AVO, but police will not intervene until he breaks the law or physically harms her. The only place left to turn, seems to be the media. If rumour and innuendo can get him out of her life then so be it. Can you help?" 671 GH stressed the penultimate sentence. He complained that the defendants had not investigated the allegation that he had been causing EF terror for seven years and that she had been to the police and Local Court, seeking an AVO, but the police would not intervene until GH broke the law or physically harmed her. 672 This email was sent about 9.23am on the day after GH had been in St Andrews Place and had followed EF. Feelings were running strongly. Mr Fuller drove down from Gulgong to Sydney and it was known that he was coming. The main theme of the email is that EF and her family just wanted peace and GH out of their lives. 673 GH submitted that the defendants' own dealings with VB can only have demonstrated to them that VB harboured extraordinary malice towards GH. 674 GH relied heavily on the interview between Mrs Byrne and Ms Patterson. That interview reveals that Mrs Byrne believed that GH should be publicly shamed because of the way he had behaved towards EF. Mrs Byrne stated that she did not know whether she had done the right thing taking things into her hands. She had done so because her son Craig was close to EF and she was worried that her son would try and take matters into his own hands. Mrs Byrne said that basically she got extremely angry, particularly after the episode on 15 August 2003. She described GH as being sick. She said that GH had no right to frighten people as he had done EF, interfere in their lives, keep harassing them, stalking them, following them home. Mrs Byrne said that EF was frightened, becomes very emotional, has to take time off work and becomes a nervous wreck. Mrs Byrne said that she was so angry because EF was a young girl and had already lost something precious to her, that is, the opportunity to pursue an elite swimming career. Mrs Byrne said that when she heard the sort of things GH did to EF as a child it made her feel sick. Mrs Byrne said she believed EF. She thought that EF had no reason to make up a story. She had everything to lose and nothing to gain. Mrs Byrne felt GH had to be obsessed with EF. She was very angry when Craig told her, on the afternoon of 15 August 2003, of the events which had happened earlier. 675 Mrs Byrne recounted to Ms Patterson that the police sent EF to the Chamber Magistrate, that Craig went with her and that the Chamber Magistrate virtually just laughed them off. Mrs Byrne complained that it was not fair that you had to wait until someone was hurt or injured or totally suicidal or depressed before something was done. 676 Mrs Byrne's stated fears were that if GH was not stopped he would do the same thing (as he had done to EF) with other people or that EF would be hurt or she would hurt herself or someone close to her would get hurt. 677 Mrs Byrne told Ms Patterson that she was concerned that GH could harm EF psychologically. Mrs Byrne said that she did not think much of GH. In his position he had so many young people to look after; he did not look after EF. She did not think he was the upstanding citizen Australian Sport thought he was. Mrs Byrne wanted GH to leave EF and all other young people alone. She wanted GH held accountable and said that if he were near her she would have difficulty restraining herself. She manifested a strong desire to get rid of GH. 678 Mrs Byrne expressed herself in coarse and degrading language, quite frequently and especially when speaking of GH. She had an intense dislike of what she believed were his activities and consequently of him. She believed that his position at Australian Swimming should be taken off him. She was very critical of him sending the email of 11 July 2003. 679 Mrs Byrne had strong and hostile thoughts and feelings against GH; these appear to have been based on what she believed he had done. She regarded GH as a manipulator of young people and hurting them. Ms Patterson and those at TCN9 should have been aware of Mrs Byrne's hostility towards GH; it appeared to be based on Mrs Byrne's beliefs and assertions as to GH's conduct. It was plain that Mrs Byrne wanted to get rid of GH and ensure that he left EF and other young people alone. She believed that he should not retain his senior position at Australian Swimming. 680 The evident depth of Mrs Byrne's hostility and the coarseness and extreme manner in which it was expressed should have made the defendants wary of what she said. However, the view was open that she was extremely angry because of her convictions and assertions as to what GH had done and that this had to be taken into account. 681 While reference has been made at some length to the terms of the interview between Ms Patterson and Mrs Byrne and what the latter said, this was preparatory work on behalf of TCN9. Three items appeared in the program: (a) at lines 44-47 Mrs Byrne is recorded as saying "He's a creep. He shouldn't be able to do that [to] people. He's supposed to be heading our elite sports people. What's he doing, why's he hurting her." (This was taken from various parts of her interview) (b) at lines 545-548 Mrs Byrne is recorded as saying: "What's the man doing? Why does he need to see her? He has no part or involvement in her life anymore, why can't he be stopped." (c) at lines 552-554 there is a reference to Mrs Byrne contacting Swimming Australia after EF had twice been to police with complaints of GH following her home from work. 682 TCN9 has not broadcast Mrs Byrne's graphically expressed views and unseemly language. It has been cautious about using the material provided by her. 683 The first part of the first remark attributed to Mrs Byrne was made by her when being interviewed by Ms Patterson with particular reference to what occurred on 15 August 2003. While that fact does not appear in the program the incident on that day is covered at lines 461-495 of the program. The second part of the first remark is a reflection on his senior position at Australian Swimming and what seems to be inappropriate conduct. The second remark consists of a statement that he has no part in EF's life any more and some questions as to why he persists in wanting to see EF and cannot be stopped. These are natural questions having regard to GH's behaviour in 2003. 684 It is necessary to focus on what was published and not to attach too much weight to unpublished material. In the end the defendants have exercised judgment in what they published and in not publishing most of what Mrs Byrne had to say. 685 GH complained that the defendants were aware that it was VB not EF who brought the proposal to them to expose GH. GH further complained that notwithstanding the defendants' knowledge of this and the terms of her interview with Ms Patterson, they used VB's house as a location for filming, used some of her remarks, and flew her to Mudgee/Gulgong with EF to assist in the making of the program. She was also present in TCN's studios during further filming work. Mrs Byrne's interest and intervention arose from her son's close involvement with EF and that both EF and he were affected by what was happening. 686 GH relied heavily on the rule in Jones v Dunkel, contending that there were two witnesses of the greatest importance as to the motives of the defendants and the nature of the enquiries they made as to the truth of the imputations they proposed to publish against GH. He submitted that the inference should be drawn that neither was called because any evidence they could give would not have supported the defendants' case. 687 GH relied on Ms Patterson stating at the conclusion of her interview with Mrs Byrne "…you can have some psychopath like this … ", Ms Patterson's opening remark of getting that anger back and being strong and her request to Mrs Byrne to give something sharper than saying to GH, "leave Emma alone. Go away." It was also submitted that Ms Patterson in the interview sought to have VB say that GH deserved public exposure; she (Ms Patterson) demonstrated her awareness that GH would – if given the opportunity – have told the defendants that the allegations were false; she demonstrated her awareness that the police had said there was nothing in the allegations made to them by EF that warranted their intervention and she put words such as "obsessed" in VB's mouth. 688 From the text of the interview it appears that Ms Patterson sought to find out why Mrs Byrne wanted GH publicly shamed. The idea of GH being a psychopath first arose when Mrs Byrne was recounting the text message her son sent her on 15 August 2003, "Mum that psycho just followed EM home again." Ms Patterson raised the idea of GH being obsessed. Mrs Byrne agreed. Mrs Byrne comes across as a forceful woman who knew her own mind. Ms Patterson demonstrated that she was aware that some people would not believe the allegations being made against GH. She also demonstrated that she anticipated that GH would say that EF was making it up. GH did deny when confronted by Ms Patterson, that he had been following EF or sitting outside her work (lines 498-519 of program). Ms Patterson demonstrated that she was aware the police thought that they should not act and referred her to the Chamber Magistrate. 689 GH submitted that VB had admitted, in parts of the interview not included in the program, that she had taken things into her hands, that she had instigated the investigation (and the program) and that she had interfered. That is so. 690 While the defendants utilised the services of Mrs Byrne in making the program, they spoke with EF, EF's boyfriend Craig, and Mr and Mrs Fuller, Mr David Ward and Bob Montgomery, the psychologist. They also had regard to the documentary material including the NSWIS handbook, part of the text of Truly, Madly, Deeply and EF's summary of part of the letter GH wrote her, the emails and the letter written by Mrs Hodge. The defendants exercised their own judgment as to what should be in the program. They included very little of what Mrs Byrne had said. The defendants omitted remarks made by and to Ms Patterson in interviews conducted with the various people with whom she spoke. It is one thing to collect material and encourage those being interviewed to speak strongly. It is quite another matter to include it in the program. I would not assume that the reporter (Ms Patterson) controls what appears in the program. 691 A lack of good faith on the part of the defendants should not be attributed to them because they utilised the services of Mrs Byrne. There are other aspects to be considered on the issue of lack of good faith – see, especially s 34(2) of the Defamation Act 1974. Deletion of allegedly favourable answers 692 GH relied on the program not including answers that tended to favour him or dilute the seriousness of the allegation being made. I set out some examples: Statements by EF: (a) "He was fine at first – he always seemed a bit overwhelming." (b) Oh, he was very like, involved with everyone, like a lot." (c) In response to the question, how he treated her in the beginning she stated: "Just like any other normal swimmer that was there and then I moved in with him later on so … " (d) "I didn't really want to (live with the Hodges) 'cause I'd have to wear that at school." (e) "… and if I ever did anything it was always with them …" (f) "… it was very disciplined." (g) In response to the question, did he take advantage of you, she stated: "… I didn't know then because I thought it was normal, like he was looking after me." And a little later: "… because he was my guardian, my swimming coach and my maths teacher so it didn't seem odd for him to have all that contact with me, that he had." (h) When asked if he kissed her, she replied: "… like not on my mouth." (i) In stating that GH was always touching their costumes and that he'd even flick them into their bottoms she added the word "sometimes" at the end. (j) When asked if GH touched her on the breast, EF replied "No". She commented "if you had like swimmers always get marks there [near the breast]. (k) "He'd just like put it [Vaseline] there [the side of or near the breast] from where like the mark was, the cut." (l) In response to the question, Did you ever ask him to stop?" she replied: "No." (m) After stating that GH did not walk down the hallway naked and that he just left his bedroom door open and was in that room EF said: "… I don't know if he was deliberately or what." (n) As to the tissues she placed in the hole in the bathroom door she said: "They were in there when I hopped out of the shower" (o) In response to the question "And he talked to you about his sex life, she replied: "Not so much like his personal sex life, but sex in general he spoke to me about a lot. Yes." (p) As to the purchase and fitting of tampons and GH being outside the bathroom door she said: "… he waited there and was saying "is everything ok?" (q) When asked why she stayed, she replied: "I was there for swimming and I didn't really think anything was wrong." (r) On being asked if she realised GH was abusing her at the time, she replied: "No … we used to argue a lot in ways because I was very disobedient because I was wondering why he'd want to have so much control over me, so I used to like backchat a lot to him cause I never understand why I just thought … I don't know." (s) When asked what she said by way of protesting against what GH was doing, EF replied: "I could never really say anything though because he did things in a way that it didn't seem wrong to anybody else or it shouldn't seem wrong to me because he had so much con … (? control) he was in every aspect of my life so I thought I never really wanted to question it." (t) When asked what effect GH had on her, EF initially paused and did not answer. This was followed by the questioner (Ms Patterson) asking EF whether she got nervous. EF said she got nervous a lot and found it hard to trust people and she had a lot of anger in her. On being asked in what way it affected her relations, EF replied: "I think that people are always trying to control me when they're not and I'll argue a lot with them and be upset and over-emotional because of it." (u) As to the effect of being kicked out of the Hodges' house EF said: "… one minute I was having a normal life, just doing what a normal 12 year old kid would do, go to school, see your friends and that was all taken away from me and my mum came and got me and took me away." "No, I didn't want to go [go back to Mudgee] … like I didn't want to leave everything I had, because I didn't think I should because I'd done nothing wrong." "Um, I was in a mess, cause I didn't know why I had to go back there [Mudgee]. (v) EF, on being asked if when she was kicked out of GH's home she missed him, replied: "In a sense yes, because I felt like I'd done something wrong and it was like so weird that I felt I should be with him." "… I didn't feel like his girl friend …" (w) EF said that on GH's visit to Gulgong he brought costumes and tracksuits etc of the Australian Swimming Team and continued: "… and give them to me and say to my dad that I had all this potential and that I could be there soon." (x) EF referred to being sent a letter by GH with a CD in it and said: "Yeah and that's when me and my mother and father told him that he had to stop contacting me that it had just gone too far." (y) As to the jewellery GH gave her, EF said: "Well, Because I lived there, I just thought … he was just being like my guardian, looking after me, buying me things like treating, I think the way he sees it, I was like his daughter but I'm sure he didn't treat his daughters like this, cause my father doesn't do that to me." (z) When asked if she would have done anything for him she replied: "Um no, I wouldn't have done anything for him." (aa) In response to whether GH told her she was going to be a swimming superstar, EF replied: "Yeah, all the time … Yeah I think he used that a lot with my dad and a lot with me too because I loved swimming so much and wanted to be so good that he just kept saying you will be, you will be that I kept doing it." I do not regard all these answers as favourable to GH, nor did the substance of all these answers need to be included in the program. There were some matters which should have been included in the program, for example: (a) if she ever did anything it was with the Hodge family and that as he was her guardian, swimming coach and maths teacher, it did not seem odd to EF to have such extensive contact with GH. (b) When he kissed her it was not on the mouth, his hugs and kisses at swimming were congratulatory (and, on occasions, consoling) and his kisses at home were goodnights/greetings. (c) the Vaseline was put in the places where EF was suffering or likely to suffer chafing; he did not touch her on the breasts but near the breasts where the chafe marks or cuts were. She did not ask him to stop. (d) The tissues she put in the hole in the bathroom door were still there when she completed her shower. (e) When he was allegedly naked in his bedroom with the door open she did not know whether that was deliberate. (f) When he talked to EF about sexual matters it was not so much about his personal sex life, but sex in general. Generally, he never touched her breasts or forced her to touch him. (g) She did not think anything was wrong. (h) She was disobedient and argued a lot as she objected to GH having so much control over her. She felt she could not say anything about GH's practices as they did not seem wrong to anybody else. I am not suggesting that these matters should have been included in the program in the form just outlined, I have not included the material as to massaging, as this is not covered in the program. 693 GH further complained that favourable answers were ignored by the defendants in editing the second EF interview tape. They needed to be seen in context. When so seen it was doubtful if they were favourable. They include: (a) In response to the question whether a grown man had any right to send a 13 year old a letter with feelings like that EF replied: "No not at all. Because I wouldn't even have understood what it meant. It just confused me." (b) When asked what she thought when she read the letter, EF replied: "I don't really know because I was so young, but it confused me and made me angry then and makes me more angry now." (c) EF said that she thought GH was saying that he loved her and wanted to be (with) her and had to be with her. EF confirmed that she had only just become a teenager and continued: "… I didn't understand that at all when he said that." (d) When asked what she thought when she listened to the song now EF replied that it made her upset, angry and disgusted that someone would send that to someone so young (words to this effect were on the program). EF continued: "knowing what it meant and me not knowing what it meant.": 694 As to giving her that song EF thought that he was trying to tell her that he loved her and wanted her to be with him in some way. 695 It is difficult after this lapse of time to be sure how much EF understood when she received the CD and the letter. The meaning of the letter could readily have been explained to EF. The description by EF's parents of her reaction to GH's letter indicate that it upset her. Such a reaction was to be expected. 696 In my opinion the words quoted from parts of the second interview when set in their context would not have assisted GH or his reputation. Their substance did not have to be included in the program. 697 It does not assist GH's reputation to say, in response to sending a letter evincing sexual attraction to a 14 year old girl, that she did not understand, or fully understand, all that was being conveyed. 698 GH was very critical of the interview conducted by Ms Patterson with EF, the statements Ms Patterson made and the leading nature of some of her questions. 699 GH criticised Ms Patterson's initial statement that it was just so bizarre that GH contacted EF in the first place. In the context, in using the word bizarre Ms Patterson meant odd or strange, rather than grotesque as GH suggested. Given the prior history, it was an odd or strange step to take. This was not an objectionable remark. 700 GH also criticised Ms Patterson for asking if at first GH scared EF. EF replied in the negative. Ms Patterson's question had followed a statement by EF that GH always seemed a bit overwhelming. 