New South Wales Supreme Court CITATION : Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764 14/03/07-16/03/07 19/03/07-23/03/07 26/03/07-27/03/07 29/03/07-30/03/07 HEARING DATE(S) : 02/04/07-05/04/07 10/04/07-13/04/07 25/06/07-29/06/07 02/07/07-06/07/07 11/09/07 5/12/07-06/12/07 JUDGMENT DATE : 1 August 2008 JURISDICTION : Common Law Defamation List JUDGMENT OF : Kirby J (1) In respect of the action for defamation by Mr Jeremy Griffith against the ABC and Dr Millikan, there should be a verdict for the defendants. DECISION : (2) In respect of the action by Mr Timothy Macartney-Snape against the same defendants, there should be a verdict for Mr Macartney-Snape in the sum of $448,500. (3) I reserve costs and interest for further submissions . (4) I note that, in the action by Mr Jeremy Griffith against the same defendants in respect of injurious falsehood, I gave judgment for the defendants on 4 July 2007, reserving costs (Griffith v ABC [No 1] [2007] NSWSC 711). Those costs have yet to be determined. CATCHWORDS : DEFAMATION - second stage defamation trial after 7A trial - three imputations - Four Corners - publication throughout Australia 1995 - defences of justification, qualified privilege (common law and statutory) - fair comment - NSW and interstate equivalent provisions - improper purpose or malice - damages including aggravated damages - causation of damage - other aspects of programme also damaging to reputation but not sued on - whether loss of career as public speaker caused by imputations - claim for exemplary damages. Defamation Act 1974 (NSW) Evidence Act 1995 Australian Broadcasting Corporation Act 1983 (Cth) LEGISLATION CITED : Broadcasting and Television Act 1942 (Cth) Defamation Act 1957 (Tas) Defamation Act 1938 (NT) Criminal Code 1889 (Qld) Criminal Code 1913 (WA) CATEGORY : Principal judgment Jones v Dunkel (1959) 101 CLR 298 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 Sleeman v Nationwide News Pty Limited [2004] NSWSC 954 Howden v The Truth and Sportsman Limited (1937) 58 CLR 416 Sutherland v Stopes (1925) AC 47 Griffith v ABC [2002] NSWSC 86 Greek Herald Pty Limited v Nikolopolous [220] NSWCA 41; (2002) 54 NSWLR 165 Tankard v Chafer [2005] VSC 171 Adam v Ward [1917] AC 309 Reynolds v Times Newspapers [1999] UKHL 45; [2001] 2 AC 127 Jameel & Ors v Wall Street Journal Europe SPRL [2006] UKHL 44; [2007] 1 AC 359 Bonnick v Morris [2002] UKPC 31; [2003] 1 AC 300 Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510; 68 ALR 259 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Vilo v John Fairfax & Sons Ltd [2000] NSWSC 937 Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 CASES CITED : Fawcett v John Fairfax Publications Pty Limited [2008] NSWSC 139 John Fairfax Publications Pty Limited v O'Shane [2005] NSWCA 164 Kemsley v Foot [1952] AC 345 at 356 Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 Brett May v TCN Channel Nine Pty Ltd & Ors [2007] NSWSC 760 Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 Herald & Weekly Times Ltd & Andrew Bolt v Popovic [2003] VSCA 161 Cheng v Tse Wai Chun Paul [2000] 3 HKLRD 418 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 Uren v John Fairfax & Sons Pty Limited (1965-66) 117 CLR 118 Andrews v John Fairfax & Sons Limited [1980] 2 NSWLR 225 Selecta Homes and Building Co Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd [2001] SASC 140; (2001) 79 SASR 451 Associated Newspapers Ltd v Dingle [1964] AC 371 Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Chappel v Hart (1998) 195 CLR 232 Shorey v P T Limited [2003] HCA 27; (2003) 197 ALR 410 Triggell v Pheeney (1951) 82 CLR 497 John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503 Australian Consolidated Press Ltd v Uren [1967] 117 CLR 221 Griffith v ABC [No 1] [2007] NSWSC 711 TEXTS CITED : Gatley on Libel and Slander, 10th ed, 2004 The Law of Defamation of Australia and New Zealand: Gillooly, 1998 Jeremy Norman Griffith (1st Pl) PARTIES : Timothy John Macartney-Snape (2nd Pl) Australian Broadcasting Corporation (1st Def) David Millikan (2nd Def) FILE NUMBER(S) : SC 20300/2001 COUNSEL : K P Smark SC/S Chrysanthou (1st & 2nd Pls) B W Walker SC/J Sheahan SC/E Raper (1st & 2nd Defs) SOLICITORS : Schweizer Kobras, sols (1st & 2nd Pl) ABC Legal Services (1st & 2nd Defs) I N D E X Para 1. INTRODUCTION The action. 1 Second stage of the action. 8 Structure of this judgment. 13 2. THE MAKING OF THE PROGRAMME Background. 16 The fundamental concept. 30 The place of God. 42 Mr Griffith as a prophet. 46 The role of women. 51 The new world. 57 Defences against derision. 60 The launch of the book "Beyond". 65 The Bulletin article. 82 After the launch. 90 The "Absurd Cult Saga". 103 The lack of progress. 106 Review in The National Outlook 115 The Geelong Grammar speech. 120 Dr Millikan's approach to the ABC. 133 Permission to make the programme. 136 The conversation on 11 January 1995. 138 The second meeting. 151 Interview with Mr Macartney-Snape. 165 Interview with the Whelans. 168 The walk in the Snowy Mountains. 177 The second and third days of the walk. 192 The segment on the Belfields. 196 The Hi-8 footage. 205 Third meeting. 218 Second interview with Mr Macartney-Snape. 233 The use of the religious idiom. 238 First interview with the Belfields. 259 Armidale Open Day. 264 The Concord speech. 271 The interview with Jeremy Griffith and its aftermath. 288 Completion of the programme. 305 Publicity before the programme. 314 The broadcast. 353 Supportive parents. 363 After the broadcast. 386 Response of Dr David Millikan. 414 Was there misrepresentation? 421 The Millennium documentary series. 442 The relevance of the misrepresentation. 455 Treatment in the final programme. 471 3. THE GRIFFITH IMPUTATION The Imputation. 491 The defence that the imputation was a matter of substantial truth. 496 The elements of the imputation. 500 "Holds himself out as a scientist". 504 Peer review. 508 Popular science. 514 The nature of scientific method. 516 Reductionism v Holism 525 "Such poor standard". 531 "No support at all from the scientific community". 535 Were the works of such poor standard? 552 Professor Hartwig. 554 Professor Churchill. 566 Professor Prosen. 579 Dr Casebeer. 584 Professor Groves. 598 Professor Flannery. 619 Professor Henneberg. 628 Evaluation. 638 What amounts to support? 651 Mr Griffith's belief. 667 The support of Professor Groves. 678 Professor Davies. 687 Professor Birch. 702 Professor Morton. 725 Qualified privilege at common law. 746 Statutory qualified privilege in New South Wales. 760 Statutory qualified privilege in Queensland and Tasmania. 787 The defence of fair comment (NSW). 794 4. THE MACARTNEY-SNAPE IMPUTATIONS The imputations. 822 The defence of truth. 825 The truth of the deception imputation. 830 Submissions concerning the deception imputation. 849 The recruitment imputation. 880 Qualified privilege. 895 The defence of fair comment. 901 5. DAMAGES: MACARTNEY SNAPE The reputation of Mr Macartney-Snape. 925 Hurt to feelings. 940 Damage to Mr Macartney-Snape's reputation. 945 Claim for special damages. 947 Causation. 966 Aggravated damages. 984 Exemplary damages. 992 Quantification of damages. 1001 Orders. 1003 ********** 1. INTRODUCTION The action. 1 KIRBY J: On 24 April 1995, the Australian Broadcasting Corporation ("the ABC") broadcast throughout Australia a Four Corners programme, "The Prophet of Oz". The narrator was the Reverend Dr David Millikan. The programme was again shown on 2 May 1995. 2 On 6 April 2001, shortly before the expiration of the limitation period, an action in defamation was commenced against the ABC (first defendant) and Dr Millikan (second defendant) arising out of the programme. There were a number of plaintiffs. They included Mr Jeremy Griffith (1st plaintiff) and Mr Timothy Macartney-Snape (3rd plaintiff). The Third Amended Statement of Claim asserted, on behalf of Mr Griffith, seven imputations. In the case of Mr Macartney-Snape there were four imputations. 3 On 30 May 2003, after a jury trial before Levine J, the following imputation was found to have been conveyed in respect of Mr Griffith and to have been defamatory: (Ex A(16)) "(Q7) Jeremy Griffith, who holds himself out as a scientist, publishes work of such a poor standard that it has no support at all from the scientific community." 4 Six imputations were found not to have been conveyed, or not defamatory. It is relevant that the jury determined that the following imputation was not conveyed: (Ex A(16)) "(Q15) Jeremy Griffith is the founder and leader of a harmful cult which poses a threat to the community." 5 In respect of Mr Macartney-Snape, the jury found that two imputations had been conveyed and were defamatory of him, namely: (Ex A(16)) "(Q21) Tim Macartney-Snape deceives schools who invite him to talk to students about climbing Mt Everest by exploiting the occasion to promote Jeremy Griffith and his teachings. (Q23) Tim Macartney-Snape abuses his position of influence, derived from his reputation as a mountaineer, to recruit students at schools for Jeremy Griffith." 6 The jury, however, found the following imputation, amongst others, was not conveyed in respect of Mr Macartney-Snape: (Ex A(16)) "(Q27) Tim Macartney-Snape is a member of a harmful cult which poses a threat to the community." 7 The actions by the remaining plaintiffs failed. Second stage of the action. 8 The 7A hearing having concluded, the defendants filed an Amended Defence on 9 February 2004. In respect of the publication in New South Wales, they sought to rely upon the following defences: · first, that each imputation was a matter of substantial truth (s15 Defamation Act 1974) ("the Act"); · secondly, that each imputation was published in circumstances attracting qualified privilege, either at common law or under s22 of the Act; · thirdly, that the imputations were "comment" within Pt 3, Div 7 of the Act. 9 These defences, of course, raised a number of issues. In the case of statutory qualified privilege, the issues included whether the conduct of the publisher, in publishing the material complained of, was reasonable in the circumstances (s22(1)(c) of the Act). 10 The plaintiffs' action was also based upon the publication of the same programme in States (and Territories) other than New South Wales. The defences available interstate differed to some degree from those available under the New South Wales Act. It will be necessary to consider the position in respect of each State and Territory. 11 By a Further Amended Reply, filed on 24 April 2006, the plaintiffs denied the availability of such defences. Alternatively, it was said that the publications were actuated by malice or an improper purpose. The Particulars accompanying the Reply were extensive (MFI 6). Amongst other issues, they raised the following: · first, the suitability of the Rev Dr Millikan, a Minister of the Uniting Church, to examine the ideas of Jeremy Griffith, there being a clash between those ideas and the Rev Dr Millikan's commitment to Christianity and a transcendental God. · secondly, whether the co-operation extended to the ABC by the plaintiffs was induced by misrepresentations made by the Rev Dr Millikan. · thirdly, whether the defendants published imputations which they each knew to be false, or did not believe to be true. 12 Neither the first plaintiff (Jeremy Griffith) nor the second defendant (Rev Dr Millikan) gave evidence. Each, nonetheless, was omnipresent, since so much of the documentary and audio evidence included their words. Both parties made submissions based upon Jones v Dunkel (1959) 101 CLR 298. It was suggested that the appropriate inference may depend upon the onus. The onus, of course, is upon the defendants to establish each defence and upon the plaintiffs in respect of malice. Structure of this judgment. 13 This judgment will be divided into a number of sections. It is convenient to begin, first, with an examination, more or less chronological, of the making of the programme. Findings of fact will be made relevant to the various defences and the issues raised in the Reply. 14 Secondly, the defences in respect of the imputation concerning Mr Griffith will then be examined and whether, where appropriate, such defences are defeated by malice. If the defences fail, whether because they are not made out or by reason of malice, the issue of damages will be examined. 15 Thirdly, the action by Mr Macartney-Snape, in respect of the two surviving imputations which relate to him, will then be examined, adopting the same course. 2. THE MAKING OF THE PROGRAMME Background. 16 Mr Griffith was born in 1945. He spent his early years in the country near Albury. He was educated at Geelong Grammar. He ultimately completed a science degree at the University of Sydney, majoring in biology. He was, by all accounts, an indifferent student. Mr Macartney-Snape, in a passage from an interview used in the programme, said this: (Ex N(2): p31) "He didn't do very well at university. You know, he was described as almost backward at school. and you know, he's a kid from the Australian bush it's. You know he's not in the main stream of, of intellectual thought … " 17 Having left university, Mr Griffith made a search for the Tasmanian Tiger extending over six years. His search attracted media attention, including from the ABC in a programme "The Big Country" in 1972. In the Four Corners programme, the Rev Dr Millikan said this: (Ex N(2): p31) "The Tasmanian wilderness is where the revelation which transformed Jeremy Griffith began. In nineteen seventy-two, Griffith was on a remarkable five year search for the Tasmanian Tiger. He never found it but became consumed by an overwhelming question. Why had human beings destroyed such a beautiful animal?" 18 Mr Griffith thereafter established a successful furniture business with his brother. At the same time he began what he described as a thirteen year period of study, where he examined "the plight of another species - humanity" (Ex D: back cover). He established, with others, an organisation known as the Centre for Humanity's Adulthood, later known as the Foundation for Humanity's Adulthood ("the Foundation"). In 1988 he published a book "Free: The End of the Human Condition" (Ex D). The book carried a sub-title in these terms: "The Biological Reason Why Humans Have Had To Be Individual, Competitive, Egocentric & Aggressive" (emphasis in original). 19 The "Human Condition" is the capacity of human beings for both good and evil. The claim he made on the front cover of the book was expressed in these terms: "This book introduces the understanding that frees humans from insecurity - from our 'sense of guilt'. It establishes 'the dignity of man'. It is the fundamental understanding we need to rebuild our self-esteem. It puts an end to the age old misconception of 'good' and 'evil' and reveals the origin of so-called 'sin'. It reconciles the 'left' and the 'right' in politics and ends argument, conflict and war. It makes peace possible. In short it ends The Human Condition. Our hope and faith that we would avert apocalyptic self destruction is realised." 20 The book was published by Mr Griffith himself, for the reasons Mr Macartney-Snape later provided: (Ex E: p257) "When the book was ready for publication, publishers found it too confronting and shied away from it. In the end he decided to publish it himself." 21 Mr Tim Macartney-Snape was born in Tanganyika in 1956. He also attended Geelong Grammar, although much later than Mr Griffith. He completed a science degree at the Australian National University, likewise majoring in biology. From an early age Mr Macartney-Snape had an interest in the outdoors. His interest was fostered by Geelong Grammar and its requirement that students spend time at a remote centre known as Timbertop. Once at university he joined a mountaineering club. And so began a distinguished career in mountaineering. 22 Mr Macartney-Snape participated in mountaineering expeditions to New Zealand and the Himalayas, climbing Mt Dunagiri (7,066 m) in 1978, Ama Dablam (6,850 m) in 1981 and Annapurna II (7,937 m) in 1983. During the descent of Annapurna there was a blizzard. The expedition was delayed and ran out of food during the last five days. They were reported as missing, such that when they ultimately returned there was significant publicity. Mr Macartney-Snape was able to use that notoriety to attract sponsorship from Channel 9 for his next venture, which was climbing Mt Everest from the Chinese side (T241). On 3 October 1984, he became the first Australian to climb Mt Everest. His achievement was the more remarkable because the climb was made without oxygen. He was, as a consequence, awarded the Medal of the Order of Australia (OAM). 23 Later that year (1984), Mr Macartney-Snape accompanied the entrepreneur, Mr Dick Smith, and his family, on a trek in Nepal (Ex E: p9). That meeting was important for a number of reasons. Mr Smith was the founder of the Australian Geographic Society. In 1988 he agreed that the Society would sponsor a further expedition led by Mr Macartney-Snape, which became known as "The Sea to Summit Expedition". He was to walk from the Bay of Bengal to the top of Mr Everest, a feat never previously undertaken. 24 Mr Smith, as it happened, was a neighbour of Mr Jeremy Griffith. Mr Griffith attended a function arranged by the Australian Geographic Society in 1987 to hear Mr Macartney-Snape speak. They met after the speech and met again several months later at the home of Mr Dick Smith. Mr Griffith discussed his ideas, which were of great interest to Mr Macartney-Snape. He provided a draft copy of his book, "Free: The End of the Human Condition" (T259), which Mr Macartney-Snape thereafter studied. Mr Macartney-Snape later said that the explanation provided for human nature "made total sense" (Ex E: p258). 25 On 5 February 1990, Mr Macartney-Snape set out from the Bay of Bengal. He walked more than 1,000 kilometres to Mt Everest. He reached the top of Everest on 11 May 1990 (Ex F: p8). He carried with him a number of flags, including the flag of the Australian Geographic Society, his sponsor, and that of the Foundation for Humanity's Adulthood (Ex E: p248). The description which Mr Macartney-Snape later provided of the moment when he placed these flags on the summit included these words: (Ex E: p247) "Next came a small pennant that Jeremy Griffith and his partner Annie Williams had given me in Sydney. It showed a triumphant fist holding aloft the key that symbolises the knowledge that frees us from the human condition. I had wanted to carry it to the summit because I believed theirs was an utterly responsible and very brave stance to be taking in a world close to the brink of disaster." 26 As before, the climb was made without the aid of oxygen. Mr Macartney-Snape's achievement was again publicly recognised when he became a Member of the Order of Australia (AM). 27 Mr Macartney-Snape then began writing about his adventures, and later published a number of books, as I will shortly describe. He was, at the same time, heavily involved with the Foundation and Mr Griffith's ideas. Although he was a "fan" of Mr Griffith's first book ("Free"), Mr Macartney-Snape recognised that there were better ways of presenting those ideas (T321). He therefore encouraged Mr Griffith to publish his ideas in a condensed form. He recognised, as did others, the danger of the ideas being branded a cult. He and others encouraged Mr Griffith to emphasise the science rather than the religion, that the ideas embodied a rational understanding (T321). Mr Griffith then wrote his second book, "Beyond the Human Condition" (1991). The book, being without a publisher, was again self published. The back cover included these words: (Ex F) "Charles Darwin connected humans with nature but there biology has been stalled, unable to explain the human condition, the riddle of human nature, our capacity for good and evil. Astonishingly, it is this biological question of questions that Jeremy Griffith has answered. Paradoxically his answer dignifies humans in the most remarkable way. It lifts the burden of guilt. This book presents the understanding sorely needed for our species' psychological rehabilitation; the real repair of ourselves and of our planet. This is the breakthrough humanity has yearned for and worked towards unceasingly, against immense odds since our conscious mind emerged 2 million years ago." 28 The front piece, under the symbol for the Foundation for Humanity's Adulthood, included these words: (Ex F) "The crux problem on Earth has always been the human condition, our capacity for good and evil. The discovery of its cause is the key to our freedom. Humanity can now end its insecure, upset adolescence and enter its peaceful adulthood." 29 The book was launched in November 1991, as I will shortly describe. However, I should first deal with some of the ideas in the book itself. The fundamental concept. 30 The book in its presentation is repetitive. It uses jargon, that is phrases that are repeated many times in different contexts ("evasion", "upset", "dignifying truth" etc). A convenient statement of Mr Griffith's ideas was provided by Mr Macartney-Snape in his foreword to Mr Griffith's book "Beyond" and the appendix to his book (published the following year), "EVEREST Sea to Summit" In the latter publication Mr Macartney-Snape said this: (Ex E: p258/9) " … Any rudimentary consciousness was subordinate to instinct. Instincts are behavioural orientations we are born with. They are a product of the genetic information-processing system. This is a form of thinking. Consciousness, on the other hand, is a product of a newer, more able form of information processing, or thinking. It is a nerve-based learning system. Nerves, with their ability to remember past events, can compare experiences and find commonly occurring ones. They can deduce the relationship between events and, on that basis, predict future events. Nerves can understand cause and effect. Highly significantly, nerves are insightful, while genes are not. The basis of consciousness is knowledge or the accumulation of understanding. As a wholly new phenomenon, consciousness could acquire knowledge only through trial and error, through experiments in self-management. Tragically our already established instinctive self had no appreciation of the need for these errors or mistakes. Our instinctive self, being unaware or ignorant of the newly emerged conscious mind's need to make mistakes, condemned them. It criticised our intellect. Our instinctive self, in effect, wanted our intellect just to obey it and not search for knowledge. For its part, consciousness could not 'explain itself'. It couldn't explain why it had to make mistakes. For that we needed the knowledge - in particular, an understanding of the difference between the gene- and nerve-based learning systems - that we were setting out to find. Unable to explain ourselves, we were made to feel insecure by our instinct's ignorant criticism of our intellect's necessary search for knowledge. It was unavoidable that this unwarranted criticism should upset us. We became angry towards it; we tried to block it out and to prove it wasn't deserved; we became angry, alienated and egocentric. To champion our intellect, we had to resist the ignorance of our true goodness. We had to suffer being upset in order to find knowledge." 31 Mr Griffith provided a striking metaphor to illustrate the concept. It was the story of Adam Stork. The Four Corners programme included Mr Griffith telling the story (Ex N(1)). Adam Stork was a bird perfectly orientated by instinct to migrate to Europe at a certain time each year, following a particular path. Suppose a fully conscious mind were added to his instinct controlled brain. Assume that, whilst flying north, Adam Stork saw an island with apple trees laden with ripe fruit. His newly acquired conscious mind believed it was appropriate to fly down and try the apples. For the conscious mind to make sense of the world, it was necessary that he learn by trial and error. The instinctive mind, however, was anxious that he should remain on course. It did not want him to search for understanding. It was, moreover, critical of his impulse to deviate from the instinctive route. 32 Adam Stork realised, however, that he could not ignore his intellect. He needed to know. But he felt bad about disobeying his instincts. He was immediately condemned to a state of "upset". The battle had broken out between his instinctive self and his conscious mind (Ex F: p27ff). 33 Man, as a distraction and a comfort from "upset", pursued egocentric and selfish behaviour, materialism, and even violence. In the process man demonstrated a capacity for evil. Commenting on the metaphor, Mr Griffith said this: (Ex G) "This is similar to the mythical story of the Garden of Eden where Adam and Eve take the fruit from the tree of knowledge - go in search of understanding - except that in this presentation Adam and Eve are heroes not evil villains. They had to search for knowledge and defy ignorance. Upset was the price we had to pay to find knowledge. As it says in the song The Man of la Mancha we had to be prepared 'to march into hell for a heavenly cause'. My book explains that human's instinctive orientation wasn't to a migratory flight path rather it was to behaving utterly cooperatively. As it says in Genesis (if you read between the lines The Bible is full of truth), we were once 'in the image of God', that is ideally behaved, cooperative, loving and selfless. Then some two million years ago our conscious mind emerged and we had to battle the ignorance of our perfect instinctive orientation or conscience - in order to find understanding of that orientation. Worst of all our resulting upset behaviour drew further criticism from our idealistic conscience making us even more insecure and upset! The human condition of having to live with an undeserved sense of guilt is the cause of all the anger, egocentricity and alienation that is destroying our planet. The human condition is at the root of all our problems." 34 Returning to Mr Macartney-Snape and his commentary, he said this: (Ex E: p259) "So this is the good reason for our 'badness', our upset state. … Our striving and suffering have represented an incredibly heroic struggle to champion the intellect over ignorance, to reconcile conscious and conscience, to abolish the antagonism within. However much we might have appeared to be an evil, wayward species, we have actually been fundamentally heroic and good. The tragic side of history has all been, in the end, for a greater good." 35 The explanation provided by Mr Griffith in his book is said to be grounded in science, not religion. It did not require faith. The manifestations of evil (termed "upset") are not genetic. Rather, they are the product of the learning process which our large brain and intellect have required. Mr Macartney-Snape said this: (Ex E: p259) "Anthropological evidence suggests that our fully conscious mind appeared some two million years ago with the advent of the genus Homo. The implication, then, is that this battle between instinct and intellect, this peculiarly human predicament, or condition, of having to live with an undeserved sense of guilt or badness, has been with us for two million years! We have been an immensely heroic but at the same time immensely upset species. Now at last, with this greater dignifying and reconciling understanding of ourselves, our upset is free to subside." 36 Part of the science upon which Mr Griffith relied was the evolutionary history of our species, Homo sapiens sapiens. Mr Griffith identified a number of stages in our development. Our ape ancestors lived between twelve million and five million years ago. Like certain primates today, they had comparatively large brains. There began a process of what was termed "love indoctrination" (cf Ex F: Figure 3, p131), which was described in these terms: (Ex F: p84/5) "A brain is an observer of its world. To the brain of an infant its mother's maternalism appears to be selfless behaviour. This means that while an infant is being nurtured its brain is being taught that the way to treat others is selflessly or lovingly. Further, the longer the infancy the more thorough that training will be. If selflessness is taught sufficiently well in infancy, the adult will behave selflessly. The 'trick' to love-indoctrination is that while maternalism is genetically selfish it trains the infant brain in selflessness. The longer the infancy and the more thorough the training, the more the species will practise selflessness or love or cooperation as adults, and the more integrative groups of that species will appear. After a while the process of 'genes following the brain' will (as will be explained) reinforce this process and make love an instinctive expectation." (emphasis in original) 37 By this process, man (in the form of australopithecines) reached perfect integration about five million years ago (Ex F: Figure 3, p131). Compared to other species, man had a long infancy, where each newborn experienced love indoctrination. Man passed from infancy to what Mr Griffith termed "childhood", the Garden of Eden of biblical myth. Mr Griffith, in an introductory talk on 6 February 1995 (in the presence of the ABC), which I will shortly describe, elaborated in these terms: (Ex A(20)(1): p30) "In fact anthropologists changed the genus in recognition of a sudden change here from what we call the australopithecines to homo. And I'm saying that so the pygmy chimpanzee's skeleton is almost indistinguishable from the earliest australopithecines, Australopithecus afarenis. And so from the pygmy chimpanzees who are on the threshold of this other utterly cooperative state I'm saying the australopithecines lived in this utterly gentle cooperative state and for some two, three million years and from five million years ago to two million years ago. They all lived in utterly cooperative, entirely vegetarian, we know from their wear pattern on their teeth … " 38 Mr Griffith added: (p30/1) " … so I'm saying that our instinctive orientation was to being utterly cooperative, gentle and selfless . And that what we call our conscience I'm suggesting is our instinctive, the behavioural expectation of our instinctive self, how we should behave. Our conscience wants us to be cooperative loving and selfless. … " (emphasis added) 39 Mr Griffith referred to the work of Richard Leakey and Roger Lewin in support of his thesis that our forebears were "gentle, loving and cooperative". They were not "aggressive blood thirsty brutes", as other anthropological commentators such as Raymond Dart, Konrad Lorenz, Desmond Morris and Robert Ardrey had suggested (Ex F: p65). Konrad Lorenz said our divisive behaviour was the product of past experiences. It was instinctive (Ex F: p60). Robert Ardrey, on the other hand, believed that our competitive nature came from the imperative to defend our territory (Ex F: p60). Raymond Dart, who found a fossil of australopithecines at Taung in South Africa in 1924, believed our human ancestors differed from other primates because they were more aggressive. Desmond Morris, who wrote the Naked Ape (1967), believed that, with evolution, the innate animal aggressiveness of our ancestors has been moderated by more co-operative behaviour. I will return to this aspect when examining the defence of truth, that is whether Mr Griffith's published work is of such a poor standard that it has no support at all from the scientific community (Pt 3). 40 Mr Griffith dismissed these opposing theories as "contrived excuses" for our divisive behaviour, advanced to protect human beings from unjust criticism (Ex F: p60). He made reference to the present day observed behaviour of various apes, who had much in common with humans. He noted that: (Ex F: p121) " … in all ape species there is still a residual amount of uncontained sexual opportunism, such as dominance hierarchy (which orders and thus, to a degree, contains competition for mating opportunities) and infanticide … " 41 However, he explained that love indoctrination was not easy to develop. It had to overcome deeply imbedded divisive behaviour. He said this: (Ex F: p121) " … Ideal nursery conditions were needed for love-indoctrination to develop, which explains why many primate species are still stranded in infancy. It also explains the fossil void or 'missing link' in the anthropological record of our forebears. We have as yet found no fossil evidence of our ape ancestor, Infantman." The place of God. 42 The Garden of Eden, which we used to inhabit two million years ago, was a place of integration, co-operation and selflessness. Mr Griffith said this: (Ex F: p43/4) "Integration, or perfect order of matter where all the parts are brought together to work for the maintenance of total order, would be the logical conclusion for this remarkable process. Another way of expressing this idea is that the aim or meaning of life is to achieve universal harmony or 'peace on Earth'. The essential ingredient of order is that the individuals or parts consider the welfare of the group, or larger whole, above their own welfare. This is unconditional selflessness, the theme of integration and surely what we mean by love." 43 Mr Griffith later added: (Ex F: p46) "From the scientific side, there is actually a physical law that explains integrative meaning. As part of my physics course at school I was taught the Second Law of Thermodynamics, which says that everything breaks down to its basic component parts. In scientific terms this means that all energy systems (and matter is a form of energy) must break down until they become heat energy. Since leaving school I have learnt that this law does not apply to 'open' systems which can draw energy from sources outside themselves and which can thereby develop order, or grow in complexity. Earth is an open system, drawing its energy from the Sun. This development of order is known as the 'Second Path' of the Second Law of Thermodynamics. The Second Law of Thermodynamics is also referred to as entropy and its second path as negative entropy. God is negative entropy, the development of order of matter or, in a word, Development. We can see here that monotheism, the belief that there is only one God, was correct." 44 Mr Griffith explained the concept in rather more simple terms in a talk on 8 February 1995, during the making of the Four Corners programme. He said this: (Ex A(22)(1): p8) " … buried within us is a memory of incredible sensitivity and knowingness, and what it's like to be all together harmonious which is really I'm suggesting what God is. God is an integrative state, a cooperative state, a state of harmony, of great love for all things, and sensitivity, no barriers." 45 The plaintiffs, in submissions, expressed the concept in these words: (PS: para [288(d)]) "(d) … Mr Griffith's work is avowedly teleological in nature and seeks to link human evolution, including the evolution of consciousness, with a broader principle, which sees such matters as an expression of the general tendency of matter to form ever more complex and organised wholes." Mr Griffith as a prophet. 46 Mr Griffith recognised the claims he made in respect of his ideas were large. Indeed, they may be regarded as outrageous. It was his view that he had addressed and solved "the question of questions", the source of evil in human behaviour. It was a question that had bedevilled mankind and philosophers for millennia. He was conscious of the enormity of what he was saying. He was particularly conscious of the affront to persons supposedly more clever than he, as revealed by the following comment, referring to Professor John Wren-Lewis, a supporter of the Foundation in the early stages, who later withdrew his support: (Ex 35(1): p40) "But the deeper level … psychological level, the problem is this. It is so offensive that this kid walks out of the scrub, read bugger all, and unravels the whole shit fight. Now for someone like John right, who is, he is an awesome intellect." 47 Mr Griffith did not understate his achievement. He said this: (Ex F: p163) "Since the emergence of our fully conscious mind over 2 million years ago, humanity has dreamed of, hoped and prayed for and, above all, worked unceasingly against immense odds towards this breakthrough." 48 How, then, did he do it? Mr Griffith claimed that he was a prophet, although building upon the work of others, and able to take advantage of insights provided in the twentieth century by science. In his first book, "Free" (Ex D), he explained what he meant by the word "prophet" in these words: (Ex D: p180/1) "To solve this problem what was required was for someone to come along who was exceptionally unevasive, someone with an exceptionally strong and thus good conscience for sieving the mind's thoughts, who would defy and thus not adopt all our evasions. This person, by retaining only the truthful components of science's hard-won insights, would assemble the full unevasive truth for us. To defy all our evasions this person would need an exceptionally unrepressed conscience. He would need to be exceptionally sound. The only people who are not at all evasive of the truth, who do not fear integrative meaning/God, who 'delight in the fear of the Lord' (Isaiah 11:13) are our prophets, those among us who are exceptionally free of 'mistreatment' or hurt (encounter with the compromise and upset to our soul associated with the human condition) who have no cause to evade/repress/alienate their soul and its conscience." 49 Mr Griffith, acknowledging that he was building upon the work of others, used the following metaphor: (Ex F: p163) " … In gridiron football the team as a whole (with one exception) does all the hard work gaining yardage down the field. Finally when the side gets within kicking distance of the goal posts a specialist kicker, who until then has played no part, is brought onto the field. While he - in his unsoiled attire - kicks the winning goal, the win clearly belongs to the exhausted players who did all the hard work." 50 Elsewhere, Mr Griffith said this: (Ex F: p162) "As the quotes in this book reveal, all I have been able to add to the perception/soundness of Jesus Christ and Sir Laurens van der Post is the biological reason for the repression of our soul. Through all the evasion in recorded history a thread of strong, unevasive thought has been held onto and developed. The exceptionally unresigned and unevasive thinkers or prophets of modern times that I have become aware of are Sir Laurens van der Post, Pierre Teilhard de Chardin, Arthur Koestler, Eugène Marais, William Blake, Jean-Jacques Rousseau and Antoine de Saint-Exupéry." The role of women. 51 The Four Corners programme touched upon the differing roles of men and women, as described by Mr Griffith. Men were engaged in the battle for understanding. Women were not (Ex 21(3): p22). Mr Griffith said this: (Ex F: p140/1) " … The more men fought to defeat ignorance and protect the group [humanity] the more upset they became and the more they appeared to make the situation worse. The harder they tried to protect us the more they seemed to expose us to danger! In the end they became completely ineffective or inoperable, paralysed by this paradox. At this point women had to take over the day-to-day running of affairs as well as trying to nurture a new generation of soundness. Women, not oppressed by the overwhelming responsibility and extreme frustration that men felt, could remain effective. As well, when men crumpled women had to take over or the family, group or community involved would perish. A return to matriarchy, such as we have recently been seeing on earth, was a sign that men in general had become completely exhausted. However, it was not total matriarchy, because men could not afford to stand aside completely. They still had to stay in control of the fundamental battle and remain vigilant against the threat of ignorance." 52 Mr Griffith added: (p145/6) " … The truth is that men shouldered the responsibility of searching for knowledge, became upset by the criticism from ignorance and innocence and retaliated against all innocence, including destroying or fucking innocent women. Women were the victims not the cause of upset in men, but lust became such a strong force in us, we were misled into believing it seduced us into behaving in an upset way." 53 Mr Griffith used the word "fucking" deliberately. Sex for man in an alienated world was akin to rape. In his previous book, "Free", he said this: (Ex D: p46) "Men invented sex, as in 'fucking' or destroying, as distinct from the act of procreation. What was being 'fucked' or destroyed was women's innocence." 54 Later in the same book, Mr Griffith said this: (Ex D: p116) "The truth is, this regular sex that - until very recently anyway - we pretended we did not have and did not exist, is a horrible attack on, is rape of, destruction of innocence, albeit also one of our greatest releases from frustration caused by the pressures of the human condition." 55 Returning to his second book, "Beyond", and having said that there were real differences between men and women, Mr Griffith said this: (Ex F: p148/9) "The development of women's exhaustion was tied to men's. Women had to try to 'sexually comfort' men but also preserve as much real innocence in themselves as possible for the nurturing of the next generation. Their situation, like men's, worsened at an ever-increasing rate. The more women 'comforted' men, the less innocence they retained and the more the next generation suffered and needed 'comforting' etc." 56 The Foundation circulated newsletters to members. Many were written by Mr Griffith. They included letters relevant to the work of the Foundation in propagating Mr Griffith's ideas. They also included transcripts of discussions between members. Newsletter #28, published on 30 November 1994 (Ex 41), included a discussion between members concerning the role of women, at least during the "battle" phase (whilst men were seeking understanding). The discussion certainly creates the impression that women were fulfilling a subservient and supportive role to men (Ex 41: p11ff; p30ff). The new world. 57 Mr Griffith described his vision for the new world in his first book, "Free". in these terms: (Ex D: pp71/2) "Having been through a period of intellectualism humanity will now go through a period of 'soulism' to clear up any remaining evasions. The situation now is that the exhausted can go into therapy (instead of into even more egotistical, futile, false and upsetting pursuits as has often been the case) since therapy is now at last possible, and the sound can go into inquiry since they no longer represent criticism of the rest of us. Effectively organised at last (after all, the practical way to play a game of football is to have the fresh players on the field and the exhausted ones off the field resting), we will quickly mend ourselves and our earth. When all our evasions are cleared up there will be no further need for our soul. The intellect will then be free to realise its full potential as the master tool that it is. It is the nerve-based learning system, or mind, that can knowingly integrate the universe." 58 He saw cities as the product of alienation and egocentricity, the creation of an upset world. He said this: (Ex D: pp72) " … Also, while humanity will now start to close its cities down (in truth cities were not functional centres as we evasively claimed, they were hideouts for alienation and places that perpetuated/bred alienation - to quote the Australian historian Manning Clark 'the bush [wilderness] is our source of innocence; the town is where the devil prowls around') and go back to nature to rehabilitate its soul and become sound again, it shouldn't 'throw out the baby with the bathwater' and lose all the knowledge it gained in inquiry such as in the field of high technology." (footnotes omitted) 59 In his second book, "Beyond the Human Condition", Mr Griffith repeated these thoughts. The following passage appears: (Ex F: p180/1) "We haven't been able to access the real enjoyment that our world has to offer, which is its great beauty and integrativeness, but now we can. In the not too distant future instead of making embellished silver spoons we will each carve from a piece of wood and carry our own simple spoon. One person can show another how to experience the beauty of sunlight and share the other's home-grown vegetables. They can then help build their community's simple communal mud-brick dwelling amongst the trees. The truth is cities were not functional centres as we evasively claimed, they were hide-outs for alienation and places that perpetuated/bred alienation. We will begin to close our cities down now." Defences against derision. 60 Mr Griffith believed that his ideas called for a new paradigm, which would be met with resistance or ignored. He formulated answers and strategies to deal with such responses. First, he identified the young as the target audience. Young minds were more likely to be open to a new paradigm. The reasons were obvious. The following was said in Newsletter #20: (Ex 7(1): p3) "New ideas in science have always encountered resistance, and never more so than when human esteem is at issue. In the case of natural selection, the idea of relating humans to animals seemed to demean humans. New ideas were also resisted because they threatened established views. Kuhn observed that old scientists who have become established within the dominant paradigm will virtually never accept the new paradigm, they have to die off before the new idea gains momentum. Physicist Max Planck put it succinctly when he said that 'science progresses funeral by funeral'. Darwin himself concluded 'I have got fairly sick of hostile reviews … I can pretty plainly see that, if my view is ever to be generally adopted, it will be by young people growing up and replacing the older workers'." (footnotes omitted) 61 Secondly, Mr Griffith believed that he was offering a scientific explanation for the human condition. He nonetheless recognised that science traditionally proceeded in a mechanistic way, applying scientific method, taking small steps. The "big picture" may or may not ultimately emerge. Mr Griffith believed that a different approach was called for, a holistic approach. Deirdre Macken, a journalist, described such an approach in an article, "Science Friction" on 16 November 1991, in these terms: (Ex A(17): p23) "The push for a more holistic approach to science has been gathering momentum for a decade. In what seems almost like spontaneous evolution, the demand for a radical shift in the way we view science was coming from physicists, biologists, psychologists, educationalists and agriculturalists and, although these scientists had come to this conclusion from their own work, the verdict was the same. The new scientists are nomads, wandering into many different fields of science to get a broader picture. They have stepped back from their microscopes to see organisms in their environments and with their own relationships; they are not afraid of terms such as 'purpose' and 'meaning'. Most importantly, they want the rigours of modern science to be applied with the open-minded approach of pre-modern science." 