701 Ms Patterson's question as to when GH changed from treating EF like a normal swimmer followed on from prior remarks made by EF. It was not objectionable. Ms Patterson's question whether EF was clearly GH's favourite followed on from EF's statement that when she moved in with him (the Hodge family) he changed from treating her like a normal swimmer. Ms Patterson was trying to uncover the nature of the relationship between GH and EF. 702 Ms Patterson's question as to "how did [GH] sell it (living in the Hodges' house) to your parents is leading in that it assumes that GH attempted to and did sell living in the Hodges' home. The correct facts were somewhat different. EF seemed to agree with Ms Patterson's assumption. 703 EF accepted Ms Patterson's suggestion that GH said she would be more focused on her swimming, that EF would have more discipline there because GH could monitor her training and her schooling. That response was included in the program. The leading question probably contributed to an incorrect and incomplete factual position being stated. 704 Ms Patterson posed the question whether EF thought it was strange that one of her teachers was inviting her into his home. EF adopted that suggestion. 705 After EF had stated that it was very disciplined in the Hodges' house, Ms Patterson asked if GH was controlling, to which EF replied, "Yeah, Very". Ms Patterson followed with the question, "Did he like become the boss of you so to speak?" EF replied, "Yeah". EF told Ms Patterson of the attention she received from GH at school and that while all the other children went back to school by bus, she would always be with him in his car. Ms Patterson asked, "Was it uncomfortable?" EF replied, "Yeah". 706 When EF seemed to have some difficulty with the questions and remarked that it was hard to say "he did this and did that" Ms Patterson asked, "did he take advantage of you?" She also asked, "Why was it so easy for him to take advantage of you?" EF replied, "Because he made it like that, because he was my guardian, my swimming coach and my school teacher …". Ms Patterson next asked, "Do you think he hid behind that?" EF replied, "Yep." 707 On the subject of kissing and touching, Ms Patterson asked EF "He kissed you?" EF replied "He used to, like not on my mouth, he just used to like, be very touchy, he'd touch the small or your back or … hit you on the arse, oh sorry. When we were all swimming he'd always be fixing our costumes around our bottom or our tops." GH complained of the editing out of the words "like not on my mouth" and the program extracting and only using the clause he'd always be fixing our costumes around the bottom. 708 GH complained that the program further edited out of EF's statement "He'd just come up and like fix your cossie strap if it was twisted or something." That statement was favourable to GH. 709 Ms Patterson pursued the matter, "Did he touch you any further? Did he touch you on the breast?" EF replied "No." EF continued "it was like close to, like you know he was always pulling there, or if you had like, swimmers always get marks there and he'd come up and pull it down and rub Vaseline there." GH complained of the editing out of "No." and the words "if you had like, swimmers always get marks there" so that the only words included in the program were those to the effect that GH pulled EF's costumes down (under the armpits) and rubbed Vaseline close to her breasts. 710 The interview was stopped by the defendants' operatives and they explained that what was needed was for EF to express the complaints in a whole self-explanatory sentence. Ms Patterson said she would ask the question about touching on the breast again and gave an example, "When we were in our togs, our swimming costumes, you know you get marks here, so he'd come along and put his hand inside our togs … Could you just explain that a little bit. I know what you mean but ---" 711 Ms Patterson said "so tell me how he would touch you when you were wearing your swimming costume. EF did not follow what was sought. Thereafter EF said that GH was always touching their costumes and that he'd even flick them into their bottoms. This was not what the defendants' operatives sought. They were interested in how GH touched EF on the side of her breasts with the Vaseline, re-directed EF's attention and re-instructed EF. Eventually EF said "because we'd get marks there from where we'd swim," [this was edited out] and continued "he would rub the Vaseline under our swimmers and would place our swimmers back where they were." 712 Ms Patterson was not confined to asking non leading questions. She was endeavouring to obtain information from EF, then aged 20, as to what had happened when EF was aged 12-14 and under the direction of GH. Ms Patterson asked leading questions, made suggestions and advised EF as to how she should answer questions. There were instances where EF rejected Ms Patterson's suggestions and did not answer questions in the terms suggested. EF exercised a degree of independence. The substance of GH's complaint was that Ms Patterson pushed matters too far and was over anxious to obtain answers that indicated conduct on the part of GH that was sexually wayward or questionable. 713 GH complained that the defendants had joined together in the program parts of various statements and answers made by EF during interviews by Ms Patterson. From the interviews it emerged that it was desired by Ms Patterson that EF should make substantive allegations. GH contended that the joining together of parts of EF's statements and answers created the misleading impression that EF had made comprehensive statements or allegations. GH also contended that in the "joining together" process omission of qualifications had occurred. 714 GH complained about the defendants joining together parts of various statements and answers of EF in the program at lines 139-149, namely that GH would always be fixing their costumes around their bottom, or even flick them into their bottom (the word sometimes at the end being omitted), that GH would also rub Vaseline near her breasts and that GH would pull down her costume and rub Vaseline there under their swimmers, then place their swimmers back the way they were. 715 Although EF was prompted, and apart from two omissions, this was substantially what she said during the course of her second interview with Ms Patterson. The deletion of the explanation for the application of Vaseline, that is, to prevent or deal with chafe marks and cuts is of arguable importance. The ordinary reasonable listener/viewer may well have appreciated the reason for the application of Vaseline. 716 The concluding passage at lines 152-155 of the program "Yeah I used to feel uncomfortable" is taken from the second interview. EF remarked that it wasn't necessary for GH to rub the Vaseline under their swimmers and then replace the swimmers and that a lot of people spoke about it. Ms Patterson next enquired "And anything else, with touching you?" EF replied, "if you did well he'd always come and give you a kiss on the cheek whether it be at training or he'd try and put his arms around you." (In the program the words "if you did well" and "whether it be at training" were deleted). 717 Ms Patterson asked "Did he kiss you a lot?" EF replied "At swimming events yeah." Ms Patterson next asked what about in general and referred to EF's earlier remark to Georgie (another TCN9 operative) that GH had kissed her (EF) all the time. EF said "…'cause I lived there I suppose he took advantage of that kissing me goodnight and hello." Ms Patterson again asked EF if GH kissed her a lot. EF replied "Yes" and said he kissed her "at home when I was going to bed, or after swimming events or even sometimes at training." 718 The program included selected parts of this conversation at lines 183-197, namely that GH would always come and give you a kiss on the cheek, try and put his arms around you, that GH kissed her a lot at home when she was going to bed or after swimming events or even sometimes at training.. The program then adds the statement of EF that GH used to give her presents. 719 Counsel criticised Ms Patterson for twice asking: "Did he kiss you a lot?" and referring to EF's remark that GH kissed her all the time. Ms Patterson appears to be following up EF's earlier remark to Georgie that GH kissed her all the time. 720 If the whole passage, from lines 183 –197 is taken the program conveys that GH kissed EF a lot, but when she was going to bed or after swimming events and sometimes at training. The effect of the program was that the extent of the kissing was excessive and more than EF wanted. 721 The reference in the program, immediately after the passage dealing with kissing, to GH giving EF presents and having the bracelet made for her with her own name on it heightens the impression of impropriety. 722 It seems that in the interview Ms Patterson was of the view that GH's kissing of EF had been excessive. Ms Patterson asked EF, "How else did he touch you inappropriately?" EF replied, "Just around my neck or he'd massage me at home sometimes." Ms Patterson pursued the subject of massaging with a number of questions. Twice she asked whether when GH was massaging her he touched her anywhere that she didn't want to be touched. When EF gave a negative answer Ms Patterson moved to another subject. She stated, "Now, he'd (GH) walk around naked sometimes. Tell me about that." EF's reply put the matter differently, that is, "I saw him on a number of occasions naked." Ms Patterson pursued this matter with EF in reply negativing that GH walked down the hallway without any clothes on; he'd just leave his bedroom door open and be in his room. After a break for clarification EF said that she did not know whether GH was deliberately doing that. After some discussion Ms Patterson said "So if you can say when he used to get changed he used to leave his bedroom doors open when he knew I was around and so I would see him naked," EF said, "That's exactly it but you say it a lot better." Ms Patterson asked EF to tell her that. EF said, "… he would leave the bedroom door open, where he knew I could see him, when he'd come out of the shower." The program included the words "... he would leave the bedroom door open … when he'd come out of the shower." It did not include the words "where he knew I could see him." It was a conclusion of EF, not an observation. Ms Patterson endeavoured to get EF to enlarge upon her seeing GH naked. 723 Having regard to EF's qualifications as to the circumstances in which she had seen GH naked it was wrong for the TCN operatives to have EF read out the statement, "Several times he walked naked about the house in my full view" (lines 590-591 of the program). They knew that that was incorrect. 724 GH complained that at lines 261-265 there was a combination of parts of answers from different parts of Ms Patterson's interview, namely, the hole in the bathroom door in lieu of the handle, EF shoving tissues in it when she had a shower, seeing him on a number of occasions naked and his leaving the bedroom door open. The combination of these extracts without their surrounding context creates an unfairly adverse impression of GH. That context included that when EF stuffed the hole with tissues they were still there when she finished in the bathroom and that she was unable to say whether GH deliberately failed to close the bedroom door when he came out of the shower and was dressing. One of EF's statements was to the effect that she sometimes forgot to stuff the hole with tissues prior to having her shower. She did not give evidence that on such occasions GH was prying. That is hardly likely when Mrs Hodge and Jodi Hodge were in the house. 725 During her interview with EF Ms Patterson said (p9) "Tell me how you had an alarm clock, but you didn't get to use it very often did you?" The detail in that question pre-supposes prior information from EF. EF replied, "No 'cause Greg, he was always waking me up. He'd be most nights he'd be in the room when I'd go to sleep and waking me up in the morning to go to training 'cause we left so early." The words "most nights …" to "in the morning" were in the program but the words "to go to training cause we left so early" were omitted. EF said "He'd just shake my legs, cause he had to climb up a ladder, cause I was sleeping in a loft, and he'd have to climb up that to wake me." These explanatory words were not included in the program. Ms Patterson then asked EF if she thought that was another excuse for GH to touch her. EF replied, "Yeah I think it was another excuse for him to get close to me." That question and reply were not included in the program. 726 GH complained both of the suggestive nature of Ms Patterson's questions and the editing out of the program of the explanation of waking EF to go to early morning training. EF explained that she used to say "I'm awake" before he climbed up the ladder. EF wondered why GH wanted to be so close to her. GH pointed out that in the program immediately before the reference to GH being in the room when EF went to sleep and waking her up, there appeared the statement by the reporter that GH even moved his home office into her bedroom. The last mentioned statement was factually incorrect. This statement does not seem to come from the taped interviews but it probably came from some material supplied by EF and contained in the brief prepared for Ms Patterson. This was accompanied by a film of male hands typing. That was a created effect for the program and was misleading. 727 In the interview Ms Patterson put to EF, "So, really he would do anything to have some sort of physical contact with you?" EF replied, "Yeah" and, "Or to be around me". A little later Ms Patterson said to EF, "Now you went earlier to the pool than what you needed to do?" EF told Ms Patterson that she [EF] always went with GH about an hour earlier to the pool than the other children. Ms Patterson asked what happened when they went there and continued: "He'd rub you down, can you tell me about that?" and "Wasn't it … that he'd rub you down and he'd watch you do stretches." EF replied, "I'd stretch myself and like some mornings he'd give me a massage." She could not remember the specifics, but thought what happened was not necessary. This material did not appear in the program. GH relied on it as part of Ms Patterson putting suggestions into EF's mind. 728 Ms Patterson asked EF "Drives after school and or weekends?" EF said, "everywhere he went I'd go with him, even on weekends." Ms Patterson asked "And he talked to you about his sex life?" EF replied, "Not so much like his personal sex life but sex in general he spoke to me about a lot. Yes." That reply was omitted from the program. The question suggested an answer but EF did not give that answer. 729 Ms Patterson asked EF "Would he talk about sex, would he talk about head jobs, would he talk about, was it anything in particular that I mean, do you remember what he spoke about?" EF replied that she could not remember. Ms Patterson's question about head jobs or what they talked about was not in the program. After further questions about their conversations, and in the interview, Ms Patterson said, "But if you could just say to me he used to talk about sex a lot cause you actually haven't said that because I've been doing all the questions." EF made a statement along the lines requested. A little later Ms Patterson said to EF, "I'm on your side." 730 Further examples of inappropriate questions and questions suggesting answers were given by GH in his submissions, but there is no need to refer to all of these nor the instances where EF corrected Ms Patterson's apparent understanding of what had happened. 731 GH pointed out that in the program (lines 272-303) there was edited out of the material relating to EF being ordered to leave the Hodges' house the reference to Mrs Hodge calling EF a slut. That was vulgar abuse and did not reflect well on either Mrs Hodge or EF. That was wisely omitted from the program. 732 In the course of Ms Patterson questioning EF as to her relationship with GH, EF remarked that she could understand that Mrs Hodge was always jealous of her (EF) because GH spent so much time with her and did everything she wanted. EF added "he put me first before everything. He had a sick obsession with me." That last sentence was used twice in the program (lines 2 and 41) and in the material promoting the program. 733 EF, in response to questions from Ms Patterson described the adverse effect upon her of being ordered to leave. This was followed by Ms Patterson saying, "And you were saying you were confused and depressed. Can you tell me what state you were in when all of a sudden you just … " and "Tell me about your depression." A little later Ms Patterson asked, "Did you ever think of doing anything silly?" EF replied, "No." 734 Ms Patterson asked, "… cause you missed him, did he convince you that you loved him or that you wanted to be with him?" EF replied, "No … it was more he was trying to convince me that I needed him." Ms Patterson asked "Did you think you needed him?" EF replied, "Yes". 735 EF told Ms Patterson that GH came to Mudgee after he'd "been ringing me a lot; he used to send letters to the school" she attended. Ms Patterson asked, "He wanted you back in his house and back in his life." EF replied, "Yeah" and that GH promised her father that EF would be a big star. EF referred to GH giving her costumes of the Australian swimming team and tracksuits and other items, and saying to her father that EF had the potential to be there soon. Ms Patterson commented, "that's pretty strong stuff." It is apparent from Ms Patterson's interviews that a considerable volume of material had been obtained by the defendants from EF. Essentially, the program contained some of her allegations. 736 After EF referred to GH writing a letter saying that the song Truly Madly Deeply was the way he felt about her, Ms Patterson said, "That he was in love with you?" EF replied, "Yeah and that was when … my mother and father told him that he had to stop contacting me." 737 At line 343 of the program EF is recorded stating "He wrote to me saying that this is the way he felt about me." That follows after some of the words of the song on portion of the CD cover are shown in the program. In the second interview between Ms Patterson and EF she stated: "He wrote to me saying that this is the way he felt about me" and she then stated the words of the chorus "I want to stand with you on top of a mountain, I want to bathe with you in the sea, I want to lay like this forever until the sky falls down on me." In the second interview Ms Patterson asked EF what was GH saying and EF replied, "I think he was saying that he loved me and wanted to be with me and had to be with me. With the exception of the words "I think" the remainder of the sentence appears at lines 348-349 of the program. GH complained that part of line 343 of the program had been taken from p 23 of the first interview and part from the top of p 3 of the second interview and therefore that this was a fabrication. I doubt if this is so. The whole line seems to come from the second interview. In both places the words "the way he felt about me" appear. This provides no evidence of lack of good faith and I would hold this view even if material from the two interviews had been combined. 738 GH pointed out that at lines 639-640 the program quotes from p 30 of the first interview between Ms Patterson and EF with EF stating, "Yeah, I would never have said anything but he's come back into my life and I don't want him in my life." This is followed by Ms Patterson (at line 643) asking, "Did he love you?" and EF's reply (line 646) "Yes, I think he did." This came from p 23 of the interview between Ms Patterson and EF and is thus out of sequence and in a different context (i.e., after the reference to the letter, the CD and the aftermath). Reverting to the program, immediately after EF states that she thought that GH loved her, Ms Patterson asks, "Do you hate him?" EF replies, "Yes, I think I do hate him" (line 652). This was the concluding exchange of the interview between Ms Patterson and EF. That exchange followed some leading questions. EF asserted that what GH had done was wrong and that he should be publicly exposed. The arrangement of the material in the program increases its impact. 739 Ms Patterson enquired whether a particular name was always EF's nickname, or was it GH's pet name. EF said some people called her by that particular name "but more [GH]". At Ms Patterson's request EF said that GH's pet name was ELF. When asked if that was a term of endearment, EF replied that it was another little extra thing to show that he was closer to her than other people. EF detailed special treatment received from GH, including that he had bought her rings and bracelets. Ms Patterson asked, "Did you think that was strange that a grown man was giving you jewellery?" EF thought GH was just being her guardian, looking after her and treating her like a daughter. 740 Ms Patterson said to EF, "So you felt indebted to him? You felt you owed him everything?" EF replied "Yes". Initially EF said she would not have done anything for him. Ms Patterson pressed EF further, "So you would've done virtually anything for him?" EF replied, "Yep." This material did not appear on the program, but it is one example of EF succumbing to persistent suggestions or questions. 741 GH pointed out that lines 455-457 of the program attributed to EF represented a putting together of different parts of the interview. These lines read: "I walked outside of work and (sic) was sitting on the grass and he saw that I was very scared and I ran back straight back inside my office. But he still waited outside my office." 742 At p25 of the first interview Ms Patterson referred to the email from GH of 28 April 2003 (the catch up) and EF ignoring it, and said: "Then you saw him face to face, didn't you?" EF responded "Yeah, and we made eye contact, and he saw that I was very scared and I ran straight back inside my office, but he still waited outside my office like for me to come back out in my car. So if he just wanted to speak to me normally maybe he would've yelled out like Emma or something but he was just sitting on the grass looking at me, and he saw me be, get frightened and go back inside." 743 Ms Patterson then took EF back to the beginning of the incident by asking, "You walked out of work and what happened?" EF replied, "Um, I walked out of work and then I um, just went to open my door [of EF's car] and I just felt really strange and I looked over my shoulder and he was sitting on the grass and then I saw him and I don't know if he thought I was you know going to engage him in some kind of hello or welcome him because I was very frightened and went back inside the office." 744 What the defendants have done in compiling the program in lines 455-457 is not to alter the substance of what EF was saying, but arrange her remarks in a sequential order, that is in the order in which the events broadly unfolded. That is, EF went outside, saw GH sitting on the grass, she became very scared, he saw that and she ran straight back inside her office (the office where she worked) and GH waited outside her office. Lines 455-457 do not record that EF saw GH as she went to open the door of her car and that she and GH made eye contact. The omission of those details does not alter the substance of what was alleged. EF uttered the words appearing in the program and in their compilation the defendants did not distort or mis-state the effect of what EF had said. This compilation provides no evidence of lack of good faith. 745 In the next part of the interview with Ms Patterson EF deals with leaving the office for a second time, getting into her car and being followed by GH in his car. At one stage (p26.6) EF was possibly confused between the two incidents as she stated "after I told my boss". EF referred to staying on the mobile to her boyfriend all the way home. Ms Patterson (p 27 of the interview) said, "And tell me about how you called Craig and you kept him on the phone." Ms Patterson wanted the matter to be clearer, personal and perhaps more emphatic. Ms Patterson said, "Will you say 'I called my boyfriend Craig". EF responded "I called my boyfriend Craig and had him on the phone the whole time I was driving home cause I was so scared." These were the words which appeared on the program (line 465). This was an elaboration of what EF had earlier indicated. Ms Patterson was seeking a comprehensive and self-contained answer from EF. 746 EF was asked about, and dealt with, the concluding stages of the first time she claims to have been followed. She next dealt with the emails about 11 July 2003, the alleged subsequent following of her by GH and what occurred in St Andrews Place. Asked by Ms Patterson what effect GH had on her life, EF responded … he's affected a lot of things, like the way I think, in my relationships, I don't swim any more, he's affected me in a lot of ways and I think I'll always be hurt by it." (These words appear at lines 358-360 of the program). Ms Patterson asked, "And did he take that little girls' innocence? What did he do that for? What was the little girl like before she met GH and then after?" GH complained that there was no basis for Ms Patterson to ask about GH taking a little girl's innocence. EF replied that she had grown up a lot quicker living at the Hodges' home, that she was so trusting before she moved there and so happy to do anything and that when she left she was so depressed and upset, didn't trust anyone and did not have a good relationship with her mother and father when she went back, she took a lot out of them and did not like them. EF felt she had missed out on a lot of years with each of her parents. Although the question posed by Ms Patterson was suggestive and had a sexual connotation EF's reply was on a different level. 747 The emotive questions employed suggest that the reporter was striving for a high adverse impact on GH. 748 GH pointed out that at lines 358-360 of the program EF is reported as saying "He's affected a lot of thing(s) … like the way I think in my relationships. I don't swim any more. He's affected me in a lot of ways and I think I'll always be hurt by it". That passage appears immediately after a passage dealing with GH's trip to Mudgee, the Savage Garden CD, the song Truly Madly Deeply and GH's letter of late July 1997 saying that was how he felt about her. 749 GH submitted the effect of this juxtaposition was that EF was suggesting that GH sending her the Savage Garden CD affected and hurt her. GH attached weight to EF's answers in the interview to her lack of knowing what the song meant. EF did not welcome the letter at the time of its receipt. 750 The impression of the ordinary reasonable listener and viewer would be that in lines 355-360 of the program EF, after references having been made to the trip to Mudgee (Gulgong), the song and letter, was making a statement about the effect on her of GH's conduct. 751 After EF confirmed her belief that if she had kept training she could have had a successful career, Ms Patterson said, "Are you bitter that he took that away?" GH pointed out the use of the words "took away" and "bitter" and that EF replied, twice using the word "bitter" to describe her response. At lines 41-42 of the program part of her reply is reproduced, namely "I'm bitter towards him in every way for what he's done." This appears alongside an earlier comment (taken from p 19 of the interview) "He had a sick obsession with me." The complaint is that EF did not make either remark in the context in which it appears in the program, that the program is thereby misleading and that the combination unfairly heightens the impact of each statement. 752 At p 28 of the interview and shortly before the remark as to being bitter, EF stated that GH needed to get help about being obsessed with somebody much younger, and speaks about the adverse effect on her of the association with GH. Both statements are general in their terms, but the "sick obsession" comment was made in the context of the discussion of Mrs Hodge ordering EF to leave the Hodges' home, and the reasons why she did so. (p 19 of interview). While the statements at lines 41-42 of the program were made in different contexts I do not think that their juxtaposition increases their impact or distorts what EF was saying. 753 After EF stated that GH cannot go around "following people and trying to contact people that don't want him in their lives", (p29.6 of interview), Ms Patterson asked, "Is that the thing, do you just want this nightmare to end?" GH emphasised the use of the words "nightmare" as the description of what EF was allegedly enduring. EF replied, "I just want him to go away." (Those words appear at lines 408 and 609 in different contexts). 754 That answer is included in the program (line 609) after reference to the proceedings seeking an AVO and GH commenting that he "will follow whatever legal processes there are in train". The object of an AVO is often to ensure that there is no contact or following. 755 Ms Patterson (p29 of interview) said, "But why are you speaking out? Are you worried he's going to pop up? What are you worried about?" She also said, "The thing is you don't know where he's going to be next, you don't know what he'll do next. Why are you talking now, what are you worried about now?" Part of EF's answer appears at lines 374-377: "I'm worried because I don't know … what he wants. I don't know why he's following me all these years later and he's following me all the way home. He knows, like, where I live and I don't want him in my life." 756 The passage quoted from the program follows a part of the program where EF is stated to be and is shown as depressed, reference is made to the love song GH sent her, the instruction of EF's parents to Hodge not to contact EF and the statement that he had not done so until now. The comment of EF contained at lines 374-377 was positioned unobjectionably and its positioning provides no evidence of a lack of good faith. 757 A further part of EF's answer appears at line 534 of the program: "I don't want to be contacted by him and I'm worried that he might just pop up again." 758 The reference in this answer to being worried that GH might pop up again reflects the language in Ms Patterson's question. On the program that answer follows a statement that GH was now back seven years later, which has terrified EF. 759 GH submitted that the defendants have peppered the program with repetitive phrases extracted from different contexts in the interview, without relating them to the context in which they were spoken. 760 There is some repetition in the program, but it does cover an appreciable number of matters. It does stress that EF does not want GH to contact her or be part of her life in the future. In my opinion the repetition was not excessive so as to amount to evidence of a lack of good faith or malice. 761 Just before the end of the interview (p30) Ms Patterson said to EF, "I want you to be really strong in these ones [the last few questions] okay? She was asked: (a) why should people believe you [EF]? (b) why would you make it up? Why would you start again after all this time? (c) GH is very, very senior in Australian Swimming, you could ruin his career. (d) Should GH be publicly exposed? (e) You want him publicly exposed? Some of these questions are very suggestive of the answers. 762 EF contends that people should believe her because she has done nothing wrong. EF asserts that she would never have said anything but GH had come back into her life and she did not want him in her life. EF insisted that she was not out to ruin anything but that what GH had done was wrong and a lot of stuff for her had been ruined, so she did not really mind [if GH's career was ruined] and that he should be publicly exposed. 763 Some of the questions had to do with EF's credibility and others to the alleged misdeeds of GH and ruining and exposing him. 764 At the end of the interview, after the series of questions set out in sub-paras (a) to (e) and EF's answers Ms Patterson asks, "So you hate him?" EF replied, "Yeah I think I do hate him." 765 Upon the interview concluding Ms Patterson remarked, "I know it went on for a long time but Georgie gave me a very good brief, very in depth of what you guys had a chat about so I had lots of shift (sic) to go on. Cause he should be publicly exposed. We can't just turn up. He confused a little girl, who has then got on with her life, he can't just turn up now and put you through all the emotions that you've put behind you." 766 This reveals Ms Patterson's approach to the interview. She was sympathetic to EF and accepted what she said. She was not enamoured of GH's alleged conduct. 767 The transcript of Tape 2 is headed "Before Interview Amanda Telling Emma What To Say". There are shots of EF and Ms Patterson sitting amongst trophies. The latter instructs EF, "So as you pull that out say that these are not even half." There is a short practice run. At the start of the actual interview EF shows some of the trophies she had won, but states that she does not care about any of them any more. Lines 69-83 of the program are based on the exchanges recorded at the top of p2 of the second interview, where Ms Patterson asks EF how good she was and whether she could have made the 2000 Olympics. Ms Patterson asked EF if GH took that away from her. EF responded "Yes, I think he did." 768 During the second interview Ms Patterson again referred to the letter of late July 1997 written by GH to EF, and the Savage Garden song. I have earlier referred to this matter including EF's response and what is stated in the program. 769 GH submitted that Ms Patterson had EF give her opinion in 2003 as to what GH meant in his letter about the Savage Garden record and that this was used in the program at line 348, ignoring the preceding relevant and qualifying answers in the interview in which EF said she did not have that understanding when she read the letter in 1997. It was submitted that hence the letter was not harmful to her, even if it had the meaning she now claims. 770 These submissions overlook that receipt of the letter made EF angry and confused her. She did not understand what was involved in him saying that he loved her and wanted to be with her and had to be with her. EF was not able to say what she thought when she read the letter because she was so young. EF's anger on her receipt of the letter was probably due to her appreciation that GH was trying to keep alive their association and her distaste at the unwelcome expression of his feelings for her. The effect of the terms of the letter could readily be explained to EF. The description of EF's parents of EF's reaction cannot be left out of account. I do not agree that receipt of the letter of late July 1997 was not harmful to her. 771 EF said that listening to the song now just makes her upset and angry and disgusted that someone would send the song to someone so young. As well as such words appearing in the second interview, they also appeared in the program. 772 GH contended that Ms Patterson's questions about EF's present view of the song and EF's answer at lines 355-356 were juxtaposed with an out of context answer from the first or master interview, p28, in such a way as to suggest that receiving the record affected EF's relationships, her swimming and hurt her and that this was simply untrue, even according to EF. 773 I do not accept that the ordinary reasonable listener/viewer would make that connection. After dealing with the CD and the letter the program moves on to more general matters at lines 358-360, which state: "He's affected a lot of thing(s) … like the way I think in my relationships. I don't swim any more. He's affected me in a lot of ways and I think I'll always be hurt". 774 The program refers to EF having given up swimming and having been treated for severe depression. There is a reference to the statement of the mental health co-ordinator who treated EF that EF had been through a considerable amount of stress and that the love song GH sent her was inappropriate in the context of a guardian, teacher or coach's relationship, and a reference to EF's parents telling GH never to contact her. 775 In his letter of 9 May 2003 to the Chamber Magistrate the Health Co-ordinator, Mudgee Health Service was supplying some historical information, as requested. He did so. He wrote that leading up to the referral of EF in February 1997 it was apparent that EF had been through a considerable amount of stress 776 The Co-Ordinator also wrote that EF relayed stories about GH nominating Truly Madly Deeply as their song. The co-ordinator thought that song was an inappropriate song in the context mentioned. 777 EF's complaints were not limited to the song or the letter as the program demonstrates and the ordinary reasonable listener and viewer would have realised that many aspects of GH's conduct were being criticised and that the views of EF at lines 358-360 covered these. 778 The next section of the transcript of Tape 2 is headed "Emma Showing AP Gifts & Swimming Clothing." 779 This section begins with Ms Patterson stating "Just say He used to give me presents and then I'll say did he give you a lot of presents and say Yeah all the time. After Ms Patterson's persistent instructions and several trial runs, EF said "And he used to give me presents, he had this bracelet made for me with my own name on it." (See also lines 197-199 of the program). GH complained that this section about gifts in the program followed a series of questions and answers about GH kissing EF a lot. GH pointed out that the passage in the program (lines 187-197) about kissing came from p6 of the first interview. GH complained that the statements by EF about kissing were coupled with statements about GH giving her presents. 780 GH correctly submitted that the program had joined unrelated answers from two separate interviews to create a picture of GH kissing EF and giving her gifts all the time. This juxtaposition overstates what occurred. GH did kiss EF a lot both at swimming training and at home, but it has not been established that the kissing was sexually motivated. Nor has it been established that the kissing and the small gifts were related. Too much has been made of the gifts in the program. The gifts were small and of no consequence. It has not been established that there was any underlying malevolent or sexual purpose. The juxtaposition of the material as to the kissing and giving of gifts all the time creates an adverse picture of GH. 781 At p6 of the second interview EF is recorded stating that after she left the Hodges' house he sent her a particular shirt for the NSW Institute of Sport where she aspired to go and he was moving to coach there. EF said that he also sent her some swimmers and said that she could be in this squad and wearing such swimmers, if she would come back to Sydney and let him coach her. 782 Ms Patterson said, "And tell me how he wanted you to try them on" and subsequently instructed EF, "Can you say when he gave them to me he wanted me to try therm on and show him how they fitted. Basically, say he wanted to see me in my togs again." She also suggestively asked, "So he wanted a parade when he gave you those?" There were further suggestive questions. EF thought he was trying to persuade her father by telling him that EF could be in this really good squad and have all these things if she came back to Sydney. GH would make her a swimming star. EF said that she was too angry at that stage and did not want to swim any more. What emerges from the exchanges is that GH wanted EF to resume swimming under his coaching. It has not been established that GH had an underlying sexual motive. 783 There was a third interview between EF and Ms Patterson. When asked to tell something about training that she did not miss, EF replied that there were some exercises GH made her do. It related to correction of her stroke in breaststroke. Ms Patterson stated, "OK. Can you tell me that once again but say that he'd make me …". A little later EF replied, "The exercises that GH made me do [these words were not in the program] he'd lie me face down on the ground in a breaststroke and sit behind me in between my legs to correct my stroke." The words from "he'd lie me face down …" to "…correct my stroke" were included in the program (lines 97-98). GH attached importance to Ms Patterson's words "but say that he'd make me." EF had initially referred to some training exercises GH got her to do and a little later to "some exercises GH made me do." In the context Ms Patterson was doing no more than reminding EF when she repeated herself to again include the clause that GH made her do it. EF did repeat those words. If Ms Patterson's words had stood alone and had not been in context they would have been objectionable. In the context they are not. In practical terms students do have to do the exercises their coaches prescribe. 