62 The same article referred to a number of eminent scientists who could be described as holistic or sympathetic to that approach, including Emeritus Professor Charles Birch and Professor Paul Davies, to whom reference will be made later. Mr Griffith embraced the holistic approach, describing scientists who rejected his ideas as "mechanistic and evasive". 63 A third matter concerned a particular argument used to defend the ideas, which was criticised as circular. Mr Griffith asserted that his ideas provided relief from the alienation and exhaustion of the old world. If, however, someone doubted his ideas, their doubts were the product of exhaustion and alienation. It prevented them from seeing the truth. Dr Millikan raised this issue with Mr Griffith at a meeting on 16 February 1995 during the making of the programme. The following exchange took place: (Ex 35(1): p8) "David Millikan: It is a type of fundamentalist position in a way well the implication is the same. It is saying you will not, you cannot, you people out there cannot understand what I am saying because you're fucked. This is what you're saying, because you are exhausted, alienated, self centred and egotistical. Jeremy Griffith: Yes, this is the circular argument. David Millikan: And the closer you come to me you know and the more you try and the more I'm going to tell you, you are not going to understand this. Jeremy Griffith: But David, wait a second. This has this circular argument to it, but as I said to you in answer to that you know, that nobody can complain because they're accused of being alienated and how do you win, but this is not an untestable hypothesis. Each one of these ideas is supported by rational explanation and it can be looked into and evaluated. I didn't create the human condition which has this dilemma about it where humans are alienated and so this condition arises. I didn't create this. It's true it does have that nature but having that nature there is a saving factor and this is, it is testable hypotheses." 64 Shortly after Mr Griffith wrote to Dr Millikan, referring to "the circular argument problem" in these terms: (Ex A(37): p2) " … it is a 'superficial' complaint because these are testable hypotheses - they can be established as true or not. For example in the above case the crucial psychological event of resignation - and with it commitment to evade the integrative truth - can easily be established by scientific investigation and with that insight recognised the huge difference between an authoritative/truth-knowing unresigned mind and an arrogant/truth-evading resigned mind becomes clear." The launch of the book "Beyond". 65 The book, "Beyond" (Ex F) was launched at the Queen Victoria Building on 12 November 1991. Before its launch, Mr Macartney-Snape, as a Director of the Foundation, wrote to a number of eminent scientists who had been identified, according to the terms of his letter, as having been "of assistance and inspiration to the author", Mr Griffith (Ex A(7); Ex A(67)). The letter to Dr Colin Groves, at the Department of Prehistory and Anthropology at the ANU, sought his comment in respect of his area of interest. It said this: (Ex A(7)) "I am writing to ask you for your help in stimulating debate about the hypothesis in Beyond The Human Condition. In particular we would like your comments on the primatology - the integrativeness of pygmy chimpanzees, the possibility that nurturing played a major role in the formation of our conscience and the liberation of consciousness." 66 The letter to Professor Birch was couched in these terms: (Ex A(67)) "I am writing to ask you for your help in stimulating debate about the hypothesis in Beyond The Human Condition . In particular we would like your comments on the reconciliation offered between science and religion." 67 Professor Davies was asked to comment "on the reason presented for science's denial of integrative meaning" (Ex A(69)), whereas Professor Morton was asked to comment on "the reconciliation between biology and theology being presented" (Ex A(68)). The letters from Mr Macartney-Snape to these scientists included a list of those who had been invited to provide such comments, namely: (Ex A(7)) · "Robyn Williams presenter of the ABC's Science Show is being invited to introduce the book's view of the scientific paradigm; · Professor Charles Birch on the book's reconciliation between science and religion; · Dr Richard Leakey on the anthropology; · Professor Ilya Prigogine on the significance of negative entropy; · Professor Paul Davies on the reason presented for science's denial of integrative meaning; · Professor John Morton on the theology; · Sir Laurens van der Post on the integrative orientation of our instinctive soul; · Professor John Wren-Lewis on the spirituality; · Dr Germaine Greer on the explanation of male/female relationships; · Dr Edward de Bono on the value of the conceptual thinking." 68 Each letter was accompanied by a poster advertising the book, and a proposed media release. The poster was headed, in large letters, as follows: (Ex A(7)) THE BOOK OF OUR TIME Human Nature Explained at Last 69 The poster included a reproduction of the cover of Beyond and below the following comment: (Ex A(7)) "Charles Darwin explained the origin of the variety of life on Earth and connected humans with nature. But there biology has been stalled, unable to explain the human condition, the age-old riddle of human nature, our capacity for good and evil. Astonishingly, it is this question of questions that biologist Jeremy Griffith answers. Paradoxically his answer defends and dignifies humans in the most remarkable way. It lifts the burden of guilt, making possible our species' psychological rehabilitation; the real repair of ourselves and our planet." 70 The media release contained information about the author and Mr Macartney-Snape, and included these words: (Ex A(7)) "Introducing a biological idea as revolutionary and potentially controversial as Charles Darwin's natural selection." 71 Mr Macartney-Snape despatched these various letters in September 1991. Professor Charles Birch responded on 20 October 1991, with a letter in these terms: (Ex A(67)) "Here is a statement for what it is worth and to use as you wish. I regret the delay but I have really been snowed under since I returned so much so that I wonder if it is worth while going away! Especially when one adds to that prolonged jet lag. I liked your book and found it ever so much more readable than your first effort. I hope it gets as large readership. My one surprise was to find you quote Duane Gish on page 47. He is the notorious promoter of creation science so called as opposed to evolution. The God he proposes is not the sort of God you want to promote. He is a menace and the main promoter of anti-evolution in the USA. Quoting him will suggest to readers that you agree with his views on other issues." 72 The letter was accompanied by Professor Birch's comment, which was as follows: (Ex A(67)) " Comment on Science and Religion in "Beyond the Human Condition" by Jeremy Griffith. Jeremy Griffith makes the right emphasis when he identifies the order of the universe and its cosmic and biological evolution as the issue that brings science and religion together. Science shows an increasing complexity in order with cosmic and biological evolution but it finds no meaning to that increase in complexity. Jeremy Griffith finds that a religious vision brings an 'integrative meaning' to that order. Moreover it leads him to an ethical vision of integrating love and peace. In all this he gives us a genuinely original and inspiring way of understanding ourselves and our place in the universe. His vision is one I embrace with enthusiasm and commend to all those who are searching for meaning." 73 Professor Morton, Emeritus Professor of Zoology at the University of Auckland, Lay Canon of Holy Trinity Cathedral Auckland and author of "Redeeming Creation", also responded. His comments included the following: (Ex A(8)) "Importantly, Beyond The Human Condition relates biology to Christianity. It should be read by Christians. I believe it foresees the same vista as Teilhard de Chardin did, which is in fact the consummation promised for humanity set free, in the Christian Gospel." 74 A fax was sent to Dr Colin Goves on 22 October 1991, providing copies of the comments of Professors Birch and Morton. On 24 October 1991, Dr Groves wrote back in these terms: (Ex A(9)) "A potentially usable statement, as promised: ____________ Beyond the Human Condition is a bold attempt to find an ethical meaning in biology and anthropology. The book's use of the fossil evidence for human evolution is innovative and intriguing, and suggests paths for future research; but perhaps the most remarkable and unusual aspect is its treatment of the Pygmy Chimpanzee. At one point the author does remark that there is a need for new and integrated fieldwork on Pygmy Chimpanzees, and this is quite right; they have a great deal to teach us, and their behaviour and ecology, taken in conjunction with their morphology, show remarkable parallels to our own. It is where these parallels stop that is going to throw real light on the human condition." 75 Dr Groves' accompanying note was as follows: (Ex A(9)) "I hope this is going to be useful to you? I cannot go on about the religious consequences like Birch, Morton or the good Ms Jones, being an agnostic, but the scientific spin-offs are worth considering. What a pity the Pygmy Chimpanzee is confined to what must be about the most uptight, 'upset' country in the world - Zaire! Detailed comments on some parts of the book will come later. Hope to be seeing you." 76 Having not heard from Professor Paul Davies, Mr Griffith wrote to him again (by fax) on 21 October 1991. His letter included these words: (Ex A(69)) "Inspired by your acknowledgement of integrative meaning the book's concern is with the reason why humanity has been evasive of the 'optimistic arrow'. Tim Macartney-Snape (who wrote the book's foreword) and I are hoping you might make a brief recommendation for the book that we can use at its launch here in November." 77 Professor Davies, on the letterhead of the University of Adelaide, wrote back on 5 November 1991 in these terms: (Ex A(69)) "Commendation What does it mean to be human? Jeremy Griffith's challenging study of our internal conflicts - our 'upset' - will surely spark fresh debate on the human condition. In this sweeping synthesis, the author draws from the physical sciences, from anthropology, from religion and philosophy, to build a new conception of human beings and our place in the universe. From his penetrating insight into the origins of the human condition Griffith shows how, through understanding it, we may move on to achieve true peace and harmony. Here is a frank, bold and, above all, hopeful message for mankind." 78 These letters (with the exception of the letter from Dr Groves of 24 October 1991) (Ex A(9)) were tendered subject to a limitation under s 136 of the Evidence Act 1995, expressed as follows: (Ex A(67); Ex A(68); Ex A(69)) "Section 136 limitation to apply to the following documents such that they are: 'evidence only of the conduct constituted by the sending of the letter in its terms or the making of the statements as recorded (as the case may be) and not of any asserted facts or the state of mind of the author/speaker.' " 79 Dr Groves was called to give evidence and acknowledged having given the commendation (T632). He was ultimately critical of Mr Griffith's work. I will return to this material in Pt 3 below when dealing with the imputation against Mr Griffith and whether it can be said his published work was "of such a poor standard that it had no support at all from the scientific community". 80 The media was invited to the launch to meet Mr Griffith. The Rev Dr Millikan attended as the head of Religious Broadcasting at the ABC, a position he held for seven years (Ex A(44): p5). He was the editor of National Outlook, and the author of a number of books, "Imperfect Company" (William Heinemann Australia) and "Worlds Apart" (co-authored with Nevill Drury) (ABC). He was described by the ABC as a "recognised expert on new religious movements" (Ex A(44): p5). He had been an expert witness concerning cults in Australia, London, Singapore, Spain and France (Ex A(44): p5). Mr Macartney-Snape made a speech. A flyer was distributed (Ex G) with the same heading as the poster ("The Book of Our Time - Human Nature Explained at Last"). It included the commendations of Professors Birch and Morton, as well as part of an interview given by Mr Griffith in which he provided the Adam Stork story. 81 After the launch, Dr Millikan interviewed Mr Griffith. Mr Griffith elaborated upon his ideas, including the concept of God as negative entropy. The interview was eventually broadcast on 16 February 1992 (Ex A(3)(2)). The Bulletin article. 82 On 3 December 1991, shortly after the launch, Dr Millikan wrote a review in The Bulletin. The heading was as follows: (Ex H) " Beyond belief Have all mankind's dilemmas been answered? Hardly, writes DAVID MILLKAN of a new book" 83 The article began with these words: "The New Age has not been short of gurus, saviours and bearers of hidden truths. They arrive with the sweet conviction of holy certainty to unbosom themselves of the latest revelations about the dilemmas of life." 84 Having described a number of "gurus", Dr Millikan referred to the recent book launch. He repeated the claims made in the posters, describing the audacity of such claims as "breathtaking". He reported that Mr Macartney-Snape described Mr Griffith as a "modern saviour", quoting the following words, presumably from Mr Macartney-Snape's speech at the launch: (Ex H) "I believe that eventually more words of importance will be spoken and written about Jeremy Griffith's ideas than about any others - ever." 85 Dr Millikan, in the review, referred to the more cautious comment from Professor Wren-Lewis, that Mr Griffith's ideas " … could provide the desperately needed clue to personal and social renewal at this ultimate crisis point in human history". He referred to the British physicist, Paul Davies, and his comment that Mr Griffith "may" be the way humanity can move on to achieve true peace and harmony. 86 There followed a brief description of the ideas. Mr Griffith, according to Dr Millikan, was asking the right questions. His theory, however, rendered our past morally neutral. The Holocaust implied no moral burden for humanity. The article ended with these words: (Ex H) "And what does his theory say about the scheme of things if our maturity is achieved at such cost? Mind you, for those who believe in God (which Griffith does not) this is the question, so he is in the right territory. The trouble is, he does not advance the cause." 87 The plaintiffs, in submissions, placed some emphasis upon this review as demonstrating Dr Millikan's malice. They submitted, and I accept, that the review could be described as distinctly negative (PS: para [24]). Indeed, Dr Millikan later acknowledged it was "hostile … a fairly hostile review" (Ex A(53)(1) line 692/700). Mr Macartney-Snape, whilst acknowledging that Dr Millikan fairly represented Mr Griffith's ideas (T444), said that Dr Millikan's suggestion that Mr Griffith did not believe in God was unfair. Mr Griffith had told Dr Millikan in the interview after the launch that he believed in God in the sense of negative entropy (Ex A(3) line 53 and 115). 88 I do not accept that Dr Millikan was deliberately unfair in misrepresenting Mr Griffith's views. Perhaps what he should have said is that Mr Griffith did not believe in a transcendental God. 89 The plaintiffs drew attention to Dr Millikan's knowledge, as at December 1991, of Mr Griffith's scientific support. Having referred to Professors Wren-Lewis and Paul Davies in The Bulletin article, Dr Millikan included these words: (Ex H) "So Griffith has gathered some weighty supporters for his theories." After the launch. 90 The Foundation was accepted as a charity for tax purposes. Its members, and especially Mr Griffith and Mr Macartney-Snape, sought publicity for its ideas. Newsletters kept members informed (Ex 7). The newsletters reproduced a number of newspaper reviews of the book, generally unfavourable. One such review, in the Canberra Times on 4 January 1992 (under the heading "At times amusing case study in pseudoscience"), included these words: (Ex 7(1): Newsletter #20, p20) "Its substantial, approving quotes from the Bible definitely place this book in the religious section of the library." 91 A more substantial review of "Beyond" appeared in a journal called The Melbourne Report in February 1992. The review was critical of many aspects of the book, including the absence of a bibliography and an identification of sources for diagrams and graphs. The author's conclusion was expressed as follows: (Ex 7(1): Newsletter #20, p18) "Although Griffith's optimistic approach may be welcome, his almost total reliance on the Bible and his failure to draw effectively on scientific sources means that his work, although perhaps likely to appeal to some committed Christians, is unlikely to convince the wider and more sceptical audience which he is seeking to reach. Whilst such an audience may wholeheartedly endorse many of Griffith's objectives, they are left without sufficient evidence to accept his concepts as more than his personal interpretation." 92 Dr Millikan, the editor of National Outlook, wrote a further review in April 1992, which was not tendered, but which I infer was adverse (PS: para [23]). The only review in a scientific publication, according to a computer search undertaken by an academic who gave evidence, appeared in The Australian Journal of Psychology in 1991. It was a short piece submitted by Ross L Smith, Health Department of WA. The review was in these terms: (Ex 36) "This book is published by the Centre for Humanity's Adulthood, an organisation devoted [to] the promulgation of Griffith's views. The organisation forwarded a copy to AJP for review and in the covering letter observe that the book '… identifies the source of all our human insecurities and resultant upsets and resolves them'. Griffith's zeal and wide ranging references to matters of science and the humanities may be admired, but the end result is more speculatively philosophic rather than scientific, and there is something akin to an evangelical enthusiasm intrinsic to the presentation. It is not a book that can be considered to fit the notion of a psychology text. However it may be of interest to any reader who might wish to reflect on the various causes for, and uncertainties concerning, the future of civilisations and the human condition." 93 By mid 1992, a number of young members of the Foundation, impatient with the absence of any substantial response to the book "Beyond", established what was called "The Huxley Club", named after Professor Thomas Huxley, the defender of Darwin's ideas. Professor Huxley famously responded to the attack upon Charles Darwin by Bishop Wilberforce in an Oxford debate in 1860. The objective of the Huxley Club was to propagate Jeremy Griffith's ideas. 94 In the September/October 1992 Newsletter, it was noted that a member of the Foundation had talked to the boys at Knox Grammar, Shore and Barker College, about Jeremy Griffith's book. It was said that everyone, including Masters, had been impressed (Ex 7(1): Newsletter #21, p1). Mr Macartney-Snape gave evidence that there was discussion with the headmaster of Shore, and correspondence with the school, concerning whether it was appropriate to distribute the Foundation's material (T342). Mr Macartney-Snape said that, in his view, it was not inappropriate, although he recognised that it was a sensitive area and that care had to be taken (T342). 95 In April 1992, Mr Macartney-Snape gave a number of talks to the Queen's Trust. He spoke of his mountaineering expeditions, including the placement of its flag on the summit of Mt Everest, and the importance to him of the Foundation (T422). 96 In the course of 1992, Mr Macartney-Snape completed a number of books. He published a book, "Mountain Adventurer" (Ex Z), aimed at children. He also completed his book concerning Everest ("EVEREST Sea to Summit"). The book was launched by Sir Edmund Hillary on 6 November 1992. Reference has already been made to the appendix to that book (supra para [30]). Appendix One began with these words: (Ex E: p257) "As I wrote in earlier pages, my experiences in the natural world have granted me a perspective of life that has not only given me strength and belief in myself, but also brought on grave concerns about the nature of modern life. However, the ideas of a remarkable Australian have replaced my somewhat bleak view of the future with an optimistic one." 97 There was a deal of publicity concerning the book before its formal launch. On 14 August 1992 Mr Macartney-Snape appeared on Burke's Backyard, as described in the newsletter: (Ex 7(1): Newsletter #20, p1) " …Tim Macartney-Snape featured on Burke's Back Yard on Australia wide television. The show was kind enough to promote Tim's new book "Sea to Summit"; the account of his trek across India and then solo ascent of Mount Everest. Tim has incorporated a marvellous dose of Jeremy's ideas in his book which will serve as great publicity for Beyond … Both Tim's book and the film of his journey will be released later this year." 98 In September 1992, Mr Macartney-Snape began a series of lectures around Australia promoting his book. He used the mailing list of Australian Geographic (the publisher of the book) to notify those who may be interested. During these lectures he spoke of Mr Griffith and his ideas and their importance to him (Ex 7(1): Newsletter #22, p30). 99 Mr Macartney-Snape, at this time, recognised his potential as a speaker, recounting his mountaineering adventures. On 20 September 1992, he wrote to Ms Kay Batstone asking her to act as his agent. His letter included these words: (Ex AD) "I was shown some of your publicity material at Australian Geographic and thought you might be interested in including me in your portfolio of speakers. I do a lot of corporate speaking which is financially quite rewarding but not nearly enough speaking to schools which I find more satisfying. I have a feeling that schools would like to have me but find it difficult to reach me - so hopefully they would appreciate your service." 100 In the same year, 1992, Mr Macartney-Snape was interviewed by Caroline Jones on the ABC. The interview was ultimately published in a book, "The Search for Meaning", by Caroline Jones. During the interview, Mr Macartney-Snape described the descent from Annapurna in 1983 when the expedition became stranded by a blizzard. Each member of the expedition recognised the probability of death. He said this: (Ex AA: p212/3) " … it just struck me as being an incredibly unfair thing and suddenly I was overcome by this sense of power … I was as exhausted as everyone else but all of a sudden there was this … this sense of power … and I think where it sprang from was the fact that I'd always known that deep down I was essentially a good person and I was essentially strong, and this knowledge of inner strength was demonstrated very vividly to me then when suddenly this strength surged through me and I was able to keep going, in fact, almost leave the others behind. I never cease to be amazed by this capacity within us; it's latent in all of us to have incredible strength and we can make ourselves do things which we, you know, would previously have thought impossible." 101 Mr Macartney-Snape then said this, explaining the relevance of Mr Griffith's ideas: (p213) "… where the state of exhaustion had brought forward in me this incredible inner strength and an incredible serenity and a nobility to look at things from a different perspective, and an ability to savour life in a far more enjoyable way, and it's really, for me, been a glimpse of paradise. I've relived that situation several times: it's always been when I've been physically and mentally exhausted. It's almost as if we have a part of our mind being held in a prison and it's only allowed out when the part of our mind that's holding it prisoner is so fatigued that it drops its guard and this tremendous sensitivity comes forward. I always had difficulty in understanding this until I was introduced to the ideas of Jeremy Griffith and then it became very plain to me why this was the case." 102 Mr Griffith and his partner undertook a tour of Africa between August and October 1992 to promote "Beyond" (Ex 7(1): Newsletter #21, p2). Mr Macartney-Snape was invited to give two lectures to the Royal Geographical Society in London, the first in December 1992. Again, he took the opportunity to promote Mr Griffith's ideas (T419). He acknowledged, however, that there had been no genuine interest (T420). The newsletter reported that, whilst in the United Kingdom, Mr Macartney-Snape intended to explore the possibility of releasing "Beyond" in the United Kingdom and the United States. A tour of the United Kingdom by Mr Macartney-Snape and Mr Griffith was planned for 1993 (Ex 7(1): Newsletter #22, p30). The "Absurd Cult Saga". 103 In mid 1993 there arose, however, what the Foundation called "the absurd cult saga". A number of concerned parents began what was termed "a clandestine campaign" to brand the Foundation "a cult". Caroline Jones received a letter from Gateway Counselling, an organisation said to have a special interest in "de-programming" young people caught up in "pseudo-religious cults" (Ex 7(2): Newsletter #26 Pt C, p2). Lawyers for the Foundation wrote to Gateway Counselling protesting. 104 Professor Paul Davies publicly withdrew any association with the Foundation. On 24 September 1993, Professor Davies (Professor of Natural Philosophy at the University of Adelaide) wrote to Mr Griffith in these terms: (Ex 25) "Thank you for your letter of 20 September. I confess I am indeed becoming concerned about complications surrounding the use of my name in connection with your book. When I originally provided a few words for you I had no idea that they would be so prominently used, or that I would be dragged into any sort of controversy. I would prefer it if my name could be omitted from future promotion." 105 Mr Macartney-Snape's sponsor, Mr Dick Smith, also became involved. He had been shown Mr Macartney-Snape response to Gateway Counselling and was concerned that it implied that he supported Mr Macartney-Snape's beliefs. Mr Smith wrote to Mr Macartney-Snape on 24 November 1993 in these terms: (Ex 2) "Despite what I believe you think, I have total sympathy with the parents involved and I can understand them doing anything they can to protect their sons and daughters. You may not understand this, Tim, but the reason the parents wanted to keep the meeting 'secret' was because of their concern for their loved ones. As for you linking me with your beliefs, I ask that in the future, whenever you refer to me in your correspondence, you make it quite clear what my long term feelings are about the philosophy that is the basis of your beliefs. I've said to you constantly that I've never understood the philosophy. Even though I'm happy to accept that the basic premise could be correct, I've seen no proof that would allow me to believe that if people accepted this belief, the world would be a better place. In fact I've seen quite the opposite -- great divisiveness, family disunity and marriage difficulties. In fact, in the future you should say that neither I, nor my colleagues at Australian Geographic support your belief. In fact, we believe it's very divisive." (emphasis added) The lack of progress. 106 Newsletter #26, published in late 1993 (October to December) (Ex 7(2)), provided a frank report from Mr Griffith concerning the absence of progress in propagating his ideas. Mr Griffith said this: (Ex 7(1): Draft Newsletter #26, Part A, p2) "Originally I thought I would only have to present the explanations of the human condition and people would support it. How wrong I was. I had little appreciation of how the resigned mind works. (Note that all innocents/prophets initially fail to appreciate the need for evasion. See for example Mark 6:6, And he [Christ] was amazed [ie surprised] at their lack of faith [in our case not 'faith' but 'response'].) The reception to my first book, Free , which was properly launched and promoted turned out to be a 'tidal wave of silence' - a lot of no response. We also sent 1,000 copies of Free to all the major scientific journals in the world without any real response. People and groups claiming to be holistic such as the New Age movement and religious people were approached but they failed to respond. We established support groups from the odds and ends of interest that had emerged but these petered out. We employed staff at the FHA and cultivated volunteer help in an effort to mobilise publicity and develop projects but that came to nothing. We tried to arrange for a documentary to be made about the understandings. We found a producer and wrote a funding proposal but the project had to be shelved through lack of response." 107 Mr Griffith then dealt with the fate of the second book, "Beyond": (Ex 7(1): Draft Newsletter #26, Part A, p2) "We then put enormous effort into producing a beautiful presentation of the understandings in the form of Beyond but the book didn't succeed in attracting widespread support for the understandings as we had hoped. This despite an immaculate publicity campaign accompanied by a successful effort to solicit the support of such authorities in the world of holism as Professors Paul Davies, Charles Birch and John Morton. We launched Beyond in New Zealand without success. We went to Africa and the USA to introduce Beyond first hand to leading primatologists for no real response. We went to England when Tim Macartney-Snape threw all his credibility on the line in support of Beyond in front of the Royal Geographic Society but no genuine interest resulted. Tim also boldly threw his credibility and support behind the understandings in his book Everest: Sea to Summit and in his public lectures but still the wall of silence continued. We sent a first rate publicity package with copies of Beyond to all the leading literary agents and publishers in the world for no acceptance." 108 Mr Griffith's assessment continued, identifying one small area of hope: (Ex 7(1): Draft Newsletter #26, Part A, p2) "After all these failed approaches to the masses and to the establishment we looked around and found one small area where there was success. The understandings had taken hold among a small group of exceptionally solid, intelligent young people in Brisbane and to a lesser extent in Sydney, Armidale and Adelaide. Throwing all our support behind their efforts the understandings at last began to take root." 109 Mr Griffith then said this: (Ex 7(1): Draft Newsletter #26, Part A, p2) "Cynics will say the lack of response we have experienced is evidence that the information being presented is wrong. Those who understand the human condition will know that this is not true. Humanity has coped by evading many criticising truths. While these truths are now presented in a non-critical form the historic evasion does not instantly go. Christ's words were exceptionally unevasive/ honest/ confronting and he went through the same experiences, in the end also realising he had to work through just a few people who had been close enough long enough to appreciate the truth. As described in Newsletter 18 … he summarised his experiences in 'The Parable of the Sower' and 'The Parable of the Mustard Seed' (see Matt 13 & Mark 4)." 110 Having set out these parables, Mr Griffith expressed optimism that they had "at last breached cynicism/blindness/evasion wall" (Ex 7(1): Draft Newsletter #26, Part A, p3). 111 Mr Macartney-Snape's assessment was not dissimilar. He said this: (T323) "Q. It would be fair to say, wouldn't it, that by about the end of 1992, to your perception, the book 'Beyond' and the ideas in it had been met largely by a wall of silence, that's correct isn't it? A. Largely, yes. Q. And that you regarded the experience of selling the book to the mass and the public as a whole was trying to sell a dead cat, correct? A. That wasn't my phrase, but yes, it was true. Q. It was a phrase [that] you, and Mr Griffith wrote about, about your experience, isn't it? A. Yes." 112 Mr Macartney-Snape also gave the following evidence: (T324/5) "A. Well, the fact is we were gaining support by word of mouth. But in terms of getting support from academic institutions, from publishers, that is true in that sense but not in the sense of getting grassroots support. 113 He added: (T325) "Q. You're not suggesting, are you, from that last answer that the grassroots support was numerous and widespread? A. No, I am not." 114 Mr Macartney-Snape further agreed that, by mid 1993, his and Mr Griffith's efforts in taking the book "Beyond" to London, New Zealand, Africa and the USA, had resulted in "no gain of significant appreciation of the understanding" in a global context (T324). Review in The National Outlook. 115 In October 1993, there appeared a further review of "Beyond", again written by the Rev Dr Millikan. It was published in the National Outlook. It was short and wholly unsympathetic. The article began by reminding readers of the earlier review (April 1992). It said this: (Ex J) " You may remember last year I drew attention to a book written by Jeremy Griffith, 'Beyond the Human Condition'. It is a book which is very difficult to take seriously." 116 The Rev Dr Millikan then reported the following development: "In the last year Jeremy Griffith has attracted a group of young men about him, for some reason nearly all graduates from Knox Grammar in Sydney. He has been pressing some of them to go full time to spread the word." 117 The article continued: "There is talk of some going to Africa. If they are, I hope they have something more substantial than the flimsy and petulant ruminations Griffith is presently turning out. In a release issued September 3, 1993, he talks about his frustration that the world has not responded to his insights." 118 Dr Millikan ended the review with these words: "Perhaps the effort and ferment his mission is bringing into the lives of these young people would make some sense to those outside of this game if what he was saying had any substance." 119 The work of the Foundation nonetheless went on. It held an Open Day on 4 December 1993 where the guest speaker was Emeritus Professor Charles Birth. Professor Birch's action in providing that address was characterised by the plaintiff as support for Mr Griffith's work, an issue which will be examined in the context of the defence of truth in respect of the imputation against Mr Griffith. The Geelong Grammar speech. 120 Mr Macartney-Snape was invited by Geelong Grammar school to give the annual Speech Day address. It was a significant honour. When he was introduced to the school, the following was said: (Ex K) "Tim Macartney-Snape has been a Foundation Visitor to the school on a number of occasions and is an outstanding example of everything an Old Geelong Grammarian can aspire to - sensitive, with concern for others and humanity, with great determination, drive and self-discipline." 121 No directions were given by the school as to the contents of his speech. He referred, of course, to his career in mountaineering, including Mt Everest. However, that formed a relatively small part of his address. That was, he said, "the outer journey and adventure". Also important was "the inner journey of exploration that one must face". He spoke of his "heroes". They included Sir Laurens van der Post, whom he described as "a prophet", and the headmaster of Geelong Grammar when he was a student, Sir James Darling. Mr Macartney-Snape quoted from the Speech Day address by Sir James Darling in 1950. The passage clearly had importance in his own life: (Ex K) "We need in this generation, as we have had them in the past, men of conscience, driven, even against their wills, certainly against their own interest, to take a stand for principles. Men not afraid of facing unpleasant facts, not afraid of being different in their views from other people, men who cannot rest so long as opportunities remain to work for the really great human objectives - peace, justice, honesty and decency between men." 122 Mr Macartney-Snape emphasised the need for a new kind of moral leadership, examining "the deeper issues". In that context he referred to Mr Griffith, and his book "Beyond the Human Condition". He said this: (Ex K) "Those of you who know much about me will know that I have the highest regard for the work of Old Geelong Grammarian, Jeremy Griffith. After some six years of studying his biological, rational explanation for human nature, (principally written in his book 'Beyond the Human Condition') I am convinced he has made that crucial breach in our war to understand ourselves. In fact, without these understandings I would have had great difficulty in describing the problem as I have today, and I suggest that that in itself is some evidence that a break-through has been made. I suggest that all our problems - the ones we can now address properly - stem from this psychological war within each and every one of us. A war that rages on in an attempt to reconcile the 'spiritual opposites' in our nature so often cited by Laurens van der Post. Indeed it was his writing, so full of soul, which cleared the path for Jeremy's understandings. It was Dr Darling whose steering of this school gave the structure that produced the strength needed. As he anticipated, he fostered soul in order that 'ere the end, some work of noble note may yet be done'. The other crucial elements which brought us the likes of Jeremy, who is a prophet in the true sense (for there are many false ones) were his upbringing in the Australian bush, with all its soundness and innocence, by his parents who nurtured him in the best Australian tradition." 123 Mr Macartney-Snape then added: "Though one of us has broken through, it is of little use unless the mass of us do so. I urge those of you who are young and able, to take that path. It will take all the strength and sensitivity you have, but surely to reach that coveted summit of our ideals must be the worthiest goal of all, and worth the greatest hardships. Remember that you have that courage and sensitivity within and don't be tempted by false ideals." (emphasis added) 124 After the address the headmaster, Mr Lewis, wrote to Mr Macartney-Snape, thanking him for the thoughtfulness of his remarks. He said this: (Ex R) "It is clear that you struck many a cord, as you deserved to do." 125 Mr Lewis gave evidence. He had a distinguished history in education. He was the headmaster of Geelong Grammar between 1980 and 1994. He then became the headmaster at Eton, where he remained until 2002, when he retired. He said that nothing in Mr Macartney-Snape's speech struck him as inappropriate or offensive (T107). There had been no complaints. 126 In cross examination, Mr Lewis agreed that proselytising a particular religious view would be inappropriate (T110). However, he did not believe that commending a prophet concerning the human condition was proselytising. After the speech he entertained the possibility of Mr Macartney-Snape returning to speak on a further occasion. 127 Mr Michael Collins-Persse, a master at Geelong Grammar, was also present during the address. He had taught Mr Macartney-Snape when he was a student. He wrote to him afterwards in these terms: (Ex W) "As I said during our very brief meeting on Speech Day, I thought - as did so many others - that your speech here on that occasion was magnificent." 128 Mr Collins-Persse gave evidence. He described Mr Macartney-Snape's speech as "noble" and "thought provoking" (T220). Whilst he did not believe that proselytising would be appropriate on such an occasion, he did not accept that the reference to Mr Griffith and his work could be so described (T226, 230). To "plug a book" you would need to do more than name it (T229). Mr Macartney-Snape's final words, as set out above, could not be seen as a call to arms, but rather the suggestion that students should take the path of adventure and discovery (T230). Mr Collins-Persse asked Mr Macartney-Snape to provide a copy of his speech for the school magazine. He did so and the speech was then reproduced in the school magazine of Geelong Grammar, The Corian, 1993 (Ex K). 129 Mr Macartney-Snape gave a further end of year address that year (1993) to Cranbrook School (Ex A(65)). He did not reproduce the same address, although he described his mountaineering exploits and matters of personal philosophy, including the need for inner strength. He did not mention Mr Griffith, nor his book "Beyond". Indeed, Mr Macartney-Snape said that in school speeches he referred to Mr Griffith on only three occasions, and then only because he regarded it as appropriate. The first was the speech to Geelong Grammar. The second was the speech he gave a year later at the end of 1994 to The Scots School, Albury (Ex AG). The third was at Concord on 8 March 1995, during the making of the Four Corners programme. His last speech was filmed and used in that programme. I will return to this aspect in Pt 4. 130 It is convenient that I deal with the Albury speech in the present context. The text of the speech closely followed the speech given at Geelong Grammar. However, he varied the words which appear towards the end, as he is about to reach the summit. In the Albury speech, his promotion of Mr Griffith's ideas was rather more explicit. He said this: (Ex AG) "Though one of us has broken through, it is of little use unless the mass of us do so. I urge those of you who are young and able, to take that path. I have attempted an introduction to these ideas in my Sea to Summit book but to gain a proper understanding will take your youthfulness and all the strength and sensitivity you have but surely to reach that coveted summit of our ideals must be the worthiest goal of all and worth the greatest hardships. I urge you to look into these understandings. " (emphasis added) 131 Mr Macartney-Snape said that, to his mind, it was appropriate to refer to Mr Griffith in that speech because Mr Griffith had been born in Albury. His family were pioneers in the district (T270). His attention was drawn to the fact that there was no reference in the text to these matters. Mr Macartney-Snape said, and I accept as probable, that in his elaboration he referred to them (T432/3). 132 The Geelong Grammar speech came to the notice of Mr T C Murray, the headmaster of Canberra Grammar. Mr Murray wrote to Mr Macartney-Snape on 10 April 1995 (Ex AF), that is, shortly before the Four Corners programme went to air. He described the Geelong Grammar speech as "terrific" and invited Mr Macartney-Snape to give the end of year speech at his school on 5 December 1995. Shortly after the Four Corners programme had been shown, Mr Murray wrote to Mr Macartney-Snape again (3 May 1995). He withdrew the invitation. His letter included the following: (Ex AF) "Since extending the Speech Day invitation I have become aware of the importance of The Foundation for Humanities Adulthood and the importance of Jeremy Griffith in your life. You have publicly and unequivocally stated that you are a disciple of Jeremy Griffith and what he stands for. While this is, of course, your business I am not prepared for The School, either directly or indirectly, to be associated with either The Foundation or its Prophet. If I believed it was possible for your presence at Speech Day to be seen in isolation from the other key aspects of your life I would be able to confirm the invitation. However this is clearly not possible and I'm afraid I must withdraw the invitation for you to join us on Speech Day on 5th December. It would clearly be unrealistic of me to expect you to speak without direct or indirect reference to either Jeremy Griffith or the Foundation." (emphasis in original) Dr Millikan's approach to the ABC. 133 In October or November 1994, according to sworn interrogatories, Dr Millikan telephoned Mr Ian Carroll, the Executive Director of Four Corners. In substance, the conversation included the following: (Ex A(33): Interrog 23) "(i) he had come across an individual, Griffith, who believed he was able to solve the world's problems, and who was recruiting young adults from prominent private schools in Australia; (ii) there were a number of parents who believed that their child's involvement with Griffith was creating havoc in their family relationships and their child's lives; (iii) he thought an interesting story could be made about Griffith; and (iv) he was interested in making a story which potentially could be used in an overseas documentary series, but he was not in a position to make the story himself." 134 Dr Millikan proposed that the ABC make the story with him. Mr Carroll thought the ABC may be interested, but would require more information. 135 Meanwhile, the Foundation continued to promote its ideas, seeking to build a critical mass of members. Dr Millikan heard Mr Griffith's speech in mid 1994 on "The Development of Matter" (Ex AJ) and also heard a lengthy interview of Mr Griffith by Mr Brian Carlton on Radio 2GB, aired on Boxing Day 1994 (Ex AJ). Permission to make the programme. 136 In January 1995, the ABC decided to proceed with Dr Millikan's idea. Dr Millikan was given the same indemnity as an ABC journalist in respect of any legal action (Ex A(34)). He first contacted Mr Griffith on 11 January 1995. The programme was first broadcast three and a half months later, on 24 April 1995 (Ex N(1)). 