784 It appears in both the interview and the program (lines 101-104) that EF agreed that GH held EF's legs. EF described her experience, "It was uncomfortable, it was horrible" in the interview and that statement was in the program (line 110). The program also included the additional words "None of the other teachers did it." In the third interview words to that effect were used in answer to a further question dealing with the same subject. This is not objectionable. There was no distortion. EF was the source of the information. 785 GH also undertook a survey of the contents of the interview between Ms Patterson and Veronica Byrne. This summary involves some repetition but I would incorporate my earlier references to that interview and what was included in the program. 786 Ms Patterson asked, "When you heard the sorts of things that he did to her as a child, what did you think of that?" GH drew attention to Ms Patterson's assertion "the sort of things that he [GH] did to her as a child," Ms Patterson demonstrated that she realised: (a) GH would deny the allegations; (b) GH had standing in Australian Swimming; (c) GH had a body of people support, and (d) A lot of people would not believe EF's allegations 787 GH submitted that Ms Patterson interviewed Mrs Byrne for about twenty minutes, although Mrs Byrne could not, and does not, give any first hand information about the allegations the defendants intended to publish. Mrs Byrne was able to give first hand information as to the state and condition of her son and EF. 788 GH submitted that throughout the interview Ms Patterson sought to obtain intemperate and sensational responses from Mrs Byrne – mostly about how GH should be punished. Ms Patterson encouraged Mrs Byrne to condemn GH. GH contended that some of Mrs Byrne's statements revealed her malice towards GH. Mrs Byrne expressed strong feelings against GH. He accepted that the interview was eventually sanitised to the extent that the parts included in the program were very limited; see previously. 789 I repeat that the program at lines 45-47, reads, "He's a creep. He shouldn't be able to do that to people. He's supposed to be leading our elite sports people. What's he doing. Why's he hurting her?" 790 While the clause, "he's a creep" appears on p 6 of the interview, the words "this creep" immediately precede on p 1 the words "shouldn't be able to do that to people". This juxtaposition has not altered or distorted the sense of what was said by Mrs Byrne. She was protesting against what she believed was GH's conduct and its effect on EF and her son. The third and fourth sentences in the program are taken from the interview (p3). Mrs Byrne, in the words included as the third, fourth and fifth sentences of lines 45-47 of the program, was contrasting what GH should be doing with what he was doing and asking why. The addition of these three sentences in the program does not distort the sense of what Mrs Byrne was trying to say. Mrs Byrne was emphasising the contrast between GH's alleged conduct and what should be expected of a person holding his position. 791 I repeat lines 546-548, which read, "What's the man doing, why does he need to see her, he has no part or involvement in her life any more, why can't he be stopped?" That statement in the interview (p5) was made in the context of the police not taking action and the Chamber Magistrate "virtually just laughed them off". (It is not clear to which incident of following Mrs Byrne is referring). Mrs Byrne wanted to know why GH could not be stopped from seeing or following EF. 792 In the program the lines quoted followed a brief account of the incident of 15 August 2003 and Mr Fuller's visit to the Hodges' home and telling GH to leave his daughter alone. This is a different context from that in which the statement was originally made. While there is the general sentiment of stopping GH contacting or following EF, or seeking to be involved in her life in both the interview and the program, the setting in which the statement appears in each of them differs. In the interview the statement follows upon Mrs Byrne's dissatisfaction with the lack of official action, whereas in the program the statement follows on from Mr Fuller's visit to the Hodges' home. While this was not a justifiable transposition, it does not evidence a lack of good faith or malice. Mrs Byrne wanted GH stopped from contacting or following EF. 793 GH pointed out that about twenty seconds of Mrs Byrne's interview is used in the program. The defendants cannot be criticised for interviewing Mrs Byrne, nor for using so little of that interview. They exercised a judgment. Ms Patterson as the interviewer of Mrs Byrne went too far in suggesting to Mrs Byrne and in encouraging her to agree that GH was obsessed with EF and in encouraging Mrs Byrne to contemplate and express what should happen to GH, and when she raised whether GH's position at Australian Swimming should be taken away. Ms Patterson asked for something sharper than telling GH to leave EF alone. Ms Patterson also pressed Mrs Byrne to agree that GH deserved to be publicly shamed. 794 It was apparent that Mrs Byrne believed what EF and her son said had happened. She was understandably very angry about the conduct of GH as relayed by EF and her son. She thought GH should be stopped. With both EF and her son involved and their relationship and the upset condition in which Mrs Byrne found them, it is understandable that she would have strong feelings adverse to GH and would interfere. If what her son and EF said was true it was in the public interest and for the public benefit that such conduct should be exposed. 795 From the terms of Mrs Byrne's initiating memo and some of her answers during the interview, although encouraged by Ms Patterson, the defendants had to be wary of the likely malice of Mrs Byrne. 796 Although Ms Patterson wrongly encouraged Mrs Byrne in the expression of extreme views, Mrs Byrne did evince strong ill feeling towards GH. However, the defendants used very little of Mrs Byrne's material, and did not adopt any malice she possessed. Mrs Byrne's assertions and questions reproduced at lines 45-47 and 546-548 of the program arise out of GH following EF and the subsequent steps taken in an endeavour to stop it happening again. 797 GH pointed out that a very small proportion of the material obtained from EF during her filmed interviews was used in the program. A similar observation applied to the material obtained from others who were interviewed. In the case of EF, GH submitted that this demonstrated the defendants' resolve in persisting at the task of obtaining tendentious answers. The defendants condensed a considerable volume of material. . 798 Some of the material not used by the defendants was critical of GH. In discarding most of the material obtained and filmed in the interviews, the defendants were exercising their independent judgment. The interviews covered a considerable number of matters. Some of the answers given by the people interviewed needed to be clarified or re-expressed in such a way that the ordinary reasonable listener or viewer could understand what was being said and that the complaint or objection or statement was that of the person interviewed. 799 GH submitted that there were included in the program a number of assertions of fact that the defendants knew to be untrue: (a) Lines 25-26: Today police served [GH] with an interim AVO following a formal complaint by EF …" 800 However, at line 576-578 the program states: "She's also commenced legal proceedings to secure an interim apprehended violence order preventing GH from contacting her or being within fifty metres of her." The reporter held up the document. The documents make it clear that EF is seeking an apprehended violence order. The earlier statement suggests that EF had established a case sufficient to obtain an interim order. Lines 584-586 suggest that EF has a substantial case but that it still has to be resolved. 801 The defendants submitted that the error made in lines 25-26 had been corrected by lines 576-582 of the program and that the ordinary reasonable viewer/listener would have realised this. Thus no harm had been occasioned to GH. The passage at lines 576-586 does not state that the earlier reference required correction or was wrong. The medium used is relevant. The ordinary reasonable listener/viewer does not have a script (or article) which he can read or re-read. He heard the program once. While I note the error in the statement of facts, the jury did not think it was defamatory of GH to say that he was the subject of an interim apprehended violence order. In view of this finding I take the matter no further. It is not to the point that I may not share the jury's view. (b) Lines 29-30: Because of GH's unwanted attention, she abandoned her swim career. Lines 37-38: "… Emma's career … [has] been left shattered by [GH]." 802 GH submitted that the defendants knew these assertions to be false or were recklessly indifferent to their truth or falsity that EF had not made these assertions to them and that the evidence has shown that the reason EF did not continue swimming was that it was impossible in Gulgong, there being no coach and no heated pool. 803 EF did not use the words quoted. The presenter used the word at lines 29-30 and the reporter at lines 37-38. However, EF agreed with the statement that GH had taken away the chance she had to be at the 2000 Olympics. This was because GH's familiarity with and attention to EF led Mrs Hodge to hold the view that GH was putting EF before her and that EF was the other woman in GH's life, and order EF to leave the Hodges' home. This had the effect of EF no longer having the benefit of an experienced coach of elite swimmers and no Sydney accommodation. As a result of the events of early February 1997 and their consequences, EF abandoned her swimming career. Once EF had to return to Gulgong, that brought to an end, for all practical purposes, a high level swimming career for EF. EF did state at lines 358-360 about GH: "He's affected a lot of thing(s) … I don't swim any more. He's affected me in a lot of ways and I think I'll always be hurt by it. " I do not agree that the statements made were known to be false or that the defendants were recklessly indifferent to the truth or falsity of such statements. (c) Lines 66-67: "… You're following her in your car. Is that not true?" 804 GH submitted that the defendants had ambushed him at his workplace and knew that he denied this assertion, but did not include that denial In reply in the program at that point. 805 The defendants' operatives did take GH by surprise, appearing unexpectedly as he arrived for work and asking questions as he sought to enter the building where he worked. A little later, in the short program and before the commercial break, GH denied that he had been following EF. The ordinary reasonable listener/viewer would have understood from the program that GH denied following EF. (d) Lines 114-115: "Like, he just always liked to get her out of the pool and stretch her and …" 806 In the program those words were attributed to an unidentified male speaker. From the material provided to the Court by GH the words appeared to come from remarks made by David Ward during his interview with Ms Patterson. GH relied on a question asked by Ms Patterson at p 11 of the master interview with EF, "Did you go to (sic) early … Wasn't it … that he'd rub you down and he'd watch you do stretches." Ms Patterson was questioning EF about what happened when EF and GH allegedly went to the pool early before the other swimmers arrived, whereas Mr Ward's comments appear to relate to a later point of time; GH "liked to get her out of the pool". 807 It has not been established that the defendants knew that the statement quoted from lines 114-115 of the program were false nor were they recklessly indifferent to its truth or falsity. (e) Lines 143-144: "GH, she [EF] says would also rub Vaseline near her breasts." 808 These lines were spoken by the reporter. GH submitted that the defendants knew this to be false and that, much as Ms Patterson had tried, repeatedly, to get EF to make that allegation, she did not say it. 809 EF did not use the words that GH would also rub Vaseline near her breasts. During the master interview, Ms Patterson asked (p4), "Did he touch you on the breast?" EF replied, "No, it was like close to, like you know he was always pulling there, or if you had like, swimmers always get marks there and he'd come up and pull it down and rub Vaseline there." There was a break to discuss Answer Techniques. Ms Patterson pressed again, "And tell me how he touched you on the side of your breasts with the Vaseline, tell me about that?" EF replied, "He'd just like to put it there from where like the mark was, the cut." 810 In the master interview EF stated that GH did not touch her on the breast, but close to the breast where there were marks from her costume and that he would pull down the seam of her costume (under the armpit), apply the Vaseline and put the costume back in its usual place. The costume marks under the armpits would be close to the breasts. There is not much, if any difference between "near" and "close to". This statement of Ms Patterson in its bold form at lines 143-144 of the program and in the overall content of the program is suggestive of improper conduct. The statement made is incomplete in that bold form. It does not refer to the purpose of the application of Vaseline. As previously stated, the ordinary reasonable listener/viewer may well have appreciated this that purpose but it is arguable. EF mentioned that purpose some three times to Ms Patterson in the first or master interview (see pp 4 and 5). In the context the ordinary reasonable listener/viewer would probably have concluded that Ms Patterson's statement at lines 143-1344 was an assertive instance of sexual misconduct. A statement or explanation of the purpose or reason for the application of Vaseline was needed. It does not follow that there was a lack of good faith in the defendants or Ms Patterson not mentioning that purpose in the program. The statement made by Ms Patterson was not false. It has not been established that the defendants knew that the statement was false or were recklessly indifferent to its truth or falsity. (f) Lines 158-160: When EF was twelve, GH approached her parents and suggested that she'd benefit from moving into his house with him and his wife [Film of the Hodges' house]. 811 GH submitted that the defendants knew that this statement was false. This statement does not correctly set forth the true position. Earlier in this judgment the correct position has been set forth. In the interview EF did not tell Ms Patterson the whole story. EF told Ms Patterson that she was originally living with her aunty and uncle, but she could not stay there any more, so GH suggested to her parents that she could go and stay with them for a while and then she ended up staying there. EF did not mention that after having to leave her Aunty's home she had stayed with the Smiths for the latter half of 1995 and that they were not prepared to allow that arrangement to continue and a search was made for fresh accommodation for 1996. What EF told Ms Patterson was partly misleading. From the master interview it can be seen that it led Ms Patterson to ask, "Did he say that you'd be more focused on swimming? How did he sell it to your parents?" Ms Patterson assumed from what she had been told that GH had engineered EF moving into the Hodges' home. I doubt if GH would have considered having EF live in the Hodges' house if he had not thought so highly of her swimming potential. The defendants and Ms Patterson did not know this allegation was false, nor were they recklessly indifferent to its truth or falsity. (g) Lines 215-252: Discussion of Thredbo home movie shot by GH. 812 Initially the film showed a girl moving in a shop at the Thredbo Village. The film appears to have been shot from outside the shop and through the shop front. The girl took self-protective action when she realised that the man holding the camera was looking at (filming) her. The home video further films the end of the swimming camp social muck-up or revue. 813 GH submitted that the defendants knew this video material, in its context, to be unexceptional, but extracted miniscule sequences and put them to a compliant interviewee in order that he should express a quasi-scientific opinion that the extracted material demonstrated paedophiliac technique. I have earlier expressed my view that the defendants sought to draw far too much from the horseplay depicted which was relatively harmless and not uncommon for "camps" of this kind. It is essentially a matter of taste how far activities of this kind should go. The damaging statements were principally made by the psychologist, Mr Bob Montgomery who appears to be a stranger. The reporter added to the matter with her statements as to the NSW Institute of Sport handbook and its contents. Her statements were not incorrect. While I regard describing GH's actions as exhibiting an alarming trend in his behaviour as putting the matter at too high a level and as suggestive of a man who lacks balance in matters of personal and sexual behaviour, the evidence does not establish that the defendants knew the statements were false or were recklessly indifferent to their truth or falsity. (h) Line 257-258: [GH] went to extraordinary lengths to watch [EF]. 814 This statement comes after the program reminded the viewer/listener that "EF was a young girl [film of EF as a child] whose life was now dominated by this man thirty-five years her senior." This statement is followed in the program by the item about the missing bathroom door handle and the hole and shoving tissues in it when EF had a shower. GH submitted that the structure of the program at this point means that having such a spyhole was part of GH's "extraordinary" conduct in watching EF, in the shower, and that the defendants knew that EF had never claimed this happened. 815 In the master interview EF after stating, as to the bathroom door handle, "there was not one there and there was just always a hole there (pause) like so he could see me showering." While EF did not say that he had looked through the hole and watched her showering, EF did say that GH left the hole in the bathroom door so he could see her showering. The words "like so he could see me showering" were not included in the program. The program did not include EF's statement that the tissues she had shoved in the bathroom door hole were in the hole when she hopped out of the shower. What was suggested in lines 257-258 was untrue. It was based upon EF's erroneous surmise. That was very damaging. It was inherently improbable when GH's wife and daughter lived in the house; this was known. 816 There was a hole in the bathroom door for a lengthy period. If GH had left the hole or created one so he could see EF showering, that would probably fall within the words "went to extraordinary lengths to watch her". In the context those words include first having gone to extraordinary lengths to watch EF showering and, secondly, having done so, actually watching her showering. The words "went to extraordinary lengths" envisage, amongst other things, taking extensive and preparatory steps or unusual steps or failing to take desirable remedial action for a prolonged period. This is not exhaustive. 817 Accordingly, when EF referred to there always being a hole in the bathroom door where there had been a handle and adding "like so he could see me showering", that is capable of constituting in the context "having gone to extraordinary lengths to watch her" [EF showering] and does so. 818 The views thus expressed represent my views and the conclusions which the ordinary reasonable listener/viewer would take. A technical or overly literal approach should not be adopted. 819 The defendants did not know that EF's statements were false but they suggested a most unusual and improbable situation which warranted a careful, if not searching investigation. Very serious allegations were being made. The defendants were recklessly indifferent to the truth or falsity of the statement at lines 257-258. (i) Lines 326-329: But GH refused to accept that it was over [Film of EF sitting with hands between legs]. He began calling her [Picture of plaintiff with top incorporating Australian flag] He drove five hours to Mudgee to try and see her. 820 GH submitted that the defendants knew this was false or were recklessly indifferent to its truth or falsity. There is evidence that GH began calling EF. None of EF or her parents had told the defendants that GH drove five hours to Mudgee to try to see her. GH did visit the family. 821 In the master interview with Ms Patterson EF confirmed (p22) that GH came to Mudgee to see her. EF told Ms Patterson that this "was after he'd been ringing me a lot, he used to send letters to the school where I was at, so it didn't go to my parents address so they wouldn't know." In response to Ms Patterson asking what the letters said, EF said "Just asking me general things about my life and did I want to come back and that he could make it possible for me to come back if I'd let him come to Mudgee and talk to my parents and everything could go back to normal." 822 During the interview between Ms Patterson and Mr and Mrs Fuller, Mrs Fuller stated that after she brought EF home GH telephoned EF all the time and she became agitated. GH wanted to speak to EF without her parents listening. Mrs Fuller elaborated about this and what EF told her. EF told her that GH had telephoned and GH kept doing that (p11). Mrs Fuller continued, "And then he came through here. He said he was on a round trip and was seeing a girl at Gunnedah and he came through. And I didn't go out to see him. I couldn't go near him. I just remember he came and Phil and EF were talking to him … He came up and said he wanted EF to be part of the NSW Institute of Sport swimming club and he had these costumes for her … Why wouldn't she put the costumes on and do this and to get back into training … And we just said we didn't want anything to do with it. So, he left then." (p11) Mrs Fuller had strong adverse feelings about GH. 823 The effect of what Mrs Fuller told Ms Patterson was that GH telephoned EF frequently. This appeared to be based on what Mrs Fuller noted and what EF told her mother. GH did tell the Fullers that he was on a round trip and was seeing (or had seen) a girl at Gunnedah. He had other business in the Central West. He came through Mudgee (Gulgong). The point being made in the program is that GH went out of his way to see EF and would not accept that their relationship was over. The way the matter was put on the program GH went further out of his way to see EF than GH conceded. GH tended to suggest that his visit to EF and the Fuller home was part of a relatively routine country trip. While there were errors in the way the matters were put in the program, GH made a visit to Mudgee (Gulgong) to see EF; he had made a significant number of telephone calls with the intention of speaking to EF. It has not been established that the defendants knew that what was stated was false or were recklessly indifferent to its truth or falsity. (j) Line 363: "At thirteen EF gave up swimming and was treated for severe depression". 824 GH submitted that the defendants knew that this was false or were recklessly indifferent to its truth or falsity. They had no information from any source that EF's "depression" was severe. GH contended that it was not and that the letter shown on the screen from Mr Corvan ( even as quoted) did not assert that EF had been treated for severe depression. 825 In the master interview (pp20-21) Ms Patterson asked EF to speak about her depression. EF replied, "Well, I didn't really, I couldn't really socialise with anyone because I was just so upset all the time … I didn't understand anything of what went on and why those things happened." EF said, "… I just felt so guilty about myself and I ended up hating myself and just not wanting to do anything …". 826 EF added, "I didn't go to school, I didn't really have any friends … it was hard for me to make friends after that 'cause I was also so close and reserved – it was hard for me to get back to my normal self." Mrs Fuller (p7) said that when EF was brought home she was a very withdrawn, upset little girl, she did not know what was what. 827 The Court does not know what was in the brief prepared for Ms Patterson. Ms Patterson's question suggests that she was aware that at one time EF suffered from depression. The notes of Mr Eamonn Corvan of 18 February 1997 assess EF as suffering from depression. Mr Corvan, in his letter of 9 May 2003, states that EF's school counsellor referred EF to Mudgee Adolescent Mental Health Service following concerns about EF's mood and the possible presence of a depressive illness. The letter continued: "Upon further assessment it was apparent that EF had been through a considerable amount of stress in the weeks leading up to the referral." 828 The letter concluded: "Ms Fuller was treated for her depression and subsequently discharged from our Service." 829 There was material that EF was suffering from depression, but neither in his notes of 18 February 1997 – 26 February 1997 nor his letter of 9 May 2003 does Mr Corvan use the phrase "severe depression". In his notes in February 1997 Mr Corvan refers to: "Harm to Self: Has thought about it. Believes life's not worth living – No formal plans." Impulse control was described as fair and the level of risk as moderate. 830 From Mr Corvan's notes it appears that from 18 February 1997 to 24 February 1997 EF was in a poor mental state. He referred to "her need to use the relaxation tape several times a day." He wrote "At present she is not actively suicidal and intends to stay off school for a few days and rest." The notes of Mr Corvan of 26 and 27 February 1997 indicate that EF was recovering. 831 A mental health professional would describe EF as suffering from depression rather than severe depression, but a lay person noting her signs and symptoms may well describe her as suffering from severe depression, but only for a short period. While I accept that there is a difference between depression and severe depression, this difference would probably not impact upon the ordinary reasonable listener/viewer. It has not been established that the defendants knew that the statement at lines 363-364 of the program was false or were recklessly indifferent to its truth or falsity. What has occurred is an imprecise use of the English language. (k) Line 413: Now let's emphasise again that EF has spent some years trying to put her experiences with GH behind her. 832 These lines are spoken by the presenter. GH submitted that the defendants knew this was false or were recklessly different to its truth or falsity and that they had no information from any source that EF had spent any of the period from February 1997 to April 2003 dealing in any way with any feelings about GH. 833 Mrs Fuller at p 7 of the interview with Ms Patterson details some of the difficulties EF found in trying to cope with life after February 1997. 834 The passage mentioned would not convey to the ordinary reasonable listener/viewer that EF had taken steps other than allow time to elapse and continue with her life by working or studying. The lapse of time, the dimming of memories, and concentrating on or engaging in other activities and looking to or working for the future is often how unhappy experiences are put behind a person. The materials before the defendants of which the Court is aware point in that direction. GH has sought to read too much into lines 413-414 of the program. It has not been established that the defendants knew that lines 413-414 were false or were recklessly indifferent to their truth or falsity. (l) Line 435 – GH is lying. 835 This assertion is made after the reporter asked "Never laid eyes on her? You haven't contacted her?" GH replied, "No". These questions followed on an earlier question from Ms Patterson "So you haven't seen EF recently?" GH had replied, "No". 836 GH submitted that the defendants knew that the statement "GH is lying" was false, or were recklessly indifferent to its truth or falsity. GH pointed out that he had offered to discuss with Ms Patterson, off camera and in private the allegations against him. GH submitted that neither Ms Patterson nor any other employee of the defendants investigated in any way whether his denials were true or false. GH contended that his denials were true. 837 The reporter asked GH three separate but related questions. I have found that GH had seen EF recently and had laid eyes on her. It is probable that the statement "GH is lying" is directed to his answer to the question, "You haven't contacted her?" There is a picture of hands typing and the statement "In April seven years after he was told never to contact EF again he sent this email out of the blue. [There is a film of the email.] That is the email of 28 April 2003 advocating a big catch up. When pressed whether he sent this email GH replied that if there was a process that they had to go through he would go through that process. That was all he wanted to say. 838 The denials of GH were knowingly untrue. It has not been established that the defendants knew that the statement "GH is lying" was false or were recklessly indifferent to its truth or falsity. (m) Line 437: "he [GH] sent her this email out of the blue." 839 GH submitted that the defendants knew that this statement was false or were recklessly indifferent to its truth or falsity. GH submitted that the email of 28 April 2003 was sent as a direct consequence of EF exchanging email addresses with Jodi Hodge. EF and Jodi Hodge became close friends when EF lived in the Hodges' home. Jodi Hodge spent a lot of time supporting EF by her presence on the night Mrs Hodge ordered EF to leave. Jodi Hodge visited EF in Gulgong for a few days in February 1997. EF had initiated the contact with Jodi Hodge although it arose in a business setting. EF and Jodi Hodge did exchange email addresses. It did not follow that because EF made contact with Jodi Hodge that EF wanted to make contact with GH, or GH to make contact with her [EF]. While Jodi Hodge could be reasonably anticipated to tell her father that EF had contacted her, it does not follow that GH would send her an email or seek to resume contact. EF did not expect this and was surprised to receive an email from GH. When Ms Patterson asked EF when GH came back into her life EF replied that he sent her an email from work. He just contacted her after all the time which had elapsed. Ms Patterson said, "What, you opened up the email?" EF said that she saw it straightaway and it said "GH". EF did not think of catching up with GH. It seemed that he wanted to talk to her. I doubt if EF realised the connection between giving her email address to Jodi Hodge and GH's email. EF does not seem to have told Ms Patterson about the earlier exchange of email addresses with Jodi Hodge. It has not been established that the defendants knew the statement "[GH] sent her this email out of the blue" was false or that they were recklessly indifferent to its truth or falsity. (n) Lines 451-2: EF ignored the email. Two days later as she was leaving work he was waiting for her. 840 GH submitted that the defendants knew that this was false or were recklessly indifferent to its truth or falsity and that if the defendants made any, or any adequate, enquiry, they would have found that two days after EF ignored the email, i.e., on 1 May 2003 GH was in Queensland at the time EF claimed he stalked her. GH submitted that he was never given the opportunity to tell the defendants where he was on that day, although he expressed his willingness to speak to them. 841 While it appears to be the case that EF was not at work on 28 April 2003 and did not open her email until 29 April 2003, a mistake as to date as to one day is not decisive in the present case. The incident of which EF speaks occurred on 30 April 2003, two days after the email of 28 April 2003 was sent and received, although not opened. It is apparent how the slip occurred. 842 EF ignored the email. She did not reply to it. The defendants were concerned whether the alleged waiting for and following occurred and accepted the material before them that they did, the precise date of such occurrences not being crucial to them. It has not been established that the defendants knew that the statements quoted at lines 451-2 were false or were recklessly indifferent to their truth or falsity. (o) Lines 473-4: EF's boyfriend Craig stayed on the phone during the entire chase. Those words are attributed to the reporter. Lines 473-4 mirror lines 465-466 spoken by EF which read "I called my boyfriend Craig and had him on the phone the whole time I was driving home because I was scared." 843 GH submitted that the defendants knew this was false as no person had told the defendants that there was a "chase". GH submitted that if the defendants had made any, or any adequate enquiry, they would have been told by EF as to this allegation that she did not set eyes upon GH after she reached Sans Souci and they would have been told by GH that he has never chased EF. The word "chase" has a number of meanings as both the Shorter Oxford English Dictionary and the Macquarie Dictionary demonstrate. They include a pursuit with a view to catching, following in pursuit, running or hastening (colloquial), the act of chasing, pursuit. What was involved in the present case was a following in pursuit. The context cannot be ignored, and especially lines 465-466. While "chase" was not a good word to use in line 474 and there was a degree of inaccuracy in its use and the reporter could have expressed herself better, it is going too far to say that this was false. It has not been established that the defendants or Ms Patterson knew that the statement at lines 473-4 was false or were recklessly indifferent to its truth or falsity. Nor has it been established that Ms Patterson did not honestly believe what she stated. (p) Lines 579-580: In a sworn statement under oath, EF has sought protection against any harassment or intimidation. 844 This statement was made by Ms Patterson. GH submitted that the defendants knew this was false or were recklessly indifferent to its truth or falsity and that there has never been a sworn statement of any kind by EF making allegations against GH, least of all in any AVO proceedings. This is incorrect. 845 At the top of page 2 of Exhibit 9 (entitled Complaint and Summons – Apprehended Violence) it is stated: "The complainant [stated to be EF on p1], on oath complains to me that the protected person [stated to be EF on p1] is a person in need of protection and fears the commission of a personal violence offence or conduct amounting to harassment, molestation, intimidation or stalking by the defendant [stated to be GH]. The complainant seeks orders placing prohibitions and restrictions on the behaviour of the defendant as listed below. The complaint was sworn/affirmed before me and summons issued by me on 29/09/2003 at Sutherland. Justice of the Peace." 846 Attached to the Complaint and Summons is a letter of complaint signed by EF and addressed to "Chamber Magistrate, Local Court." 847 Section 562C of the Crimes Act 1900 provides that a complaint for an order: (a) may be made orally or in writing to a justice of the peace, and (b) shall be substantiated on oath before a justice pf the peace. 848 It appears that the correct procedure has been followed and that a sworn statement was made by EF in AVO proceedings. It is not uncommon in Local Court proceedings for a complainant to attend the Local Court office with a written statement and then to verify the contents on oath before the justice of the peace. 849 In the document headed "Complaint and Summons – Apprehended Violence" EF seeks, amongst other orders, orders of the kind indicated in the program. The statement at lines 579-580 appears to be correct. It has not been established that the defendants or Ms Patterson knew that this statement was false or were recklessly indifferent to its truth or falsity. (q) Lines 589-593: He discussed many adult matters with me, including his sexual relations with his wife, Sue. Several times he walked naked about the house in my full view. When I had my first menstrual period, he purchased tampons and stood outside the bathroom door explaining to me how to insert the tampons. 850 GH submitted that the defendants knew this part of the program to be false. GH pointed out that they had interviewed EF at great length and thus knew that she no longer maintained the allegations in Exhibit 10 (the letter to Mr G Tasker, Australian Swimming) that GH discussed with EF his sexual relations with his wife; that GH walked naked around the house in EF's full view, and that he explained to EF how to insert tampons. GH also pointed out that they had EF read out those allegations and included them in the program. 851 In the Master Interview (p12) EF told Ms Patterson that GH talked to her, "not so much like his personal sex life but sex in general he spoke to me about a lot." The other allegations in those lines of the program were withdrawn or varied and different allegations propounded (See pp 8 and 14 of the Master Interview). I have earlier expressed the view that the defendants were wrong to have EF read out these allegations. The defendants were aware that the original allegations had been withdrawn or varied because they were incorrect and lesser allegations substituted. This was a serious error and wrongly increased the sting of the program. The defendants were aware that the allegations read out by EF were false. (r) Line 628: EF is not being paid for this story. 852 That statement was made by Ms Patterson. GH submitted that the defendants knew this to be false. EF was to receive the valuable consideration of payment of her counsel's fees in the AVO proceedings which eventually totalled $26,400. The statement was literally true. The Indemnity of 13 October 2003 does not refer to the defendants meeting such fees. As I understand the position they offered and agreed to do so subsequent to the interviews and the program. It has not been established that the defendants or Ms Patterson that at the time that the statement was false or were recklessly indifferent to its truth or falsity. Nor has it been established that Ms Patterson did not honestly believe what she said. (s) Line 655: "Amanda Patterson with that investigation." 853 GH contended that the defendants and the presenter knew this to be false, as there was no "investigation". GH was never given the opportunity to answer questions and the defendants did not investigate the truth of any of EF's allegations. 854 I do not think it could be said that there was no investigation. Ms Patterson interviewed EF at length and obtained alleged instances of GH's misbehaviour. Ms Patterson also conducted a number of other interviews and verified that there was support for some of EF's allegations of GH's misbehaviour. Ms Patterson did not submit what EF claimed to rigorous examination or give GH a reasonable opportunity to meet her allegations. Some of the background facts were not in dispute and there was documentary proof of some allegations. It has not been established that the defendants or the presenter knew that the statement at line 655 was false or were recklessly indifferent to its truth or falsity. Nor has it been established that the presenter honestly did not believe what he said. Falsified Sequences 855 GH submitted that there are included in the program film sequences that purport to show GH in acts of misconduct, or relate to such acts, but all are falsified. Line 209: Film of male hands typing. This footage illustrates the words "he even moved his home office into her bedroom. Most nights he'd be in the room when I'd go to sleep, and waking me up in the morning." 856 GH submitted that to the ordinary reasonable viewer/listener this is an assertion that the film is of GH working in his home office in EF's bedroom, as she claims. I do not agree. GH pointed out that the film is not labelled simulation, re-enactment or reconstruction and that there was no qualifying or explanatory statement. The ordinary reasonable listener/viewer would have realised that what was being shown was an illustration. The alleged events were said to have happened many years previously and the television cameras would not have been present. Line 435: Picture of male hands typing the words on a computer screen "Dear Emma." The transcript of the program states "[Picture of same hands as shown before typing]. 