137 There is a good deal of material relating to the making of the programme. There were lengthy meetings. Most were recorded (presumably with consent). There is, for each meeting, a lengthy transcript. Interviews were undertaken and filmed. Again, lengthy transcripts have been prepared and made exhibits. In reviewing this material three issues are important: · First, did Dr Millikan, in the context of his review in The Bulletin on 3 December 1991, say to Mr Griffith that he "got it wrong"? · Secondly, there can be no question that Dr Millikan told Mr Griffith that, once complete, the Four Corners programme would be submitted to an international documentary series in respect of seminal thinkers, whose ideas would take humanity into the next millennium. Mr Griffith inferred that the programme would be positive and the ideas taken seriously. It was suggested by the plaintiffs that this matter was deliberately introduced by Dr Millikan to secure the co-operation of Mr Griffith and the Foundation. There is no evidence that the programme was ever submitted, or that such a series was ever made. · Thirdly, there is a question, important in the context of the defence of qualified privilege, concerning the reasonableness of the publication in the circumstances. The plaintiffs have supplied particulars of malice which identify aspects of the defendants' conduct which are said to be unreasonable or malicious. The conversation on 11 January 1995. 138 On 11 January 1995, Dr Millikan telephoned Mr Griffith. There is no direct evidence as to what was said, since neither Mr Griffith nor Dr Millikan gave evidence. Dr Millikan presumably told Mr Griffith of the proposed Four Corners programme. One assumes that Mr Griffith well knew the Rev Dr David Millikan. They had met at the book launch on 12 November 1991. Dr Millikan had interviewed Mr Griffith at the conclusion of the launch. Mr Griffith had read the adverse review of "Beyond" in The Bulletin. It had been reproduced in the Foundation's newsletters. It is reasonable to suppose that Mr Griffith was on his guard. 139 In later meetings, Mr Griffith, in the presence of Dr Millikan, discussed what had been said in their first conversation. He asserted that Dr Millikan had said that "he had probably got it wrong" (PS: para [31]) or "got it wrong" (PS: para [137]), referring to The Bulletin review. In an exchange to which I will shortly refer, Dr Millikan did not deny having said those words. He simply said he did not remember. It is common ground, in any event, that he did acknowledge renewed interest in Mr Griffith's ideas (Ex AJ: lines 1035-1199). 140 Mr Sam Belfield gave evidence that he attended a talk given by Mr Griffith in Brisbane on 11 or 12 January 1995. Mr Griffith recounted his conversation with Dr Millikan. He said that Dr Millikan acknowledged he "got a prior assessment of Jeremy's work incorrect, wrong" (T750). At that time, Mr Belfield was a member of the Foundation. He is now its Chief Executive Officer. 141 Dr Millikan and Mr Griffith spoke again soon after their first conversation. A meeting was arranged at Mr Griffith's home at Terrey Hills. It took place on 19 January 1995. Dr Millikan again spoke of the possibility of a documentary on Mr Griffith and his ideas (Ex A(33): Interrog 54(d)). Mr Griffith made available material from the Foundation, including newsletters, a sample of handouts and the speech given by Mr Macartney-Snape at Geelong Grammar. The material was handed to Dr Millikan under a cover of a letter of 19 January 1995, which opened with the following paragraph: (Ex L) "In the interest of always being as open and helpful as possible the Foundation has a policy of 'over-supplying' anyone who is interested with any and all of the material made available by the Foundation to members." 142 The newsletters have already been described. They canvassed a number of issues, many adverse to the Foundation, including accusations that the Foundation was a cult. They also included reviews of Mr Griffith's work which were adverse. The plaintiffs submitted, and I accept, that the Foundation was "candid and open". Dr Millikan, at least to some degree, had their trust (PS: para [32]). 143 The next day, 20 January 1995, Dr Millikan wrote to Mr Ian Carroll, the executive producer of Four Corners (Ex M). The letter is the centrepiece of the plaintiffs' case against the defendants on malice. It revealed, according to the plaintiffs, Dr Millikan's real views concerning the Foundation and the worth of Mr Griffith's ideas. Dr Millikan began by stating that he had spent "three heavy hours" with Jeremy Griffith the day before. He had been given "100% access to any of the activities or people involved" in the Foundation. He then described what he knew about Mr Griffith and his activities. He said this: (Ex M: p1) "There is no question in my mind that he is at the early stages of setting up a cult. He has the fanaticism, hatred of opposing forces, ruthless manipulation of others that are characteristic of these characters. He appears to be experiencing a period of unprecedented growth. The main areas of activity are in Brisbane, and around Armidale. He is targeting university students. He is obsessed with the credentials of good breeding -- Tim Macartney-Snape is his front man around schools such as Shore, Churchie, Cranbrook, Geelong Grammar, Abbotsleigh, etc. It is true that he has gathered around him an extremely impressive group of young people who in any terms would be expected to be the leaders of the next generation. 'Only young people who have high intelligence and a secure nurtured background can cope with these understandings with any sort of ease'." 144 The letter identified "talent", persons whose views could form part of the programme. A short description of what each might say was included. Most were adverse to Mr Griffith. The letter included these words: (Ex M: p2) "Griffith has agreed to allow me to film one of his famous bush walks -- he takes about 30 young people away into spectacular parts of the country -- they are harangued for up to 4 hours a day by Griffith and get drunk and have confessions sessions. There are four this year -- Feb 4-12 (Snowy Mountains), April 14-23 (which I could not go to, it is Easter), July 1-9 (Darling River) -- and Sept 23-30th (around Coffs Harbour). Griffith himself is desperate to get on Camera." 145 Under the heading, "Other people involved", Dr Millikan dealt with scientists who may potentially make a comment upon Mr Griffith's work. He said this: (Ex M: p2) "The following people are loudly proclaimed by Griffith as endorsing his work and especially his book -- Beyond the Human Condition -- Prof Paul Davies -- Charles Birch -- Bob Hawke -- Phoebe Frazer -- Caroline Jones -- John Morton - Emeritus Prof of Zoology, Uni of Auckland, lay Canon of Holy Trinity Cathedral, & author of Redeeming Creation -- Prof John Wren-Lewis I have contacted -- Wren-Lewis, Caroline Jones, Paul Davies -- all are embarrassed and claim to have been misquoted (of course). They have refused permission to Griffith to have their names used." 146 Next, Dr Millikan identified the parents of certain members who were concerned about their child's involvement in the Foundation. The commentary against each name was wholly adverse to Mr Griffith and included the following: (Ex M: p3) "Various outraged Families -- I am keeping away from them at the moment -- I do not want them to leak my attitude back through their children to Griffith. There is a family who I am establishing contact with at the moment, who claim that Griffith badgered their father while he was dying of cancer last year. They have faxes between Griffith and their father in the month before his death in which they say that Griffith talked him into handing over substantial amounts of money. This came from a person I trust -- but I have not confirmed this information." 147 Finally, under the heading, "Time frame", Dr Millikan concluded with these words: (Ex M: p3) "I am very well placed in terms of access. But sooner or later Griffith is going to slam the door. So filming the Snowy Mountains walk would be important. That is Feb 4-12. I cannot do the one in April -- which would leave us July which may put my access in jeopardy. I do not want to do the whole thing -- I would rather go in the last 4 days. I and the producer could go on the 7th and the crew could arrive 8th. I am convinced that this will produce most of what we are looking for." 148 This was, the plaintiffs submitted, a candid letter, never intended for Mr Griffith's eyes. According to the plaintiffs, it revealed Dr Millikan's intention to harm (PS: para [91]). Dr Millikan acknowledged already having an "attitude". His attitude was plainly adverse. He would keep away from children of "outraged families" because he did "not want to leak [his] attitude back through the children to Griffith" (PS: para [91]). The penny would eventually drop. Mr Griffith would recognise the true nature of the documentary being planned and would "slam the door". The Snowy Mountains walk was important. Dr Millikan was convinced that it would "produce most of what we are looking for". Co-operation had to be maintained for at least that long (PS: paras [96]-[97]). The absence of Dr Millikan to explain this and other material suggesting an improper motive is, according to the plaintiffs, important (PS Reply: para [241]). They submit that the Court should infer malice and intention to harm Mr Griffith. 149 The defendants responded by drawing attention to the issue relevant to improper purpose. The question is whether the publication was actuated by malice, that is, an improper motive (Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, para [76]). Here, the broadcast was significantly different from the concept suggested by Dr Millikan in his letter (DS: para [2.154]). The letter was written three months earlier, when the form of the programme was "an embryonic idea" (DS: para [2.153]). The programme, moreover, was a collaborative effort. The producer, Ms Deborah Masters, became involved after the letter had been written. She said she was not aware of it (T1334). There is no evidence that she was actuated by malice or an improper purpose. Nor was there evidence that suggested Mr Carroll, the executive producer, had an improper purpose (DS: para [2.154]). 150 Let me pass over these issues until I have recounted the way in which the relationship between the parties evolved. The second meeting. 151 Some time before 24 January 1995, Mr Ian Carroll telephoned Ms Deborah Masters, who was on holidays. He asked her to produce the programme, working with the Rev Dr Millikan. Ms Masters was an experienced television journalist (Ex 20). Whilst acknowledging the difficulty in recounting a conversation twelve years earlier, she gave the following evidence of the substance of what was said in this conversation: (T1388) "Q. Back to the telephone call from Mr Carroll, what is your recollection, as best you can, of what Ian Carroll said to you about the subject matter of this forthcoming programme? A. He said that he was interested in me producing a programme with Reverend David Millikan. He told me that the Reverend David Millikan had been contacted by parents that were anxious about their, you know, children's involvement in the FHA and that Jeremy Griffith was the central character and that he had written a couple of books and he was a biologist. What else did he say? That Tim Macartney-Snape was a key supporter and that I think there had been interest in the philosophy or Jeremy's ideas in a few pockets in Sydney and Brisbane and Armidale, words to that effect. Look, I'm attributing a lot to one conversation but perhaps it was then, perhaps it was later." 152 Ms Masters thereafter went to the home of Dr Millikan. She was given a copy of "Beyond" and a copy of Dr Millikan's review in The Bulletin. Dr Millikan also provided the Foundation newsletters which Mr Griffith had made available the previous week (Ex 7(2): Newsletters #26 and #27) (T1333). 153 The same day, Dr Millikan rang Mr Griffith to arrange a further meeting where he would introduce Ms Masters. The phone call was recorded (Ex A(62)(2)). Dr Millikan said that there was some urgency in view of the Snowy Mountains walk which had been arranged for early February. He would like to be there (Ex A(62)(1): line 23). He told Mr Griffith about Ms Masters, describing her as "a very experienced sort of character … she's open to ideas" (Ex A(62)(1): lines 65-67). 154 It may be inferred that Dr Millikan, in a previous conversation with Mr Griffith, had already mentioned the possibility of an international documentary series after the completion of the Four Corners programme since, on 24 January 1995, Mr Griffith said this: (Ex A(62)(1): lines 85-104) "Jeremy Griffith: Well I'm happy. Just tell me, how does this, I mean this is moving very fast. How does this coordinate with originally you were talking about a friend who's a film producer in America and the year 2000 and all that sort of stuff? David Millikan: Okay, okay. Well, I, the, the, situation is this. This friend of mine he has, he approached me about six months ago, and he said that he is working with a group out of San Francisco who want to put together a series, of a series of sixteen films, which would be packaged together as a series called 'Beliefs for the New Millennium' or 'Beliefs Beyond 2000' and it is an attempt to gather together seminal thinkers and ideas that would, that are not part of the mainstream and yet would be sort of, should be put forward for public consideration . The deal was that they were going to approach film makers around the world who were capable of getting pieces up in their own home markets and then putting those, packaging those up over the next year as a series of sixteen. So the deal was, I would get this up here in Australia but I would do it in a way that would give me the right to take the film beyond Australia. So I will do a deal with Four Corners if they want to do this thing, that they put it on in Australia but once it's been shown in Australia, I have the right to take it off and package it up in another way that I want to do, to package it up and send it off as part of that other deal if you see what I mean." (emphasis added) 155 Dr Millikan, in the course of the conversation, also made the following comment on Mr Macartney-Snape's Geelong speech: (Ex A(62)(1): line 557/8) "Wow, I've got to say the, I thoroughly enjoyed Tim's speech. He is a thoughtful fellow, isn't he?" 156 The plaintiffs, in submissions, drew attention to the interrogatories answered by Dr Millikan concerning this conversation. Dr Millikan's answer, as you would expect, closely followed the text of the recorded conversation. However, there was one difference. According to the plaintiffs, it was an important difference. The conversation, as recorded, included the words "seminal thinkers" spoken by Dr Millikan when describing the subject of the proposed series. In his sworn answer he substituted the words "religious figures" (Ex A(33): Interrog 54(d); cf Ex A(62)(1): lines 89-104). No explanation was given for the change (PS: para [141]). 157 Further, the plaintiffs drew attention to the proximity of this conversation to the despatch of Exhibit M, Dr Millikan's letter to Mr Carroll. The conversation occurred within a matter of days of Dr Millikan having expressed contempt for the ideas of Mr Griffith in Exhibit M (PS: para [144]). It may be inferred, according to the plaintiffs, that the purpose of Dr Millikan's words to Mr Griffith was to entice him to agree to co-operate in the programme (PS: para [143]). There was, accordingly, in the submission of the plaintiffs, deception and malice on part of Dr Millikan. 158 Following this conversation, a meeting was arranged for the following day at Mr Griffith's home. Dr Millikan attended with Ms Masters. When they arrived, there was a young woman present, Juliet Belfield, who was staying with Mr Griffith and his partner. Juliet was the sister of Sam Belfield who, to the distress of his parents, had become a member of the Foundation. Juliet ultimately went on the walk. She announced that she was seeking to understand the attraction of Mr Griffith's ideas to her brother. Her "story", and the opposition of her parents to their children's involvement, formed a significant part of the programme. In the course of the meeting, Dr Millikan explored a number of Mr Griffith's ideas, seeking clarification. There was reference to the Adam Stork story (Ex 21(3): p4). At one point Dr Millikan said (Ex 21(3): lines 288) "Let me tell you there are things that I read in what you are writing which I just found, find outrageous." 159 The meeting lasted some hours and dealt with many other issues. Mr Griffith, in responding to questions, said he was "an innocent", that is a prophet (Ex 21(3): pp9/10). A prophet, however, was simply another variety of person. They happen to have an "unresigned mind", and therefore spoke truthfully, whereas others could not (Ex 21(3): p10). The following exchange took place, relevant to an aspect in the final programme, namely whether Mr Griffith saw himself as some form of deity. The transcript was as follows: (Ex 21(3): lines 465-481) "David Millikan: Well look let me ask you this then. Do you feel as though you are chosen in some sense? Jeremy Griffith: No. David Millikan: [inaudible] Jeremy Griffith: This puts an end to all that crap you know. David Millikan: So you don't have any sense of relationship. Jeremy Griffith: That's why I swear all the time. I don't want any involvement with that mystical shit. We are about putting an end to all that, that Christ came out of the clouds. He was another bloke who had a very loving mother. He grew up in a very sheltered circumstance. He didn't resign his mind. He could think truthfully, and he could look into areas where other people, angels fear to tread. Alienation can't look into itself." (emphasis added) 160 There was an exploration of Mr Griffith's views on women (Ex 21(3): p21), the interest of Juliet in Mr Griffith's ideas (Ex 21(3): p44), and the opposition of her parents (Ex 21(3): p48). Ms Masters made reference to Mr Macartney-Snape's speech at Geelong Grammar. Mr Griffith spoke of the enormous impact of that speech, reproduced in the school magazine which had "a huge circulation, 12,000 people … " (Ex 21(3): p82, line 4056). Ms Masters offered the following comment: (Ex 21(3): p81, line 4019) "It is a very good speech, very thoughtful … " 161 In the course of the meeting Mr Griffith spoke of the misgivings that some members may have to the involvement of the ABC, after the experience of the "cult inquisition" (Ex 21(3): p90, line 4487). He sought "some reassurance". The transcript included the following: (Ex 21(3): p91, lines 4488-4505) "Jeremy Griffith: … some of them might be, we're worried that some might say: 'Oh well I'm not going to go along because if my parents saw me on film, you know being part of something'. But I said; 'No, no, no but this is, David's … ' David Millikan: Oh, I see. Tell them … Jeremy Griffith: This is a sympathetic thing, not a critical. It's critical, it's analytical but it's not. David Millikan: Yes. Jeremy Griffith: The kids that appear on this film aren't going to be, you know, the world's going to go … David Millikan: I will be treating people with respect. Jeremy Griffith: I know that, I know that. David Millikan: I mean tell them to talk to me, if they want to, at Four Corners." 162 Significantly, towards the end of the conversation, Mr Griffith made the following remark which Dr Millikan did not contradict. Indeed, he is recorded as having agreed. The transcript is in these terms: (Ex 21(3): p93, lines 4602-4605) "Jeremy Griffith: But you could say, that you know, you'd thought you'd got it wrong and I passed that on, and that's helped everybody I can tell you. David Millikan: Yeah." 163 Mr Griffith also asked whether the sixteen part documentary series would be from a theological point of view. Dr Millikan assured him it would not. He added: (Ex 21(3): p96, lines 4739-4741) "And I notice there's some other person that's watching it, some character emerging in Japan, some really, really quite unusual thinker, and that guy's got his hand up saying I might just sort of do this." 164 The conversation on this aspect concluded with these words: (Ex 21(3): p96, lines 4755-4759) "Jeremy Griffith: What a great idea for the millennium. David Millikan: Oh, it's a great idea, I love it. We're all just sort of just putting it together and within the next few months we'll all get together and say I've got this and you've got that, look we've got something that's quite powerful." Interview with Mr Macartney-Snape. 165 Mr Macartney-Snape had not been involved in the early discussions with the ABC, although he was aware of them. On 31 January 1995, Dr Millikan went to see Mr Macartney-Snape at his home near Mittagong. Mr Macartney-Snape recounted their conversation in these terms: (T272) "… The first thing Dr Millikan said to me was: 'On the way down, in the train, I was doing some reading and I suddenly understood what Jeremy's - Mr Griffith's interpretation of the virgin mother means. I see now that Mary must have been an exceptionally good mother to produce someone like Jesus and that she was, metaphorically speaking, virginal, that is, unsullied by and relatively unexposed to the excesses of the human condition'" 166 Mr Macartney-Snape was heartened by that response. He said: (T272) "I said: 'Well, David, that's a great relief to me because it seems that you're starting to at least engage in some of the key concepts that we are putting to you. It's a relief because some of the questions you were previously asking Jeremy were a little worrying to us. They seemed to be similar sorts of questions that the intolerant fathers have been asking. … I am sure those people who did get nervous will be relieved to hear that someone of your stature is taking an interest and is looking into having a fair-minded appraisal of these ideas for the ABC. You know, obviously we don't want to go down that road where we are unfairly misrepresented again." (emphasis added) 167 Arrangements were made for the walk in the Snowy Mountains, in the presence of the ABC film crew. Mr Macartney-Snape sent Ms Masters a fax on 1 February 1995, which included these words: (Ex AH) "I appreciate that other aspects such as the cynicism encountered by new ideas might have a place in the story but we trust that what we are doing will be presented fairly and offered as a serious contender for the direction of human affairs in the next millennium." Interview with the Whelans. 168 On 3 February 1995, the day before the Snowy walk, Dr Millikan interviewed Howard and Rosy Whelan. Dr Millikan had identified Rosy Whelan as potential "talent" in his letter to the executive producer on 20 January 1995, describing her claim that Mr Griffith "nearly destroyed her mental health and marriage" (Ex M). 169 Mr Howard Whelan was the editor of The Australian Geographic magazine. The final programme included comments from both husband and wife. Rosy Whelan said these words, which were given some prominence in the final programme: (Ex N(2): lines 113-116) "Jeremy is the prophet. Jeremy is the new Messiah and Jeremy can lead us to salvation. This is the way he sees it, so this does require devotion, he does liken himself to Christ and he likens his followers to Christ's disciples." 170 Mrs Whelan spoke of the loyalty demanded by Mr Griffith and the disintegration of her marriage and friendships as she embraced his philosophy. 171 The interview with Howard Whelan was the source of the imputations concerning Mr Macartney-Snape. Unfortunately the text of the complete interview is no longer available. The programme was made at a time when film was used and physically cut during the process of editing. The off-cuts were placed in a separate bin, and were not retrieved unless needed. In cutting and recutting, film was sometimes lost. Even where film was retained, it was difficult to place the off-cuts in sequence to locate the original context. 172 The plaintiffs tendered a reconstructed transcript of the interview with Howard Whelan (Ex A(35)(1)). The transcript was said to be in the nature of a submission, a plausible recreation of the film that had survived. Ms Masters, who was present during the interviews and familiar with the editing process, did not however, believe it was accurate (T1355). It was not complete. Certain rushes had not survived. There were more cuts, according to the script, than the reconstruction allowed. The following quotation is taken from the reconstruction. The passage in bold is a segment which was used in the programme: (Ex A(35)(1): lines 129-143) "Howard Whelan: I have seen Tim you know at some of his greatest moments in his life you know, on Everest, it was fantastic. And ahh I think he's, I can see what he's trying to do I am totally behind him in terms of having an ideal. And trying to fulfil that ideal and bring it to other people I think that's really really good, I think like Rosy was, I think that he's been, you know I think he's been spell bound by Jeremy and I think that unfortunately you know when you put what he's trying to say up against logic, you know it doesn't work and I guess that makes me sad. I think that the thing if there is a bother there and I mean Tim I ss I … I like Tim. I I love Tim. He's he's a mate. We've shared some good times, but I think that he has the responsibility to try and look clearly at what he's doing to these young kids because Tim is a hero. Jeremy may come across as a bumbly bloke who's a nice guy but Tim is a national hero. He's had two Orders of Australia. I mean he's he's there, he's. Society recognises him, as a great achiever and in that respect he has the responsibility to the people who he is trying to recruit." 173 The reconstructed transcript included a further passage shortly thereafter, again the words in bold being the words used in the programme: (Ex A(35)(1): lines 188-206) "Howard Whelan: Yeah look, you know I mean I was raised in a country that believed in freedom of religion, freedom of the press. I think that we all have those civil rights. I've carried that across even when I became an Australian. And ahh, so to me I think schools yeah, I mean why not? You know why not let them come in and talk? Ahh but I think there has to be some sort of balance, I think there has to be some way of letting the kids know. This is where this guy is coming from. It isn't. I mean if he comes in and says 'look I'm here to give you a philosophy, I'm here to change the world' that would be good but from my understanding it doesn't work that way. It usually works, Tim is going to give a talk about climbing Everest, and the kids go out and go 'Oh great, we're going to go meet an Australian hero' we're going to go on this bushwalk and all of a sudden they get out in the woods and it's suddenly, they're going 'hang on a second, what is this?'. I don't think that's honest and I wonder how much I wonder how much the administration of these schools know what is going to be perpetrated when these really nice healthy adventurous young blokes or women come in and have a chat at those schools. Do they know that in the background is Jeremy with his separate agenda and this is what what concerns me. I think it's good to be out in the open. " 174 The first reconstruction does appear to fit and is plausible. As a matter of probability I accept it as reasonable. The second is more problematic. Most of it is plausible. A finding on that issue will not be determinative. 175 The plaintiffs suggested the editing conveyed the sting in the imputations against Mr Macartney-Snape which were found to have been conveyed by the jury. Such allegations were never put to him. I will return to this issue in the context of the speech by Mr Macartney-Snape at the Concord High School on 8 March 1995. 176 The plaintiffs were critical of the silence maintained by the ABC concerning these interviews until the final interview with Mr Griffith, when he was asked about Rosy Whelan. However, I see nothing reprehensible in the ABC's conduct in that respect. It was a Four Corners programme. Mr Griffith and the Foundation knew that the ABC had embarked upon an investigation. Although fairness may suggest, or require, that they put important material to Mr Griffith for comment, they could chose their moment to do so. The walk in the Snowy Mountains. 177 The Snowy Mountains walk began on 4 February 1995 and ended on 9 February. Ms Masters prepared notes for the film crew before they left Sydney, identifying matters of importance. A group of fifty or so members of the Foundation went on the excursion. Ms Masters directed her crew to take spectacular shots of the various locations, saying this: (Ex 22: p5) "The love of the bush and respect for the wilderness is a huge part of the make-up of both Jeremy and Tim." 178 Ms Masters told her crew that there would be talks each morning and discussions around the campfire. She identified what she wanted, in these words: (Ex 22: p3) "Some of these moments are crucial for our story. They provide the information for the viewer to understand what Jeremy's philosophy is." 179 Reference was made to Juliet Belfield's investigation of her brother's involvement in the Foundation and the possibility of a "critical moment of conversion" (Ex 22: p3). I will return to this aspect shortly, when describing the interview by Dr Millikan of Sam and Juliet Belfield, and the use made of it in the programme. 180 At the end of the first day (4.2.95), there was a discussion around a campfire, where all were present including Dr Millikan and Ms Masters. Mr Griffith, reading from notes, repeated the assurances he said Dr Millikan had given. He said this: (Ex AJ(2): lines 637-651) "I'm just repeating what David told me here, forward for a US initiated sixteen-part documentary for the millennium about people in the word 'opening up new ways of thinking' and that for the required preliminary Australian airing on Four Corners, you are taking the angle of 'the problems faced by new ideas'. The point is I've stressed that I've understood that this is a positive assessment (it would seem that it has to be positive given you are nominating it as an idea worthy of the 21st century) not a degrading cult inquisition that everyone has had enough of. And David's response to that he gave me the assurance that he would respect everybody's, well I guess, intellect and he said: 'I know you're concerned that I mightn't have a deep grasp of it. I will give you a fair, get a fair gist of it I guarantee you that.' He said; 'I pride myself on my intellect.' But we know he's got it wrong once, so we are naturally anxious." (emphasis added) 181 Mr Griffith said that he and the Foundation were prepared to answer questions and, indeed, welcomed them. However, he was opposed to any "cult inquisition" (Ex AJ(2): line 701). Mr Macartney-Snape had recounted to him certain questions asked by Dr Millikan on 31 January, which were "a bit disturbing". Mr Griffith added these words: (Ex AJ(2): lines 766-768) "'The question seems to be hunting for a conversion experience and a change towards isolationist tendency – all cult questions, not understanding of the unevasive thinker questions'. Ah anyway." 182 Dr Millikan sat in silence throughout Mr Griffith's speech. At no point did he ever contradict what Mr Griffith alleged (PS: para [159]). Mr Griffith concluded by directing the following question to Dr Millikan: (Ex AJ(2): lines 833-835) "So I just think on behalf of everybody we want to get that out of the way first. We want David to come clean and tell us where he's coming from in this, where he's up it to, you know, what he expects." 183 Dr Millikan responded. He recounted his personal history. His first love was the study of ideas, especially as they related to God. He had always hovered on the fringes of the church and was regarded as something of a maverick. The journal he edited, National Outlook, provided a forum for radical and critical thinkers. He had a special interest and expertise in cults. When he attended the launch of the book "Beyond", he regarded Mr Griffith's ideas as outrageous. He wrote a "fairly critical review" (Ex AJ(2): line 908). 184 I can accept as accurate the portrait Dr Millikan gave of himself. He then referred to Professor Paul Davies, who had dissociated himself from the ideas (Ex AJ(2): line 913). Mr Griffith intervened, suggesting that Professor Davies' reaction had been the product of an unjust cult accusation from Gateway. Dr Millikan continued, saying that he had heard the interview by Brian Carleton with Mr Griffith on Boxing Day. He then said this, recounting his thoughts upon hearing that programme: (Ex AJ(2): lines 1010/1) "Perhaps I need to reinvestigate some of this." 185 Dr Millikan then referred to The Bulletin review which was fairly dismissive. Mr Griffith intervened, saying this: (Ex AJ(2): line 1035/6) "You said actually David, you believed you got it wrong. Those were your actual words." 186 Dr Millikan responded by saying he did not remember that. The debate continued, gathering heat, Mr Griffith demanded to know whether Dr Millikan now believed that he got it wrong. Dr Millikan repeated that he did not remember saying those words, but the matter was of enormous interest to him. He had read "Beyond the Human Condition" very closely in the last few months and the book, "Free", in the past week. 187 Mr Griffith then responded. He did not mince words. His comments were interspersed with the comments of others from the audience. Mr Griffith said: "He's bullshitting. I told the truth" (Ex AJ(2): line 1104). "… he's backing out." (line 1108). "He hasn't forgotten. He knows what he said." (line 1120). "He's got a super mind, this bloke … that's bullshit. He's fucking with us." (line 1124). The abuse continued until a member of the Foundation asked Dr Millikan whether, by his presence on the walk, he did think that he got it wrong. Dr Millikan responded, acknowledging that his Bulletin review, on reflection, was "extraordinarily superficial" (Ex AJ(2): line 1192). He had since read so much more. He added: (Ex AJ(2): line 1196-1199) "Yes I guess I could say in terms of my appreciation of what was actually being said in that book, it was a superficial reading of the situation and in some senses I didn't understand what was happening. So I guess in that sense you could say I'd got it wrong." 188 The plaintiffs, in submissions, complained that Dr Millikan in these exchanges misrepresented his position. He gave reassurance to secure the Foundation's co-operation and that of Mr Griffith. He knew, according to the plaintiffs, that at the time he gave that reassurance he had in mind a programme deeply damaging to the plaintiffs (PS: para [160]). His reassurance, nonetheless, allayed to some degree the concerns which were then felt by Mr Griffith and Foundation members. Co-operation was then extended. 189 The defendants, commenting upon this discussion, pointed to other issues which were canvassed and which were clearly relevant to the investigation by the ABC. They included the opposition of certain parents, the retraction of support by Professor Paul Davies, the accusation that the Foundation was a cult (DS: para [2.188]). It was plain, from the questions being asked, that the ABC was conducting an investigation, as you would expect in a Four Corners programme. It was not a promotion. Also Dr Millikan made it clear that he was not a convert to Mr Griffith's break-through ideas (DS: para [2.172]). In the course of this discussion, Dr Millikan said this: (Ex AJ(2): line 1338-1348) "Look, if I've made a statement like that I don't mind making a statement like that. If I've got something wrong I will say; 'I've got it wrong'. I've told you where I see that that initial piece of mine was entirely inadequate in really doing justice to what you're saying. Now in that sense, if that was the context in which I was saying I got it wrong yes but if you interpret me saying that I got it wrong to the point that I actually feel I wish at this point to actually move into a sense of deep personal commitment to this … then no." 190 The plaintiffs, in reply, stated that "reasonableness" in the conduct of the defendants did not require the promotion of the Foundation or Mr Griffith's ideas (PS Reply: para [262]). It required fairness and the absence of misrepresentation designed to secure co-operation (PS Reply: para [263]). Further, the plaintiffs did not suggest that Dr Millikan's personal commitment to Christianity disqualified him from undertaking the programme. However, his religious background and beliefs were relevant in two respects. First, they were relevant to whether he ultimately dealt with the plaintiffs objectively. Secondly, they were relevant to the trust which Mr Griffith and the Foundation placed in his words (PS Reply: para [248]). 191 I will, for the moment, again pass over the issue of misrepresentation. Plainly there was a crisis and the door was in danger of being shut, as Dr Millikan foresaw. Fast talking was required. Dr Millikan found the words and the film crew remained. The second and third days of the walk. 192 The next day, the second day of the walk, Ms Masters travelled in a vehicle with Mr Macartney-Snape. She complimented him on the Geelong Grammar speech. She enquired whether other school speeches were planned in the near future. He responded as follows: (T278) "Well, yes, I do have but none of them are - they are all mountaineering, Himalayan style talks, but if I do get a speech day type talk, you know, I could possibly do a Geelong Grammar style speech and, you know, for the purposes of filming." Ms Masters replied saying: "That would be good." 193 This was an opportunity, according to the plaintiffs, to put the allegation made two days before by Howard Whelan, and to obtain Mr Macartney-Snape's response. Nothing was said (PS: para [163]). Instead, according to the plaintiffs, the defendants "chose to mislead Mr Macartney-Snape about the purpose for filming one of his school speeches" (PS: para [163]). There was malice because there was a determination to portray Mr Macartney-Snape as "misconducting himself at schools", regardless of the facts (PS: para [164]). 194 I do not accept these submissions. Whilst it was important that the Howard allegations should be put to Mr Macartney-Snape at some point, the casual conversation between Ms Masters and Mr Macartney-Snape in the vehicle was not the occasion. Mr Whelan made his allegations on camera. They were ultimately included in the programme. It was, no doubt, desirable that Mr Macartney-Snape's response should likewise be filmed, so that the viewer had both the allegation and the response. 195 On the following day, the third day of the walk, Dr Millikan interviewed Mr Macartney-Snape (Ex AK(1)). However, other issues were explored concerning the response of scientists to Mr Griffith's ideas. On the same day, Mr Griffith gave a wide-ranging introductory talk, some of which was filmed by the ABC (Ex A(20)(2)). A small segment was used in a promotional trailer for the Four Corners programme (Ex A(20)(1): lines 1817-1836). Ms Masters explained that the ABC had a limited number of rolls of film. Each roll lasted about ten minutes. The camera had two magazines that were loaded before the shoot. They had to be selective in the sequences they shot (T1331). The segment on the Belfields. 196 On day four, 7 February 1995, Sam and Juliet Belfield were interviewed. The impact of the Foundation upon the Belfields was a major subsidiary theme in the programme (Masters (T1512)). The parents were interviewed twice and significant parts of each interview were incorporated into the programme. They described, from their perspective, the devastation caused to their family by the preoccupation of two of their children (and especially Sam) with Mr Griffith's ideas and the Foundation. 197 Sam gave the other side. He was now an adult and had to live his own life. The ideas and the Foundation were important to him and he recognised their potential for humanity. Those within the Foundation were not seeking refuge from some insecurity. They were intelligent "people at the top of the pack" (Ex A(21)(1): line 258). 198 Two complaints were made concerning this material. First, by presenting a family divided, and nothing about the many parents who supported their children's involvement in the Foundation and saw the benefits of that involvement, a distorted picture emerged. I will come back to that issue when I consider the reasonableness of the publication. 199 Secondly, the plaintiffs submitted that, by artful editing and the voice-over of Dr David Millikan, the defendants suggested that Juliet Belfield had been converted to Mr Griffith's ideas during the course of the walk. The final programme took the following form: (Ex N(2): lines 654-663) "Juliet Belfield: I've come as an innocent observer and you know there's people here who are intelligent and, you know. You have to give them credibility for their intelligence. They're not dumb, and that's why I I went to understand Sam 'cause, you know, I don't think he's dumb. There must be some truth in it and that's why I I followed it up and have been trying to understand." 200 Other issues were then dealt with, before the following further excerpt from the interview with Juliet Belfield: (Ex N(2): lines 1047-1065) " Footage of Juliet Belfield listeting to a talk given by Jeremy Griffith at the FHA Snowy Mountains camping trip. David Millikan: As Griffith moves forward the family traumas increase. The Belfields' daughter, Juliet, returned from the camp convinced by what she had seen. Footage of Juliet Belfield at the FHA Snowy Mountains camping trip. Juliet Belfield: I'm I'm just anxious to learn more because so so far it's all making sense to me and I think that I I believe in it. Footage of Gillian Belfield at her home. The words 'GILL BELFIELD' appear briefly on screen. Gillian Belfield: It's as if there is just a shell there. It's hard. I guess only a parent knows what it is. It's very hard to put into words, but I have seen it in both my children, without them even saying a word. To me there is just a haunted look." 201 The matter was presented, according to the plaintiffs, as though the first footage was shot before the second. Juliet was an innocent about to embark upon a journey. The second sequence showed the conversion. She had, according to Dr Millikan's commentary, "returned from the camp convinced by what she had seen". The planned conversion experience foreshadowed in the producer's notes had come to pass (Ex 22: p3/4). 202 In truth, there was one interview. The footage was not shot before and after the walk. Indeed, the comment shown first (depicting Juliet before the journey), was made later in the interview than the comment which the plaintiffs suggested depicted the conversion. 203 Ms Masters acknowledged that she had not seen anything like a conversion at the camp (T1515). However, the sequence, in her view, was not misleading. When describing her "journey" during the interview, Juliet had not dealt with issues in chronological order. The editing simply rearranged what she had said so that they were sequential. The film, as shown, was truthful as to her state of mind (T1351). 204 I accept Ms Masters' explanation. The only troubling aspect is the voice-over of Dr Millikan, where he speaks of Juliet returning "from the camp, convinced by what she had seen". The quote from Juliet which followed is far from a conversion. It is a heavily qualified comment by someone "still on the journey". For convenience, I repeat her words, as shown in the programme. She said this: (Ex N(2): line 1056/7) "I'm I'm just anxious to learn more because so so far it's all making sense to me and I think that I I believe in it." The Hi-8 footage. 205 On 8 February 1995, the fifth day of the walk, Mr Griffith gave another talk. Dr Millikan and Ms Masters were amongst the audience. However, the talk was not filmed because Four Corners did not have enough film. The Foundation, according to its own custom, did film the talk. At the conclusion of the talk, Dr Millikan complained in these terms: (A(22)(1): lines 1144-1146) "… because you've kept us at the edges, of what's going on here and this, what you've said now, is really the guts of what this is all about." 206 Messrs Griffith and Macartney-Snape denied that the ABC had been "kept on the edges". There was then a discussion for some time, culminating in the following exchange: (Ex A(22)(1): lines 1291/2) "David Millikan: Yes. Well I tell you what can we have a, can I have a copy of the tape? I'd like to sort of, okay alright?" 207 The plaintiffs acknowledged that Dr Millikan was given permission to take the film away. Mr Macartney-Snape conceded that there was no express prohibition upon its use in the programme (T406). When the Foundation ultimately "slammed the door" on the ABC, as I will shortly describe, Mr Macartney-Snape sought to retrieve the tape (which was known as "the Hi-8 footage"). On 22 March 1995 he wrote in these terms: (Ex AR) "Dear David and Deb, Please would you confirm that we do not give you permission to use our Hi 8 footage." 208 Mr Macartney-Snape then left Australia in early April, leading an expedition to Tierra del Fuego, where he remained for a month. Dr Millikan, in these circumstances, directed his response to Mr Griffith. He wrote on 5 April 1995, refusing to return the Hi-8 footage. He said that permission had been given to use it in the programme. Dr Millikan added: (Ex 27) "You may remember that I also said at the time that there was material that I was not going to use, namely those parts where you referred to Phillip Adams. It would have been damaging to you. So in short, we understand that we had an agreement, and we intend to stick by that." 209 The letter continued: (Ex 27) "Jeremy, as you know, in making this program we have had a significant struggle trying to do justice to your understandings. The most difficult part has been finding those parts of your talks which are accessible and succinct. In fact you are talking on camera for approximately half of the program, and I have done my best to provide commentary which is fair and accurate. To assist this process, we are using two pieces from the Video 8 material of you talking. One comes from a reference to Adam Stork, which is particularly helpful in explaining the significance of the story and is not available to us elsewhere. The other very short piece is elsewhere in the talk where you are addressing the actual human condition. You said on that occasion that this was a talk that you gave regularly and was in fact typical of your presentations." 210 Dr Millikan's letter crossed a letter written on 4 April 1995, by Corrs Chambers Westgarth, solicitors. They wrote seeking confirmation that the copyright of the Foundation in the film would not be infringed. The letter demanded the immediate return of the footage (Ex AS). 211 The ABC did not return the film. The programme ultimately included several passages from the talk. One had some prominence. It was shown at the beginning (Ex N(2): lines 17-20), being what was referred to as a "tease" (that is, something that "grabs" the attention of the audience). It was repeated a short time later (Ex N(2): lines 150-168). The passage was as follows: (Ex A(22)(1): lines 902-911) " … 'you don't fucking take a backward step, even if they take the shirt off your back' … fucking kill him. As Christ said when Christianity began, you know, 'turns fathers against sons, daughters against mothers'. It's horrible how truth has to, the test it's put through because they think the worst to the very end. I've watched their brains a million times, they think everything else: 'no, it's got to be this, it's got to be some sort of bullshit . He's got them by doing this, no he's got them by doing that, no he's got'. They never ever ever ever consider the possibility that it's actually what we are saying it is. We tell them black in the face, it's fucking what we are saying it is. We have solved the fucking human condition … " (emphasis added) 212 The plaintiffs make a number of complaints concerning the use of this material. First, it is said that the footage was provided to Dr Millikan for his edification, not for use in the programme. Secondly, the footage had nothing to do with Mr Griffith's ideas and was highly prejudicial (PS: para [169]). Thirdly, the passage was taken out of context. The swearing by Mr Griffith was understandable in context because he was dealing with an emotional subject, namely the reaction of a parent who had engaged cult deprogrammers in respect of his son (PS: para [169]). Mr Griffith, according to the plaintiffs, quickly regained his composure. The balance of the talk was quite different from that passage, although that would not have been apparent to the viewer. Fourthly, the voice-over of Dr Millikan saying, "This is what they have come to hear", implied that the outburst by Mr Griffith was an example of him discussing his ideas. As such, it disparaged his ideas. The use of this material was important evidence of malice. 213 I do not accept this aspect of the plaintiff's case on malice. The Hi-8 footage was made available without limitation at a time that the ABC was gathering material for its programme. The footage was in the same position as the material handed over by Mr Griffith when he first met Dr Millikan on 19 January 1995 (Ex L). It did not relate to a private meeting. The ABC had been present throughout. It could have filmed the meeting had it had sufficient rolls of film. No action (apart from a solicitor's letter) was taken to prevent the use of the material. 214 Further, there was nothing unfair in depicting Mr Griffith swearing when communicating his message. That was his mode of speech. He habitually swore in this and other talks. Indeed, Ms Masters warned him against swearing. However, she came to recognise that it was part of his vernacular (T1358). Mr Macartney-Snape acknowledged that in 1994 Mr Griffith was told that some members of his audience were taken aback by his swearing (T387). He was unrepentant. He saw swearing as a useful tool of persuasion, and intended to continue using it (T387). Mr Griffith also wrote a long dissertation explaining his use of swearing in Newsletter #27 (Ex 7(2): p46). In his book "Free", in a passage dealing with evasive thinking, he said this: (Ex D: p141) "This perversion of the act of procreation that we now refer to as 'sex' has already been explained. Incidentally it was bullshit (our colloquial term for evasion; swearing was often a way of 'letting fly' - of being honest) to claim, as some have, that cuteness developed in order to look helpless and thus evoke sympathy." (emphasis added) 215 Mr Macartney-Snape gave the following evidence: (T390) "Q. So, if the ABC is presenting a programme in which [it] is reasonable to explore aspects of that relationship, I would suggest it to have been misleading to a national audience to have portrayed a man who spoke to his supporters only in a way that he had previously described, as a sophisticated and intellectualised, refined manner, beautifully pronounced aristocratic talk. That would have been misleading, wouldn't it? A. Yes. Q. And it is not unfair of the ABC to present the true picture of how he speaks to supporters, rather than a misleading one, isn't it? A. Well, that was unfair." 216 I cannot agree. Nor can I agree that the passage used by the ABC was a momentary lapse on the part of Mr Griffith, understandable in context, but unrepresentative. There was swearing throughout the Hi-8 footage, as with other talks. In the Hi-8 footage, when talking about the brain of a true prophet (such as himself), Mr Griffith said this: (Ex A(22)(1): lines 1012-1020) "You don't just send up space rockets, you just get rid of the fucking alienation, you can answer a million things. Same applies to what's before the big bang. You've got brains that are honest to God, so fucked up, so saturated with shit , working on questions that an innocent brain, free of the human condition, one innocent brain is worth all the brains on earth. If you don't, if you think that's a fucking offensive statement, as I say look out nearly any window on earth and you will see a cross or a spire or a Buddhist spire or something, all witness, that's humans saying ' fuck compared to me that soundness was so special'." (emphasis added) 217 Further, the construction suggested by the plaintiffs concerning the voice-over by Dr Millikan is, in my view, unduly narrow. Those on the walk had assembled to hear Mr Griffith, who was depicted on the screen. Third meeting. 218 The ABC crew left after Mr Griffith's talk on 8 February 1985, recorded on the Hi-8 footage (PS: para [45]). A further meeting was arranged on 16 February 1995 at Terrey Hills. Mr Griffith and Mr Macartney-Snape were present, as well as other members of the Foundation. Dr Millikan and Ms Masters attended on behalf of the ABC. The meeting began by Mr Macartney-Snape tabling a letter addressed to Dr Millikan. He said he had written the letter that morning to clarify his thoughts. One gathers that the letter had been preceded by a similar letter (not in evidence) voicing misgivings about the forthcoming programme. Mr Macartney-Snape sought reassurance from Dr Millikan, having experienced "the horrible ordeal of the cult accusation saga". He said this: (Ex AL) "We're very scared that we, or more importantly the idea, will be misrepresented again." (emphasis in the original) 219 The letter continued: (Ex AL) "From the start we have been fully aware that a superficial presentation could so easily misrepresent us. In making this documentary there were going to be plenty of heretical statements and ideas that could be edited together without the crucial clarifying explanations to make the whole thing seem 'outrageous' and easily dismissed." 220 Mr Macartney-Snape added: (Ex AL) " I think that fundamentally submitting it as a noble idea (an idea worthy of consideration for the new millennium) was our protection against the very real danger of misunderstanding. If that noble view is not going to be the approach now or is going to be watered down from what - right or wrong - we all feel we were lead to expect, then what assurance do we now have that superficial misunderstandings won't occur? " (emphasis in the original) 221 Mr Macartney-Snape acknowledged that the programme, when complete, would include that the Foundation had "encountered controversy" (Ex AL). He sought an assurance that no statement or view would be included "without them being accompanied by the under-pinning new paradigm explanations" (Ex AL). He also sought, on behalf of the Foundation, to see the documentary before it went to air. 222 Dr Millikan took time to read the letter. He said that, like the letter that had preceded it, it was " … searching for hidden … motives in what I was saying and doing" (Ex 35(1): lines 64/5). Dr Millikan then said this: (Ex 35(1): lines 71-73) " … I've got no hidden sort of motive in these questions. They are the sort of questions that arise in my mind when I am confronted with something of this nature, that confronts me." 223 Having given that reassurance, Dr Millikan spoke of his fascination with ideas and their struggle to be heard. He said he loved the drama of it (Ex 35(1): lines 76-82). He added these words: (Ex 35(1): lines 196-198) "What's at stake here is the merit of these ideas and as I said to you, I am the sort of person who's got a fairly strong stomach for eccentricity and I do not turn away from things just because they look bizarre." 224 He gave an assurance that he would not consciously select a statement "… to actually make a fool of either that person or the ideas … " (Ex 35(1): lines 3880/1). At the end of the programme he wanted to be able to say: "I think I got it right." (Ex 35(1)). 225 The plaintiffs submitted that these statements misrepresented Dr Millikan's position, his purpose being to secure the continued co-operation of Mr Griffith and the Foundation (PS: para [171]). The submission did not identify the nature of the misrepresentation. I do not doubt that Dr Millikan does have a fascination with ideas and the drama of them (cf Masters: T1380). In one of his answers to interrogatories, recounting a conversation with Mr Griffith on the telephone, he made the following statement which rings true: (Ex A(33): Interrog 54(e)) "I want to make a program that looks at the emergence of a new set of ideas. It's really about the struggle of new ideas in the midst of a society such as ours. Whenever new ideas have emerged within the midst of entrenched social orders there is always the enormous flurry and struggle and in the initial stages these ideas often either do not survive, they get swamped, or they emerge and become significant. In the history of Christianity, in the early days Christianity was seen as being a sort of cult and it was said it was a religion believed by slaves and women and not to be taken seriously, but then it struggled on and emerged as one of the most significant belief systems in the history of the world. I'm interested to talk about what you are saying. I want to be able to give a clear statement of what it is you are saying and the implications of what you are saying for the lives of those who are following your teachings." 226 Nor do I doubt that Dr Millikan had a strong stomach for eccentricity. His choice of career, combining the church with journalism, was unusual. I assume that the plaintiffs are suggesting that the misrepresentation was the impression such statements were calculated to make that, at the very least, Dr Millikan had an open mind concerning Mr Griffith's ideas or even was sympathetic to them and their struggle for survival. 227 The defendants responded by pointing to other parts of the same meeting where Dr Millikan made it clear that the programme would deal with a wide range of issues, some uncomfortable for the Foundation and others unmistakably adverse. The transcript included the following: (Ex 35(1): lines 115-130) "David Millikan: And, what I see in your newsletters is that very process living out. First of all, the ideas have been put forward in Free , and then later on in Beyond . They were put out into the world with an enormous expectation that they would be treated with some respect and seriousness and they weren't. The people like me were dismissive, others but generally speaking I guess, in a broad sense they were ignored. And you are also, it's clear, going through a process of considerable controversy at different times. Every time you put your head up, every time you move into a new area. I've heard you say it before. Every time some new person comes in you face it again and again. And as I said to you, it is my belief that you'll face this until the last person is standing. You'll face objection, controversy, vilification and all that. Now, part of the drama of this and what makes this a ah um, in a sense, an engaging story is that very struggle. It is the struggle of the ideas to be heard, not just the ideas themselves." 228 Dr Millikan continued: (Ex 35(1): line 130-142) " … as I said to you, this is not a PR job. I can't put the camera on you for two hours, cut forty minutes out and say there it is. I would never make a film again. No one would take me seriously because they would say; but what about all the controversy? Why you haven't even gone near it? You haven't even talked to anyone who disagrees ." (emphasis added) 229 Late in the same long meeting, Mr Macartney-Snape said that, whilst he recognised that Dr Millikan had a film to make, they had to ensure that the ideas were presented properly (Ex 35(1): lines 3740/1). Dr Millikan responded as follows: (Ex 35(1): lines 3749-3754) "David Millikan: Okay, by the end of this, you see I have got to have all sides covered so that no one can say to me that this is a hatchet job and you have not been fair or on the other side this is a PR job. Jeremy Griffith: But do you understand that? David Millikan: You see both of those, so if there is a controversy I will look at it." 230 Shortly after, Mr Griffith raised his concerns that the programme may place too much emphasis upon parents who objected to their children's involvement. He said this: (Ex 35(1): lines 3765-3770) "Okay, but now look this is the problem with that parent stuff right. They honestly are peripheral. The issue there, I am happy for you to get that element there and you know that there is that issue and it wouldn't be fair if it wasn't there, but it does get into a whole sort of gamer of crap that is not relevant to the greater understanding really ultimately. It is just relevant to this passage of introducing the idea." 231 At the end of the interview, Dr Millikan was provided with letters from parents who supported their children's involvement in the Foundation, including a letter from Mrs Cullen-Ward. 232 Again, I will defer the resolution of the issue of misrepresentation for the moment. Second interview with Mr Macartney-Snape. 233 Arrangements were made to interview Mr Macartney-Snape for a second time at his home near Mittagong. The interview took place on Wednesday 22 February 1995. Dr Millikan wrote in advance, identifying questions he wished to pursue. He wanted to refine his understanding of Mr Griffith's teachings and flesh out their implications in the long term. What, he asked, was your vision as to what the new world will look like (Ex AL)?. In respect of Mr Macartney-Snape himself, Dr Millikan identified an issue he wished to explore in these words: (Ex AL) "I would like to ask you a little of your own journey. Do you think your experiences on Everest gave you a greater openness to the teachings of Jeremy? What has been the cost of this journey for you? I am sure you do not see it as a cost -- but I am conscious that there has been some hard times for everyone who has decided to take this information seriously. It strikes me that your response to the opposition that you have experienced is a measure of how precious it is to you and others." 234 The letter continued as follows: (Ex AL) "What do you feel about the progress of the Foundation? I know it is going to take about three generations -- but it is going very slowly. What is needed to hit the accelerator? Do you see this as truly universal, ie, will it cross the cultural barriers?" 235 Dr Millikan concluded by identifying a number of issues which may be thought potentially negative from the viewpoint of the Foundation: (Ex AL) "As I said, I need to put the questions that a piece like this must be seen to be asking. · How do you maintain your belief in the truth of the Foundation when the response of the academic world has been so negative. · Why do you think there has been such a violent reaction on the part of the parents? I have talked to three lots of parents and have not got to the bottom of it. · Do you think that the information that Jeremy has discovered is somehow available only to the sort of people that have been attracted thus far? I am thinking of the great unwashed out there -- where are they?" 236 The interview dealt with the issues foreshadowed. A number of the responses by Mr Macartney-Snape were used in the final programme. One such response described Jeremy Griffith as a "prophet in the real sense", which was then explained. The interview was as follows, the words in bold being the words used in the programme: (Ex A(2)(1): lines 309-327) "David Millikan: Can you just tell me, what is the difference between this and religion? Tim Macartney-Snape: Well as my understanding, well in my understanding of religion ah, religions are started by a prophet, a very sound individual who is compelled to tell the world that they ought to behave in a particular way, an idealistic way. And if that prophet is compelling enough, if what they say is sound enough then people start to follow them. But lacking any rational explanation for why they should, they merely have to make do with believing in it. So in order to I suppose be as ideal as possible they defer to that prophet, or the religion that follows that prophet. David Millikan: But you are describing Jeremy. Tim Macartney-Snape: Well no. Um you know Jeremy is a prophet in the real sense of the word but, I mean he's no different to anyone else, except for the fact that he's had this, he's got this ability to he's if you like, unafraid of God, he's unafraid of the truth and he's been able to put together the pieces of the jigsaw and the pieces of this jigsaw explain human nature. We no longer have to believe in the fact that there is a God. We don't have to believe in the notion that there is a God. We no longer have to believe in all that sort of stuff." 237 Shortly thereafter, the following exchange took place, parts of which (those in bold) were used in the programme: (Ex A(2)(1): lines 355-381) "David Millikan: Okay well look you know the question I had. Give us some sort of, try and give us specifics, what's going to happen in terms of a progr (sic), or practicalities? Tim Macartney-Snape: The … The job immediately in front of people who support this understanding is to promote the understanding I mean personally and for everyone else I think, this information opens up a, the world in the most beautiful way. You start to have perceptions of the world that are so suppressed in us. You know just being in the bush becomes wonderful by, more and more wonderful by the day. But they are really selfish benefits. The greater thing about this is it makes you appreciate that we're not out of here, we're not into the new world until everyone is and so the priority in people's lives becomes working towards the new world, and trying to convince others that of the truth of this information. So in terms of … David Millikan: So it's a bit like evangelism. We're at the early sort of stage of evangelism. Tim Macartney-Snape: It's a bit like that except that you know the difference is, we have, we now have a rational explanation. But, and the benefits to taking on that information are real. I mean we can start to apply it to our, individually to our lives. We can start to have, our lives suddenly have a lot more meaning. We understand the purpose of life if you like but once you have that understanding you can see that the greatest need is for everyone to take this information on. So people's focus will be on the information spreading and helping people come to grips with it and there's a role for everyone. I mean not everyone is equally confronted by this. Some are more confronted by it than others. The people who are less confronted by it can go out and spread the information, help people understand it, counsel people. People who are less capable um can … " The use of the religious idiom. 238 Mr Macartney-Snape, when giving evidence, identified a number of matters which were "lies" propagated by the Four Corners programme. He said the programme gave the impression that Mr Griffith claimed to be a prophet in the religious sense. He made no such claim. His claim was a rational, scientific understanding. It required comprehension, not faith. He was a prophet in the broader sense, that he could confront issues others found difficult. He was able to do so in an unevasive truthful way (cf PS: paras [47], [210]). 239 However, it was Mr Macartney-Snape, in his answer to Dr Millikan, who introduced the notion that Mr Griffith was a prophet. He also provided a definition. It was that definition which was used in the programme. What then, was his complaint? In cross examination he said this: (T359) "A. I was suggesting, I was suggesting to his Honour that the ABC made no attempt to get a good concise explanation for the term "prophet". Q. But you've given that yourself, haven't you, at 184 to 189? It's concise? A. I have, but I will have to confess that it's not to a complete - it's not a good answer. Q. But you're not suggesting that it's a truncated paragraph or sentence -- A. No." 240 Mr Macartney-Snape added that he was not blaming the ABC because his definition could have been better expressed (T361). His mind had been focused upon the precise issue by the preceding questions, that is, the way in which Mr Griffith differed from religious prophets. His definition emphasised the he was "no different to anyone else", that is, not super-human (T373). 241 There can be no real complaint against the ABC for having included Mr Macartney-Snape's definition of "prophet". Indeed, the ABC included the second passage where he identified the difference between Mr Griffith's ideas and evangelism. The difference was that Mr Griffith's ideas provided a rational explanation. 242 Mr Macartney-Snape's real complaint was the idiom which Dr Millikan chose to use throughout the programme, describing Mr Macartney-Snape and Mr Griffith's followers as "disciples", repeatedly referring to "Christ", to "conversion", and so on. The complaint was put to Ms Masters in cross examination. She said this: (T1524) "Q. Do you accept, as a general proposition, that the program as broadcast was laced with religious language and imagery? A. So are Jeremy's newsletters. Religion is a vital part of the way he sources his material. He sees equations. The prophet leading to his mother equates to Jesus' journey with his own family. I mean it is the language of Jeremy." 243 In determining whether it was unreasonable to employ a religious idiom in a discussion of Mr Griffith's ideas, Mr Griffith's claim that his ideas were based upon science is not determinative. His work, by his own account, reconciled science and religion. Mr Macartney-Snape and others were concerned that his first attempt at explanation in the book "Free" did not sufficiently emphasise the science, rather than the religion (supra para [27]). They urged that his revision in "Beyond", should concentrate upon the ideas as a rational understanding. Even so, the references to religion remained significant (cf Ex 7(1): Newsletter #20, p20: supra para [91]). 244 Mr Griffith, in his explanation, drew heavily upon the religious prophets, including Jesus Christ (cf last pages of "Beyond" (Ex F: p188/9; cf Dr Prosen T210-213). His ultimate thesis involved the second law of thermodynamics, that is, that God is negative entropy. In more homely terms, Mr Griffith (to repeat a passage set out above) described the concept of God as follows: (Ex A(22)(1): p8) "Well nature is just the friend of our soul, the soul, we once lived cooperatively. If negative entropy is integrative meaning, is the tendency in nature to form wholes, is cooperativeness, we once, and that's heaven, that's metaphorically referred to as heaven, we've once been to heaven already. But we were there instinctively. We once lived in an utterly cooperative state, we were not, there were no anger, egocentricity or alienation in our bones, nothing separating us from nature. … But I'm trying to say that buried within us is a memory of incredible sensitivity and knowingness, and what it's like to be all together harmonious which is really I'm suggesting what God is. God is an integrative state, a cooperative state, a state of harmony, of great love for all things, and sensitivity, no barriers." 245 So his account, amongst other things, was about God and purpose. The only faith required was an acceptance of his assertion that science had provided the answer, which he had uncovered. As to that, he invited scrutiny from his followers so that they may themselves be satisfied. I will, when examining the defence of truth, and the imputation concerning Mr Griffith, look at whether he had any support at all from the scientific community (Pt 3). 246 But to his followers Jeremy Griffith was not simply a science teacher, providing a lesson in science. Fundamental to his teaching was that he saw himself as a prophet. He was one of a long line of prophets. They included the prophets of the Old Testament, Moses and Christ. Each, including Mr Griffith, had the gift of innocence and the capacity for unevasive and truthful thinking. That gift was discussed at length in the Foundation's newsletters, especially Newsletter #24 (Ex 7(1)). Mr Macartney-Snape, in cross examination, was taken to a number of passages from Newsletter #24 (Ex 7(1)). Having acknowledged that Mr Griffith regarded himself as a true prophet, the following was put: (T489) "Q. Now page 15, right-hand column there, is it fair to say that true prophets are being attributed by the writer as having something divine within them; that is, they are soul? A. Yes, that's -- Q. And as part of the quality that makes them rare and sets them apart from other people? A. They are aligned with their soul. Everyone is born with a soul which is our distinctive -- Q. But this is a rare quality for true prophets? A. Yes, yes. Q. That is … what the author is talking about here? A. Yes." 247 Elsewhere, Mr Macartney-Snape responded to cross examination concerning Mr Griffith's words in Newsletter #24 (Ex 7(1)) as follows: (T490) "Q. Page 30, left-hand column, foot of the page, you accept there's an express comparison claiming similarity extended by the author between Moses, Christ and Jeremy Griffith, is that right? A. Yes. Q. And the only qualification of the similarity is that in the writer's view Christ was able to go further than Moses with the benefit of what Moses had given and Jeremy Griffith has been able to go beyond Moses and Christ with the benefit of what they've both given, is that right? A. And the whole body of knowledge. Q. As to that sequence of three: Moses, Christ, Jeremy Griffith, Christ went further than Moses with assistance from Moses, and Jeremy Griffith has gone beyond both of them with assistance from both of them and from lots of others as well? A. Yes." 248 Mr Macartney-Snape also had a background in science. He was persuaded that Mr Griffith had indeed provided a scientific explanation of good and evil, fundamental to the future of humanity. He thereafter became heavily involved in propagating that explanation. 249 The ABC, including Dr Millikan, in the making of the programme, observed Mr Griffith interact with his followers, including Mr Macartney-Snape. He ultimately put to Mr Griffith what he had observed, in the final interview on 9 March 1995, which I will shortly describe. In a letter that followed, Mr Griffith extracted part of that interview, which was in these terms: (Ex AQ: appendix p5) "13.44 DM: Well let me tell you what I see. I have talked to them you see [people on walk]. What I see are people who are quite tentative, they're unsure of themselves, they defer to you at every moment, there is an increasing interest." 250 Mr Griffith protested that the question was unfair. When the interview was resumed, the following question was put by Dr Millikan: (Ex AQ: appendix p5) "15.44 DM: I guess this is where we get to the different perceptions you see. You see when I put it to you and say is what I see is them deferring to your authority in their lives and you say no they are simply listening to what I am saying and struggling with mass of what I am saying. JG: Wait a second let's get this right. Defer to my authority. Deferring to the authority of my ability to make sense of things I wouldn't disagree with that … " 251 Mr Griffith, in the same letter, explained that the reaction of his followers was simply the reaction to unlocking "answers to nearly every aspect of human behaviour". He asked Dr Millikan: (Ex AQ: appendix p5) " … wouldn't you become very appreciative of the answers such a mind is capable of. Might not, what you are looking at, be appreciation." 252 The ABC, by the end, had a variety of views as to the nature of Mr Griffith's teaching, his role, and the way others saw his role. On the one hand they had Mr Macartney-Snape's definition of prophet, that Mr Griffith was not superhuman, but had a particular gift that had allowed him to fit the particular pieces of the jigsaw together (Ex N(2): lines 184-189). On the other hand, Rosy Whelan provided a different view. She was once heavily involved in the Foundation. She and her husband were two of fifteen persons to whom Mr Griffith gave special thanks on the inside cover of "Beyond". She had become disillusioned and had left the Foundation. Her interview included these words, which formed part of the programme: (Ex N(2): lines 113-116) "Jeremy is the prophet. Jeremy is the new Messiah and Jeremy can lead us to salvation. This is the way he sees it, so this does require devotion, he does liken himself to Christ and he likens his followers to Christ's disciples." 253 It is instructive to look at the behaviour of members. The Foundation had a relatively small number of followers, mainly young people, who accepted Mr Griffith's explanation of the human condition, and saw it as a means of transforming humanity. These were the people Mr Griffith hoped would help spread his ideas and create the critical mass of supporters which would ultimately transform the world. Mr Griffith repeatedly said that from such people much was expected. Indeed, he repeated the words of Christ: (Luke 12:48) "From everyone who has been given much, much will be demanded; and from the one who has been entrusted with much, much more will be asked." 254 In the programme Mrs Gillian Belfield said that Mr Griffith told her that her son Sam was expected to sacrifice his life (Ex N(2): lines 561-563). Part of the sacrifice concerned having children. Mr Griffith in "A Species in Denial" (2003), wrote this, describing members of the Foundation: (Ex A(6): p503) " Most Members have long-standing partners within the FHA but because of their commitment to the immense task they have undertaken of ending humanity's denial most are not as yet formally married, or have children. With the priority so clearly being to defend this information against the entrenched denial of the issue of the human condition, getting married and having children has very much been a secondary concern. In the case of having children, with billions of children in the world and no answers to the overwhelming problems facing humanity, the Members, in their denial-aware state, are able to see that getting these answers out into the world logically comes first. Also, the more a person understands the importance of nurturing the more they appreciate how consuming and important a task parenting is. Essentially, the greater the need for the new, all-important but extremely confronting insights, and the greater the resistance to them, the more selfless and committed we have to be prepared to be." (emphasis added) 255 Mr Griffith, on 30 November 1994, wrote a personal letter to members of the Foundation, in which, amongst other things, he dealt with the issue of members having children (Ex 41). He commented upon correspondence with Mr Sam Belfield's partner, Susan, who at one point wrote saying that she felt "torn" between what she termed "the new attitude" (life in the new world) and the aspirations of the old, what she described as "life in the country, kids" (Ex 41: p25). Mr Griffith's response to her included these words: (Ex 41: p27) "I mention to Susan … others had said at various times that the idea of having children now they knew how egocentric and embattled they were wasn't nearly as attractive as it had been for them. I told Susan that my response was that the embattled, alienated state was not the right reason for not having children now. The lot of our generation is to be exhausted. The understanding says that this is to be expected. It's not bad. The responsibility of our generation is to hold the key aloft – support the understandings. The responsibility of the next generation is to avoid resignation and the one after that to avoid hurt in infancy." 256 Mr Griffith continued: (Ex 41: p27) " What matters for our generation is only that we support/disseminate/etc the truth about the human condition – hold the key aloft and this is the main consideration where having children is concerned: will having children inhibit your ability to hold the key aloft? If you have The New Attitude this consideration is automatic and absolutely not a problem to go along with whatever the answer to that question is for you – and I stress it doesn't necessarily mean you don't have children or that Sam doesn't stay plugged into the bush etc; etc; etc. We have to stay balanced to be effective. There are many considerations. For example there is the consideration, as Susan herself said that all children are really our children/family." (emphasis in original) 257 The Four Corners programme, in this context, described Mr Macartney-Snape as " … the prophet's first disciple" (Ex N(2): line 26), "Wherever the opportunity allows he (talks) about the prophet" (Ex N(2): line 249/50) and that he was a person who "has the passion of a convert" (Ex N(2): line 1083/4), acting as Mr Griffith's voice. The members of the Foundation, his followers, were likewise described as a "dedicated band of disciples … recruited from our elite schools" (Ex N(2): lines 37-44). 258 I believe, in the context of Mr Griffith's ideas as described, and notwithstanding the repeated assertions that they were based upon science, it was not unreasonable to describe Mr Macartney-Snape as Mr Griffith's "first disciple" and his followers in the Foundation in the same terms. The use of the religious idiom was not unfair or unreasonable in the context of Mr Griffith's ideas as he expounded them. First interview with the Belfields. 259 Attention has already been drawn to one of the major subsidiary themes in the programme, which was the effect upon the Belfield family of the involvement of their children (Sam and Juliet) in the Foundation. Dr Millikan conducted an interview with Sam and Juliet's parents (Charles and Gillian Belfield) on 23 or 25 February 1995, that is, shortly after interviewing Mr Macartney-Snape. This was the first of two interviews. Mrs Gillian Belfield, in extracts which were ultimately included in the programme, raised a number of issues. They included the following statement, to which reference has been made: (Ex N(2): lines 561-563) "When I asked Jeremy what was Sam's future, Jeremy's answer to me was Sam must sacrifice his life, and I as a mother find that extremely difficult to accept." 260 Mrs Belfield also provided her understanding of Mr Griffith's philosophy in relation to women. The passage in bold is a segment which was used in the programme: (Ex A(36)(1): p3) "Well, I become alienated and I had to really resist the temptation to get angry and make a difficult situation worse. I just have great difficulty in accepting the philosophy that a woman's place is behind her man. To me I expect to stand beside my man on an equal footing and I expect my daughters to do the same. " 261 Mrs Belfield also complained of the violation of her privacy by the reproduction and dissection of family correspondence in the Foundation's newsletters. 262 At the end of the interview, Dr Millikan made an unguarded remark which was recorded on film. (Ex A(36)(1): lines 493-502) "[ talking in the background as other filming is going on] And like I said to you I think umm this, it's going to be a hard time for everyone in the group over the next, the first couple of months after it goes to air because he will ahh he'll bring 'em in, he'll reign 'em in … just start reasserting, start asserting his authority and becoming more and more intrusive to cut off any avenues of ahh dissention and then they'll start to drop off ahh for many of them it will just get too hard and they'll suddenly sort of ahh feel that they just can't keep up. And umm he may take a couple out, he'll certainly lose access to the schools and the universities because whoever Macartney-Snape … " 263 The remark demonstrated that the programme he had in contemplation would be adverse and that part of the damage he expected would be a denial of access to universities and schools by, amongst others, by Mr Macartney-Snape (PS: para [49]). It was a remark possibly made after he had been told that Mr Macartney-Snape had been invited to speak at Concord High School, although several weeks before that speech was given (8 March 1995). The remark, no doubt, reflected Dr Millikan's belief as to the impact of Howard Whelan's allegations concerning the promotion of Jeremy Griffith's ideas in schools. Armidale Open Day. 264 During the walk in the Snowy Mountains, Mr Griffith mentioned to Dr Millikan that the Foundation was planning an Open Day in Armidale in March 1995. He raised the possibility of Dr Millikan attending. 265 On 29 February 1995, Mr Griffith wrote to Dr Millikan. He enclosed a draft pamphlet in respect of the Open Day. The pamphlet included, in large letters, a heading in these terms: (Ex 37) AN IDEA NOMINATED TO TAKE HUMANITY INTO THE NEXT MILLENNIUM 266 The text of the document included these words: "Asked to nominate new thinking for the crucial coming millennium from this region of the world - to appear as a part in a 16-part international documentary - Dr David Millikan (former head of ABC religious affairs dept) has chosen Australian biologist, Jeremy Griffith's explanation of human nature - as set out in his 1991 book 'Beyond the Human Condition'. … A precondition of the international documentary is that the nominated concept be first televised in its home country. This has led to ABC 'Four Corners' program reviewing the understandings and they will be filming at the Armidale Open Day." 267 Dr Millikan was listed as a speaker, the other speakers being Mr Griffith, Mr Macartney-Snape and various Foundation members. Commendations to the book "Beyond" from Professors Davies and Birch appeared at the foot of the pamphlet. 268 Mr Griffith's letter explained that he had tentatively listed Dr Millikan as a speaker, and tentatively included Paul Davies' commendation, even though Professor Davies had withdrawn permission. Mr Griffith said that he hoped to meet with Professor Davies to reassure him concerning the "scurrilous" cult allegations against the Foundation. 269 Dr Millikan telephoned Mr Griffith on 2 March 1995, asking that his name be removed from the list of speakers. He would not be attending (Masters: T1426). That was done. The pamphlet was reissued, removing his name, and removing the commendation of Professor Davies, replacing it with a commendation from Professor John Morton (Ex A(38)). 270 The plaintiffs submitted that the Court should draw the inference that Mr Griffith and the Foundation were still relying, in March 1995, upon what Dr Millikan had said about the planned documentary series (PS: para [51]). The Concord speech. 271 It will be remembered that, on the second day of the walk, there was a discussion between Mr Macartney-Snape and Ms Masters concerning the talks which Mr Macartney-Snape gave to schools. She had complimented him on his Geelong Grammar speech (Ex 21(3): p81, line 4019). She ascertained that no film was available of him making that speech. She enquired whether it was possible to film him speaking to students (T1360). Mr Macartney-Snape responded that it was difficult at this time of the year. He added: "I could possibly do a Geelong Grammar style speech … for the purposes of filming." (T278). 272 An opportunity presented in late February 1995. Mr Macartney-Snape formed an association with an eye surgeon who performed work in Nepal. He met the surgeon whilst trekking in that area. The surgeon was later introduced to Professor Fred Hollows. Ultimately the Nepal Eye Programme was established with Mr Macartney-Snape as Chairman. 273 Mrs Gabi Hollows was involved in that programme. She had agreed to speak at the Concord High School on 8 March 1995. However, due to her commitments, she was obliged to cancel. She recommended Mr Macartney-Snape as her replacement. Ms Whiddon, the head of English, wrote to Mr Macartney-Snape on 24 February 1995, confirming the arrangements. She enclosed a copy of an address which the principal, Mr Stewart, planned to deliver. Ms Whiddon suggested that Mr Macartney-Snape stress the importance of commitment and dedication to activities and goals (Ex AM). Mr Macartney-Snape said that he understood his talk was to be about "the deeper meaning of achievement" (T287). 274 Mr Macartney-Snape then telephoned Dr Millikan. He later telephoned Deborah Masters. His account of his conversation with Dr Millikan was in these terms: (T284) "'David, I've just been asked to step in for Gabi Hollows to give a speech day address at Concord High School and I believe it could suit your purposes very well. As it's a speech day I could rewrite it, a version of my Geelong Grammar School speech and maybe add a little bit more about Jeremy's ideas for the purposes of filming but I think that will be okay.' He replied, 'That's really good.'" 275 Mr Macartney-Snape said he would ordinarily not have spoken about Mr Griffith's ideas on such an occasion. He had done so at Geelong Grammar and at Scots Albury because, in each case, he regarded it as appropriate, there being some connection with Mr Griffith (T436/7). He included the reference to Mr Griffith's ideas in the Concord speech to be helpful to the ABC (T436) and, again, because he believed it appropriate, having been asked to speak on the deeper meaning of achievement (T287). He also spoke to Ms Masters. He told her that she would require permission to film from the principal of the school. Ms Masters secured that permission from Mr Stewart. 276 On the night of 8 March 1995, Mr Macartney-Snape delivered his address to the students of the Concord High School in the presence of the ABC film crew. He spoke of mountaineering and matters of philosophy. He incorporated elements of the Geelong Grammar speech in shortened form. He also spoke about bullying in the school. His speaking notes were tendered (Ex AO), as well as a transcript reconstructed from footage taken that evening (Ex AP(2)). The reconstruction was incomplete. In the draft notes, Mr Macartney-Snape planned to introduce Mr Griffith's ideas with these words: (Ex AO) "The bully can be substituted for any anti-social element in society including parts of each one of us and we no longer have to hate it. We can take it by the hand and say to it: 'listen I understand why you're bad, you've been bad for an ultimately good reason'. That's the story of consciousness, the journey to fully understanding ourselves has been massively corrupting but we can now use understanding to ameliorate our bad side." 277 The reconstructed transcript of what was said thereafter included the following, the words in bold being words that were actually broadcast in the programme: (Ex AP(2): p5) " I have the highest regard for the work of a bloke called Jeremy Griffith. After some six years of studying the biological, rational explanation, studying his biological, rational explanation for human nature, principally written in his book Beyond the Human Condition, I'm convinced he's gone up river and reached the source of the problem. He's made a crucial breach in our war to understand ourselves. He explains that the dark side of our nature which I've referred to, stems from a battle within each one of us. It's a war that rages on in an attempt to reconcile the 'spiritual opposites' in our nature, left and right if you like. From the evidence pieced together in the discipline of palaeontology which looks at fossil remnants of our ancestors. We can deduce that this battle began about two million years ago, and that was the advent of conscious thinking, and prior to consciousness developing. Our primate ancestors lived in harmony or to use a word closer to home here, they lived concordantly. It's not something they had any conscious understanding of though … with its inevitable mistakes and egocentricity. But unable to explain the problem made us upset and angry which only compounded the problem as the more upset we became the less concordant was our behaviour and the greater was the older brain's disdain." 278 Mr Macartney-Snape continued, describing our primate ancestors and the mythological story of the Garden of Eden. Again, the reconstructed transcript is incomplete. Mr Macartney-Snape's notes included the following: (Ex AO) "I urge those of you who are young and able, to venture upstream and take a look at what I'm saying about the human condition. See for yourself if its true or not." 279 The headmaster, Mr Stewart, gave evidence, as did Ms Whiddon (Ex 43) and another teacher, Mr Moule (Ex 34). Each knew of Mr Macartney-Snape's reputation as a mountaineer. None knew of his association with Mr Griffith or the Foundation. Nothing had been said by Mr Macartney-Snape concerning his intention to deal with those issues. Mr Stewart had understood that Mr Macartney-Snape would refer to his beliefs and values (T84). Most thought his speech too long. Ms Whiddon recalled feeling distinctly uncomfortable during part of the speech. She thought some of it inappropriate in the sense that it was of no interest to the children (Ex 43: para [13]). He had gone outside what she had expected (Ex 43: para [13]). Mr Moule said that he regarded the reference to Mr Griffith's ideas as just "a passing mention" that did not particularly concern him (T1597). 280 Mr Macartney-Snape gave evidence that there were no complaints. He saw no need to alert the school that he intended to refer to Jeremy Griffith and his ideas (T431). In cross examination the following was put: (T437) "Q. From what you told his Honour you claim you regarded it as entirely appropriate to aim this plug for the very unorthodox to school children, correct? A. It's totally harmless to express one's interests in an idea you think is important and interesting but -- " 281 Mr Macartney-Snape was then asked the following concerning the need to seek approval: (T437) "Q. And deceitful to proceed without doing so. What do you say to that? A. I disagree. I told you that many times." 