857 GH submitted that the footage highlights the words "he sent this email to her out of the blue: 'I would love to hear from you'." I would add the words "It is time we had a big catch up." GH submitted that to the ordinary reasonable viewer/listener this is an assertion that the film is of GH typing the email in question and that it was addressed to "Dear Emma". I do not agree. The film is not labelled simulation, re-enactment or reconstruction,. The email actually sent was in fact addressed "Hi ELF." GH is not alleged to have ever sent a "Dear Emma" email to EF. Again, the ordinary reasonable listener/viewer would have realised that what was being shown was an illustration. The email was stated to have been sent in April (2003), the program was shown on 13 October 2003 and the television cameras would not have been present. Line 455: Film of a man lying on a grass bank. 858 GH submitted that this footage highlighted the words "I walked outside of work and he was sitting on the grass and he saw that I was very scared and I ran straight back inside my office. But he still waited outside my office". The transcript of the film notes [Film of man, face into sun, emphasis on hands]. GH submitted that to the ordinary reasonable viewer/listener this was an assertion that the film is of GH lying in wait (or waiting) for EF. I do not agree. This alleged incident is said to have happened two days after GH sent the email in April 2003. The ordinary reasonable listener/viewer would have regarded the film as an illustration. It would have been realised that the television cameras would not have been present at the time of the alleged incident. Line 460: Film from within a car as it follows a small white car. 859 GH submitted that the footage highlights the words "As she drove home EF says that GH followed her in his car but she managed to get away. Then a few weeks later he turned up again and this time she couldn't lose him." GH submitted that to the ordinary reasonable viewer/listener this is an assertion that the film is of GH pursuing EF in her car. I do not agree. GH submitted there was nothing to alert the viewer/listener that this is a simulation, re-enactment or reconstruction. The ordinary reasonable listener/viewer would have realised that this was an illustration. There was no prior warning of this alleged incident and the television cameras would not have been present at the time of the alleged incident. Line 492: Film of feet running down a staircase. 860 GH submitted that the footage highlights the words "Craig and two of his friends raced to protect EF" (reporter). "And we all ran down the stairs, ran down the fire escape" (Craig Yelavich). GH submitted that to the ordinary reasonable viewer/listener this is an assertion that the film is of Craig Yelavich and his friends racing to protect EF from GH and that there was nothing to alert the viewer/listener that this was a simulation, re-enactment or reconstruction. I do not agree. The ordinary reasonable listener/viewer would have realised that this was an illustration. Again there was no prior warning of the alleged incident to enable television cameras to be present and they would not have been. Sequence of Interviews 861 GH pointed out that the defendants have not disclosed the timing and sequence of their gathering of material for compilation into the program. GH also contended that EF would not provide answers to her knowledge of those matters. EF's recall of the details was not good nor would I have expected it to be. Craig Yelavich gave evidence that he thought his interview(s) were filmed in September 2003 and that of his mother (Mrs Byrne) and that of EF had been filmed earlier than that. Mr Yelavich gave his beliefs as to the sequence of filming, but he did not profess to be certain about those matters. He recalled EF and Mrs Byrne going to Gulgong. He believed that EF was interviewed at his mother's house before he was interviewed. That is probably correct. EF believed that the master interview was filmed at Mrs Byrne's house and that the remainder of the interviews were filmed at Gulgong. 862 The text of the master interview was printed on 17 September 2003. There is no date when the text of EF's second and third interviews were printed. The text of the fourth interview was printed out on 27 October 2003. In that interview Ms Patterson asked EF what occurred at the meeting with ASI. That meeting took place on 17 September 2003. EF replied that it was said by Glen Tasker of Australian Swimming that "They were interested in first protecting Australian Swimming and their swimmers." EF said that Australian Swimming was very concerned about ACA doing a story on what had happened. EF said that Australian Swimming required her to make a formal complaint. The letter to Australian Swimming from EF bears date 29 September 2003. That is also the date on which the AVO complaint was made and the summons was issued. 863 It is not easy to piece together the sequence of events, but the following seems to have emerged: (a) In about early September 2003, filming of the interviews with EF and Mrs Byrne probably commenced. Filming of further interviews probably continued during the first part of September 2003. (b) There was an interview with Mr Tasker of Australian Swimming on 17 September 2003. Mr Tasker indicated that Australian Swimming would not become involved unless it received a written complaint. If it did it would take the matter further and refer it to GH. (c) On, or shortly after, 17 September 2003 EF met with Ms Patterson and told her of the outcome of the meeting with Australian Swimming. (d) Mrs Byrne and EF prepared a written complaint for the Chamber Magistrate to ground the application for an AVO. They also prepared a written complaint for Australian Swimming. They are not identical, but there are substantial similarities in the core allegations. In the letter to Australian Swimming, EF wrote: "I have had another interview with the local Chamber Magistrate. He has asked me to provide him with a brief written record of the events surrounding the complaint and also some background information. I am meeting with him again at 3.30 pm on Monday 29 September 2003, where he will decide to send an officer of the Court to serve an AVO on Hodge." (e) In EF's letter to the Chamber Magistrate it is stated that the event of 15 August 2003 was reported to the Police and that the police are prepared to lay charges for stalking. It is further stated "I am requesting the AVO because I am scared for my safety and want to be able to go places without having to worry that I am being followed." (f) On 7 October 2003 Ms Patterson took GH by surprise as he arrived at work. She telephoned him earlier that morning at home. He said as he arrived that an interview was not convenient. He asked to talk off camera. Ms Patterson said he could do so. Ms Patterson pressed GH unfairly, "But may I ask why you're following EF?" "You're scaring her, "I've got to ask you some questions," "There's a young lady who's scared of you because you're following her in your car." GH's request to speak off camera was brushed aside. She declined his invitation to come into his office and talk about the matter. Ms Patterson further pressed GH about the AVO (not yet served), "following EF," "had not seen her recently", "never laid eyes on her", "you haven't contacted her" and you didn't email EF and asked her to catch up?" By this stage GH realised he was being set up and responded, "Look, if there is a process that we have to go through, I'll go through the process." Ms Patterson's assertion that she would like to give GH the opportunity to answer those allegations was cant. Her object was to surprise GH unfairly and obtain film footage of him. (g) In the program the defendants have combined two of the questions put by Ms Patterson to GH, namely "Never laid eyes on her?; You haven't contacted her?; and the answer "No" which he gave to each of them. Ms Patterson in the program immediately asserts "GH is lying" and refers to the email GH sent on 28 April 2003 to EF. (h) During the surprise confrontation of GH on 7 October 2003, Ms Patterson told GH Australian Swimming "knows about this" and that Glenn Tasker had met with EF. She asked if he knew anything about an AVO. GH replied in the negative. (i) At the end of the program, the presenter refers to a statement issued by Mr Tasker late that day. 864 GH's submission, that the defendants took him by surprise with assertive questions of which he had no notice and no means to deal with on the run, is correct. They did not inform him of the claims made by EF and ask whether he wished to provide responses. Ms Patterson had telephoned GH at his home on the morning of Tuesday 7 October 2003, said that "This girl" had taken out an AVO. Ms Patterson wanted to come to GH's home and ask him questions. GH told her he didn't know anything. The defendants obtained pictures of GH under attack. They believed that GH would deny the allegations. As they were so serious and potentially destructive of his career and his livelihood, he should have been advised of the allegations and given a reasonable opportunity to respond to them. The defendants had EF read out serious allegations which EF had told them, at least impliedly, were incorrect, e.g., walking about the house naked in full view of EF and explaining to EF how to insert tampons. 865 GH placed reliance on the notes made by an employee of the defendants on Exh AK (being the email sent by Mrs Byrne to TCN9 A Current Affair on 16 August 2003 and headed "Stories Ideas: Harassment"). All the notes appear to be in the handwriting of one person and are as follows: " 12-13 years old Mudgee Hodge Coach Endeavour High School Letters, cards, birthday cards etc. Need mum to talk and boyfriend School complaint Cronulla Police Statements What's happened since?? Young home videos etc." (A tick has been placed in front of each of these items, but it would seem at different times). " Emma Fuller 0402 825 662 Principal? Other Teachers? Det Adam Johnson statement Still photos Vision 9 News Vision Olympic Flag come over from Atlanta Videotape of other girls Mooning camera made 4 Emma " 866 GH submitted that these notes showed the research plan and the degree of research undertaken by the defendants. They wanted pictures to illustrate the story, so they sought from the Channel 9 News Library "Vision" a photo of the flag-carrying ceremony involving EF at the Town Hall in George Street, Sydney. (EF was one of a number of girl swimmers selected to carry the Olympic flag which had arrived from Atlanta into the Town Hall). There was a well-attended public ceremony. GH believed it was an experience of some note for each of the girls and videotaped what occurred so each girl would have a record of the occasion. (GH was a camera and video tape enthusiast). GH contended that the defendants were also seeking "letters, cards, birthday cards, etc", from GH to EF to use as visual aids. They would also be supportive of EF's version of events. The defendants planned to interview Mrs Fuller and Craig Yelavich. They wished to obtain the statements made by EF to Cronulla Police/Det Johnson. The writer of the notes queried whether the Principal of Endeavour High School and other teachers at that school should be interviewed. The defendants sought the home video tape and still photographs and the videotape of other girls mooning the camera made for Emma. 867 I would infer from these notes that they were made at an early stage by an employee of the defendants of the preliminary steps that should be considered by the defendants. Some of them were taken. Other steps were also taken. Subsequently, and probably after the master interview and two further interviews with Ms Patterson, EF met with Mr Glenn Tasker on 17 September 2003. It seems that EF saw the Chamber Magistrate, told him of the events as she saw them and was asked to prepare a brief written record of the events surrounding the complaint. On 29 September 2003 the formal complaint was made out and verified on oath and a summons issued. About that day EF made her formal written complaint to Australian Swimming. It is not clear which document was prepared first. 868 From the materials before the Court the defendants did not proceed with the program until after the complaints of 29 September 2003 had been made by EF. 869 When regard is had to the sequence of events, it seems probable that the explanation for the erroneous statements appearing in the program at lines 590-593as that they were taken from the written complaint of EF of about 29 September 2003 and it was erroneously overlooked that this was not consistent with what was said at pp 7-9 and 14 of the master interview held prior to 17 September 2003. Those errors should not have been made when the subject matter was so serious. 870 GH submitted that the notes showed an intention to gather all the most damning material available, as much illustration as possible, anything from the police and school (neither of which the defendants obtained), and interviews with people who would support EF's allegations. This overstates the position and does not sufficiently allow for the notes being an indication of some preliminary steps and consideration. GH submitted that no document had been discovered which indicates that GH would be told of the allegations being made against him, and given an opportunity to answer them or cause material to be provided which cast doubt on the truth of EF's claims. I would not have expected there to be such a document but in a case such as this I would have expected such an opportunity to have been given to GH. Malice/Absence of Good Faith 871 GH relied on the express malice/absence of good faith/improper basis for comment defeasance of the defendants' comment/fair comment defences. GH supplied about 46 particulars of alleged instances of malice, etc Particulars (a)-(k) arise out of the use by the defendants of Mrs Byrne, the material which she provided and their encouragement to her to express adverse views of GH in strong terms. 872 The initiating email of 16 August 2003 from Mrs Byrne reveals her strong views about GH and her frustration at not being able to have his unwelcome attentions directed towards EF stopped. 873 From the terms of the interview between Ms Patterson and Mrs Byrne it is apparent that Mrs Byrne had strong adverse views of GH, that he deserved to be publicly shamed and that she was angry with GH as a result of what he had done to hurt EF. Ms Patterson encouraged Mrs Byrne to express extreme views, for example, that she would like to choke GH. Ms Patterson described GH as a psychopath. 874 As earlier pointed out, very little of the material in Mrs Byrne's interview was used in the program and what was used does not point to malice on the part of the defendants. The defendants are entitled to gather information and receive assistance from those affected by malice towards GH, but care is required as to the use, if any, made of such information and assistance. 875 GH has alleged that the defendants colluded with Mrs Byrne to broadcast the most damaging possible imputations against GH. Upon receipt of Mrs Byrne's email the defendants followed up the complaint she made. If what was said in the email was substantially true it was newsworthy and a matter of public interest, but the terms of the email alerted the defendants to proceed with caution. Prior to Ms Patterson interviewing EF a brief had been prepared for Ms Patterson by members of the staff of the defendants, apparently in discussion with EF, as they went over the events which EF said had taken place. Ultimately, after Ms Patterson had held a lengthy master interview with EF and some shorter interviews, decisions were made as to what would be included in the program. I do not accept that the defendants colluded with Mrs Byrne to broadcast the most damaging possible imputations against GH. 876 GH submitted (sub-para (l) that the defendants took an attitude against him that he was guilty of sexual perversion on no, or no adequate basis at the outset of their gathering of information for the program they intended to publish. Ms Patterson was suspicious, pressed some subjects and asked questions which suggested the answers. She sought to obtain full particulars of GH's alleged sexual misconduct as to EF. 877 Ms Patterson endeavoured to establish a rapport with EF and endeavoured to elicit EF's version of a number of events. At an early stage of the master interview EF had told Ms Patterson that when she (EF) moved into GH's home he ceased treating her like any other normal swimmer and she became GH's favourite. EF also told Ms Patterson that GH suggested that she (EF) could go and stay at the Hodges' house, without telling Ms Patterson the full story. EF also complained about GH controlling her life, as her guardian, swimming coach and school teacher. There were then the issues of GH kissing EF, GH fixing the girls' costumes and the application of Vaseline close to EF's breast. From the tenor of the questions and answers, it could be deduced that Ms Patterson was working from a brief. Further, within a short space of time after starting the interview EF stated matters which gave rise to reasonable suspicions that there may be some sexual misconduct on the part of GH. 878 There is frequently difficulty, where the complainant is a young woman raising issues of sexual misconduct, in eliciting the details of what is alleged to have occurred. This may necessitate raising particular subjects with the complainant. I am unable to accept that there was no adequate basis for Ms Patterson to form the suspicion that there may be sexual misconduct on the part of GH towards EF, but a thorough investigation was required. 879 I do not propose to review each of the 46 instances of alleged malice/lack of good faith by the defendants against GH. However, the following is a summary of matters, taken in combination, alleged to provide evidence of malice/lack of good faith on the part of the defendants: (a) Having EF read out these allegations on the program, when they had been told that they were not correct: "Several times he walked naked about the house in my full view" and "When I had my first menstrual period, he purchased tampons and stood outside the bathroom door explaining how to insert the tampons". (lines 590-593); (b) Deleting on a number of occasions, from the material in the program answers which related to subjects raised in the program which EF had given in her interviews with Ms Patterson and which tended to favour GH, for example, that GH never kissed EF on the mouth, that GH never touched EF on the breasts, that Vaseline was only applied to prevent or treat marks, chafing or cuts and that EF did not know whether her seeing GH naked was a deliberate act on GH's part; (c) After references to kissing, gifts and the home video and criticism of GH's conduct and a reminder that GH was 35 years EF's senior, the reporter asserts that GH went to extraordinary lengths to watch EF (lines 257 and 258 of program). This statement is strongly re-enforced by following it with part of the story about the hole in the bathroom door (lines 261-263). There is no mention, although EF told Ms Patterson, that the tissues which EF stuffed in the hole were still there when EF completed her shower. There is also the inherent improbability of the hole being used as a spyhole by GH when his wife or daughter were in the house. Apart from the slowness of the repair, the major practical problem seems to have been that EF on occasions forgot to put tissues or a towel in the hole before having a shower; (d) Wrongly stating in the program (lines 25-26), "Today police served him [GH] with an interim apprehended violence order following a formal complaint by EF." The defendants should have realised that this was incorrect. The statement at lines 576-578 on the program was closer to the mark; (e) No reasonable opportunity was given to GH to answer or meet the serious allegations being made against him. On 7 October 2003 GH was taken by surprise in the carpark of his workplace as he arrived for work; and treated unfairly; and (f) Falsely telling GH that his answers to (surprise) questions were not being recorded on sound or vision and subsequently using some of those answers. 880 There is no need to further consider GH's particulars of malice/lack of good faith/lack of proper basis for the comment/fair comment defences. As to the States and Territories other than New South Wales I am of the opinion that none of the comment/fair comment defences can be sustained. 