282 Mr Macartney-Snape's speech was an important aspect of the programme. It was given some prominence. Indeed, the footage of Mr Macartney-Snape speaking to the school was repeated three times in the course of the programme (Ex N(1)). It was also used in a promotional trailer. 283 The plaintiffs suggested that "the defendants' conduct in procuring footage of Mr Macartney-Snape referring to Mr Griffith" at the Concord High School was evidence of their malice towards the plaintiffs (PS: para [204]). I cannot agree. The promotion of Mr Griffith's ideas was a matter of legitimate interest to the ABC, especially following the allegations of Mr Howard Whelan during the interview of 3 February 1995 (supra paras [171]-[172]). Mr Griffith had provided the Geelong Grammar speech. That speech and the Foundation's newsletters suggested that Mr Griffith's ideas were being promoted in schools. Ms Masters raised the issue with Mr Macartney-Snape. She asked to be told of speaking engagements if they arose. Mr Macartney-Snape obliged. She did not ask Mr Macartney-Snape to speak about Mr Griffith. No doubt she hoped and expected that he would do so. She enquired before the Concord speech. He confirmed that it was his intention to do so. There was nothing reprehensible or underhand in that sequence. Mr Macartney-Snape was not tricked into doing something he thought inappropriate. Whilst he may not ordinarily have spoken about Mr Griffith's ideas to the school children at Concord, the invitation to speak on the deeper meaning of achievement, to his mind, made it appropriate. 284 However, that said, there was one aspect which was unfair. Ms Masters had been present when Mr Howard Whelan was interviewed the day before the Snowy Mountains walk, 3 February 1995. During the Snowy walk, Mr Macartney-Snape was interviewed by Dr Millikan on 5 February 1995. The Whelan allegations were not raised. He was interviewed again on 22 February 1995. Again they were not raised. Nor had the issues been taken up with Mr Griffith. This was a matter of concern to Ms Masters. She discussed her concerns with the executive producer, Mr Carroll (T1451/2). She thought that conversation possibly took place in the second or third week of February 1995 (T1452). The walk had been volatile at the beginning (T1453). It had been determined that the matter would not be raised for the time being. Ms Masters assumed that the issue would be dealt with in the final interview with Mr Griffith (T1471). In fact, the final interview with Mr Griffith, which I will shortly describe, took place the day after the Concord speech (that is, on 9 March 1995). According to Ms Masters, the only questions put to Mr Griffith relating to the issue were as follows: (T1473) "'Why do you target the kids at elite schools and of elite homes?' To which Mr Griffith responded: 'Well, we don't, we don't. We - if you look at our - again, you're not presenting a fair picture.'" 285 That question, having been read to Ms Masters, the following questions were put to her: (T1473) "Q. And what I suggest to you, and if you'd like me to read back to you that question and answer, please just indicated and I'll do so -- A. Mmm. Q. -- is that that question in no way served explicitly or implicitly to alert Mr Griffith or to the extent it would be relayed, Mr Macartney-Snape, to the allegations being made about Mr Macartney-Snape by Howard Whelan, do you accept that? A. I do. Q. And it follows, doesn't it, that to the extent to which it was proposed to deal with the matter of concern to you, the question of raising with Mr Macartney-Snape or others in the foundation the allegations being raised by Howard Whelan, to that extent, to the extent it was to be done by asking questions at the final interview, that in fact didn't come to pass? A. No, it did not." 286 However, returning to the Concord speech on the evening before (8 March 1995), there was an opportunity to put the Whelan allegations to Mr Macartney-Snape. Ms Masters had asked Mr Macartney-Snape to wait after his speech while she spoke to Dr Millikan. She was anxious that Dr Millikan should interview Mr Macartney-Snape again. Her evidence as as follows: (T1473/4) "Q. Could you tell us about that conversation please? First, when do you recall it occurring? A. Oh, I had mentioned to Tim would he be prepared to stay back to do an interview. He said he would. I talked to David about it and David indicated that he would - said, 'What sort of questions do you want to ask?' and I raised questions which I can't recall and David felt that he had covered a lot of that territory, so, you know, we had a debate and in the end it didn't proceed. Q. It is fair to say, isn't it, that you felt that in raising those matters for Dr Millikan's consideration, that is whatever those sorts of questions might have been, you were acting in the best traditions of a journalism that would fairly raise with people matters of concern to them prior to broadcast? A. I imagine that was what I was governed by, yes. Q. And as it happened, a decision was made and may we take it from your demeanour today it is one that even now you wish had been resolved in a different direction? A. Well yes, I suppose I do." 287 Ms Masters was right. The allegation should have been put. It was unfair and unreasonable that Mr Macartney-Snape should not have been given an opportunity of responding to an issue concerning him which was to be given such prominence in the programme. The interview with Jeremy Griffith and its aftermath. 288 On 9 March 1995, Dr Millikan conducted his final interview with Jeremy Griffith. Mr Griffith later described the interview as "the ambush" (Ex A(23): letter 7.4.95). In the course of the interview, and subsequently, Mr Griffith made a number of complaints. First, he said that the lighting was intense and uncomfortable and he felt that had been deliberate. Secondly, he complained that Dr Millikan's style was confrontational. His personal hostility to Jeremy Griffith's ideas was only too apparent. Thirdly, Mr Griffith clearly resented the issues which Dr Millikan sought to canvass, believing, no doubt, that the public ventilation of such issues would be damaging to the Foundation. 289 Ms Masters gave evidence that there was nothing unusual about the lighting. They were filming inside during daylight (T1371). She suspected that 9 March 1995 was a humid day. Blue gel had been applied to the windows to reduce heat. When she examined the footage, the lighting during Dr Millikan's interview of Mr Griffith appeared to be similar to other interviews, such as that conducted with Professor Flannery (T1371). I do not, of course, have evidence from Mr Griffith. I accept that the ABC, when interviewing Mr Griffith, did not set out by means of lighting to make him uncomfortable. 290 On 12 March 1995, Mr Macartney-Snape wrote to Dr Millikan and Ms Masters. He stated that he had spoken to Jeremy Griffith and was "deeply disturbed by the nature of the questions asked". Mr Macartney-Snape had since listened to the tapes and shared Mr Griffith's view. His letter included the following: (Ex AQ: p1) "But I'm afraid to say that there are signs emanating from that appalling interview which indicate that we might be misrepresented. The confrontational style of questioning gave absolutely no indication, David that you had understood anything about the information. Gus Gemmell said 'it sounded like an interview conducted by my father, not someone who had looked into and claimed that they had understood the information'." 291 Mr Macartney-Snape then made a comment which was significant. He said that the Foundation took "an immense gamble" in "agreeing to be involved in this programme" (Ex AQ: p1). They recognised the risk. The risk had been assessed as manageable and the gamble worthwhile, in the light of four reasons, which Mr Macartney-Snape set out in his letter: (Ex AQ: pp1/2) "1. David said that he had reappraised his opinion on the ideas and that in his Bulletin review he had got it wrong. 2. David told us that the main reason for doing a TV documentary was that he has been asked to find ideas in Australia that would be worthy of consideration for taking Humanity into the 21st century. This implied to us that David's intentions were that he would at least be fair in his treatment of the ideas and the controversy we have experienced. It would be illogical to nominate 'a false start' idea as being worthy of consideration. Only serious attempts at explaining human nature or bringing in better ways of living could be considered for such a documentary. Furthermore the treatment of such ideas would have to be serious, scholarly and have a genuine interest in promoting fair debate. 3. If such a program was done fairly, it would give us the first opportunity for public debate beyond the immediate group that we've established. We have been adamant from the very beginning that public debate is what we want. We want people to begin talking about the validity of sourcing our problems, of admitting that there is such an affliction as the Human Condition. We of course never welcomed nor tolerated the witch-hunt type treatment, so far removed from fair debate, that we've been given. 4. That we understood all the above to be true and that the genesis of this film had nothing to do with the parents and associates who were at the core of the cult accusation saga. We have all these points on record." 292 The third reason is instructive. Notwithstanding enormous effort in promotion, Mr Griffith's ideas had, before 1995, been largely ignored or treated with derision (supra para [106]ff). The Four Corners programme offered the opportunity to obtain a national audience. The International Series held the promise of an international audience. The gamble, therefore, was judged worthwhile. 293 Mr Macartney-Snape acknowledged in his letter that he had understood that the programme would deal with aspects of controversy surrounding Mr Griffith and the Foundation. However, for the reasons he gave, he clearly believed the analysis would be sympathetic and the controversy subsidiary to an exploration of Mr Griffith's ideas. He said this, referring to Dr Millikan's questions of Mr Griffith on 9 March 1995: (Ex AQ: p3) "We welcome the tough, even the odd cynical question but when they are asked as if they were statements that the interviewer believed, the interviewer is not being impartial." (emphasis added) 294 Towards the end of the letter, Mr Macartney-Snape said this: (Ex AQ: p4) "Finally, for the record, you must realise that there are essentially two aspects to this story from a filmic point of view. One is the understandings themselves and the other is the controversy surrounding them. We did not and could not agree to the documentary going ahead if all you were interested in was the controversy and not the explanations. We are not opposed to fair discussion of the controversy, only unfair discussion of it particularly without any explanation of the understandings." 295 He sought reassurance from Dr Millikan that "our worst fears are unfounded". 296 I will later refer to a letter from Dr Millikan sent on 26 November 1995 to Mr Griffith relating to complaints about the programme. Again, I should remind myself, I have no evidence from Dr Millikan. The plaintiff suggested that little weight should be attached to statements from him which were plainly self-serving. However, the following statement was echoed by Ms Masters. I accept it represented a widespread view at the time of this programme. Dr Millikan, in his letter, said this: (Ex A(63): p2) "Prior to the Walk, there had also been a number of exchanges between yourself and Tim Macartney-Snape about the way in which we were going to proceed. You knew what Four Corners was about. It is the most prestigious investigative TV program in Australia. It is the height of ingenuousness to suggest that we would not have been looking at both sides of the story. In fact Tim was aware of this. He stated in a letter to us that he accepted, as a matter of course, that the program would look at your work critically. After all Jeremy what is Four Corners about?" 297 Mr Macartney-Snape attached a lengthy appendix signed by Mr Griffith. It complained that Dr Millikan's questioning appeared to suggest that the Foundation was a cult and had no genuine academic support. Mr Griffith was greatly troubled that Dr Millikan had withheld, until the last interview, the fact that Rosy Whelan and Bahram Boutrabi had been interviewed and had made allegations against Mr Griffith and the Foundation. There were a number of other complaints besides. 298 However, it was important that Dr Millikan put to Mr Griffith material which may be included in the broadcast, which contained allegations. An opportunity needed to be given to Mr Griffith to respond. It was appropriate that Dr Millikan, in his final interview with Mr Griffith, put such material. 299 The real complaint was that Dr Millikan had ultimately revealed his true colours. They judged that he was plainly not sympathetic to the ideas of Mr Griffith or the Foundation, contrary to their expectations, notwithstanding the four reasons identified by Mr Macartney-Snape, which appeared to make the gamble worthwhile. Whether Dr Millikan, by misrepresentation had, before that time, been travelling under false colours is an issue I will deal with below, once all fragments of the evidence relevant to that issue have emerged. 300 It became clear in the final interview that the programme would deal with issues adverse to, or at least uncomfortable for, the Foundation. It was feared that, far from promoting Mr Griffith's ideas and the Foundation, as they had hoped, the programme would disparage those ideas and inhibit their dissemination. 301 Dr Millikan responded to Mr Macartney-Snape's letter on 14 March 1995. He offered the following reassurance: (Ex 4) "I am assessing Jeremy not as a convert, nor as a person prejudiced against the right of people to hold views that are different, challenging or profoundly different from my own." 302 Dr Millikan reminded Mr Macartney-Snape that Jeremy Griffith had sought "editorial rights and even a veto", which the ABC had refused. He did, however, acceded to Mr Griffith's request that, following the Four Corners programme, it would not be changed or edited. He added that: "on the basis of this agreement the film proceeded". 303 Dr Millikan then dealt with the suggestion that he was ignoring scientists who supported Mr Griffith's work. He said this: (Ex 4) "As to the reception of Jeremy's ideas in the world of academia – I stand by the tone and content of the questions I put to him. The fact is, at the moment he has the endorsement of only one person. John Morton a retired academic in Auckland. We have contacted Davis, who says he gave the book only a cursory look and wrote some comments which he now regrets. You say he was pressured, to change his mind, he says he was not. On the basis on his record and reputation as a world scientist it is difficult to accept your explanation of his response. The same is true of Charles Birch. We have contacted him. He also repudiates any endorsement he gave in the past. He says such things as – 'his message is obscure, his writing is awful. There is very little science in it. There is nothing new in it. When he gets into behaviour, he takes as gospel views that are extremely contentious and at this stage unprovable'. The note that Jeremy read out in the interview is not an endorsement of his ideas, it is a non-committal note of greeting and best wishes." 304 Dr Millikan repeated that "you" (presumably meaning Mr Griffith and the Foundation) would be treated with respect. Completion of the programme. 305 Work on the programme continued. On 25 March 1995, Professor Paul Davies wrote to Dr Millikan in these terms: (Ex 25) "I made a short comment about the book on the basis of a hurried glance only. This was not intended to be an endorsement of the book, about which I have no considered opinion." 306 Professor Davies included a copy of his letter to Mr Griffith of 24 September 1993, asking that his name be omitted from future promotion of the book (supra para [104]). He ultimately published a letter in The Australian newspaper (date obscure), which was in these terms: (Ex 25) " Not endorsed. It has come to my attention that Mr Jeremy Griffith, author of a book entitled Beyond The Human Condition has been citing my name in connection with his theories. The only contact I have had with Mr Griffith was to provide, at his request, a pre-publication comment on his book. This brief statement was based on a hurried scan of the book's contents, which seemed to touch on some interesting topics. However, my comments were in no way intended to constitute an endorsement of the central claims of the book. At the time I wrote the comments I did not know of the existence of the Foundation for Humanity's Adulthood with which Mr Griffith and his book are apparently associated. I absolutely repudiate any suggestion that I support the aims or objectives of his foundation." 307 Some time after 18 March 1995, Dr Millikan and the Four Corners crew went back to interview Mr and Mrs Belfield for a second time. Concentrating on passages ultimately included in the programme, (Mrs) Gillian Belfield described Juliet's mood before she went on the Snowy Mountains walk in February, in these words: (Ex A(40)(1): lines 23-26) "Juliet has been fairly exasperated with Sam and his involvement with the Foundation but after a lot of discussion with us, she decided to go, in an attempt to understand Sam's point of view, and as far as we know she was totally uninvolved … " 308 Mr Charles Belfield said that his relationship with his son Sam, before his involvement in the Foundation, was "wonderful", "very, very close", where they discussed everything (Ex A(40)(1): lines 135-139). (Mrs) Gillian Belfield described the impact of their children's involvement in the Foundation in these words: (Ex A(40)(1): lines 60-64) (Ex N(2): lines 144-148) "We were a very close, very demonstrative family and at the moment we are totally destroyed. It has had incredible effects on all the children, effect on, the stress on our marriage has been almost overwhelming at times and I'm not quite sure how we'll put the pieces back together again." 309 That interview was conducted shortly after Mr Macartney-Snape had sought to make it clear that the ABC did not have permission to use the Hi-8 footage in the programme, and asked for its return (supra paras [206]-[207]). The end of the tape included a further casual remark by Dr Millikan, where he said this: (Ex A(40)(1): lines 396-403) "Oh am I talking am I? Yeah Okay. What … I'm just talking about bla bla bla, yeah. Yes it's interesting to me that Griffith has not contacted people. I find that very very interesting. I, he the letter he wrote to us on Monday had a sort of threatening tone to it and he's umm, he's obviously opening up the possibility of taking us on legally and maybe trying to injunct the programme or something like that which I would relish. It would be, it would cost him a lot of money and ahh will get him absolutely nowhere. And open up the possibility of us to use the sort of legal mechanisms to harass him." 310 The plaintiffs submitted that this statement demonstrated that Dr Millikan was actuated by malice (PS Reply: para [258]). It evidenced, according to the plaintiffs, an improper purpose in producing and broadcasting the matter complained of, namely the harassment of Mr Griffith, not informing the public (PS: para [104]). 311 Dr Millikan's statement was an incautious and unworthy remark. It was the sort of remark made by people posturing in the face of litigation. Had that litigation eventuated, which it did not, and depending upon what was done, it may have been evidence of an improper purpose in relation to that litigation. But it does not seem to me to be evidence of an improper purpose or malice in relation to the making or broadcasting of the programme. 312 Preparation for the programme entered its final phase. Dr Millikan rang Professor Morton in New Zealand for the first time on 20 March 1995 (Ex A). Interviews were conducted with scientists who commented upon Mr Griffith's ideas. I will, in the context of the defendants' case on truth, deal with the evidence of Professors Flannery and Groves (Pt 3). They were interviewed together. The date is uncertain, although the scientific issues appear to have been addressed towards the end of the programme's preparation. It will emerge that Dr Millikan said to them, before the interview, words to the effect: (infra [615]; [623]) "Mr Griffith is acting like a cult leader in splitting up families and in promoting his views, not just as a book but a sort of specialised way of life." 313 It was inappropriate and unfair that Dr Millikan should have made such remarks before each expert was interviewed. The plaintiffs rely upon these remarks as evidence of improper purpose (PS: para [85](f)). They were remarks made late in the production and presumably represented Dr Millikan's view at that time. I will come back to this issue later in this judgment and determine whether these remarks are evidence of malice. Publicity before the programme. 314 It will be remembered that Dr Millikan wrote to Jeremy Griffith on 5 April 1995 refusing the return of the Hi-8 footage (supra para [207]). Mr Griffith wrote the same day to Ms Penny Chapman, a director of the ABC. His letter included the following request: (Ex A(50)) "We are seeking your assurance that Dr Millikan's story on the Foundation is honest, accurate and fair and that it meets the highest standards of journalistic integrity as embodied in the journalists' code of ethics. We do not want to see our beliefs and activities misrepresented, ridiculed or vilified since – as members of a tolerant, pluralistic and democratic nation – it is our right and our privilege to hold these beliefs." 315 Mr Griffith recorded that he had sought from Mr Carroll, the executive producer, the opportunity of debating with Dr Millikan on his ideas at the conclusion of the programme. 316 The Foundation retained Jackson Wells Communications as a consultant, who wrote to Mr Carroll on 6 April 1995. The letter referred to a conversation between Mr Wells and Mr Carroll in which the ABC had rejected the Foundation's request for a debate. Mr Wells, nonetheless, repeated the request, saying this: (Ex A(23): p2) "If this story is worth telling, and you obviously believe it is, then surely it is worth telling in full and it is worth Jeremy Griffith and Dr Millikan coming together, face to face, to offer their competing views. After all, at the very heart of this story are two different philosophies of the human condition. The manner in which these differences are able to be expressed goes to the heart of free speech and fair broadcasting. As you know the Foundation has serious doubts that Dr Millikan can address these differences with the required journalistic dispassion because he is an adherent and a proponent of a particular view." 317 The letter included an annexure headed, "Dr Millikan & the Foundation". The annexure identified a number of issues and provided a commentary upon them. The commentary incorporated Mr Griffith's instructions to Mr Wells. Importantly, they provide Mr Griffith's account of what Dr Millikan said in their first conversation on 11 January 1995. The annexure included the following: (Ex A(23)) "Notes of conversation with Jeremy Griffith (11 January 1995). 'You might not remember me but I wrote a dismissive review of your book a few years ago … I heard your talk on 2GB the other night and also someone sent me a tape of yours about the development of matter which I listened to carefully and I now feel I was probably a bit impetuous the first time and probably got it wrong.'" 318 Again it is important to record that Mr Griffith did not give evidence. The letter is a hearsay account and was subject to a s136 direction (T789/90). 319 Mr Carroll responded to the letter from Mr Wells on 12 April 1995, confirming the ABC's refusal to debate. His letter did say this: (Ex A(23)) "The Four Corners program will be fair and balanced. Jeremy in interview and speeches will make up about 50 per cent of the program. Our aim is to ensure the audience will be able to understand his teachings." 320 Mr Carroll added: (Ex A(23)) "However, if there are specific issues the Foundation wishes to pursue after the program, Dr Millikan may well participate in any other forum on radio or television that is appropriate." 321 Jackson Wells did not give up. They wrote again asking for a debate. Mr Carroll responded in an undated letter in these words: (Ex A(23)) "If either of them, or Professor Morton, wish to discuss the program after it is broadcast, then Dr Millikan may well take part on an appropriate forum." 322 The plaintiffs faintly argued that the ABC, when making such serious allegations, should have afforded a right of reply (PS: para [217]). The failure was not, as such, identified as an indicia of malice or improper purpose (PS: para [85]). I believe it was open to the ABC to determine the matter as they did. 323 On 13 April 1995, on ABC Regional Radio, New England North West, Dr Millikan was interviewed by Jackie Bowmer. This was the first of a series of interviews designed to publicise the forthcoming Four Corners programme, which was due to be screened on 24 April 1995. In the course of the interview, Dr Millikan said this: (Ex A(43)(1): lines 47-53) "Well look he's a fellow who is absolutely convinced that what he is saying is true. And one of the things, he says himself that, for example, he considers himself to be a greater figure than Jesus Christ and even on one occasion when I was talking to him, he said to me you know Jesus Christ said that there was going to be one who would come after him who would speak the truth plainly and he believes that's him." 324 In the same interview, the following exchange occurred: (Ex A(43)(1): lines 156-164) "Jackie Bowmer: But there are some parents who are very upset. David Millikan: There are. Jackie Bowmer: About their children. They feel they have lost their children do they, to this person? David Millikan: Oh absolutely. There are people who feel that he has been responsible for really tearing their families apart." 325 Jackson Wells Communications wrote to Mr Brian Jones, the managing director of the ABC, the same day. He asserted that Dr Millikan was using the ABC to pursue " … some kind of personal campaign against the Foundation and Jeremy Griffith". He then provided a commentary upon the words of Dr Millikan in the interview. The letter said this: (Ex A(42)) · "Millikan: 'He [Griffith] says himself that, for example, he considers himself to be a greater figure than Jesus Christ.' Griffith has never made such a claim – that would be preposterous. It is an invention of Dr Millikan's. · Millikan: 'He is surrounded by parents and families who are really quite distressed' [trying to make the baseless point that Griffith takes 'kids' away from their parents]. There are parents who object to the 'kids' (in fact, adults mostly in their early to mid 20's) being associated with Griffith and his ideas. But – and here Dr Millikan again fudges the evidence – there are many more parents still who are very supportive of their children's involvement. You will be hearing from these people next week." 326 In response to Dr Millikan's assertion in the interview that the forthcoming programme would be balanced, Jackson Wells made this comment: (Ex A(42)) "If the program is 'fairly balanced' where are the interviews with the many supportive parents? Why is there leading question after leading question – pejorative in the extreme – which the transcript of the uncut tape reveals? Why no interview with Prof John Morton – eminent New Zealand theologian and biologist – who believes Griffith's writings have great value and who understands why younger people are attracted to them?" 327 On 18 April 1995, some fifteen parents of members of the Foundation also wrote to Mr Johns. The letter stated that they had each read the transcript of Jackie Bowmer's interview with Dr Millikan. As concerned parents they had made it their business to find out about the beliefs and practices of the Foundation. Upon that basis they said this: (Ex A(51)) "We are all very comfortable with our children's involvement with the FHA and the only changes we have seen are positive ones. Our children have been encouraged to continue their studies and to join in all their usual social activities. We have not read or heard anything that leads us to believe there is a focus on a particular person. Dr Millikan's claim that Jeremy Griffith ' … considers himself to be a greater figure than Jesus Christ … ' is wrong. Such a claim by Mr Griffith would be very offensive to us and we would be aware of any such claim if it existed. It does not." 328 The following day, 19 April 1995, an Open Letter was published in The Australian newspaper. It was a full page advertisement asking Mr Brian Johns to intervene to correct an injustice. The letter carried 45 names. It included these words: (Ex A(39)) "At his request, we allowed Dr Millikan into our midst to share our understandings with him. We were open and candid. But we found that Dr Millikan was trying to demonstrate we are many things that, in reality, we are not. Dr Millikan had represented his program to us as a journey of exploration of our insights into the human condition. But, instead, we believe that we were the target of a witchhunt. Dr Millikan purported to approach the subject matter objectively. We found no such objectivity." 329 It added: "We do not want to see our ideas and activities misrepresented, ridiculed or vilified." 330 On the morning of 20 April 1995 (that is, in the week the programme was screened), Andrew Olle interviewed both Jeremy Griffith and Dr Millikan, who were on separate telephone lines to the ABC. Dr Millikan repeated his allegation that Mr Griffith claimed to be a figure greater than Jesus Christ. He said this: (Ex A(45)(1): lines 45-49) "Jeremy is saying that he is a figure that is, who is actually greater than Christ. And he said that he is a prophet and he says, that what he has discovered in terms of his understanding is actually the end of religion, it's the end of faith and he believes that he has closed out the major problems concerning the nature of human, the human condition." 331 Mr Griffith responded: (line 60) "I have never, David, ever said that I'm a figure greater than Jesus Christ." 332 Mr Griffith added: (Ex A(45)(1): lines 73-77) "That's an example of the massive misrepresentation you do. You ingratiated yourself to us. You misrepresented yourself, you. We let you into the Foundation. We gave you access to everything, lots and lots of material and you selectively brought out this material, this stuff to produce, and you didn't reveal your deeper agenda at all." 333 Dr Millikan then identified the basis upon which he made his statement: (Ex A(45)(1): lines 79-90) "Well let me remind you of a number of conversations we've had. I put it to you and in fact Jeremy himself has said that, that Jesus Christ said that a person was going to come after him who would speak the truth plainly. Jesus said that he spoke in parables and metaphors and that one would come who would speak the truth plainly. Now Christians believe that that referred to the Holy Spirit. Jeremy Griffith believes that refers to him, so he believes that Jesus actually prophesied his coming. So I would argue that, and Jeremy said to me himself at one stage that he said Jesus was good at describing the problems that faced humanity but he wasn't good at actually coming up with the answers, whereas Jeremy does. So I would argue that that puts Jeremy in a superior position to Jesus Christ. That's why I say that he calls himself a person greater than Jesus Christ." 334 That response involved a shift in Dr Millikan's position. He had earlier asserted that Jeremy Griffith had said that he was greater than Christ, whereas his answer provided a basis upon which Dr Millikan had inferred that Mr Griffith made such a claim. The issue is important because Dr Millikan repeated the same claim in the final programme. Mr Griffith responded by explaining that he was not a prophet in the "conventional religious way" (Ex A(45)(1): line 122). He did not claim to be a religious deity (Ex A(45)(1): line 128). Rather, he was someone who was prepared to delve into areas considered too confronting by most people (Ex A(45)(1): lines 123/4). 335 Andrew Olle took up the issue of the alleged misrepresentation by Dr Millikan in gaining the confidence of the Foundation. He said this: (Ex A(45)(1): line 144) " … but how did you represent yourself to these people?" 336 Dr Millikan did not quite answer the question. He said this: (Ex A(45)(1): lines 146-154) "Well, I mean it's, I, the fact was we were there making a Four Corners program and I mean Four Corners is not, is a program whose reputation is based on its capacity to look at both sides of an argument. And one of the first things I said to Jeremy, as a matter of fact when I went up to his house, I said: 'Now you give the world only two options here. Either you are a prophet as you say or else you're mad.' And that's really the basis on which I was there, was to discover the truth of those sort of, that sort of opinion. And I, and as a matter of fact let me say I don't think Jeremy is mad." 337 Four Corners prepared a promotional trailer, which was shown in the three days before the programme was screened (on 24 April 1995). It began with these words: (Ex A(47)(1): lines 1-11) "Male voice-over: This man compares himself to Christ. Footage of Jeremy Griffith at his home. Jeremy Griffith: I am saying I am a prophet … Footage of Tim Macartney-Snape chopping wood. Male voice-over: His disciple, Mountaineer Tim Macartney-Snape spreads the word." 338 The trailer ended by posing the question whether Jeremy Griffith was a "visionary or crackpot?" (line 33). 339 The opening statement of the trailer ("This man compares himself to Christ.") was accurate, whereas Dr Millikan's statement in the Bowmer interview (that Jeremy Griffith "claimed to be greater than Jesus Christ") I believe, stretched the evidence. Mr Griffith made no such claim, although he had said that, with the benefit of science, he had been able to go further than Christ, speaking plainly rather than in metaphors. 340 On Saturday 22 April 1995, the Sydney Morning Herald included a large article by Dr Millikan headed: "Prophet of the Posh". The subheading said this: (Ex A(52)) " DAVID MILLIKAN on the 'reconciler of good and evil' who is now gathering adherents at Sydney's top schools." 341 The article canvassed many of the issues which would be dealt with in the programme. It suggested that the Foundation was surrounded by controversy and the complaints of parents, who said that the demands of the Foundation were tearing their families apart. 342 Mr Griffith's credentials as a scientist were disparaged, with the following statement: (Ex A(52)) "Griffith went to Geelong Grammar but failed to matriculate. He returned and did it by correspondence. Then after failing the first year of a science degree at New England University, he graduated with a pass degree in science, majoring in zoology, at Sydney University. One of his teachers, Professor Charles Birch, said of him: 'He was a very ordinary student. … '" 343 The article described a number of other aspects of the Foundation, in terms which were negative. The article is the subject of separate proceedings, yet to be heard. It revealed, according to the plaintiffs, Dr Millikan "immutably hostile views towards the plaintiffs" (PS: para [57]). Towards the end of the article, Dr Millikan said the following, in a passage which, in its concluding phrase, incorporated the words of the misrepresentation which Mr Griffith claims was made to him: (Ex A(52)) "Griffith's towering self-certainty is so beyond the normal experience that many find it impossible to think that he is serious. But there is no question that he is. He allows no-one, for any reason, to use an argument to question his truth. He may concede in the most grudging and patronising way that he may have things to learn in the application of his ideas, but the truth of them is not an open subject. He lives in a closed intellectual world, where all things are interpreted according to the words of Griffith. He is waiting impatiently for the day when the world will be brought kicking and screaming into recognition that we had it wrong ." (emphasis added) 344 On 23 April 1995, the day before the programme, Gerald Stone conducted a debate between Dr Millikan and Jeremy Griffith on Commercial Radio Adelaide 5AA (AM). Mr Griffith spoke of his ideas and the support he and the Foundation had from the parents of many members. He said this: (Ex A(53)(1): lines182-188) "Ah, we do have a small number of areas where the parents find it hard to understand and that, it's caused great difficulty in those particular families. I mean Doctor Millikan says we are surrounded by controversy, these exaggerating things that we're complaining about. In response to that comment, two pages of signatories were sent to the ABC, all saying, signing a letter saying; 'We are all very comfortable with our offspring's involvement with the Foundation and the only changes we've seen are positive ones.'" 345 Mr Griffith then asserted that Dr Millikan had misrepresented his intentions to him. He said this: (Ex A(53)(1): lines 294-314) "Well, Doctor David Millikan who's a Uniting Church Minister approached us. Some, actually when we launched the second book, my second book Beyond the Human Condition , back in 1991, he wrote a full page totally dismissive review of it in The Bulletin that despite marvellous commendations from eminent scientists at the time. But he did ring us up about two months ago and said; 'Look I know I wrote a dismissive review, but I believe I got it wrong and I want to now nominate your understanding for an international documentary of seminal thinkers to take humanity to the next Millennium'. And he was, gave us very positive encouragement and said that one of the conditions of this international documentary was that it, the program had to be viewed on the home country television first and for this he'd been able to persuade the Australian Four Corners to come to the party to review the understanding and he allayed our fears about Four Corners by saying that the only program long enough to give this the in depth treatment it needed and so Tim Macartney-Snape and I went along with his approach, and invited him to come on one of our walks. And it turns out he totally misrepresented us and he has a deep animosity we suggest towards the understandings in my books, and the, what happened was, it was, he wasn't there to really understand what we were putting out, so much as to vilify it and that's what we're complaining about." 346 Mr Griffith denied that he considered himself more important than Jesus Christ, or that he had ever said so (Ex A(53)(1): lines 337/8). 347 The interviewer then switched to Dr Millikan. Dr Millikan said that he had read all of Jeremy Griffith's works and the newsletters and had a fair understanding of what he was saying (lines 404/5). Dr Millikan then described the claims made by Mr Griffith in these terms: (Ex A(53)(1): lines 409-418) "Well, he does claim, he does claim to be saying, that he has produced the final truth, which will reconcile God and human beings and, young and old, and men and women, and so forth and that he believes that he has addressed the fundamental question that has troubled religions and philosophies from the beginning of time. He says that he is a prophet. He says that he has come up with the final answer to the problem of good and evil. And he, that is the message that he is taking to the world and I would argue that that's a matter of extraordinary significance and he tends to hide a lot of the implications of his actual belief system. And I guess, it's at that sort of level that he becomes a bit concerned." 348 In respect of the parents of members, Dr Millikan gave his understanding in these words: (Ex A(53)(1): lines 427-431) "Well there is, there are quite a few there are quite families that are not concerned, but then there are a number of families that are, and what they are saying is that, the nature of the allegiance that he asks of the young people because, see the thing about Jeremy is that he, he asks of people a sort of total loyalty to his beliefs." 349 Mr Griffith was allowed to comment upon this material. He said that he took issue with nearly all that Dr Millikan had said. He denied that he demanded total loyalty. The problem was, he suggested, that Dr Millikan's Christian beliefs were inhibiting his comprehension of the ideas (Ex A(53)(1): lines 474/5). 350 As the debate developed, Dr Millikan asserted that Mr Griffith's ideas were essentially a religious system. He said this: (Ex A(53)(1): lines 518-523) " … this is essentially a religious system where Jeremy calls himself a prophet, where he is calling, where he is saying to the world that he has answered all of the fundamental problems of life, and where he is calling young people out of the old world and asking them to join into the new world, and he is creating an environment that will necessarily always be surrounded by controversy." 351 Dr Millikan denied that he had misrepresented his position (line 532). He had made it clear that he was not a convert (line 544), and that the programme was a Four Corners investigation (line 545). Mr Griffith, in response, repeated Dr Millikan's representation concerning the international documentary series, asking the following rhetorical question: (Ex A(53)(1): lines 744/5) "How could anybody not deduce from that a positive assessment? See you, have there evidence of what I'm saying, of the massive misrepresentation … " 352 On the day the programme was to be screened, Mickey de Stoop conducted a further debate between Dr Millikan and Jeremy Griffith on ABC Metropolitan Radio Newcastle 2NC (AM). Mr Griffith repeated that the Foundation felt it had been "tricked" only "to be discredited" (Ex A(60)(1): line 66/7). Dr Millikan insisted that there had been no misrepresentation and that the programme, to be screened that evening, would reveal a balanced assessment (lines 126-131). Dr Millikan added: (Ex A(60)(1): lines 178-180) "… I think that we have covered his ideas rather scrupulously and I think that I, I have a fair understanding of what it is that he's saying, and I believe that we've given him a fair go." The broadcast. 353 "The Prophet of Oz" was broadcast nationally on 24 April 1995 (Ex N(1) and Ex N(2)) to an audience estimated by market research to be substantial (PS: para [58]). There are aspects of the presentation which have already been the subject of comment. Jeremy Griffith was shown repeatedly swearing (supra para [212]ff). A religious idiom was employed when describing his ideas and those who subscribe to those ideas. Mr Macartney-Snape was referred to as his "first disciple" (supra para [238]). Both these aspects of the presentation were, I believe, reasonable. 354 The presenter, Liz Jackson, did however say this: (Ex N(2): lines 35-37) "Good evening, I'm Liz Jackson. Jeremy Griffith claims he's a new Messiah, an Australian prophet whose coming was predicted in the Bible." 355 I am not aware of any evidence which suggests that Mr Griffith claimed to be the "new Messiah". He did, of course, claim to be an Australian prophet. Rosy Whelan, in the passage broadcast, stated "Jeremy is the new Messiah … " (Ex N(2): line 113) and that he did "liken himself to Christ" (Ex N(2): line 115). The ABC, when defending itself before the Broadcasting Authority, drew attention to the following passage spoken by Jeremy Griffith: (Ex N(2):lines 959-965) "Well Christ talked about a time when we would be able to explain the world clearly right? And so I'm suggesting that that's what's happened, that we've finally found the clear, reconciled theology and biology. And that we are almost free, all we have to do is digest that understanding and then we're actually like Christ himself, sound, okay? So this is a huge step." 356 Even so, the claim to be a "new Messiah", attributed to Jeremy Griffith himself and shown at the outset of the programme, was an arresting statement that stretched the evidence. 357 Later in the programme, Dr Millikan said this: (Ex N(2): line 338/9) "He says that he is unique, he is the only truly innocent and unevasive thinker in the history of the world." 358 It is certainly accurate that Mr Griffith claimed to be unique. He had, by his own reckoning, solved the riddle of the universe. However, he did not, so far as I am aware, ever claim that he was the only truly unevasive thinker in the history of the world. Indeed, he was at pains to assert that he was standing on the shoulders of other prophets, including Christ, but had the advantage of discoveries made by modern science. 359 One of the particulars of malice asserted that there was a failure on the part of the defendants to make a serious attempt to expose Mr Griffith's ideas (PS: para [85(i)]). In understanding that failure, it was relevant, according to the plaintiffs, that Dr Millikan was a minister with the Uniting Church, with a commitment to Christianity and a transcendental God. It was said that "only a tiny fraction of the programme, as broadcast, was set aside to permit Mr Griffith to explain his work" (Further Amended Reply: para 41(e)). 360 I reject that submission. The ideas of Mr Griffith were expressed in several books. There was an elaboration in newsletters. Mr Griffith, during the making of the programme, enlarged upon that material in his many talks. The programme was obliged to deal with a number of issues, apart from Mr Griffith's ideas. It had to do so in a little over forty minutes. Obviously a selection had to be made, as the plaintiffs well understood. 361 My own impression is that the programme does attempt to deal with the fundamental concepts of Mr Griffith's ideas, often employing footage in which Mr Griffith himself explains those ideas. There were two areas which the plaintiffs repeatedly identified as serious shortcomings in the programme, indicative of malice. The first was the neglect, according to the plaintiffs, of supporting scientists. Not one was interviewed or even referred to. Instead, Dr Millikan said this: (Ex N(2): lines 976-980) "But is it an understanding based on science? Griffith has gone to enormous lengths to find endorsement. He sent eight hundred copies of his book to leading scientists and journals around the world. But today he is alone, rejected by the scientific community. " (emphasis added) 362 The treatment of this aspect is central to the defence case of justification in respect of the imputation concerning Mr Griffith. It is convenient to deal with it in that context in Pt 3 of this judgment. Supportive parents. 363 The second issue concerned the impact of Mr Griffith and his ideas upon families. The programme explored the impact upon the Belfield family. However, the plaintiffs complained of imbalance. There was, they said, a complete absence of material from parents who were happy with their children's involvement in the Foundation and saw only positive benefits flowing from that involvement. That absence was identified as a particular of malice. It is convenient to deal with that issue at this point. 364 Let me begin by describing how the programme dealt with the impact of the Foundation upon families. Rosy Whelan, who had since left the Foundation, described the effect upon her of her involvement. The programme included these words: (Ex N(2): lines 131-135) "I'd invested everything in this belief, this, this brave new world that I wanted so much to be a part of. And I had pretty well cut myself off from friends and family and turned my back on the so called old world which was held up as, to ridicule, basically. So I had nowhere to go." 365 There followed a comment from Dr Millikan in these terms: (Ex N(2): lines 139/40) "It's not only individuals but families whose lives have been turned upside-down." 366 These words introduced the Belfields, whose lives had been turned upside-down. (Mrs) Gillian Belfield then said this: (Ex N(2): lines 144-148) "We were a very close, very demonstrative family and at the moment we are totally destroyed. It has had incredible effects on all the children, effect on, the stress on our marriage has been almost overwhelming at times and I'm not quite sure how we'll put the pieces back together again." 367 And there the issue was left in order to explore Mr Griffith's philosophy and the involvement of Mr Macartney-Snape. 368 The programme returned to the effect upon families with the following segment: (Ex N(2): lines 561-593) "Gillian Belfield: When I asked Jeremy what was Sam's future, Jeremy's answer to me was 'Sam must sacrifice his life', and I as a mother find that extremely difficult to accept. Footage of Charles and Gillian Belfield mustering on their property changing to Sam Belfield at the FHA Snowy Mountains camping trip. David Millikan: Sam's parents, Charles and Gilly Belfield. Since Sam joined the Foundation two years ago, their family life has been shattered by endless arguments. Sam's response to the call of the prophet has brought confusion and struggle and a relationship which was full and close has now been strained to breaking point. Sam Belfield: You know, I have a relationship with my dad that is very very close and this is just like a round peg in a square hole for him, and this stuff is very dear to me now and my heart has been torn many a time. You know even coming down to this. You know, I know Dad's got a lot of stuff that I could be doing for him at home and things are tough at home. And I have to, I can't I don't want to compromise my my support to the Foundation, but at no time does my sort of, need to want to support him wane at all, either. Footage of Charles Belfield at his home. The words ' CHARLES BELFIELD' appear briefly on screen. Charles Belfield: What we had was was wonderful. We played football on the same team together, so I think we've been very very close. I've never felt that I could censor, or should censor anything with Sam. We've discussed the ways of the world, politics, any, nothing, no area has ever been sacred. I think we just had a wonderful relationship." 369 Mr Griffith was invited to comment upon this turmoil. He said this: (Ex N(2): lines 598-605) "Oh it's terrible! It's, it's. Just wait. Do I have to say it again? I just feel. When I spoke to Charles Belfield, you know, I know, I, I, those children. They're not children. They're young adults, um, are so impressive, just from my little experience of the world if you like, and and that's a credit to them, to their parents. So they are to my way of thinking, especially caring and concerned parents, and that's why this is particularly difficult." 370 The programme then explored the quest by Juliet Belfield to understand her brother's involvement in the Foundation. Part of that material included the following: (Ex N(2): lines 665-678) " Footage of male FHA members laughing, talking and drinking at the FHA Snowy Mountains camping trip. David Millikan: The turmoil of the Belfields is shared by the families of many of those here. Angus Gemmell: What the fuck are you supposed to do. Look at this fucker. ( laughter) David Millikan: Some contacted the anti-cult organisation 'Gateway' and paid an American de-programmer, but without success. These family traumas are the background of all that the Foundation does, and they are the stuff of endless discussions in Griffith's newsletters." (emphasis added) 371 Dr Millikan thereafter spoke of the Foundation's newsletters, where they published for the purposes of discusion private letters from families to their children (lines 688-698). This was followed by a comment from Mr Griffith in these terms: (Ex N(2): lines 719-723) "Um, um, our public letters, right, have been scrutinised and used all over the place you know. Try and see it from their point of view. Their children become very interested in something that's not mainstream, that's new, that hasn't been evaluated publicly yet." 372 The issue was then taken up by Mr Macartney-Snape, with a further comment from Mr Griffith. The script incorporated the following: (Ex N(2): lines 728-752) "Tim Macartney-Snape: Well, the most vehement opposition we've had, has been from people who haven't even studied the information. Their main worry is that their offspring are starting to make their own minds up , and, I know it must be very difficult for a parent to to go through that process but, all we are pleading is that we we are, we are given a fair hearing. … Footage of Jeremy Griffith at his home. Jeremy Griffith: It is a most dastardly situation. That, that, and I said to Sam's Dad with with incredible conviction. 'I am sorry for the pain this causes, but I I can't apologise'. I, I, this is a very difficult moment in human history, you know, where, where we're turning this corner and there's so much scepticism and it's. I don't know what what to do. If I could stop the pain that it's causing, but it just so happens that this stuff is only able to be heard by the younger minds, the fresh minds and and when they get so excited about it then naturally their parents are terrified of it." (emphasis added) 373 Dr Millikan, towards the end of the programme, added the following further comment: (Ex N(2): lines 1144-1147) "While they are close to the prophet, life is filled with promise and excitement, but the price is the ruin of families , cultural isolation, and in the end the terrible possibility that Griffith may in fact be wrong." (emphasis added) 374 There can be no question that the ABC and Dr Millikan each knew of the evidence of supporting parents (Ex A(33): Interrog 54/55 (ABC); Ex O: Interrog 72/73 (Dr Millikan)). Letters from supportive parents appeared in newsletters which had been provided to the defendants (Ex 7(2): Newsletter #26 (Pt C) pp14-27). At the third meeting at Terrey Hills on 16 February 1995, Mr Griffith provided Dr Millikan with a number of letters from supportive parents (Ex 35(1)). On 12 March 1995, shortly after the final interview with Mr Griffith, Mr Macartney-Snape wrote to Dr Millikan seeking reassurance. It will be remembered that his letter included an appendix composed by Mr Griffith (Ex AQ). The appendix provided the names of supporting parents. But more than that, Dr Millikan acknowledged in an interview a matter of days before the programme (20 April 1995) that some families were happy with their children's involvement in the Foundation (Ex A(59)(1): line 82). 375 Why was this material not used? Having agreed that he knew there were supportive parents (Ex O: Interrog 72), Dr Millikan and the ABC (and the companion Interrogatory) provided the following reasons for not including them in the programme: (Ex O) "73. If the answer to interrogatory 72 above is affirmative, did you give consideration to conducting interviews with such parents, with a view to including film of such interviews as part of the matter complained of, and if so, what was the outcome of such consideration? 73A Together with Deborah Masters and Ian Carroll, I gave consideration to including footage of supporting parents in the matter complained of. However, after contacting the Gemmell family, the Biggs family, the Press family, the Belfield family and two other families (to whom I have given undertakings of confidence), it became apparent that these parents were very concerned about the effect their children's involvement with the plaintiffs. I did have some discussions with Tim Watson (an FHA member with children who were also FHA members) during the Snowy Mountains walk, but we did not film or record an interview with him. I believe I may also have spoken to other parents who were not distressed or unhappy about their child's involvement with Griffith and the FHA, but I do not recall specifically. The outcome of my consideration was that I formed the view that I did not wish to include footage of interviews with supportive parents because: (a) a significant portion of the matter complained of was devoted to Griffith, Macartney-Snape and other FHA members presenting their beliefs and views about a number of matters; (b) a number of parents of FHA members were very concerned and unhappy about their child's involvement with Griffith and the FHA; (c) the Plaintiffs were aware that a number of parents of FHA members were concerned and unhappy about their child's involvement with Griffith and the FHA, and the matter complained of included footage of both Griffith and Macartney-Snape addressing this issue; and (d) in the circumstances, I felt it was preferable to use the time available in the program for other footage. My consideration occurred in the context of final editorial control resting with Ian Carroll as Executive Producer. The decision whether to include such an interview was ultimately up to him." 376 The plaintiffs were highly critical of that response, suggesting that ultimately Dr Millikan was attempting to pass the blame to Mr Carroll, who did not give evidence (PS: para [187]). 377 Mr Macartney-Snape acknowledged that the programme included his response on this issue. It also included the response of Mr Griffith. He further acknowledged that they were the most prominent spokesmen for the Foundation (T397). However, he added this: (T397) "A. I think it should have come, on the foundation's side, from somebody who did have children." 378 Mr Macartney-Snape agreed, nonetheless, that the Foundation had not suggested any particular individual who might act as spokesman on that issue (T398). I should interpolate that, although neither Mr Griffith nor Mr Macartney-Snape has children, there was no reference to that fact. There was no basis upon which their comments may have been devalued because they did not personally have children. 379 Ms Masters gave the following evidence concerning this issue: (T1372) "Q. Was there a discussion about whether the broadcast in its final form should include an interview with parents who were supportive of their children's involvement with the Foundation? A. Sorry, are you asking me was there a request? Q. No. Was there a discussion among the people we have just mentioned? A. Yes, yes, yes, there was. Q. That is the ABC people? A. Yes. Q. What was your view on that subject? A. Well, my view was that we had spent a lot of time allowing Jeremy Griffith and Tim to explain the philosophy and the involvement. We had referred to – we didn't say all parents were against their children's involvement within the script, and my view was it was not necessary. Q. Did any of the others that we have just mentioned, Dr Millikan, Mr Carroll and Mr Bardwell express a contrary view? A. No, not at all, not at all. It was ultimately, you know, a consensus. It was Ian Carroll's final call on whether that would proceed." 380 The plaintiffs' submissions identified the factual basis for the inference of improper purpose or malice in these words: (PS: para [85(a)]) "(a) the failure of the defendants to include any material from supportive parents in the broadcast, inform the audience that such parents exist, or even to seek to interview such parents, despite the fact that they had clear knowledge of their existence. …" 381 The plaintiffs added that, despite the defendants' knowledge of such families, they chose to portray the struggle of only one family (PS: para [194]). They therefore actively and intentionally misrepresented the position in relation to parents of Foundation members (PS: para [195]). The Court should infer an intention to harm the plaintiffs (PS: para ]195]). 382 The defendants submitted that the issue concerning families was a major preoccupation of the Foundation, as demonstrated by its newsletters. Whole sections of the newsletters were devoted to dissecting disputes with families (DS: para [2.192]). It was entirely appropriate for the ABC to look to Mr Macartney-Snape, in particular, to respond to this issue (DS: para [2.195]). As it happened, his response sought to trivialise the opposition of families, suggesting that they simply did not understand or appreciate the ideas (DS: para [2.194]). Their children, mostly young adults, were thinking for themselves. Mr Griffith said much the same thing (DS: para [2.194]), The defendants contended that there was no basis for inferring that the publication was actuated by malice (DS: para [2.140]). 383 What impression was made by the programme as a whole? Unquestionably, significant time was given to a particular family in torment. The programme did not say, in terms, that the experience of the Belfields was universal. It made no reference to four or five other families contacted whose experience was similar to that of the Belfields. There were, however, passages which, in isolation, may carry that implication. Dr Millikan's words, near the end of the programme, "but the price is the ruin of families" (Ex N(2): line 1145), certainly suggested that dislocation and torment was common, even widespread. On the other hand, Dr Millikan's words earlier in the programme where he surveyed the group of people on the walk ("the turmoil of the Belfields is shared by the families of many of those here") (Ex N(2): lines 668/9), suggested that some families had had the same experience, and others had not. Mr Macartney-Snape's contribution (line 728ff) reinforced that impression, that is, that only some families had difficulty, and that because they had not even studied the information. 384 I accept that it was appropriate for the ABC to turn to Mr Macartney-Snape and Mr Griffith to respond on this issue. I also accept that the dislocation to families, arising from membership by their children of the Foundation, was an important issue, which the ABC could be expected to explore in some depth. The Belfield material was certainly extensive and adverse, although the comments of Sam Belfield and his sister, Juliet, do put the other view. The remaining material just analysed, on a close reading, did suggest that many families had not been so affected. Adding the two segments together, I believe that the overall impression, nonetheless, was distinctly negative. Given that the experience of the Belfields was not universal, I believe that balance suggested either a comment by a parent, or at least a statement from Dr Millikan along the lines of that he made to Jackie Bowmer shortly before the programme went to air ("… that there are families that are encouraged by what their kids are doing in the Foundation") (Ex A(59)(1): line 82), was appropriate. 385 However, I would not infer, from this omission, an intention to harm the plaintiffs. I can well understand why the ABC and Dr Millikan thought that fairness was adequately served by putting the issue to Mr Griffith and to Mr Macartney-Snape. I do not accept that the defendants deliberately misrepresented their position. After the broadcast. 386 Mr Griffith prepared an immediate response to the broadcast, branding it a "public lynching of the freedom to express and adopt new ideas" (Ex 14). He began his response by unreservedly apologising for his "profane language", pointing out that the Foundation had not given permission to use the footage containing that language (Ex 14: p4). Mr Griffith indicated that Mr Macartney-Snape was overseas and therefore not in a position to defend himself. He added, capturing at least part of the sting of the imputations concerning Mr Macartney-Snape, the subject of this action, these words: (Ex 14: p1) "The accusation that he has misused his position as an eminent public speaker to inappropriately promote the concepts in my books is slanderous and will be proven to be utterly untrue." 387 The response also included the following passage, relevant to the suggestion that there was a complete absence of scientific support, being the imputation against him. He said: (Ex 14: p1/2) "The accusation that my books have no scientific support was damned by eminent New Zealand biologist and theologian Professor John Morton's stand for my books, made the day after Four Corners on the Andrew Olle program. … It has to be asked, why wasn't Prof Morton included in the program along with some supportive parents. Dr Millikan says 'most of the major Australian papers … wrote less than flattering reviews' about the books when they were launched. The truth is the books have received more positive than negative reviews. The ABC says that because Dr Millikan is an authority on 'new religious movements' he 'is clearly qualified to … report on the Foundation'. But that is not the issue; the issue is whether or not my work is an anathema to Dr Millikan because if it is, as we have evidenced it is, he can misuse his reputation as an authority on cults to label us a cult when we are not. Also Dr Millikan is not a biologist and it's the biological explanations in my books that is the crux issue. As evidence of what I am saying Dr Millikan failed to argue the explanations, which are the entire basis of the support we have in the Foundation." (emphasis in original) 388 Mr Griffith annexed a transcript of an interview between Andrew Olle and Professor Morton given the day after the programme. I will refer to that interview shortly. It should be noted that Mr Griffith's response is confined to Professor Morton. He makes no reference to Emeritus Professor Birch, nor Professor Davies or other scientists. 389 On 25 April 1995, the day after the programme, the Foundation inserted a full page advertisement in The Australian (Ex A(23)). The advertisement carried a headline in these terms: (Ex A(23)) "THE IDEA THAT LAST NIGHT'S FOUR CORNERS COULD MISREPRESENT" 390 The cover of "Beyond the Human Condition" was reproduced as part of the advertisement, together with the endorsement of Professor John Morton, in these terms: (Ex A(23)) " 'Beyond the Human Condition' is a book about anthropology and the human future. So it is necessarily about Christianity and importantly relates it – as it must be related – to biology. I am sure it should be read by Christians, especially young ones in schools, and also taken home by them.' John Morton. Emeritus Professor of Zoology, University of Auckland. Lay Canon Emeritus of Holy Trinity Cathedral, Auckland." 391 The text of the advertisement asserted that the Four Corners programme had been biased and self indulgent. It had denied Jeremy Griffith a debate following the programme. The Foundation, nonetheless, believed it important to draw to the attention of the public the following: (Ex A(23)) · "The Foundation is a group of people inquiring into the true nature of the human condition. · The understanding we have reached into the human condition is no more than a progression from Charles Darwin's thesis which connected humans with nature. · We believe that being able to understand human nature is the key to a better world. · We believe in the sanctity of love and in equality in human relationships. · We are an inclusive organisation. · We have no desire to cause family division and we do our utmost to be fully informative and accessible." 392 The interview by Andrew Olle with Professor Morton, to which reference has been made, took place on the morning of 25 April 1995. Professor Morton was introduced, stating his qualifications as a scientist and theologian. He made the following comments upon the Four Corners programme, which he had seen the previous evening: (Ex A(46)(1): lines 34-44) "There were some parts of the program as you'll expect that shocked me. The language is not of my generation, the style is hardly an academic or to me a theological one. It underlines I think that prophesy is always engaged upon at risk. This is prophesy I believe. A prophetic utterance. There's a risk not only to blowing like a tornado through a tidy theological garden leaving a lot of damage to be cleared up perhaps a risk inevitable. There's a risk also to the prophet. I think Jeremy knows this. We've talked about it a number of times, where a message is to align itself with the Christian tradition a prophet has got to be a humble follower not some sort of a competitor or successor to Jesus Christ. I believe Jeremy really does know this, there's no suggestion that Jeremy is about to join the Holy Trinity." 393 Professor Morton was asked by Andrew Olle to identify Mr Griffith's message. He said this: (Ex A(46)(1): lines 48-55) "His message is this and the book Beyond the Human Condition , it's not an easy book to read, it's a rough hewn book. It is, reminded me a little bit like some of the stamped carvings of Michelangelo just emerging out of the rough stone, much of this is still rough hewn stone, you've got to do some work with it, even take the chisel to it intellectually a little bit. Beyond the Human Condition , it's an original and, I think, an important, although not in that sense a great book. It's a subject that ought to be discussed and debated and talked about, yes among Christians and many others." 394 Professor Morton then elaborated as follows: (lines 79-83) "There's very little that's new about it and I think with no apologies to Jeremy I think the fact that this is not an original hypothesis is part of it's strength. He is not simply standing forth as a prophet, he is aligning himself, often clumsily with the great tradition. It's as old as Wordsworth, as William Blake and particularly there's overtones of it in modern Teilhard de Chardin … " 395 On 27 April 1995, the Foundation made a formal complaint against the ABC in a letter signed by Mr Griffith. The letter asserted that the ABC had breached its code of conduct which obliged an "accurate, impartial and a balanced" presentation, including, as far as possible, all relevant viewpoints. Four matters were identified as particulars of breach. They were: (Ex A(23)) · "Dr Millikan extrapolated from the experience of one set of parents of a Foundation member as if this was typical of the experience of many parents while at the same time failing to interview or otherwise take account of the quite different views of very many parents who are supportive of the Foundation. The result of this lack of balance was to portray the Foundation as a group which sets out with some deliberation to separate or alienate sons and daughters from their parents. That this is not the case would have been demonstrated if Dr Millikan had chosen to properly balance the program by seeking other principal relevant viewpoints on this matter of importance. · Dr Millikan interviewed an alleged 'expert' from the Australian Museum (failing to establish this person's credentials for making a critical judgment) but ignoring more expert and distinguished views, such as those of Emeritus Professor John Morton, which provide a more balanced view of the merit of Griffith's work. This was despite the fact that he (Millikan) spoke to Morton on at least one occasion. The result of this failure to present other relevant viewpoints was to create an impression that Griffith had no academic support for his views even though Millikan's own research must have shown this not to be the case. · Dr Millikan imputed that Jeremy Griffith sees himself as a figure equivalent in stature and eminence as Jesus Christ but there was no evidence provided for Dr Millikan's espousal of this view. This inaccurate rendering of Mr Griffith's position not only breached your code but treated Mr Griffith with ridicule and contempt. · The program suggested that Tim Macartney-Snape abused the hospitality of those schools that had invited him as a guest speaker because of his mountaineering exploits in that he referred to the work of Jeremy Griffith and the Foundation. There is no basis for such an imputation that Mr Macartney-Snape behaved improperly. Any attempt by Dr Millikan to contact the heads of the schools concerned would have shown this." 396 Again it should be noted that the only scientist identified in respect to the second complaint was Professor Morton. I will return to this aspect in Pt 3 which examines the defendants' claim that what they said about Mr Griffith and his ideas was true. 397 The ABC responded to this letter on 29 May 1995 (Ex A(54)). It stated that: "Considerable effort was made to provide a variety of viewpoints within the program." Addressing the particulars of complaint, and dealing first with the issue of the Belfields, the ABC said this: (Ex A(54)) "(ii) … 'Four Corners' did not, as you claim, seek present one family as being representative of all families involved. However, it would have been odd had the Belfield family not been included in the report, bearing in mind the effect of their son joining your Foundation and the subsequent involvement of the daughter. In this case, there has been an estrangement within the family between the parents and the children. In the process of compiling the program, 'Four Corners' spoke to six families, all of whom were concerned about the situation as reported." 398 The ABC responded to the supposed scientific support for Mr Griffith's ideas with these words: (Ex A(54)) "(iii) In fact 'Four Corners' sought out the opinion of a range of scientists on the veracity of the ideas contained in your book 'Beyond the Human Condition'. In particular, John Morton, Paul Davies and Charles Birch were contacted during the research phase. In each case, I gather their response was less supportive than you appear to believe. Neither Charles Birch nor Paul Davies would be interviewed for the program and Professor Morton resides in New Zealand. However, interviews were recorded with two internationally regarded Australian specialists in the fields of mammalogy and anthropology: Dr Colin Groves, Professor of Anthropology at the ANU in Canberra and Dr Timothy Flannery, Head of the Mammals section at the Australian Museum. I do not believe the latter can be described as an 'alleged expert' nor can his credentials be questioned. Both interviews came to the same conclusion. However Dr Flannery's was used to present what appeared to be the consensus amongst the five scientists approached." 399 The third complaint concerned the suggestion, according to Mr Griffith, that he was a figure equivalent in stature and eminence to Jesus Christ. The ABC responded to that suggestion in these words: (Ex A(54)) "(iv) The portrait given on screen was very much in your own hands and in your own words. Viewers were left to draw their own conclusions. I understand that during the research of this program, it became clear to 'Four Corners' that comparisons have been drawn between the coming of Christ and yourself and that at least some of your followers believe you to be a prophet." 400 The final matter concerned the suggestion that Mr Macartney-Snape had abused the hospitality of schools. In respect of that matter, the ABC said this: (Ex A(54)) "(v) Tim Macartney-Snape was filmed addressing a school audience at a Sydney High School. The school did not invite him to speak on your behalf. However, he chose to do so during his address. Contrary to what you appear to believe Dr Millikan had contacted the heads of schools and I gather that the Association of Independent Schools had alerted their member schools prior to the telecast about the content of Mr Macartney-Snape's remarks on other occasions." 401 The programme was re-broadcast on 2 May 1995, reaching an estimated audience of 86,419 viewers (cf PS: para [132]). The swearing by Mr Griffith was "bleeped out" (T787). The re-publication occurred, according to the plaintiffs, in circumstances where the defendants were on notice of the plaintiffs' concern. In particular the defendants, by 2 May 1995, were aware of Professor John Morton's unwavering support (Ex A(46)(1)) (PS: para [132]). 402 Mr Macartney-Snape returned to Australia in early May 1995. He then saw the programme for the first time. He said that he was "totally stunned" (T293). The programme, he believed, misrepresented the truth. He felt angry that an honourable group of people could be "trashed" (T293). He also felt embarrassment in respect of those parts of the programme showing him speaking to students at Concord High School. 403 The impact upon Mr Macartney-Snape's career as a speaker was dramatic and immediate. He said that he soon recognised that his career as a public speaker was "pretty well shot" (T294). An invitation to speak to the Samuel Gilbert Public School on 8 May 1995 was withdrawn (Ex AU), as was his invitation to speak to Canberra Grammar (Ex AF) (supra para [132]). The Managing Director of an information service forum, known as APPLAUSE, likewise withdrew its invitation to Mr Macartney-Snape to speak to the forum on 6 June 1995. The letter to him included the following: (Ex AU) "I hope you can appreciate that our information and service forum, APPLAUSE , is just too fragile to absorb this sort of energy in its infancy. I'm going to ask that we defer your presentation from the planned date in June to a time further down the track. I think it's fair that we allow the dust to settle before we designate a specific date." 404 On 16 May 1995, the ABC screened its programme, Backchat, which reviewed the responses of viewers to its programmes. The episode on 16 May 1995 was entirely devoted to the Four Corners programme, "The Prophet of Oz". The presenter, Donna Meiklejohn, introduced the programme with these words: (Ex AX(2): lines 5-9) "Well hello. Four Corners is always a good mail spinner for Backchat , but its story on Jeremy Griffith, a former timber craftsman who now claims to be a prophet, has generated a mail bag almost as big as some of the mountains that devotee Tim Macartney-Snape used to climb." 405 The discussion that followed reviewed letters from viewers which were, with one exception, adverse to the plaintiffs (the ratio being, according to the plaintiffs' submissions, 9:1). Mr Macartney-Snape, in his evidence, described the Backchat programme as "(j)ust a complete aggravation of what occurred earlier. It was a distillation of the main lies" (T299). He was invited in cross examination to identify the main lies and did so (T350ff, esp 350-355). The plaintiffs, in submissions, asserted that the meanings identified were "congruent with the three imputations with which these proceedings are concerned" (PS: para [130]). The defendants submitted that they were not. Rather, the matters identified by Mr Macartney-Snape concerned Mr Griffith and his teaching (DS: paras [2.210]). I accept the defendants' submission. The only aspect that seems to me to have any connection with the imputations, the subject of this action, is the following passage which relates to Mr Macartney-Snape: (Ex AX(2): lines 38-50) " Footage of a student speaking at the Concord High School Speech Night. The following quote appears on screen with a voice-over. 'Haven't our youth enough devils in their lives without letting a fool like this …' Footage of students at the Concord High School Speech Night. The following quote appears on screen with a voice-over. ' … loose in our schools? As for Tim Macartney-Snape, I think the hypothermia … … has knocked his senses around.'" 406 I will return to this aspect in Pt 4 when the defences to the imputations against Mr Macartney-Snape are considered, as well as the issue of damages. 407 On the issue of re-publication and the possible aggravation of damages, the plaintiffs also rely upon the website of the ABC. The website was searched on 10 April 2007 and found to contain the following entry relating to the matter complained of: (Ex A(61)) " THE PROPHET OF OZ 24.4.95 Reporter: David Millikan Producer: Deb Masters Jeremy Griffith believes he's a great prophet of God and Everest mountaineer Tim Macartney-Snape agrees, but should they be spreading the message through our schools?" 408 It was submitted that the failure to remove that entry was prejudicial and evidence of malice (PS: para [133]). It was part of a campaign to denigrate the plaintiffs, consistent with evidence concerning the commentary of Dr Millikan in his letter to Mr Carroll on 20 January 1995 (Ex M), his comments to the Belfields and to Professors Grove and Flannery (PS: para [134]). The defendants responded that the website was a "fair description of the content" of the programme (DS: para [2.211]), a submission described by the plaintiffs as "ineffectual" (PS Reply: para [294]). 409 I do not accept that the short anonymous website is evidence of malice, or part of a campaign. It was, nonetheless, a reminder of the imputations concerning Mr Macartney-Snape. 410 The Foundation made a further complaint to Senator Richard Alston, the Federal Minister for Communications, on 21 May 1996 (Ex AY). Mr Macartney-Snape added his own complaint (Ex AY). What followed was later described by Mr Donald McDonald, the Chairman of the ABC, in these terms, in a letter of 24 August 1998: (Ex AY) "The ABC investigated and responded comprehensively to the Foundation's initial complaints about the Four Corners program. The Foundation considered that response inadequate and complained to the Australian Broadcasting Authority. The Authority made certain findings which the ABC did not accept on the basis of substantial concerns about the procedures adopted by the Authority in its investigation. The ABC's position was not based on any desire to avoid accountability, as you claim." 411 One gathers that the Australian Broadcasting Authority found that, in respect of some aspects (not identified), the ABC should apologise to Mr Griffith (cf PS: para [85(k)]). The letter from Mr McDonald then explained why the ABC could not accept that recommendation: (Ex AY) "The ABC fully accepts the role and powers of the Australian Broadcasting Authority to investigate complaints about alleged breaches of the ABC Code of Practice. Equally, the ABC considers that the Authority should conduct such investigations in a way which allows the ABC to know the case it has to meet and to be given a reasonable opportunity to put its response. The ABC considered that it was not given the opportunity to put additional arguments and material before the Authority which would have been likely to have resulted in different findings being reached in the Authority's investigation." 412 No apology was made to Mr Griffith and none has been made in the course of these proceedings. An apology was ultimately made to Mr Macartney-Snape on 15 February 2007, when the matter was first mentioned before me (Ex P). I will come back to the terms of that apology when considering the imputations relating to Mr Macartney-Snape in Pt 4 of this judgment. 413 I have before me some only of the documents relating to the complaint process before the Australian Broadcasting Authority. Upon the basis of that limited material, I cannot say that the failure of the ABC to apologise to Mr Griffith in the terms recommended by the Authority indicated malice. Response of Dr David Millikan. 414 On 26 November 1995, Dr Millikan sent Mr Griffith a fax responding to "your recent mailing" which was said to have been received the week before (Ex A(63)). The letter from Mr Griffith was not in evidence. However the complaints he identified to Dr Millikan are reproduced in Dr Millikan's response. 415 The first matter, together with Dr Millikan's answer, included the following: (Ex A(63)) "1. Your view that I misrepresented the intention of the Four Corners program. I know you place great store by some of the details of our first telephone conversation on January 11th. Let me say that my notes of that conversation essentially agree with you. But there is a difference of emphasis. The word I used to describe my earlier reviews of your work was 'superficial' – which at the time was correct. After hearing the broadcast on 2GB and listening carefully to the tape concerning the Development of Matter, it was clear to me that my earlier evaluations were superficial. I do not recall saying that 'I got it wrong' but I am prepared to admit that I may have, for it was clear to me that in some senses I had got you wrong. But what you concluded from this was some admission on my part that I was repentant or actually 'coming around' to accept what you were saying. That was not what I meant and you had no reason later to believe that this was the case." (emphasis added) 416 Dr Millikan then referred to a discussion on the first night of the walk, when he made it clear that he was not a convert. He referred to the nature of the programme, in a passage already extracted. It was a Four Corners investigation and could be expected to examine the Foundation critically. 417 Dr Millikan then said this, concerning the Millennium documentary series: (Ex A(63)) "As to the matter of the International Documentary series. What I said was that I had been approached by a friend who was part of a consortium out of San Francisco. They were putting together a series of documentaries which would be broadcast under the general theme of new and non-mainstream thought taking us toward the end of the millennium . You made the assumption that this was to be an uncritical assessment of your work. Why? It was being shown first on Four Corners." (emphasis added) 418 Dr Millikan asserted that Mr Griffith was well aware that the programme would not be "a promotional piece". His letter continued: (Ex A(63)) "In fact the next day at lunch, you again addressed the issue and said that you were 'fucking worried', you were 'worried to buggery' about the filming. You said you were looking for a candour and openness from me which had not come. You then enumerated the things which were against me. I was a person captured by the intellect and ideas, I was old and thus part of the 'lost generation' and I was in the established church. You concluded that it was beyond me to express the absolute candour that you expected. Notwithstanding this you decided to proceed. The only condition you placed on the project, which I agreed to, was that the film was not to be re-cut between the Four Corners program and the international release." (emphasis added) 419 The second issue was whether Mr Griffith had claimed to be a figure greater than Jesus Christ. Dr Millikan began his response with these words: (Ex A(63)) "You have taken exception to the fact that I say that you claim to be a figure greater than Christ. Jeremy you do!" 420 Jeremy Griffith viewed Christ simply as a man, not as the son of God. He saw him as "exceptionally nurtured and thus innocent" (Ex A(63)). It was clear that he had a great respect for him as one of the very few truly great prophets. However, according to Dr Millikan, Christ had, in Mr Griffith's view, his limitations. He did not have the overwhelming advantage of science. All he could offer was a "sanctuary from upset" (Ex A(63)). He could not lift the burden of guilt. That burden had, however, been lifted by Mr Griffith himself, according to his claims. He was therefore, on his own reckoning, the last of the great prophets. Dr Millikan ended his analysis with these words: (Ex A(63)) " … as you wrote to your mother as early as 1983: 'No human who has ever lived has understood existence as clearly as I do now … This is a possibility that has never before been available. We have broken through. We have won. It's all over … we can stay alive forever.' That is a claim that Jesus Christ was never able to make. Which means Jeremy, that you are a greater figure than Jesus Christ." Was there misrepresentation? 421 The evidence having been assembled, I can now return to the issue of misrepresentation. Did Dr Millikan, when he approached Mr Griffith, misrepresent his position? Should an improper purpose be inferred? 422 Two matters were relied upon as constituting the misrepresentation. The first was a statement attributed by Mr Griffith to Dr Millikan where, in their first conversation, Dr Millikan said, "I got it wrong", referring to his review of "Beyond" in 1991. The second was that Dr Millikan, either in that conversation or the next, introduced a further matter, that he intended to submit the programme for inclusion in an international documentary series called "Beliefs of the New Millennium". 423 Dealing with the first aspect, Dr Millikan is said to have used the words "I got it wrong" in a conversation with Mr Griffith on the telephone on 11 January 1995. I have no direct evidence from either Mr Griffith or Dr Millikan (supra para [138]). What I do have is a commentary by each, provided at subsequent meetings, where each discussed the terms of their first conversation. 424 Before going to that evidence, it may be useful to describe the background to this conversation. Mr Griffith met Dr Millikan at the launch of his book "Beyond" on 12 November 1991 (supra para [80]). Dr Millikan was then the head of Religious Affairs at the ABC. After the launch, he interviewed Mr Griffith (supra para [81]). A few weeks later, on 3 December 1991, Dr Millikan's review of Mr Griffith's book appeared in The Bulletin, under the heading: "Beyond Belief" (supra para [82]). Mr Griffith was familiar with that review. It had been reproduced in the Foundation's newsletter in July/August 1992 (Ex 7(1): Newsletter #20, p16). It is reasonable to assume that, when Dr Millikan gave his name on 11 January 1995, Mr Griffith knew exactly who he was, and was on his guard. 425 No doubt, the co-operation of Mr Griffith and the Foundation was desirable from the viewpoint of Dr Millikan and the ABC. The programme was likely to be the more interesting and accurate were it to include footage of Mr Griffith, Mr Macartney-Snape and the Foundation. It may be assumed that Dr Millikan also realised that his scathing review of "Beyond" would have come to Mr Griffith's notice. Mr Griffith, therefore, may be hostile. His dilemma was how to get his foot in the door, to secure the co-operation of Mr Griffith and the Foundation. 426 There is a further aspect, relevant to the communication between Dr Millikan and Mr Griffith. Mr Griffith recognised that the survival and acceptance of his ideas depended upon the creation of a critical mass of followers who would propagate those ideas. He understood the importance of promotion. Mr Griffith, in their second meeting on 24 January 1995, spoke of the enormous impact of Mr Macartney-Snape's speech to Geelong Grammar, which had been reproduced in the school magazine. The magazine, he said, had a circulation of twelve thousand people (supra para [160]). Dr Millikan, in his letter to Ian Carroll on 20 January 1995, made the remark that "Griffith himself is desperate to get on Camera" (Ex M). Mr Griffith also recognised that, notwithstanding significant promotion by Foundation members, not least Mr Macartney-Snape and himself, there had been little response (Ex 7(1): Draft Newsletter #26, Oct/Dec 1994) (supra para [106]). It may be assumed, therefore, that Mr Griffith would have been very receptive to the possibility of promotion to a national and possibly an international audience. 427 Against that background, let me come to what was said on 11 January 1995, by Dr Millikan to Mr Griffith. Dealing first with Mr Griffith, the accounts provided in later meetings tended not to include the whole conversation, but simply the phrase attributed to Dr Millikan either, "I probably got it wrong" (PS: para [31]) or "I got it wrong" (PS: para [137]), referring to The Bulletin review. 428 A rather more elaborate account, hearsay in nature, was provided by Jackson Wells Communications, the public relations consultant retained by the Foundation shortly before the programme was screened. An annexure to their letter to Mr Carroll of 6 April 1995 included these words, which one would infer were the instructions of Mr Griffith: (Ex A(23)) (supra para [316]) "Notes of conversation with Jeremy Griffith (11 January 1995). 'You might not remember me but I wrote a dismissive review of your book a few years ago … I heard your talk on 2GB the other night and also someone sent me a tape of yours about the development of matter which I listened to carefully and I now feel I was probably a bit impetuous the first time and probably got it wrong.'" 429 On 23 April 1995, the day before the programme was screened, Dr Millikan and Mr Griffith participated in a radio debate conducted by Mr Gerald Stone. In the course of that debate, Mr Griffith said this, recounting Dr Millikan's words: (Ex A(53)(1): lines 299-301) (supra para [344]) " … look I know I wrote a dismissive review, but I believe I got it wrong and I want to now nominate your understanding for an international documentary of seminal thinkers to take humanity to the next Millennium." 