881 I turn to the position in New South Wales. It is substantially correct to submit as the defendants did, and on the basis that imputation (d) was comment, that in respect of both imputations (d) and (h) to a large extent the defendants relied upon the comment of strangers and thus the defence under s 34 of the New South Wales Defamation Act 1974. Tobin and Sexton, Australian Defamation Law and Practice comment: "If the opinion is expressed by a stranger, such as a person [contributing] by telephone to a talk-back radio program it is not necessary in an action where the radio station is the defendant that the stranger holds the opinion represented by the comment but the defence will be defeated if it is shown that the publication of the stranger's comment by the radio station was not in good faith for public information …" 882 This approach centres on the good faith of the publication of the imputation constituting the comment and the material giving rise to it, rather than the good faith of the publication of the program as a whole. The two approaches will often overlap. It has not been shown that the publication of imputations (d) and (h), to the extent that they constitute or derive from comments of a stranger, were not published in good faith for public information. 883 Insofar as imputations (d) and (h) are comment and derive from expressions of opinion by Ms Patterson it has not been established that Ms Patterson did not have the opinion represented by the comment. 884 In New South Wales the comment defences under the New South Wales Act would prevail if imputation (d) should be classed as comment and imputation (h) had not been justified. Some General Observations 885 This case was hotly contested. I was reminded of the provisions of s 140 of the Evidence Act 1995 which I have applied. Counsel for GH stressed, correctly, the gravity of the allegations being made against GH and I have taken that into account. This is a case where the onus of proof has been important. The defendants have to establish the substantial truth of the many allegations made in the program. 886 I have, as earlier appears, serious reservations as to the substantial truth of portions of the evidence of GH, Mrs Hodge and EF. I thought Mr Phillip Fuller substantially told the truth as to what happened and what was said during his visit to the Hodge house during 16 August 2003, but at other times he sought to tailor his evidence and was opportunistic. Mrs Sue Fuller did her best to tell the truth. She was embarrassed. She was not keen on EF leaving home and going to Sydney but deferred to the wishes of her husband and EF. Relations between Mr and Mrs Fuller were strained and communications between them were not good for some time. This did not help when questions and problems arose with EF in 1996 and 1997. 887 On EF's return to Gulgong in February 1997 she became depressed for a period. Her depression was due in part to her realisation that her swimming career and ambitions had come to an end, to having to return to Gulgong and to GH not stopping his wife requiring EF to leave. Another factor was her realisation that three families did not want her living with them. Amongst other things, her self-esteem was affected. She expressed the view to Ms Patterson that she had done nothing wrong. She seemed to accept when speaking with Ms Patterson that GH had put her first on many occasions. 888 Both parties tended to take an overall approach to the credit of GH and Mrs Hodge on the one hand and EF on the other, with GH submitting that I should accept his evidence and that of his wife and the defendants submitting that I should accept the evidence of EF. I have not taken an overall approach but, while not losing sight of the general picture and the evidence overall I have examined the evidence in detail. Examining the voluminous evidence in detail and the lengthy submissions has been an exhausting and time consuming task. In a number of instances I have indicated where I have not accepted the evidence of GH and/or Mrs Hodge. 889 Many of my findings have been made on the basis that the defendants have not discharged the onus of proof resting upon them. 890 The evidence of EF gave rise to considerable difficulties in cross-examination. She did not like, even resented, being challenged on the honesty, accuracy and reliability of her evidence. She strongly objected to it being suggested that she was not telling the truth or the complete truth. I doubt if she realised sufficiently that a strong challenge was probable in view of the allegations she had made. She did not anticipate the strength of that challenge. 891 EF was cross-examined at considerable length but there was a considerable amount of material to be covered and evidence to be tested. 892 Counsel for GH subjected the evidence called by the defendants to a detailed analysis in his written submissions. That included the evidence of EF and the evidence called in support of her version of events. Considerable attention was directed to the stalking incidents. GH contended that, given the cross-examination of Messrs Yelavich, Unkuri and Birnie, their evidence should be put to one side. Mistakes were made and at times there was some confusion over the two incidents of following, but it is going too far to put their evidence to one side. They were young men who had not separated all the details of the two incidents in their minds and who were not good at expressing themselves. I am satisfied that there were two incidents of following, one about 30 April 2003 and the other about 15 August 2003. It is not in dispute that GH was in St Andrews Place on 15 August 2003. I am satisfied that EF and the young men confronted GH while in his car in St Andrews Place, that he was aware of this and drove off. 893 GH submitted that any reading of EF's evidence in chief alongside her cross-examination compels the conclusion that she maliciously adopted a technique of attempting to avoid discrediting by answering "I can't remember", even on occasion to questions on precisely the same subjects she had answered in chief. In paragraph 67 of GH's written submissions many examples (about 4 pages) were given of the points on which reliance was placed. In her evidence in chief EF readily responded to the questions put by counsel for the defendants. She seemed to accept that what he was trying to elicit was correct. From the start of her cross-examination EF was very wary, if not suspicious of what the cross-examiner was putting to her, and was of the belief that counsel was trying to trip her. She tended to adopt a higher standard of certainty when responding to at least some of the questions of the cross-examiner. I did not think that she maliciously adopted a technique as suggested. 894 It took very little time for the cross-examiner and EF to be at loggerheads. The cross-examiner, by his manner and some of his questions and comments conveyed that EF was being untruthful and EF resented this and the criticisms which the cross-examiner made of her during cross-examination. There were numerous objections, arguments and comments during the cross-examination. This all contributed to a very difficult and antagonistic atmosphere which EF was unable to handle. On occasions it was necessary to elucidate what a question or questions meant. This is not unusual. 895 There were a number of incidents during the cross-examination. On 14 November 2005 after a sustained period of forceful, intensive and hostile cross-examination (about T1038) the cross-examiner observed to EF that he could not ask her questions in words of one syllable, but he would make it as simple as he could; that was unnecessary and unfortunate. It came across as condescending and dismissive A little later (about T1044) I told the cross-examiner "just tone it down" (that is the questioning). The cross-examiner asked EF about what GH had said in the Hodges' house about the fitting of tampons and EF stated that GH had told her, "to read the instructions (on the packet); you have to use the tampons;" and that she "had to go in there (the bathroom) and do it …" (about T1048). When EF said she could not recollect anything further being said, the cross-examiner asked "Did he say to you 'part the lips of the vagina'?" EF protested saying "I have to take a break" and complained "I'm not stupid either", (about T1049) EF walked from the witness box and left the courtroom. There was a commotion in the courtroom with EF's parents and some people in the public gallery rising to their feet. EF's mother, Mrs Fuller, uttered a polite and firm protest. (I have used the word "about" because the numbering of the pages of the transcript on the copies varied). 896 Cross-examining counsel submitted that the question was justified having regard to the then unamended Particulars of Truth, the terms of the letter to the Chamber Magistrate and that to Australian Swimming. The question distressed EF and her parents. I thought the question descended to a level of unnecessary detail and was distressing. This was a defamation action and not a criminal prosecution. The cross-examination had to be adjourned to the following morning (15 November 2005). Upon resumption the very tense atmosphere of the trial continued and probably deepened. In the main, for much of the remainder of her cross-examination, EF did not look at the cross-examining counsel, but averted her gaze. After one unsatisfactory answer from EF to the cross-examiner, "Whatever you say is correct," the cross-examiner asked me to direct EF to answer questions to the best of her ability. I commented that the cross-examiner had displayed great and intense antipathy to the witness and that she was having enormous difficulty in dealing with any question. Counsel submitted that the view I had formed was erroneous and that EF had to answer questions. I also commented that the cross-examination had been of such a kind that I suspected this had been put out of her ability (about T1064). There were further submissions and further comments from me. I raised the question whether the case should proceed and, after hearing submissions, adjourned for a short period to consider that question. Upon resumption I explained to EF that she was not entitled to give the unsatisfactory answer earlier mentioned and that she has to answer the questions to the best of her ability. When I asked EF if she felt in a position to continue she replied that she would continue. 897 About T1110 cross-examining counsel asked me to note that when he asked the question the witness would not answer it and that when I asked the question the witness answered it. In reply I expressed the view that it was the way the question was asked. I was referring to the manner of questioning. I did not overlook that witnesses often make a better attempt to answer a judge's questions 898 About T1143 in answer to a relevance objection and in the presence of EF, the cross-examiner expressed strong criticism of EF's honesty in her presence. If I had anticipated what was said I would have earlier asked EF to leave the courtroom temporarily. 899 During the afternoon of 15 November 2005 the manner of the cross-examiner in asking questions again became very intense and hostile. About T1159 I expressed the view that the questioning that afternoon had been torrid. Cross-examining counsel disagreed with my view. I expressed the view that there had also been a large number of unfortunate comments from both leading counsel. EF had become distressed and I stopped the cross-examination and resumed it the following morning. EF was most unwilling to return, but it was explained to her that she must do so. 900 The cross-examination resumed on 16 November 2005 and concluded about 11.45am. 901 The assessment of the credit of EF is unusually difficult because of the manner of the cross-examination and the unfortunate comments made during its course. As earlier mentioned, she was a difficult witness but the manner of the cross-examination had a marked effect upon her, her evidence, her general attitude and her capacity to answer questions. Because of the manner of the cross-examination and the distress it caused her she found it difficult to focus upon the questions. She did not have the stamina to handle such a robust, torrid and prolonged cross-examination. I thought it unsafe to rely upon generalisations as to her credit and that what was required was a detailed examination of the evidence. This was a memorable case. It involved very personal matters and the witnesses left indelible footprints. In writing this judgment I have re-read the transcript, much of it more than once and the detailed and lengthy submissions of the parties, and studied the exhibits. 902 In forming the views I have expressed I have kept in mind the errors EF has made, her failure to carefully check the terms of the respective letters she signed to the Chamber Magistrate and Australian Swimming, her reading out incorrect statements on important matters which she knew were incorrect (these appeared on the program). There were also her mistakes as to matters of detail. There was also evidence as to the absence of sexual misconduct on the part of GH with any other swimmer. As earlier mentioned EF occupied a special place with GH. EF living in the Hodges' home complicated the position. Effect of Justification of Imputation (h) 903 The justification of imputation (h) does not lead to the conclusion that imputations (d) and (e) did not further injure GH's reputation. That is particularly so having regard to the basis upon which imputation (h) has been found to be justified. As previously stated contextual imputation M is not substantially different from imputation (h). Contextual imputation F is less serious than contextual imputation M. The combined effect of the contextual imputations established does not lead to the conclusion that imputations (d) and (e) did not further injure GH's reputation. They did. Damages 904 Imputations (d) and (e) are highly defamatory. It is extremely damaging to say of any person that he is a pervert who preyed upon a child under his care and protection. Likewise it is very damaging to say of a person that he engaged in constant acts of physical contact of a sexual nature upon a child under his care and protection. The question of damages does not arise as to imputation (h). 905 In Carson v John Fairfax & Sons Limited (1992-1993) 178 CLR 44 at 60-61 the judgment of four Justices stated, omitting citations: "Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that 'the amount of a verdict is the product of a mixture of inextricable considerations'. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. 'The gravity of the libel, the social standing of the parties and the availability of alternative remedies are all relevant to assessing the quantum of damages necessary to vindicate the appellant." 906 I apply the principles so stated. The personal distress and hurt suffered by GH was considerable. I include the injury to his feelings. GH said that he was depressed, had lost self-esteem and was basically restricted to his home. He did not want to confront people or be faced with people in the local community. He was unable to talk about his duties at Australian Swimming with coaches and athletes. GH gave evidence of being shunned and how this hurt him. An incident of being shunned in about December 2004 reminded him what had been said in the program had not been forgotten. GH was touched by supportive comments but angry and upset by critical comments apparently from those who believed what was said on the program. GH gave evidence as to his hurt feelings generally and also to his hurt feelings arising from imputations (d) and (e). A large portion of GH's general hurt feelings arose from imputations (d) and (e). While imputation (h) was serious, imputations (d) and (e) carried a greater sting. 907 GH said that he had lived in the Sutherland Shire for over twenty years. His home was there. He felt his position at Australian Swimming had become impossible and resigned. He took up a position overseas. He was relieved to be away from the tension and stress and it was good to have work. There is no claim by GH for continuing economic loss. 908 As earlier mentioned, there was a substantial body of evidence as to GH's good reputation prior to the program (and the promotional films). There was also a substantial body of evidence as to the damage caused by the program to GH's reputation. Aggravated Damages 909 GH sought aggravated damages and relied on a number of matters including the following (adjusted because of the finding as to imputation (h)): (a) the falsity to his knowledge of imputations (d) and (e); GH believed they were false; (b) the falsity to his knowledge of the contextual imputations not found to be a matter of substantial truth; GH believed they were false; (c) the defendants' malice in publishing the matter in the knowledge that it was false and/or without any honest belief that it was true and/or with reckless indifference to its truth or falsity. I have earlier made findings as to these matters. (d) the defendants' failure to fairly or adequately inform GH of the allegations they intended to publish about him. I have earlier referred to this failure which has been established; (e) the defendants knew prior to publication of GH's good reputation but published imputations (d) and (e); this is so; (f) the defendants' conduct in compiling the program; this includes the conduct of the interviews and the editing of the statements made by those interviewed the distorting combination of some answers and the juxtaposition of material in the program; (g) confronting GH by surprise as he arrived for work and treating him unfairly by publishing the footage taken; this is so; (h) repetition by the defendants of parts of the matter complained of in subsequent broadcasts (generally between 13 and 22 October 2003) and also 26 March 2004. This claim was disputed and is dealt with later. I have not included the matters the subject of imputation (h), the emails of 28 April 2003 and 11 July 2003 and the acts of waiting and following EF about 30 April 2003 and 15 August 2003; and (i) the defendants' conduct of the litigation. 910 The defendants accepted that a plaintiff is entitled to aggravated damages for the conduct of a defendant which is improper, unjustifiable or lacking in bona fides. They contended, correctly, that such conduct must occur to the knowledge of the plaintiff as it is the hurt to the feelings of the plaintiff which is the operative condition. 911 GH gave evidence (about T154) that he saw much material subsequent to the program broadcast by the defendants. GH said "I saw news broadcasts. I was interviewed on their TODAY Show and they replayed the worst parts of the show as a prelude to my interview with Channel Nine on the Wednesday." An examination of the materials suggested that GH may be referring to an Interview on the TODAY Show on Tuesday, 14 October 2003. The date is of no consequence. During the TODAY Show on 14 October 2003 the defendants did replay some of the most damaging (or worst) parts of the program broadcast on 13 October 2003 including uncorrected parts which EF had corrected in pre-program discussions. GH watched this while waiting to be interviewed. After the excerpts had been played GH and Mrs Hodge were interviewed. 912 GH also said that he watched material on Channel Nine which repeated or related material from the program on 13 October 2003. He did not give evidence of the specific broadcasts watched. A folder containing the terms of the subsequent broadcasts was admitted without objection (about T452). Senior Counsel for the defendants said that he understood the purpose for which the transcripts were being tendered and that the defendants did not accept that they were in fact capable of aggravating the damages, but that was a matter for argument later. The defendants also contended that GH did not say that his feelings were hurt by the broadcasts repeating parts of the program. There was ample evidence that the program and imputations (d) and (e) hurt GH's feelings. I would infer and conclude that a repeat of parts of the program covering the matters the subject of imputations (d) and (e) hurt the feelings of GH. The defendants contended that the TODAY broadcast to which GH was referring (probably that of 14 October 2003) was unexceptional and in fact portrayed GH in a favourable light, giving him ample opportunity to respond as he saw fit to the allegations made against him. The first part of the TODAY program does not portray GH in a favourable light. It contains uncorrected statements as earlier mentioned and an incorrect linking up of very damaging statements that GH went to extraordinary lengths to watch EF and about the hole in the bathroom door where a handle would be. GH was given an adequate opportunity on the TODAY program to respond as he saw fit with his wife also speaking. The interview between the compere and GH and his wife was not unfair. Nevertheless, the very damaging introduction to (or first part of) the program could not readily be overcome and, I infer caused hurt to GH's feelings. In some of the subsequent broadcasts GH is interviewed or quoted. He denied EF's allegations. 913 In my opinion GH is entitled to aggravated damages in respect of the repetition of parts of the program, but not including imputation (h) and the matters covered by it. 914 I am not satisfied that the defendants knew that imputations (d) and (e) were false or that each of their contextual imputations were false. Nor am I satisfied that GH is entitled to aggravated damages because they broadcast notwithstanding that GH, by his solicitors, had informed them of evidence of the unreliability of EF. 915 While the defendants were aware prior to publication that GH was highly esteemed and very senior in Australian Swimming and regarded by Australian Sport as an upstanding citizen, these considerations do not of themselves mean that GH is entitled to aggravated damages. However, such considerations meant that an adequate investigation was required. That did not occur and that was unjustifiable. 916 I have indicated my views as to the manner in which the program was compiled. This is a factor to be taken into account in the present case in assessing aggravated damages. 917 I do not accept, as GH submitted, that in considering the question of aggravated damages, I should take into account: (a) that the defendants had failed to disclose that they had agreed to pay the fees of EF's senior counsel on her application for an AVO. The evidence does not suggest that any such agreement was made prior to publication but rather that this occurred subsequently (b) that the defendants failed to disclose that EF had been given an indemnity. The indemnity was conditional upon the information provided by EF being true and correct to the best of her knowledge, information and belief and all comments made by her in the interview representing her honestly and sincerely held views. 918 In relying upon the conduct of the litigation counsel for GH relied upon the address of senior counsel for the defendants at the s 7A trial. He differed from senior counsel who appeared for the defendants before me. Senior counsel for the defendants at the s 7A trial, in the course of asking the jury to reject the nine imputations propounded on behalf of the plaintiff, suggested that there were three defamatory imputations arising from the program and that the main one was the second one, namely, that GH encouraged children to perform sex acts on each other and that GH was avoiding that imputation and had raised other imputations. (That alleged second imputation was based on lines 223-252 of the program). 919 On one view Mr Montgomery's statements as to the home video and GH's conduct were far fetched and overstated the position. On a literal view of the words used that imputation was open. The program was principally about GH's sexual misconduct towards EF. The raising by senior counsel of what I have described as the second imputation did not take into account the main thrust of the program. It and the comment that GH was avoiding that imputation and had carefully crafted and raised other imputations aggravated the hurt to GH's feelings. 920 I do not regard the pleas of justification and contextual truth in the Amended Defence as matters of aggravation in the present case. Substantial evidence was called by the defendants and many of the factual issues were resolved on the basis that the defendants had not discharged the onus of proof. 921 GH relied as a matter of aggravation on the defendants raising Amended Particulars (f)(iv) (GH walking naked about the house in full view of EF) and (f)(v) (GH explaining to EF how to insert tampons) when they knew them to be false. These matters had been the subject of correction by EF in her interviews with Ms Patterson. They should not have been stated in their uncorrected form in the Amended Particulars of Truth. They were not corrected by amendment until EF was cross-examined about them. This is a matter of aggravation. 922 Of the particulars of aggravation relied upon by GH and listed earlier, I have indicated those which I have accepted and the extent to which I have accepted them. 923 The defendants made no apology and issued no retraction. They conducted a substantial case. 924 Imputation (h) has been held to be justified. While the failure to apologise and retract is often a matter of aggravation it is not in the circumstances of the present case. I have taken into account the mode and extent of publication. 925 GH is entitled to aggravated damages. Exemplary Damages 926 Section 46(3) of the Defamation Act 1974 (NSW) provides that damages for defamation shall not include exemplary damages. 927 The defendants further submitted that the effect of s 46(3) of the Act was also to preclude the award of punitive damages for publication outside New South Wales in proceedings brought in a New South Wales Court and/or in respect of conduct leading to broadcast of the matter complained of and conduct subsequent to such broadcast taking place in New South Wales. Although this point was raised it was not the subject of full argument or full submissions. 928 In Regie Nationale Renault v Zhang (2002) 210 CLR 491 at 505-506 five Justices approved this statement from Pfeiffer (203 CLR 503 at 544): "The lex loci delicti should be applied by courts in Australia as the law governing all questions of substance to be determined in a proceeding arising from an intranational tort. And laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws." 929 In Pfeiffer a plaintiff had sued in the Supreme Court of the Australian Capital Territory for damages for personal injury suffered in New South Wales. A question arose as to the applicable law, as a New South Wales Act limited the amount of damages that could be awarded for non-economic loss. The law of the Territory imposed no relevant limit. It was held that the limitation on damages not being directed to governing or regulating the mode or conduct of court proceedings was a matter of substance rather than procedure, and therefore was governed by the lex loci delicti. 930 I regard the issue whether GH is entitled to exemplary damages in the States and Territories other than New South Wales as a matter of substance. Section 46(3) of the New South Wales Act does not apply to publications outside New South Wales. If, for example, GH sued in Victoria, he would have been entitled to seek exemplary damages in Victoria even though the conduct giving rise to the claim for exemplary damages occurred in New South Wales. The gist of the cause of action is the publication of defamatory imputations or matter. If in an action instituted in Victoria GH sought to claim damages for the publication in New South Wales he could not seek exemplary damages consequent upon that publication in New South Wales. 931 In my opinion, as a matter of law, GH is entitled to seek exemplary damages consequent upon the publications in Victoria, Queensland, South Australia, Western Australia, the Australian Capital Territory and the Northern Territory. Such claims are not barred in those States and Territories. 932 The defendants submitted that in respect of the publications outside New South Wales there was, on the evidence, no case for the award of punitive damages for such publication. In TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at [152]-[168] Spigelman CJ dealt with the principles as to the awarding of exemplary damages and quoted from the reasoning of Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd 155 CLR 448 at 471. 933 I regard the surprise confrontation of GH as he arrived at his workplace and the reporter misleading him and the conduct of the defendants as to video and sound recording, the lack of adequate investigation and the errors in the program which the defendants should have picked up and did not, as conduct to be discouraged. However, that conduct and the conduct of the defendants as a whole, falls marginally short of warranting an award of exemplary damages. I do not think that such an award should be made. Special Damages 934 GH claimed the costs of an experienced media consultant acting on his behalf. GH was attempting to mitigate the damage to his reputation by the program and needed advice and a consultant able to arrange interviews in which he could put his case and make denials, press conferences (with appropriate guidance) and generally handle the media. 935 The defendants submitted that this claim should be rejected as: (a) GH's purpose in retaining the media consultant was also to respond to EF's allegations in respect of her AVO application; they did not relevantly cause GH's engagement of the consultant (b) they were not liable to pay for GH's provision of false or unreliable information to the consultant nor for his circulation of that information. (GH disputed some of what was recorded by the consultant and his authority to distribute all that was discussed between them). (c) more importantly, if the Court found that GH did stalk EF, it would be unreasonable for the Court to effectively compensate GH for a media campaign based on falsehood, for example, GH denying that he had stalked EF. 936 The program was not completed or broadcast until after EF had made her complaint and sought an AVO and a summons had been issued. The matter was mentioned in the program and it was used to bolster the program. What principally led to GH retaining the consultant was the attention he received from the media consequent on the publication of the program and his need to be advised on how to handle the media and make his responses. He was concerned to defend his reputation. A strong attack had been made upon him in the program. 937 While I have found that GH probably followed EF the defendants have not established that he did so because of his sexual obsession with EF or his sexual attraction to her. GH denied that he deliberately followed her and that was part of the defence of his reputation (or part of the mitigation of his damages). GH and the consultant would have needed to talk to each other and meet. A lot had to be done in a short space of time. In defending GH's reputation reference had to be made to the AVO proceedings. 938 The amount claimed is moderate and, in the circumstances, I would allow about three-quarters of that amount. I allow $1337. Some Statutory Provisions - Damages 939 Section 46(3)(b) of the Defamation Act 1974 (NSW) provides that damages for defamation shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm. 940 Section 46A provides: "(1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded. (2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with any statute regulating the award of any such damages)." I have applied those provisions. 941 My attention was drawn to s 136 of the Civil Law (Wrongs) Act 2002 (ACT). Section 136(a) is in substantially the same terms as s 46A(1) of the New South Wales Act.. Section 136(b) provides that a court must take into account "the ordinary level of general damages component in personal injury awards in the ACT." I have applied that provision as to the publication in the ACT. Assessment 942 Damages are at large. In assessing damages as to imputations (d) and (e) and not overlooking imputation (h) was justified and the findings which I have made, I reiterate that imputations (d) and (e) are highly defamatory. In applying the principles in Carson previously quoted, it is accepted that the personal distress and hurt caused to GH by the broadcast of imputations (d) and (e) were great and significant reparation is required for the harm done to GH's reputation by them and in vindication of that reputation. Some of the personal distress and hurt experienced by GH was due to imputation (h) and the allegations of waiting for and following EF. 943 GH enjoyed a public profile as the man in charge of Australian Olympic Swimmers and was described in the program as "very senior in Australian Swimming" (line 612). The Australian Olympic Swimming Team and its coaching are matters of public interest. The team is publicly known to include male and female swimmers in their teens, even early teens. GH was also well known in the Sutherland Shire where he has lived for many years, taught at the Endeavour High School and coached swimming students. 944 GH's reputation is an important part of his life. He was an enthusiast devoted to swimming coaching. This program led those in charge of Australian Swimming to impose substantial restrictions on GH in the discharge of his duties and ultimately he felt compelled to resign. He was disappointed at the way he had been treated. He accepted employment overseas. He has been severely affected and disadvantaged by the change in standards and practices since 1995-early February 1997. 945 Assessment of damages in a defamation case, and the present one is no exception, involves a mixture of inextricable considerations. I assess GH's aggravated compensatory damages at $320,000 with $40,000 being included by way of aggravated damages. Taking into account the special damages this leads to a verdict of $321,337 to which interest must be added. 946 I stand over the question of interest and costs to a date to be fixed by arrangement with my Associate to finalise these proceedings. The parties should endeavour to agree on the calculation of interest. If there is disagreement each should prepare a draft calculation. ********** Tuesday, 28 November 2006 AMENDING JUDGMENT - SPECIAL DAMAGES 1 As there is an error in the section of the judgment headed "Special Damages" (pp 262-264) in that not all the invoices of Wilkinson Media were taken into account I withdraw that section. I had marked as Exhibit AJ Invoice 830, 31 March 2004 for $1782.45 but overlooked that some other invoices of Wilkinson Media had been included in that exhibit, namely: Invoice 715 17 October 2003 $ 18,802.84 Invoice 716 27 October 2003 4,667.64 Invoice 722 31 October 2003 78.83 Invoice 735 10 November 2003 725.91 Invoice 738 18 November 2003 1,102.35 Invoice 739 25 November 2003 1,143.45 Invoice 769 15 December 2003 1,867.64 Invoice 810 29 February 2004 1,872.83 ________ $ 30,261.49 2 When the sum of $30,261.49 is added to the sum of $1782.34, the total claim for special damages appears to be $32,043.83. 3 I have examined each of the invoices set out in the Table and re-examined invoice No 830. 4 As mentioned, GH claimed the costs of an experienced media consultant acting on his behalf. GH was attempting to mitigate the damage to his reputation by the program and needed advice and a consultant able to arrange interviews in which he could put his case and make denials, press conferences (with appropriate guidance) and generally handle the media. 5 I repeat that the defendants submitted that this claim should be rejected as: (a) GH's purpose in retaining the media consultant was also to respond to EF's allegations in respect of her AVO application; they did not relevantly cause GH's engagement of the consultant (b) they were not liable to pay for GH's provision of false or unreliable information to the consultant nor for his circulation of that information. (c) more importantly, if the Court found that GH did stalk EF, it would be unreasonable for the Court to effectively compensate GH for a media campaign based on falsehood, for example, GH denying that he had stalked EF. 6 Invoice 715 reveals that Wilkinson Media was retained on or before Sunday 12 October 2003 as work was done that day. The matter was urgent with publication of the program foreshadowed for the next day. The work carried out on 12, 13, 14 and 15 and 16 October 2003 and summarised in the account was reasonably necessary to defend GH's reputation and mitigate the damage to his reputation. 7 As to Invoice 716 and the work carried out on 17, 19, 20 October and summarised in that account, that was reasonably necessary to defend GH's reputation and mitigate the damage to his reputation. 8 I have noted that part of the work done by Wilkinson Media on 20 and 21 October 2003 involved fielding calls from the media regarding the AVO hearing and that on 22 October 2003 Mr Wilkinson was involved in attending at the Court where the AVO proceedings were listed, and media liaison. The AVO proceedings were referred to in the program and but for its publication it is improbable that those proceedings would have attracted the media in general. Liaison with the media at the Court was necessary. GH was trying to mitigate the damage to his reputation. The AVO proceedings involved GH following EF, amongst other matters. There were small charges for media liaison on 23 and 24 October 2003, which liaison appears probably to be reasonably necessary. 9 Invoice 722 deals with work on 28 and 29 October 2003, which involves preparations for Court proceedings. Technically, these may be part of GH's costs of the proceedings. Invoice 735 involves preparations for Court proceedings and various conversations with a media identity and GH's solicitor. These invoices, which are for small amounts, do not mention the particular Court proceedings. 10 Invoice 738 covers Mr Wilkinson's attendance at Court on 12 November 2003 when the AVO proceedings were listed, media liaison and supplying a media identity with material. Invoice 739 covers Mr Wilkinson's attendance at Court on 20 November 2003. The nature of the proceedings is not stated. Invoice 769 covers media work, conferences and advice to 13 December 2003. 11 Invoice 810 covers the period 15 December 2003 to 29 February 2004, liaison with GH's solicitors re subpoena and mostly attendance at Court (nature of proceedings not specified nor precise dates of attendance, but s.7A trial held in February 2004). 12 Invoice 830 is headed "Media Campaign – March 2004" and covers advice pre and post Court appearances, preparation of media releases and media liaison and monitoring and follow-up work with GH's solicitors. 13 I regard Mr Wilkinson's attendance at Court on the dates the AVO proceedings were listed as reasonably necessary to assist GH defend his reputation and mitigate the damage. I also regard Mr Wilkinson's attendance for part or parts of the s.7A trial as reasonably necessary for the same reason. As mentioned, it was the publication of the program which precipitated the general media interest in the AVO proceedings. 14 GH, after the events of 7 October 2003 and after it became clear that the defendants were going to proceed with the program, reasonably anticipated that there would be much media interest in and coverage of the matters raised in the program and that he would need expert advice and assistance in his response to defend his reputation and mitigate the damage. GH was correct in his anticipation and consequent to the publication he received a lot of media attention. A strong attack had been made upon him in the program. 15 As previously mentioned, while I have found that GH probably followed EF on two occasions the defendants have not established that he did so because of his sexual obsession with EF or his sexual attraction to her. GH and the consultant would have needed to talk to each other and meet. A lot had to be done in a short space of time. In defending GH's reputation reference had to be made to the AVO proceedings. 16 The amounts claimed in the various invoices are reasonable. 17 I think the defendants, by their proposed publication of the program caused GH to retain the consultant and by its publication caused GH to continue to need, employ and use the consultant. Part of GH's media campaign was based on the assertion that he did not deliberately follow EF and the Court should not compensate GH in respect of the costs of that. It is also necessary to also bear in mind the basis on which imputation (h) is justified. On the terms of all the invoices of Wilkinson Media and the evidence and in the circumstances disclosed I think that a broad assessment should be made and that the sum of $21,000 should be allowed for this claim of special damages. It is not useful to go into further detail and I have not done so. 18 A draft of the foregoing was forwarded by FAX to each of the parties on 20 September 2006. At the hearing as to interest and costs on 16 November 2006 the parties proceeded on the basis of the draft being delivered. This amending judgment is now formally delivered. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.