430 Turning to the accounts given by Dr Millikan, the following exchange occurred towards the end of the second meeting between Mr Griffith and the ABC on 24 January 1995: (Ex 21(3): p93, lines 4602-4605) (supra para [162]) "Jeremy Griffith: But you could say, that you know, you'd thought you'd got it wrong and I passed that on, and that's helped everybody I can tell you. David Millikan: Yeah." 431 The issue, famously, was raised again around the campfire on the first night of the walk, 4 February 1995. In the course of that evening Mr Griffith, in front of the assembled members of the Foundation, invited Dr Millikan to "come clean and tell us where he's coming from" (supra para [182]). Dr Millikan gave a speech which culminated in his thoughts, having heard Brian Carlton's interview of Mr Griffith on Boxing Day: "Perhaps I need to reinvestigate some of this." (supra para [184]). Mr Griffith then reminded Dr Millikan of what he claimed to be Dr Millikan's actual words in their earlier conversation. He said this: (Ex AJ(2): lines 1035/6) (supra para [185]) "You said actually David, you believed you got it wrong. Those were your actual words." 432 Dr Millikan said that he did not remember saying those words. He did not, however, deny it (cf DS: para [2.172]; PS Reply: para [260]). Mr Griffith then became excited. He repeatedly accused Dr Millikan of "bullshitting". Dr Millikan ultimately acknowledged that The Bulletin article was "extraordinarily superficial", adding these words: (Ex AJ(2): lines 1196-1199) (supra para [187]) "Yes I guess I could say in terms of my appreciation of what was actually being said in that book, it was a superficial reading of the situation and in some senses I didn't understand what was happening. So I guess in that sense you could say I'd got it wrong." 433 The plaintiffs, in submissions, drew attention to Dr Millikan's demeanour during this exchange (PS Reply: para [261]). Dr Millikan did appear to be uncomfortable, although that may have been the product of the abuse from Mr Griffith. Dr Millikan's demeanour does not assist me in determining where the truth lies. 434 Dr Millikan wrote Mr Griffith a letter some time after these events (26 November 1995), where he said that his notes of the conversation of 11 January 1995 essentially agreed with those of Mr Griffith. He added: (Ex A(63)) (supra para [415]) " … But there is a difference of emphasis. The word I used to describe my earlier reviews of your work was 'superficial' – which at the time was correct. After hearing the broadcast on 2GB and listening carefully to the tape concerning the Development of Matter, it was clear to me that my earlier evaluations were superficial. I do not recall saying that 'I got it wrong' but I am prepared to admit that I may have, for it was clear to me that in some senses I had got you wrong. But what you concluded from this was some admission on my part that I was repentant or actually 'coming around' to accept what you were saying. That was not what I meant and you had no reason later to believe that this was the case." (emphasis added) 435 There can be little doubt that, whatever the precise words Dr Millikan used, they included the phrase: "I probably got it wrong." As a matter of probability, the most likely version is that in the Jackson Wells Communications annexure, namely, " … I heard your talk on 2GB … which I listened to carefully and I now feel I was probably a bit impetuous the first time and probably got it wrong" (supra para [428]). Dr Millikan may have said "superficial" rather than "impetuous". 436 That acknowledgement by Dr Millikan was enough to secure a meeting. Dr Millikan had his foot in the door. Was there a misrepresentation? In resolving that issue, the absence of Dr Millikan is a significant handicap. I do not know, for instance, whether before The Bulletin review Dr Millikan read "Beyond" from cover to cover, or read parts of it and skimmed others, or what he did. I have no commentary from Dr Millikan on the talk he heard on 2GB, or the tape of Mr Griffith's speech which he suggested sparked some renewed interest. The plaintiffs suggest that I should infer that the evidence of Dr Millikan in respect of such matters would not assist him. There are, however, difficulties in drawing that inference in a particular context, in circumstances where there are before the Court so many issues and so much material, incorporating statements from Dr Millikan, including on this very matter. The election of Dr Millikan not to give evidence was no doubt made with that material in mind, as it was in the case of Mr Griffith. 437 There is, however, a significant difference between a statement that "one has been superficial" and a statement that one "probably got it wrong". The former suggests the need for a further in-depth look, neutral as to the outcome. The latter foreshadows a tentative view, different from the view previously expressed. Here, the previous view was that Jeremy Griffith's ideas were "Beyond Belief" (Ex H). The suggestion arising from the phrase "probably got it wrong" must at least be a recognition that perhaps the ideas are capable of belief. 438 Was there a misrepresentation of Dr Millikan's view? It will be remembered that nine days after this conversation, Dr Millikan wrote to Mr Carroll, the Executive Producer of Four Corners. He did not, in terms, express contempt for Mr Griffith's ideas, although he came close. He did say this: (Ex M: p1) "The following I know will go on camera – It is not strategic for me to contact any others at this stage. -- Tim Macartney-Snape -- Andrew Taplin – an eminent biologist with the CSIRO in the policy division in Canberra – was at first attracted to Griffith's theories but soon saw that they were based on nonsense." (emphasis added) 439 Dr Millikan added: (Ex M: p2) (supra para [145]) "The following people are loudly proclaimed by Griffith as endorsing his work and especially his book -- Beyond the Human Condition -- Prof Paul Davies -- Charles Birch -- Bob Hawke -- Phoebe Frazer -- Caroline Jones -- John Morton - Emeritus Prof of Zoology, Uni of Auckland, lay Canon of Holy Trinity Cathedral, & author of Redeeming Creation -- Prof John Wren-Lewis I have contacted -- Wren-Lewis, Caroline Jones, Paul Davies -- all are embarrassed and claim to have been misquoted (of course). They have refused permission to Griffith to have their names used." (emphasis added) 440 The commentary upon Mr Griffith in the remainder of the letter was also unflattering. This letter, of course, was written some days after the conversation of 11 January 1995. It may be assumed that Dr Millikan had been examining material relating to Mr Griffith's ideas in that interval. He also had a three hour meeting with Mr Griffith on 19 January 1995, and no doubt formed an impression. I think it very likely, nonetheless, that Dr Millikan's views on 11 January 1995, when he first spoke to Mr Griffith, were not greatly different from the views he had expressed in his Bulletin review. It was, therefore, a misrepresentation of his real view to say "I probably got it wrong". I make that finding conscious of its importance and the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336). 441 That is not to say that Dr Millikan had a completely closed mind in respect of Mr Griffith's ideas and the Foundation. I think it very likely that he did not. I accept that Dr Millikan had a genuine interest in the history of ideas and especially the struggle for new ideas to make themselves heard. I accept that, notwithstanding his commitment to Christianity and a transcendental God, he had the capacity to dispassionately enquire into, and report on, ideas inconsistent with his own beliefs. I accept that he did want to know more about Mr Griffith's ideas, although he was profoundly sceptical about them. He did want to understand what drew Mr Macartney-Snape and other members of the Foundation, who were plainly intelligent, to those ideas. He wanted to investigate and understand whether Mr Griffith was a "crackpot" or a "prophet". I accept that Dr Millikan had the view, on the basis of his reading and investigation before his conversation with Mr Griffith on 11 January 1995 that, if he was a prophet (rather than mad), he was a false prophet. The Millennium documentary series. 442 I come then to the second alleged misrepresentation, the statement by Dr Millikan that he intended to submit the programme, once complete, to an international documentary series called "Beliefs of a New Millennium". Here, there can be no question as to what was said. Dr Millikan, at Mr Griffith's invitation, repeated what he had said at their meeting on 24 January 1995, which was recorded. The transcript of his words was as follows: (Ex A(62)(1): lines 89-98) (supra para [154]) "Okay, okay. Well, I, the, the, situation is this. This friend of mine he has, he approached me about six months ago, and he said that he is working with a group out of San Francisco who want to put together a series of sixteen films, which would be packaged together as a series … called 'Beliefs for the New Millennium' or 'Beliefs Beyond 2000' and it is an attempt to gather together seminal thinkers and ideas that would, that are not part of the mainstream and yet would be sort of, should be put forward for public consideration. The deal was that they were going to approach film makers around the world who were capable of getting pieces up in their own home markets and then putting those, packaging those up over the next year as a series of sixteen. … " (emphasis added) 443 The plaintiffs, in submissions, drew attention to the answer concerning this issue provided by Dr Millikan in interrogatories (PS: para [141]). As one would expect, his account closely followed the transcript of the recording. There was, however, one difference. In his sworn answers, Dr Millikan substituted the words "religious figures" for the words "seminal thinkers" (Ex A(33): Interrog 54(d); cf A(62)(1): line 94). 444 Dr Millikan also dealt with the issue in his letter of 26 November 1995, responding to Mr Griffith's complaint. He made no reference to "seminal thinkers" (Ex A(63)). He said this: (supra para [417]) "As to the matter of the International Documentary series. What I said was that I had been approached by a friend who was part of a consortium out of San Francisco. They were putting together a series of documentaries which would be broadcast under the general theme of new and non-mainstream thought taking us toward the end of the millennium. … " (emphasis added) 445 Dr Millikan's statement during the meeting of 24 January 1995 was made within days of the matter having first been raised. I accept that the series he described would " … attempt to gather together seminal thinkers and ideas that … are not part of the mainstream, and yet … should be put forward for public consideration." 446 There is no evidence that the programme was ever submitted to such a series or, indeed, that such a series was ever made. The plaintiffs, in submissions, posed the question: why was this said? (PS Reply: para [270]). They suggested there was no obvious answer. Dr Millikan had chosen not to provide one. They invited the Court to infer that his evidence on this issue would not have assisted the defendants (PS Reply: para [270]). 447 It is instructive to ask whether the San Francisco documentary series was an invention on the part of Dr Millikan. In sworn interrogatories, Dr Millikan said that he raised it in his first conversation with Mr Carroll in October or November 1994, some months before he approached Mr Griffith (Ex A(33): Interrog 23) (supra para [133]). Once the ABC agreed to collaborate on the programme, he was given the copyright (T1334). That was unusual (T1334). It was consistent with an intention to submit the programme to the series. Ms Masters said that, when she drove with Dr Millikan to the Snowy Mountains for the walk, he told her of his plans, including that he had the copyright. He said that he wanted to put together a series for the new millennium, dealing with new ideas and philosophies (T1334). Ms Masters acknowledged in cross examination that, in the period from the beginning of March 1995 until the programme was screened, the matter was not raised again (T1432). The following question was put to her: (T1433) "Q. I suggest to you that by the time of broadcast, at least, you knew full well that Dr Millikan had no intention of nominating Mr Griffith's ideas or the 'Four Corners' programme about Mr Griffith's ideas as a film connected with seminal thinkers to take humanity forward into the 21st Century or any idea related to that? A. I believe that David had the copyright and had intention to use it to create a series, documentaries, that looked at beliefs and ideas for the new millennium. That's what I understood and there was no reason why I didn't think that was the case." 448 I accept that evidence. There may be many reasons, including the complaints made by Mr Griffith and the Foundation against the ABC, why the matter was taken no further. I should not speculate. However, I am satisfied that Dr Millikan did not invent such a possibility. I think it likely that, at the time he spoke to Mr Griffith, he believed there was a real possibility that he may be able to use the programme in such a way (DS: para [2.182] cf PS Reply: para [269]). I also think it likely that Dr Millikan well knew the seductive power that such a possibility would hold for Mr Griffith and the Foundation. He was offering, potentially, a national and international audience for Mr Griffith's ideas. 449 Mr Griffith and Mr Macartney-Snape each inferred from Dr Millikan's description of the international series that the assessment would be positive. On 12 March 1995, Mr Macartney-Snape wrote to Dr Millikan shortly after the final interview with Mr Griffith. The letter sought reassurance. Mr Macartney-Snape said that the Foundation took "an immense gamble" in agreeing to be involved in the programme (Ex AQ: p1). He identified four reasons for having done so. One of his reasons concerned the international documentary series. It was expressed in these terms: (Ex AQ) (supra para [291]) "2. David told us that the main reason for doing a TV documentary was that he has been asked to find ideas in Australia that would be worthy of consideration for taking Humanity into the 21st century. This implied to us that David's intentions were that he would at least be fair in his treatment of the ideas and the controversy we have experienced. It would be illogical to nominate 'a false start' idea as being worthy of consideration. Only serious attempts at explaining human nature or bringing in better ways of living could be considered for such a documentary. Furthermore the treatment of such ideas would have to be serious, scholarly and have a genuine interest in promoting fair debate." (emphasis added) 450 In an interview by Gerald Stone the day before the programme was screened (23 April 1995), Mr Griffith, having repeated what Dr Millikan said concerning the international series, asked the following rhetorical question: (Ex A(53)(1): lines 744/5) (supra para [351]) "How could anybody not deduce from that a positive assessment? See you, have there evidence of what I'm saying, of the massive misrepresentation … " 451 In the letter Dr Millikan wrote in November 1995 to Mr Griffith, responding to his criticisms, he said this in the context of the international series: (Ex A(63)) (supra para 417]) "You made the assumption that this was to be an uncritical assessment of your work. Why? It was being shown first on Four Corners." 452 In my view, the impression made by Dr Millikan's words, "the gathering together of seminal thinkers and ideas, that are not part of the mainstream but should be put forward for public consideration", does suggest ideas that are at least capable of belief. The inference drawn by Messrs Griffith and Macartney-Snape was reasonable. However, it must be acknowledged it was not the only possible inference. Such a series may include "false starts". It may include thinkers who believe themselves seminal thinkers, who have followers but no appeal to the film maker, who may yet appeal to the viewing audience, or a segment of it. 453 I accept, and for the same reasons, that at the time Dr Millikan told Mr Griffith about the series, he did not believe that Mr Griffith was a seminal thinker. He believed that, upon further investigation, Mr Griffith would be confirmed either as a "crackpot" or as a "false prophet". 454 Was there, in these circumstances, a misrepresentation? Since I accept that Dr Millikan did not misstate the nature of the series or his intentions, it cannot be said that there was any express misrepresentation. However, it would have clearly been obvious to him that Mr Griffith and the Foundation had made an assumption. They attached some importance to his words, wrongly seeing them as an indication that the investigation, once undertaken, would likely view the ideas in a positive way. Dr Millikan did nothing to disabuse them. Probably he was not obliged to. It no doubt suited his purposes, in maintaining co-operation, to say nothing. The relevance of the misrepresentation. 455 The plaintiffs identified the conduct of Dr Millikan in misrepresenting his position as a particular of malice (MFI 6: para [9]). Their submissions included the following: (PS: para [85(c)]) "85 The primary factual indicators of such an improper purpose or motive relied on by the plaintiffs are: … (c) the conduct of the defendants (and especially Dr Millikan) in disguising their true intentions for the program, including by reference to the alleged 'Millennium documentary' (the failure of Dr Millikan to give evidence, having some relevance in this context);" 456 The defendants responded by drawing attention to the issue which must be addressed by the Court. The issue is whether the defendants (or either of them) was/were actuated by an improper purpose or motive in making the publication (cf DS: para [2.152]). Here, according to the defendants, if there was misrepresentation by Dr Millikan (which was denied), it was quickly spent. It had been dispelled by 4 February 1995, the first night of the walk (DS: para [2.172]). It could not be said to have actuated the publication, which occurred almost three months later (24 April 1995). 457 I accept the defendants' submission. By 4 February 1995, the first night of the walk, such benefits as may have accrued to Dr Millikan arising from the misrepresentation, were spent (cf Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 per Heydon J, para [180]). The misrepresentation "I got it wrong" got Dr Millikan through the door. It secured him a number of preliminary meetings, which were question and answer sessions without film. He was provided with Foundation documents, although they were documents readily available upon enquiry (Ex L). By the first night of the walk, however, Mr Griffith and others clearly had their doubts about Dr Millikan. Several days before, on 31 January 1995, Dr Millikan had interviewed Mr Macartney-Snape at his home near Mittagong. Mr Macartney-Snape remarked on certain questions which Dr Millikan had asked at previous meetings. He said this: (T272) (supra para [166]) " … some of the questions you were previously asking Jeremy were a little worrying to us. They seemed to be similar sorts of questions that the intolerant fathers have been asking. … " 458 On 4 February 1995, Mr Griffith therefore confronted Dr Millikan and required him to "come clean" (Ex AJ(2): lines 833-835) (supra para [182]). When dissatisfied with his response, Mr Griffith repeatedly accused Dr Millikan of "bullshitting", "fucking with us" (Ex AJ(2): line 1124). Dr Millikan ultimately acknowledged that his review in The Bulletin had been wrong in the sense that it had been entirely inadequate and superficial. That statement accurately represented Dr Millikan's position. Unlike "I got it wrong", it carried no implication concerning his view after further investigation. 459 These words were enough to allow the parties to continue contact. Nonetheless, each was plainly wary of the other. Attempts were repeatedly made by the plaintiffs, all unsuccessful, to control the content of the programme. A veto was sought and refused. At the meeting of 16 February 1995, Mr Macartney-Snape tabled a letter in which he said this: (Ex AL) (supra para [218]) "We're very scared that we, or more importantly the idea, will be misrepresented again." (emphasis in the original) 460 Mr Macartney-Snape sought an assurance that no statement or view would be included in the programme "without them being accompanied by the under-pinning new paradigm explanations" (Ex AL). He sought, on behalf of the Foundation, an assurance that they would be permitted to see the documentary before it was screened (supra para [221]). The assurances were not given. Dr Millikan, in the course of the meeting, said this: (Ex 35(1): lines 3749-3754) (supra para [229]) "David Millikan: Okay, by the end of this, you see I have got to have all sides covered so that no one can say to me that this is a hatchet job and you have not been fair or on the other side this is a PR job. Jeremy Griffith: But do you understand that? David Millikan: You see both of those, so if there is a controversy I will look at it." 461 Mr Griffith may well have believed, based upon his reading of the situation, that the programme, once complete, would display the ideas and the Foundation in a positive light. But he knew the nature of the undertaking. The following comment by Mr Griffith, made at one of the very first meetings (on 24 January 1995), perhaps revealed both his hopes and aspirations, but also his understanding of the process. He said this: (Ex 21(3): p91) (supra para [161]) "Jeremy Griffith: This is a sympathetic thing, not a critical. It's critical, it's analytical but it's not. David Millikan: Yes. Jeremy Griffith: The kids that appear on this film aren't going to be, you know, the world's going to go … David Millikan: I will be treating people with respect." 462 Dr Millikan, when writing to Mr Griffith in November 1995, answering his complaint, said this, which I accept: (Ex A(63): p2) "By the time we arrived at the Snowy walk you were well aware that we were not about to make a promotional piece about you. Had you any doubts about the situation you could have told us to leave. In fact the next day at lunch, you again addressed the issue and said that you were 'fucking worried', you were 'worried to buggery' about the filming. You said you were looking for a candour and openness from me which had not come. You then enumerated the things which were against me. I was a person captured by the intellect and ideas, I was old and thus part of the 'lost generation' and I was in the established church. You concluded that it was beyond me to express the absolute candour that you expected. Not withstanding this you decided to proceed. The only condition you placed on the project, which I agreed to, was that the film was not to be re-cut between the Four Corners program and the international release." 463 The plaintiffs submitted, and I accept, that they did not expect a "promotional piece" (PS Reply: para [262]). They knew it was a Four Corners investigation. Ms Masters gave the following evidence, which was not challenged: (T1337) "Q. What do you recall of dealings between yourself and Mr Macartney-Snape in the period before the walk? A. I phoned him or he phoned me, I'm not sure. In that telephone conversation I said to Tim that this is a critical and sceptical look at Jeremy Griffith and the FHA, and he said 'I accept that. I understand that', and words to the effect of 'They are a remarkable bunch of men and women and I want you to treat them with respect' or 'I don't want them to be seen in a bad light'. And I said, 'We will only film what you let us film', you know." (emphasis added) 464 Dr Millikan's personal position was clear. He was known to be a Minister of the Uniting Church. He said repeatedly that he was not a convert to Mr Griffith's ideas, and that he was not moved by "deep personal commitment". Indeed, he said that he found some of Mr Griffith's ideas "outrageous" (supra para [158]). Mr Macartney-Snape gave the following evidence: (T499) "Q. You went ahead with the walk, complete with the veto through it on any filming, you went ahead personally with the walk allowing filming notwithstanding you knew Dr Millikan was not likely to end up agreeing with the ideas; correct? A. Wasn't a requirement to agree, no. Q. And profound disagreement in relation particularly to a transcendental God, that is something that you knew of and accepted with Dr Millikan; correct? A. In relation to a transcendental God that became clear during the Snowy Mountains or the end of it. Q. When you say 'the end of it', that's a transparent attempt by you, in your evidence today, to protect your case from the fact that you've always known Dr Millikan disagreed with you about God; isn't that right? A. Well, during the Snowy Mountains walk we became aware of his – the extremity of his position." 465 He added: (T500) "Q. You're describing an impression you formed of David Millikan by the end of the walk as being an extremist is that right? A. Well, I formed the view that he had a very – that he would – could not contemplate the notion of a non transcendental God, that he told us himself that that was a very basis of his faith. Whereas there are other ministers who have a different view." 466 At almost every meeting, issues arose from the questions asked by Dr Millikan which were uncomfortable for the Foundation. Dr Millikan provided Mr Macartney-Snape, for instance, with a list of topics he wished to cover at their second interview, scheduled for 22 February 1995. Each issue was potentially adverse to the Foundation. Dr Millikan asked how Mr Macartney-Snape maintained his belief in the ideas, when the response from the academic world had been so negative? Why did he think there had been such a violent reaction from some of the parents of members? And so on (Ex AL) (supra para [235]). I accept the defendants' submission that the plaintiffs were well aware that the programme was likely to raise and deal with damaging allegations (DS: para [2.170]). 467 As I have already described, matters came to a head after the final interview with Mr Griffith on 9 March 1995, when Dr Millikan put to Mr Griffith, as he was obliged to, allegations which had been made by various persons who had been interviewed (supra para [288]). Shortly after (12 March 1995), Mr Macartney-Snape wrote to Dr Millikan. I have referred to the letter already (supra para [449]). It will be remembered that the letter sought reassurance. It included these words: (Ex AQ) "We have really taken an immense gamble agreeing to be involved in this programme … " 468 Mr Macartney-Snape identified the reasons the Foundation was prepared to take the gamble. They included the representation by Dr Millikan, "I got it wrong", as well as the prospect of the international series. Mr Macartney-Snape added: (Ex AQ: p2) (supra para [292]) "3. If such a program was done fairly, it would give us the first opportunity for public debate beyond the immediate group that we've established. We have been adamant from the very beginning that public debate is what we want. …" 469 The Foundation did not want a witch hunt. He said that he had "welcome(d) the tough, even the odd cynical question" (supra para [293]). Mr Macartney-Snape ended with these words: (Ex AQ) (supra para [294]) " … We are not opposed to fair discussion of the controversy, only unfair discussion of it particularly without any explanation of the understandings." 470 Once the initial misrepresentation by Dr Millikan was spent and he was forced to identify what he meant by the words "I got it wrong", the issue, from the viewpoint of the Foundation, became one of risk management. They had to weigh up the potential advantages of promotion against the risks that the programme may turn out to be adverse. Ultimately, once they judged the risk unacceptable and the gamble no longer worthwhile, they shut the door. Treatment in the final programme. 471 It is not known precisely when Dr Millikan began work and research on the programme. It appears that the ABC agreed to his proposal in early January 1995. Presumably that is when work began. On 11 January 1995, Dr Millikan rang Mr Griffith (supra para [138]). They spoke and the door to the Foundation was opened. On 19 January 1995, Dr Millikan spent three hours with Mr Griffith which he described the next day as "three heavy hours" (Ex M). The letter he wrote to the executive producer, Mr Carroll, was unmistakably adverse to Mr Griffith. Was Dr Millikan, from that day at least, prejudiced or biased against Mr Griffith and the Foundation? Is that a basis for inferring that the defendants, or at least Dr Millikan, were/was actuated by an improper motive in making the publication (Roberts v Bass (supra para [149])) at 31, para [76])? 472 There are obvious difficulties in resolving these issues in the absence of Dr Millikan. It is reasonable to assume that, by the time Dr Millikan wrote to Mr Carroll on 20 January 1995 (Ex M), he had looked again more closely at the book "Beyond" and formed an adverse view. His view was not, I believe, a reflection of his commitment to Christianity and a transcendental God (cf Masters: T1524). Rather, it was a reflection of his judgment on the quality of the book and his research to that point on the science said to underpin the book (cf Ex M: pp1-2). Dr Millikan's views did not, so far as one can judge, change greatly before he began writing the script in early April 1995 (Ex A). That is not to say that he had a completely closed mind. He continued to refine his thinking on Mr Griffith's ideas, seeking clarification at each meeting in respect of particular aspects. He also continued his own research. On the first night of the Snowy Mountains walk, for instance, he said he had reread the previous week Mr Griffith's first book, "Free" (Ex AJ(2): lines1081/2). He made the following comment to Mr Macartney-Snape shortly before, in their first extended meeting on 31 January 1995 (as described by Mr Macartney-Snape in evidence): (T272) (supra para [165]) "… The first thing Dr Millikan said to me was: 'On the way down, in the train, I was doing some reading and I suddenly understood what Jeremy's - Mr Griffith's interpretation of the virgin mother means. I see now that Mary must have been an exceptionally good mother to produce someone like Jesus and that she was, metaphorically speaking, virginal, that is, unsullied by and relatively unexposed to the excesses of the human condition'" 473 It was put to Ms Masters that Dr Millikan's mind was closed to exploring Mr Griffith's ideas. She responded as follows: (T1531) "A. Did he have a closed mind in reference to Jeremy Griffiths ideas? I think his mind was open to exploring them but I think in the end he did not believe that Jeremy was a prophet. He did not believe that the science, or the explanation, was rooted in science and I don't think he believed that this would change the world. That this claim would change the world." 474 Ms Masters added that Dr Millikan made a serious attempt to understand and explore the ideas (T1529), which I take to be a comment based upon her observations of Dr Millikan and his contemporaneous statements as to his state of mind. 475 The programme dealt with a number of issues, apart from Mr Griffith's ideas. Dr Millikan, in interviews, explored the role of Mr Griffith in relation to the Foundation and the attraction of the ideas to Mr Macartney-Snape, and members. He explored whether Mr Griffith was supported by scientists. There were many other aspects. On such issues, his mind, I believe, was far more open than in respect of the merits of the ideas themselves. Ms Masters recorded in her notebook for 16 February 1995 an entry, after the bushwalk and on the day of a further meeting with Mr Griffith and Mr Macartney-Snape, these words: (Ex 23: p8) (T1361) (supra para [218]) "Q. Last thing you have recorded there is … 'revelation character of film is changing keep minds open'. What does that record, to the best of your recollection? A. It has 'to record David's thoughts'. I don't write my own down. I write what he says. Q. But you can't recall anything more than that? A. No." 476 What, then, was the consequence? Was the programme a fair representation of the issues explored during the months of preparation? The following was put to Ms Masters: (T1545) "Q. Your view was at the time of broadcast that the programme as a matter of impression must have been in your view deeply damaging to Mr Griffith and Mr Macartney-Snape? A. I don't think it was deeply damaging and, as I say, the images of the young men and women, the camp, the things said, it covered what we saw on the walk, it covered the ideas, the philosophy, it questioned how the new world would go, it raised concerns about what was revealed in the newsletters, the parents' criticism and obviously Rosy and Howard Whelan was there. I mean it painted a picture of what was happening at that time in the history of Jeremy Griffith and the FHA and its members and Tim Macartney-Snape. Q. I have two questions for you. First you accept that that picture painted was overwhelmingly a one-sided picture at the date of broadcast? A. I don't think it was a one-sided picture. I think that we put a mirror up in front raising those issues and that's what you saw and that's what I believe. Q. Secondly, I suggest to you that the programme as it went to air was in your belief substantially a reflection of Dr Millikan's hostility towards Mr Griffith, Mr Macartney-Snape and the Foundation? A. No, I disagree with that." (emphasis added) 477 Ms Masters agreed that the programme was sceptical as to the intrinsic merit of Mr Griffith's ideas, but then he was making large claims (T1405). She would not agree, however, that the programme was hostile (T1439). Nor was it accurate, according to her evidence, to describe the programme as "deeply critical". For instance, they chose not to use compelling material which was adverse, which was provided by Bahram Boutrabi. The plaintiffs submitted that Ms Masters' failure to acknowledge that the programme was deeply critical was evidence of her partisan attitude. However, I disagree. 478 There was a deal of material which could have been used, either as footage or in the commentary of Dr Millikan, which was more colourful than the footage and the commentary which was in fact used. A compilation disc containing a sample of such material was relied upon by the defendants (Ex 26(2)). The plaintiffs submitted that the exhibit was meaningless (PS Reply: para [174]). It amounted to saying that the programme was not unfair because it could have been worse (PS Reply: para [173]). I disagree. The material is relevant to the issue of balance which Dr Millikan identified at his meeting with Messrs Griffith and Macartney-Snape on 16 February 1995, in these words which, for convenience, I repeat : (Ex 35(1): lines 3749-3754) (supra para [229]) "David Millikan: Okay, by the end of this, you see I have got to have all sides covered so that no one can say to me that this is a hatchet job and you have not been fair or on the other side this is a PR job." 479 The material gathered but not used is instructive as to whether it can be inferred that the defendants, or either of them, was or were, actuated by an improper motive in making the defamatory publication (Robert v Bass, p30; paras [75]-[76]). The defendants, in submissions, described the particular footage from Exhibits 26(1) and (2) which was available and not used (DS: para [2.109]). The plaintiffs, in reply, said that the matters listed, for the most part, were included in the programme anyway (PS Reply: para [176(a)] to [176(j)]. Besides, they were ultimately not used, at least in respect of one aspect (Bahram Boutrabi), because there was insufficient time, as Ms Masters acknowledged. 480 I do not doubt that time was a real issue in the making of the programme. However, much of the material not used was powerful and dramatic. There was, for instance, a sequence where Mr Griffith was reading from notes, explaining his ideas, where (unlike footage which was used) he was unpersuasive and inarticulate. There was a further sequence where Mr Griffith dealt with the relationship between men and women and sex, where he was repeatedly swearing (Ex 26(1): pp12/13). Rosy Whelan, in one sequence, described what happened once she left the Foundation (Ex 26(1): p6, lines 5-14). "So afterwards, after I stopped being involved, there were a number of people who seemed to come out of the woodwork and suddenly I was getting a lot of phone calls from a lot of people who were very concerned, not so much my friends, but more, particularly parents of the students were the main people who would ring , and other various assorted people he'd upset along the way. They wanted to have more information about what was going on there. Ah, they would ask me, should – do we have cause for concern, and I would tell them that yes, I thought that they did. Ah, I particularly didn't want other people to have to go through the sort of psychological sufferings that I had. " (emphasis added) 481 Ms Whelan went on to describe her meetings with parents, adding: (Ex 26(1): p7, lines 30-33) "Um, that really triggered something in me and I thought, well I know how I suffered with this myself. And I had no idea that there were so many other people who were suffering also. And that made me feel that I was under some obligation to try to redress the balance." (emphasis added) 482 Rosy Whelan's husband, Howard, described what he saw and its impact: (Ex 26(1): p8, lines 5-10) "I could see that this thing with Rosy and Jeremy was getting worse and worse and I could see her cutting herself off from, from, you know, people who really cared deeply for her. And I never got the feeling that Jeremy cared for Rosy. I got the feeling that she was working for him. She was fulfilling a function, she was fulfilling a role in opening up the new world, but love and care, these weren't, ah, aspects of that relationship that I could see." 483 The material relating to Bahram Boutrabi was compelling. He spoke of his loss of identity as he struggled to assimilate the ideas (Ex 26(1): p17). He also said this: (Ex 26(1): p24, lines 1-5) "I have lived death. Felt it. I have lied down and died in my being. So much so that people around me were going crazy and they were seeing me dying and all the obvious symptoms of someone who is just giving up but I wasn't worried. Somehow I felt that I was going to be born into this new world. That death experience is very real." 484 Ms Whelan referred to Mr Griffith as "a dictator" in the control he exercised over members, that he was the only true "innocent", and "the person who has the answers" to whom others "always defer" (Ex 26(1): p3, lines 7-11). 485 Mr Charles Belfield, in describing the impact of his children's involvement in the Foundation, said this: (Ex 26(1): p24, line 1) "It has just torn us to shreds." 486 The Sydney Morning Herald article, published the weekend before the programme went to air (22 April 1995), included material obviously known to Dr Millikan and arguably relevant to the issues dealt with in the programme, but not included. It canvassed the detail (as opposed to the generality) of Mr Griffith's poor academic performance. It also introduced his relationship with his family. The article included these words: (Ex A(52)) "Some time later there was a reconciliation, but for Griffith it has not been so easy. He has had the most savage fight with his family, to the point that he will no longer open his mother's letters to him. The split occurred because none but his younger brother Simon, could accept that Jeremy was a prophet." 487 I will, in Pts 3 and 4 of this judgment, when I deal with the defences raised by the defendants, consider whether the defendants, or either of them, knew that each imputation was false when it was published. I will, in the context of each imputation, consider the reasonableness of the defendants' conduct and the question of malice. 488 So, I will return to these issues in the context of those defences. I should, nonetheless, at this point, record a general observation. I would infer that Dr Millikan was certainly not seeking to do a "hatchet job" upon Mr Griffith or his ideas or the Foundation. I accept, again as a generality, that he was seeking balance. Although Dr Millikan had strong views concerning Mr Griffith and his ideas, I do not believe that they were the product of uninformed prejudice or bias. I would infer that he was seeking to present those ideas as he believed them to be. In saying that, I recognise, as I am sure the defendants recognised before the programme went to air, that a good deal of it was adverse. 489 The plaintiffs put to Ms Masters (in the passage quoted) (supra para [476]) that the programme was unremittingly adverse and a reflection of Dr Millikan's bias. However, the programme was mixed, positive and negative. I agree with the assessment of Ms Masters that it was "not one sided", but held a mirror up in front of the Foundation, raising the issues that had emerged in the course of the investigation. Mr Griffith's ideas (including the Adam Stork story) were presented. Mr Macartney-Snape acted as spokesman on a number of issues. He had a formidable reputation which was described. He presented as someone who was sane, reasonable and measured in his commentary. Those on the walk were young, attractive and appeared to be enjoying themselves. They were clearly fascinated by the ideas. Some members were interviewed and presented the Foundation's viewpoint. They included people on the walk, Sam Belfield and his sister Juliet. All appeared intelligent and excited by the ideas. On the other hand, some aspects, predictably, were negative. They were, nonetheless, aspects of Mr Griffith's method (such as his swearing) or his views (including his views on women and their role). There were obviously some matters which were distinctly negative, such as the commentary by the Whelans and Mr and Mrs Belfield. The material giving rise to the three imputations, the subject of this action, was also negative. 490 Against the background of these findings, let me now turn to the defences raised by the ABC and Dr Millikan, dealing first with the imputation concerning Mr Griffith. 3. THE GRIFFITH IMPUTATION The Imputation. 491 I should, for convenience, repeat the imputation found by the jury concerning Mr Griffith: "(Q7) Jeremy Griffith, who holds himself out as a scientist, publishes work of such a poor standard that it has no support at all from the scientific community." 492 The Fourth Amended Statement of Claim identified the following segments of the Four Corners programme as giving rise to that imputation: (Ex N(2)) (lines 48-50) "Liz Jackson: 'The intriguing question is, why? What do they see in a man whose theories are widely derided by the scientific community? How does he command their devotion?'" (lines 327-329) "David Millikan: (voice-over Jeremy Griffith) 'Griffith says that his understanding is the end of faith and religion and the beginning of certainty and he claims to himself the authority of science.'" (lines 400-402) "David Millikan: 'In the end he was convinced that he was a prophet and he had written half a million words. But he felt like a voice crying in the wilderness.'" (lines 976-1005) "David Millikan: 'But is it an understanding based on science? Griffith has gone to enormous lengths to find endorsement. He sent eight hundred copies of his book to leading scientists and journals around the world. But today he is alone, rejected by the scientific community.' Footage of Jeremy Griffith's book 'Beyond the Human Condition' changing to Tim Flannery at The Australian Museum. The words 'TIM FLANNERY Scientist, Aust Museum' appear briefly on screen. Tim Flannery: 'No, it's a pretty poor book about the subject. It's it's very selective. It doesn't take into account the various important points of views, or differences in points of views. Its interpretation is based upon this very, very narrow data base with a very large interpretation at the top. No, I'd from what I've seen of it, I must say, I'm singularly unimpressed as, as an attempt to explain human nature and what humans are about.' Footage of Tim Macartney-Snape at his home Tim Macartney-Snape: 'I think, you know we are just going to have to put up with the fact that academia won't accept us, at least academia as it is now won't accept us. It's up to young people coming up in the ranks to, who who are sufficiently outrageous if you like in their preparedness to accept new ideas who who will take it on, who will realise the truth in it.' Footage of Jeremy Griffith giving a talk to FHA members at the FHA Snowy Mountains camping trip." (lines 1144-1147) "David Millikan: 'While they are close to the prophet, life is filled with promise and excitement, but the price is the ruin of families, cultural isolation, and in the end the terrible possibility that Griffith may in fact by wrong.'" 493 It will remembered that the defendants pleaded the following defences in respect of the publication in New South Wales: · first, that each imputation was a matter of substantial truth (s15 Defamation Act 1974) ("the Act"); · secondly, that each imputation was published in circumstances attracting qualified privilege, either at common law or under s22 of the Act; · thirdly, that the imputations were "comment" within Pt 3, Div 7 of the Act. 494 The programme, "The Prophet of Oz", was shown throughout Australia on 24 April 1995 and again on 2 May 1995. The defendants pleaded (where available) comparable defences in respect of each state and territory. 495 I should begin by dealing with the defence of substantial truth. The defence that the imputation was a matter of substantial truth. 496 Section 15 of the Defamation Act 1974 (now repealed) made provision for a defence of truth. It was in the following terms: " 15 Truth generally (1) Notwithstanding section 11, the truth of any imputation complained of is not a defence as to that imputation except as mentioned in this section. (2) It is a defence as to any imputation complained of that: (a) the imputation is a matter of substantial truth, and (b) the imputation either relates to a matter of public interest or is published under qualified privilege." 497 At common law, truth is a complete defence. At the relevant time the common law was applied by Victoria, South Australia, Western Australia and the Northern Territory. In Queensland, Tasmania and the ACT, a defendant was obliged to establish, not only the truth of what had been published, but that the publication was for the public benefit. 498 Here, the plaintiffs acknowledge that the publication of the Four Corners programme can be assumed to be in the public interest (New South Wales), or for the public benefit (Queensland, Tasmania and the ACT) (PS: para [A6]). The only issue is the substantial truth of the matter published. That issue is to be determined on the evidence, rather than upon the understanding of the ordinary reasonable viewer (Sleeman v Nationwide News Pty Limited [2004] NSWSC 954). The time at which the imputation must be substantially true is the time of publication, in this case April/May 1995. 499 The defendants drew attention to a number of authorities that may be thought to qualify the burden of proving substantial truth. The defendants must prove every material part of the imputation true (Howden v The Truth and Sportsman Limited (1937) 58 CLR 416 at 420, per Dixon J). That is, some inaccuracy may be tolerated, but not a material inaccuracy (PS Reply: para [20]). It is the sting of the libel that must be shown to be substantially true (Sutherland v Stopes (1925) AC 47, per Lord Shaw at 79), that is, the substance must be proved (DS: paras [1.80]-[1.82]). Given the terms of the 1974 Act, the imputation found by the jury is the sting (cf PS Reply: para [19]). The elements of the imputation. 500 What, then, needs to be proved? The elements of the imputation are as follows: · first, that Jeremy Griffith holds himself out as a scientist, · secondly, that he published work of such poor standard, · thirdly, that it has no support at all from the scientific community. 501 Mr Griffith completed a degree in biology in 1971. The plaintiffs admit that he holds himself out as a biologist and therefore a scientist (PS: para [234]). His work, that is his publications, must pre-date the programme (1995) and are, relevantly, his book "Free – The End of the Human Condition" (1988) and "Beyond the Human Condition" (1991). There is also an issue of causation. The defendants must establish, as a matter of probability, that the reason his work has no support at all in the scientific community is that it was of such poor standard. 502 I accept that, although the scope of each element cannot be viewed in isolation, the defendants are obliged to prove the substantial truth of each element (cf PS Reply: para [62]). 503 The elements contain a number of key concepts. Before going to the evidence, it may be useful to consider each concept. "Holds himself out as a scientist". 504 Although not in dispute, the first element is an important aspect of the imputation. Beginning with the Shorter Oxford Dictionary, the word "science" derives, of course, from the Latin "scientia", meaning knowledge. A variety of definitions are offered, including the following: (p2717) " science … An activity or discipline concerned with theory rather than method, or requiring the systematic application of principles rather than relying on traditional rules, intuition, and acquired skill. … A branch of study that deals either with a connected body of demonstrated truths or with observed facts systematically classified and more or less comprehended by general laws, and which includes reliable methods for the discovery of new truth in its own domain. … The kind of organised knowledge or intellectual activity of which the various branches of learning are examples. Now usu. spec. , the intellectual and practical activity encompassing those branches of study that apply objective scientific method to the phenomena of the physical universe (the natural sciences), and the knowledge so gained; scientific doctrine or investigation; the collective understanding of scientists." 505 "Scientist" is defined in these terms: (p2717) " scientist …1. A person conducting research in or with expert knowledge of a (usu. physical or natural) science; a person using scientific methods; a student of science." 506 The phrase "holds himself out as a scientist" conveys that the person who is a scientist accepts and applies the standards and procedures of the discipline of science, whatever they may be. 507 Before examining what is meant by the words "such a poor standard" and "no support at all from the scientific community", let me say something about the nature of science, as revealed by the evidence. The nature of science will inform the standards and procedures that can be expected of someone who holds himself out as a scientist. Peer review. 508 There are certain conventions in scientific publications which are usual, although not universal. They were identified by Professor Colin Groves, Professor of Biological Anthropology at the ANU. Professor Groves described what is typically expected of someone writing up research for publication: (Ex 12: p3) "5.2 Then comes the stage of writing up the research for publication. A paper of this nature will characteristically be organised as follows: 5.2.1 Introduction. This includes a brief history of work on the problem, including a survey of the hypotheses previously put forward. This is then followed by a statement of the aims of the present contribution. 5.2.2 Material and Methods. The author lists the material he/she studied, and where it was studied; then the methods used in the study (measurement, photography, statistics …) 5.2.3 Results. The author states, quite briefly and succinctly, the observations, and the statistical workings or whatever method was used. If the author wishes to give the reader access to the original data, especially measurements, then an appendix at the end of the paper can contain it; or it may be stated that the original data are deposited in archives somewhere; nowadays, many journals in their electronic form have a separate Supplementary Information link. 5.2.4 Discussion. This is the point where you begin to analyse your own results, placing it, importantly, in the context of other people's previous research, and of any previous research that you may have done yourself. It is essential to separate such Discussion from the simple observational baseline; and placing your own work in the context of a total history of work on the subject is what distinguishes true scholarship from mere spadework. 5.2.5 Conclusion. This is where you bring it all together succinctly. Actually, the paper should begin with an Abstract, and I for one am often in a bit of a quandary as to how to differentiate Abstract from Conclusion! 5.2.6 References cited. These are the references that are actually cited during the paper, not just a bibliography to show what a lot you have read." 509 The book or article is then submitted to a process known as "peer review", which is a form of quality control. The academic journal or publishing house arranges for the publication to be examined by independent experts in the field. Professor Churchill described the process in these words: (T130/1) "A. Peer review means that when one submits an article for publication the editor sends it out to members of an editorial board that advises the editor and to specialists in the area in which the publication is written for a review of its merit, its scholarship and the clarity of its presentation. Feedback on those items is then presented to the editor who communicates them to the author of the article, either with an accept or reject or accept with major revision. Q. The process of peer review, as your last reference to it shows, includes the to and fro between the reviewer or reviewers on the one hand and the author or the authors on the other hand, is that correct? A. Yes." 510 Often those asked to review the publication will remain anonymous. Usually, unless the comments of the reviewers are accommodated and adjustments made to the manuscript, there will be no publication (Prof Churchill: T131). 511 The phenomenon of peer review in science is relatively recent, although it certainly applied in 1988 and 1991 when Mr Griffith published his books. Professor Groves gave evidence that before 1950, or thereabouts, the convention was that a book or paper would be published by a scientist and other scientists would then respond, publishing their comments and criticisms (T668). An author would usually submit the manuscript to colleagues for informal scrutiny before publication (Prof Prosen: T198; Prof Henneberg: Ex 29, p3 para [6.2A]). 512 The system of peer review has its critics. Professor Henneberg believes it can stultify debate, as adjustments are made to the manuscript to meet the conditions of publication (Ex 29: para [6.2A]; T1605). Nonetheless, Professor Groves described peer review as still "the cornerstone of science" (Ex 12: p4). Indeed, even Professor Henneberg, as the editor in chief of an important journal in comparative biology known as "HOMO" (Ex 30), uses peer review (Prof Henneberg: T1575). 513 Having said that, peer review is not essential before a publication may be regarded as science (Dr Casebeer: T560; Prof Groves: T624; PS: para [284]; PS Reply: paras [90]/[91]). It is possible that a publication may be judged as having scientific merit, even though it has not undergone the peer review process and even though it may not conform with the requirements expected by that process. Classic scientific works, such as those by Copernicus or Darwin, neither underwent peer review nor complied with the standard expected by peer review (Prof Groves: T620/1). In short, peer review, where present, provides some assurance that a work meets the standards of science. It perhaps raises a presumption. Popular science. 514 A book may be regarded as science although written for an audience which includes non-scientists. You would not expect in such a work the footnotes and the level of detail that a readership of scientists may demand (Dr Casebeer: Ex A5, p3; T585). You would, nonetheless, still expect accuracy (Dr Casebeer: T585). Often such works are multi-disciplinary. The author must, in such circumstances, properly appraise all relevant literature and current debate in relation to each of the fields which are the subject of the book (Dr Casebeer: T580). 515 A number of expert witnesses had written popular or semi-popular books, which they still regarded as science, although less formal than an academic paper or a book written only for scientists. Professor Groves wrote (with Dr David Cameron) a book "Bones, Stones and Molecules", for a scientific and non-scientific audience (Prof Groves: T608). Professor Flannery published "The Future Eaters" in 1994, dealing with a number of fields of science, including palaeontology, geology, climate science, systematics in evolution and human archaeology (T966). It was an academic text which conformed with the convention described by Professor Groves above (supra para [508]). In September 2005, he produced a further book, "The Weather Makers", dealing with broadly the same subject. It was written for a younger audience (Prof Flannery: T976). It was a "sort of summation" (T976), more readily digestible than the original. The text was substantially without references. Professor Flannery explained that he felt comfortable about publishing it in that form because the original book, "The Future Eaters", stood behind it (T976). Professor Groves made the following comment upon popular science: (T615) "Q. Is it your view that a book will still be viewed by the scientific community as a scientific work despite the fact that it is written for a popular audience? A. It depends on the manner in which it is written. If it gives arguments, gives examples, gives references, is duly fair, uses – in other words, scientific methods of approach – then it is possible it will be taken seriously. But an extremely popular book just pressing a single point, without consideration of alternative viewpoints, will not be taken seriously unless that author has previously published serious scientific literature which helps to establish the point that the person is making. I can instance, for example, the popular books of Dr Jane Goodall, the expert on wild chimpanzee behaviour. She is regarded with enormous approval by the scientific world because – as well as publishing popular books which make her a popular icon – she has, at the same time, published serious scientific literature, including an enormous book on wild chimpanzees, which is full of scientific argument, statistics, [facts based] on her observations placed in the context of other peoples." The nature of scientific method. 516 A useful definition of "scientific method" is provided by the Macquarie Dictionary in these terms: (Macquarie Dictionary Online) " scientific method … noun a method of research in which the steps are identification of a problem, collection of relevant data, formulation of a hypothesis on the basis of this data, and, finally, empirical testing of the hypothesis to prove its validity." 517 Professor Groves identified the approach he would expect of a scientist: (Ex 12, para [5.1]) "5.1 A scientist becomes interested in a particular question, reads the literature concerning it to find out what else has been done on the question, then plans how he or she can best contribute towards its resolution. He/she gathers data and analyses it, sometimes using statistics if appropriate, but at each stage making sure to distinguish observation (the closest thing to 'facts') from analysis. The results of the analysis may suggest a hypothesis to the scientist, who then tries to think of ways in which this hypothesis can be tested." 518 Those who are engaged in science may use deductive reasoning or apply the rules of induction. Professor Hartwig explained "deductive reasoning" in these terms: (Ex Q, p3) "Its hallmark features, replicability and falsifiability, allow for the interpretations that follow experiments to be 'made real'. 'Scientific advancements' in the general sense of 'space travel' or nuclear energy, for example, are all due to the results of deductive reasoning." 519 "Induction", on the other hand, can be described in these terms, again using the evidence of Professor Hartwig: (Ex Q, p3) "Inductive rules apply to observations that cannot be obtained under controlled settings. Scientists are keen to interpret the meaning of fossils, for example, just as they are the observation of gravity. But in many circumstances the requirements of deductive reasoning cannot be met. Chiefly, the requirement that all aspects of an observation be complete and controlled, save the experimental one, cannot be met when dealing with partial datasets or the passage of time. Inductive reasoning is a process in which interpretations must account for all known observations of a given issue in a manner that is internally consistent to each observation." 520 Interpretation of human evolution must necessarily resort to induction (Prof Groves: T623; Prof Hartwig: Ex Q, p3). Often such interpretations are based upon the fossil record, which is incomplete. Fossil samples of all species over time are simply not available. Professor Hartwig said this: (Ex Q, p3) "Indeed, often we only have one or two fossilized specimens that can be dated to a particular time period. So interpretations of human evolution are subject to change with an increase in the number and quality of observations (or data; fossils), the discovery of which cannot be controlled in the same manner as can the collection of data in a laboratory setting." 521 However, inductive reasoning is no less scientific (Prof Hartwig: Ex Q). It is the basis of the traditional social sciences, such as psychology, and the interpretation of any "time-transgressive phenomenon", that is, events which happen over generations or longer (Prof Hartwig: Ex Q, p3). Professor Hartwig provided a useful example: (Ex Q, p3/4) "Biological evolution is a time-transgressive phenomenon. The advent of bipedallty, for example, cannot be 'tested' deductively because (A), we do not have living examples of our pre-bipedal ancestors and (B) even if we did we could not apply an experimental design to them to measure the development of a trait that took hundreds of generations to emerge." 522 Professor Hartwig made the following contrast between what may emerge from deductive and inductive reasoning: (Ex Q, p4) " Inductive reasoning is no less 'scientific', but because it cannot be replicated it is forever subject to revision as new observations on the phenomenon in question are made. By contrast, deductive science leads to such well-supported replications that they become known as LAWS , such as the Law of Gravity. Remember that science is not a method of proving. It is a method that ensures the opportunity to falsify. Failure to falsify after repeated attempts is not the same as proof. But observations such as gravity have survived the falsification test so much that we codify them as laws and use the assumption of their truth as the basis of many other hypotheses." (emphasis added) 523 Professor Hartwig added: (Ex Q, p4) "The power of deductive methodology is that it leads to a steady accumulation of reliable theories about the world. Inductive reasoning 'succeeds' or 'fails' on the basis of how consistent one's interpretations are with the observations and, importantly, with the consensus it garners among other experts in the same subject area." 524 Professor Flannery provided a striking example of inductive reasoning (T974/5). In the 1920's Dr Wegener formulated the theory of "continental drift" (T974). Broadly, the theory was based upon two things, first, the appearance of several continents which seemed to fit together and, secondly, the creatures to be found on continents now widely separated which appeared to be very like each other. Dr Wegener could not offer a suggestion as to the mechanism which would allow continents to drift across the surface of the planet. Much later, however, proof of his theory did emerge. Research was undertaken to understand the way in which oceans form. Professor Flannery said this: (T974) "A. … the key event was the international geophysical year, I believe, and attempts to understand the way the oceans formed, and that piece of research resulted in the discovery that regions of positive and negative magnetic polarity are laid down in strips across the ocean floor, and the only way that this – in mirror image strips. And the only way that this could be explained adequately was the continents were moving apart and the oceans were growing from a midline. And that was convincing evidence." Reductionism v Holism. 525 Professor Flannery also suggested that scientists, broadly, can be classified into two groups, which he described in these terms: (T978) "A. … Scientists can be classified into two broad groups. I don't say this in a derogatory way. Those who use a reductionist approach are generally dealing with simpler systems where that approach is highly profitable and is the right approach to take. There is another group of scientists who are interested in broader questions, multidisciplinary questions, such as evolutionary history or climate. And for that group, the reductionist's approach doesn't have the power, I think, to produce profitable and useful hypotheses in understanding. HIS HONOUR: Q. I think you use the phrase 'top down approach'? A. Yes, look across the data as a whole rather than try to burrow into any one piece of it in any detail. You look across the data to try and comprehend that nature of these very complex systems. I am no mathematician, but I understand that chaos theory and quantum mechanics provides some good reasons for believing that that very reductionist approach is limited when it comes to comprehending very complex systems." 526 Professor Flannery believed, for instance, that a reductionist approach was not capable of dealing with issues as complex as global weather systems and climate change (T978). 527 Mr Griffith, in his books, uses the term "mechanistic" to describe the reductionist approach, which he branded "evasive". He favoured a broader, multidisciplinary approach, which he termed "holism". Holism appears to be a term used to mean different things. Professor Flannery appears simply to be suggesting that the big picture is more likely to yield an explanation where a complex system is involved, than the examination of each individual part. In that context, Dr Casebeer said this: (T578) "A. … holism in general is the idea that there are certain characteristics of a system that will only be capable of being explained, predicted and so on at the systemic level of the analysis, not at the lowest, at the constituent part of the analysis." 528 Alternatively, the term "holism" may incorporate teleological overtones, that is, that a purpose is discernable from the big picture. Reference has previously been made to an article by a journalist, Deirdre Macken, "Science Friction", published in 1991, where she said this: (supa para [61]) "The new scientists are nomads, wandering into many different fields of science to get a broader picture. They have stepped back from their microscopes to see organisms in their environments and with their own relationships; they are not afraid of terms such as 'purpose' and 'meaning'. Most importantly, they want the rigours of modern science to be applied with the open-minded approach of pre-modern science." 529 Dr Casebeer described a particular school of thought within the philosophy of biology in these terms: (T551) "A. … in order to explain certain features of biological systems you must necessarily reference properties that the systems exhibit at the level of the whole. That is, that a reductive analysis of some phenomena might necessarily leave out certain very important aspects of the system." 530 Let me return to the imputation and the phrases which appear in each element. "Such poor standard". 531 The first contentious element is that the published work of Mr Griffith was of "such poor standard". In respect of that element, the plaintiffs submitted the following: (PS: para [235]) "(b) Leaving questions of onus to one side, the issue is whether Mr Griffith's work is of 'such a poor standard', not whether it is (for example) valid, invalid, proven, disproven, accepted, rejected, original or unoriginal, compelling or not, compliant with academic standards or not, except to the extent to which such matters are themselves relevant to the issue at hand;" 532 Science, it was suggested, is a broad church, which I accept (T1685). It comprehends those whose area of study enables them to proceed by way of deduction (reductionists) and others (including those working in the area of evolution and living primates) who do not have that luxury. They must resort to induction. Some scientists favour a narrow focus, whereas others may be described as holistic. Still others may deduce a purpose from the whole once examined. All are engaged in science. Each may differ from others and yet recognise that the others are approaching the issue as scientists. I accept that standards within the scientific community must be framed with these broad differences in mind. 533 The defendants asserted that, whatever the differences in approach, there were still standards. They derived from the scientific method. A number of particular requirements were identified: · first, a hallmark of science is that it must be up to date with the state of knowledge at the relevant time (DS: para [1.92]); · secondly, the scientific method required the scientist to recognise and debate alternative theories, or inconsistent evidence (DS: para [1.95]); · thirdly, science, as a generality, should remain open to revision in the light of new evidence (DS: para [1.100]). This is especially so where, as here, inductive reasoning is used, because the fossil record is fragmentary. New evidence may be found; · fourthly, scientists should identify each assumption made when expounding an hypothesis (DS: para [1.103]). There should be no unstated assumptions. · fifthly, the assumption should be reasonable, supported by the evidence and the conclusion should logically follow; · sixthly, the hypothesis must be testable (DS: para [1.111]ff); · finally, the conventions of scientific publication, including those imposed by peer review, are relevant, although not determinative. They include the need for bibliography, demonstrating consultation of relevant work, the citation of references supporting each proposition, and that such references should be up to date, should be representative, and complete (cf T157; T581). 534 Let me move to the final concept, being part of the third element. "No support at all from the scientific community". 535 Again, I should begin with the dictionary. The word "support", when used as a noun, is defined relevantly as the action of "backing up a person", or, providing "spiritual help" or "mental comfort" (Shorter Oxford Dictionary pp3152/3). It is the action of "keeping a person … from failing". As a verb, "support" is used to mean "strengthen the position of (a person or community) by one's assistance or backing". 536 The word "community" refers to a body of people who have a common or shared interest, whether because they come from a particular locality or, as here, because they share a particular profession (Shorter Oxford Dictionary p455). 537 The plaintiffs, in submissions, stated that the word "support" was not "a term of art". It was an ordinary English word put before the jury as such (PS: para [236(d)]). There was no application by the defendants to strike it out on the basis of ambiguity or imprecision (Griffith v ABC [2002] NSWSC 86). In submissions, the following was said by the plaintiffs: (PS: para [236]) "(b) The support has to be support from the scientific community, but need not be (at least in terms of the imputation), 'scientific support'. Of course to pick up an illustration made in argument, endorsement of Mr Griffith's work by a scientist but by reference to their standard as cook books would not suffice, but there is no requirement that the support by only grounded in science; (c) There may be contexts in which the notion of 'support from the scientific community' would involve some notion of 'wide-ranging' support, or support from a spectrum of that community. However, when the issue is (as here) the negative one, namely, is it true to say that there is no support at all from the community, the issue is resolved by reference to the support of individuals – it does not involve a superadded element of 'institutional' or 'collective support;" 538 Support is not, according to the plaintiffs, an issue to be resolved by reference to the narrow or technical aspects of scientific publishing. It involves taking steps by way of practical encouragement, including publicly identifying oneself "as an endorser of whatever is being supported" (PS: para [236(d)]). Writing letters of commendation, intended to be used to promote the work, speaking publicly to advance Mr Griffith's interests or defend him against attack is, according to the plaintiffs, giving "support" (PS: para [293]). Responding to a submission from the defendants, the plaintiffs also said that it was inappropriate to enquire further and ask whether there was support "in fact" (PS: para [295]). To do so would "add an additional element to the ordinary meaning of support" (PS: para [2957]). In ordinary usage, one supports a charity by giving a donation, a political party by voting for it, an artist by praising his or her work. No enquiry is made as to the mental state of the person giving support (PS: para [295]). 539 The defendants, in oral submissions, emphasised that the imputation incorporated the words "scientific community". It had not been framed as "no support at all from any scientist or scientists" (DS: para [1.86]) (T1649). The word "community", it was submitted, was important. It advanced the notion of "collegiate review … [or] a common endeavour … [in] the search for knowledge" (T1650). The job of a scientist involved consideration of the work of other scientists, working in the same field, accepting certain protocols and standards (T1649). Within the community of scientists there was transparency. Science had to do with recognised forms of recording, so as to permit sceptics to check for testability and cogency of observations (T1649). The defendants made the following further submissions: (DS: para [1.86]) "(b) … that their support must be given by him or her acting in his or her capacity as a scientist. For example, the existence of a scientist with a penchant for theology who appraises and supports the theology in the work, would not disprove the imputation;" 540 The plaintiffs emphasised the words "no support at all" in the imputation. They added: (PS: para [236]) "(a) … This is a strict criterion; whatever latitude the defendants might have had in establishing the substantial truth of the proposition that Mr Griffith's work had 'no support' is substantially restricted by words 'at all' – any support of any substance at all is a sufficient disproof ;" (emphasis added) 541 I accept that the words in the imputation ("support", "scientific community") should be given their ordinary meaning. In understanding what is meant by "support", actions are relevant but so is the state of the mind of the person said to be giving support. Indeed, a person's actions are simply evidence from which an inference may be drawn as to the state of mind of that person. Giving a donation to charity may amount to support because it is a simple act. It would be unusual to enquire further, although it is not impossible to imagine circumstances where a person making a donation could be said not to be supporting the charity. A request by a trade union to an employer for a donation to the union's picnic fund, for example. The person may disagree with the charitable objective, but feel obliged or embarrassed, or they may feel there is an implied threat were they not to make a donation. If there were an issue, they could give evidence to explain their actions, that although they had given a donation they did not support the charity. 542 Here, the book "Beyond" runs for almost two hundred pages. It contains many ideas. It is rather different from a donation to a charity. An action said to be supportive of a book may require close examination to determine whether it is, in truth, an act in support of the book. The act in support must, I believe, be by a scientist in his or her capacity as a scientist, although the endorsement does not have to relate to the speciality of that scientist. I believe it can be wider than that. On this aspect, I accept the defendants' submissions rather than those of the plaintiffs (DS: para [1.86(b)]; cf PS: para [236(b)]). 543 Turning to the phrase "scientific community", I accept that evidence from experts concerning the practices of the scientific community which signify support within that community are relevant and admissible. For instance, the peer review process, where undertaken, is evidence of support. A favourable review by a scientist, or at least a review that takes the article or book seriously and puts an opposing or different view, is also evidence of support. Further, the citation of the article or book in the work of another scientist is further evidence of support. The actions of scientists (which may suggest support or the reverse) may also be proved. In addition, individual scientists may give evidence of their support or the absence of their support. 544 Here the issue is whether Mr Griffith had any support at all for his published writings from the scientific community. What must the support be directed to? Is it support for the book as a whole as science? Is support for one aspect enough? If so, does it have to be the central thesis, or can it be an incidental theme? The answer, I believe, is provided by Greek Herald Pty Limited v Nikolopolous [220] NSWCA 41; (2002) 54 NSWLR 165 at paras [8] and [21]-[22]. Imputations, although the cause of action, are to be understood in the context of the defamatory publication, and by reference to considerations of practical justice. The plaintiffs said this: (PS: para [297]) "… The context of the imputation 5(a) shows that it is lack of endorsement that is the key (Ex N, line 977) and that Mr Griffith is 'alone', because of that lack (Ex N, line 979)." 545 Whilst I accept that submission, it does not fully answer the question. Endorsement of what? The matter in respect of which the ABC and Dr Millikan said Mr Griffith was alone was the central thesis of the book "Beyond the Human Condition". It was Mr Griffith's claim that with the aid of science, he had solved the riddle of the universe. He had provided a scientific answer to the "human condition", the capacity of human beings for both good and evil. 546 What was his scientific answer, his main thesis, in respect of which the defendants said Mr Griffith had no support at all from the scientific community? The ideas in the book have already been described (supra paras [27]ff). Stripped to the bare bones, the main thesis may be stated in these terms: · first, there was a time in our evolutionary past (after we had made the transition from our ape ancestors to australopithecines) where mankind experienced perfect integration (Ex F: Fig 3, p131). This was the "Garden of Eden" which lasted approximately from 5 million years ago to 2 million years ago. This was the period where one had an "instinctive orientation to be utterly co-operative, gentle and selfless" (Ex A(20)(1): p30/1) (supra para [38]); · secondly, there followed an increase in our brain size and the development of consciousness (Ex F: Figs 2 and 3, p130/1); · thirdly, intellect was obliged to search for knowledge. That search attracted criticism from instinct, because it deviated from our instinctive orientation to be utterly co-operative. The criticism was unjust and made us feel bad. However, it could not be rebutted because the explanation (later provided by science) was not then available; · fourthly, as a consequence of unjust criticism, Man became "upset". To stop himself feeling bad, he resorted to materialism, egocentricity, even violence; · fifthly, that Jeremy Griffith, with the advantage of science, was able to provide a scientific explanation. Our bad behaviour was learned behaviour, as we reacted to unjust criticism. The impulse to violence and evil was not part of our genes; · sixthly, we can now understand that we were in fact good, that it is no longer necessary to do the things we used to do to comfort ourselves against unjust criticism. Materialism, egocentricity, violence are now not necessary. Indeed, cities which are places of alienation, may be disassembled as we return to our instinctive, co-operative, integrated way of life. 547 That thesis, although not every detail of it, needs to be endorsed by word or action to constitute support. Alternatively, at the very least, the scientific premises which underpin that explanation need to be endorsed. 548 Let me turn from the individual words of the imputation to the composite phrase, "no support at all from the scientific community". It is that phrase which the defendants must prove to be substantially true. The plaintiffs submitted that "any support of any substance at all is a sufficient disproof" (PS: para [236(a)]). They further submitted that the phrase did not involve a "sub-added" element of "institutional" or "collective" support (PS: para [236(c)]). 549 In practical terms, does this mean support from one scientist is enough? What if there were an institutional response from the scientific community? The imputation contains three aspects. Each is important and they interact with each other. There are the words "substantial truth", the phrase "no support at all", and the further phrase "from the scientific community". Usually the scientific community will be ill-defined. The evidence relating to the reaction of its members may vary from silence, to the reaction of a few, or even the reaction of many. In some cases the scientific community, or a segment of it (through various governing bodies), may speak collectively. A community of historians, for instance, may vote to expel David Irving from the Society of Historians. 550 But the reaction of the community, if any, must be weighed along with the evidence of support. If there was only one supporter, but it was Albert Einstein, that may be enough. But, on the evidence, if the community of scientists had spoken and were adverse, and the only support provided was that of a first year graduate science teacher, the one may overwhelm the other in the context of the requirement upon the defendant to prove the "substantial truth" of the imputation that has been found. 551 Let me turn from the words of the imputation to the first contentious element concerning the standard of Mr Griffith's published work. Were the works of such poor standard? 552 Four expert witnesses were called on behalf of the plaintiffs to give evidence concerning the quality of Mr Griffith's works as science (Professors Hartwig, Churchill and Prosen and Dr Casebeer). Three experts were called on behalf of the defendants (Professors Groves, Flannery and Henneberg). The books "Free" and "Beyond" convered many disciplines. They included the study of evolution, particularly in the context of the primate fossil record, primatology, biology and many other areas of science. No expert could, as submitted by the plaintiff, "address the broad sweep of Mr Griffith's works" based upon their own expertise; conversely, "each (was) able to address specific aspects, and offer more generalised assessments of the work overall" (PS Reply: para [67]). The parties took the pragmatic approach of not objecting to the tender of expert reports upon the basis of lack of expertise, treating the matter as one of weight (PS Reply: para [65]). 553 I will briefly refer to the evidence of each expert and then formulate my view as to whether the defendants have established, as a matter of probability the substantial truth, that the published work of Mr Griffith was "of such poor standard". Professor Hartwig. 554 Professor Hartwig has the chair of Basic Sciences at Touro University, California. He is a physical (biological) anthropologist, whose special area of interest is human primate evolution. In 2002 he published a book "The Primate Fossil Record" (Cambridge University Press). Professor Hartwig prepared a report in which he provided comments on "Beyond", summarised by him in these words: (Ex Q: p10) "I find Beyond the Human Condition to be scientific and scholarly. I consider the standard of science exercised in Beyond the Human Condition to be average, on a scale of POOR – AVERAGE – EXCELLENT. Jeremy Griffith's argument is logically sequenced, internally consistent, and abides by the practice of inductive reasoning. I consider the standard of scholarship demonstrated in Beyond the Human Condition to be average, on a scale of POOR – AVERAGE – EXCELLENT . Jeremy Griffith represents factual observations accurately and references established scientific publications of high standard in explication of his interpretations." 555 In cross examination, Professor Hartwig was asked to point to "respectable inductive reasoning" about human evolution (T50). He identified a series of statements from "Beyond" (Ex F) that, broadly, were accurate and represented a consensus or near consensus view. However, he also acknowledged a number of shortcomings. His attention was directed to the chapter in "Beyond" dealing with evolution, "The story of Homo". Specifically he was taken to the discussion of the fossil record, being his area of expertise. The transcript is as follows: (T50) "Q. First of all you do not find in this chapter any attempt even to describe let alone take account of or explain all the available material; you agree with that do you not? A. Yes. Q. That would mean that were it to be judged as if it were a professional scientific work, it would not even have fulfilled the first necessary or rudimentary step to be treated as respectable inductive reasoning; is that not right? A. In the context of professional academic publishing, yes, certainly." 556 The cross examination in respect of this aspect continued. Professor Hartwig said this: (T59) "Q. Now, the work in the scientific area of human evolution in light of the fossil primate record, then, this book, I suggest to you, does not rate as a work of science at all in itself. It simply refers in ionised fashion to the preceding work of others, do you agree? A. Yes. Could you – I want to make sure I'm agreeing to the right statement." 557 The question was then repeated: "Q. Would you agree, then, that this book in relation to the topic of scientific work concerning human evolution in light of the fossil primate record does not rate as a work of science at all but simply refers to the outcome of others work previously? A. Yes, as construed." 558 Professor Hartwig agreed that the book did not attempt to provide a complete summary of the current science in respect of human evolution (T97). He then said this: (T98) "Q. I'm sorry. Judging from what is published, the paucity of number and the relative age of the work cited in the book, suggests that its aim did not include an up-to-date view of the relative science? A. I would agree with that." 559 Professor Hartwig agreed that there were a number of other aspects that undermined the work's credibility. First, it is in the nature of science that a scientist should remain open to revision (T71). Jeremy Griffith's arguments relied upon inductive reasoning, using the fossil record. The record is fragmentary and incomplete. Professor Hartwig agreed that there were, however, no tentative conclusions in "Beyond" (T79). 560 Secondly, the book was written in an unorthodox style. The description of other scientists who had a different view as "evasive" was derogatory. It was likely to induce an adverse reaction (T87). Professor Hartwig saw nothing in the chapter that would justify such terminology (T88). 561 Thirdly, the terminology used in the book, in a number of cases, was obscure, unexplained and unknown to science. It was, he said, a weakness in a scientific work to use a term which was obscure in definition and explanation (T76). Exhibit F, Figure 2 (p130), for instance, used the expression "conscious mistakes outstrip conscience repair" (T62). Exhibit F, Figure 2 (the development of mental cleverness) used the term "infantman", "childman", and "adolescentman", which were also idiosyncratic to the author (T63). Professor Hartwig said this: (T65) "Q. Apart from that logic, can I now ask you to look at the content of each of those five legends. First of all, I think you have already agreed, nowhere in Figure 3 or anywhere else in the book do you find any data scientific in nature to justify them; is that correct? A. I would agree with that statement. Q. Second, nowhere do you find in Figure 3, or anywhere in the book the step taken of considering all available data which may cast light on the interpretations manifest in those legends, whether they suit the interpretation or not; you don't find that either, do you? A. Correct. Q. Finally, apart from the statement constituted by the pure assertions in each of those five legends, assertions as to the nature of the stage, assertions as to the time of the occurrence, there is no other demonstration answering the description of logical to justify the content or the type being, or the timing; do you agree? A. I agree with the content, but not the timing part of what you said. The brackets are very specific to time. Q. But it is a mere assertion that a stage with an asserted content occurred at the indicated time is it not? A. Yes." 562 The cross examination continued: (T65) "Q. Now the qualities of Figures 2 and 3 that I have asked you about, and that you have supplied by your answers, are not qualities which would allow them to be treated as scientific work contributing anything respectable to this area of study. You agree with that don't you? A. I agree that they would be met with some criticism because of their form, but I do not agree that they would not be accepted at all." 563 In "Beyond" there is a photograph of gorillas in the jungle, huddled closely as a group. The caption on that photograph is as follows: (Ex F: p50/1) "Do you get the feeling you are looking at a single entity rather than 16 individual gorillas? … Perhaps this photograph suggests a time before anger, egocentricity or alienation." 564 Professor Hartwig made the following comment concerning this material: (T92) "Q. To look at this photograph of living gorillas, and to invite its use as support for or demonstration of that evolutionary theory, is not a recognised form of scientific reasoning; do you agree with that? A. Yes, I would agree with that." 565 The defendants, in submissions, were critical of the grading system adopted by Professor Hartwig, with only three categories: "EXELLENT – AVERAGE – POOR". Professor Hartwig described the qualities of a book he had recently reviewed (Ex 39), which he characterised as excellent. The book incorporated scholarly detail and copious cross disciplinary use of reported science (T94). It had received considerable attention in the scientific community (T95). The bibliography was extensive. The book was "peppered with learned citations" (T95). Rating such a work one level above the book "Beyond" demonstrated, according to the defendants, that the system of rating was flawed (DS: para [1.41]). I am inclined to agree. I will refrain at this point from characterising the nature of the shortcomings in Mr Griffith's work identified by Professor Hartwig in his evidence, and determining whether they amount to evidence that the work was of such a poor standard. Professor Churchill. 566 Professor Scott Churchill is a professor of psychology at Dallas University. His areas of expertise were clinical psychology, psychological research methodology and the philosophy of science (T129). He provided a curriculum vitae, which included a list of publications. Within the list he identified three peer reviewed articles in the area of the philosophy of science, each focusing upon his principal area of study, psychology. He acknowledged that he was not expert in a number of areas. They included human evolution (T130), the non-primate fossil record (T132), animal behaviour studies, biology, palaeobiology (T138/9), anthropology (T153) and the history of science (T153). Professor Churchill said, nonetheless, that he had some familiarity with some of these areas through teaching, including in the area of primate studies. 567 Professor Churchill provided a commentary upon all of Mr Griffith's works, including "A Species in Denial" published in 2003. In respect of the earlier works, relevant to the imputation, Professor Churchill said this: (Ex T: p5) "Griffith's early works (1988, 1991) address the reader in the form of a reflection upon the findings of thinkers, researchers and scholars from many different academic fields. Thus his ideas come across as a posteriori and therefore scholarly, and certainly not as being of 'poor standard'." (emphasis in original) 568 He added: (Ex T: p5) "Certainly his earlier expositions (1988, 1991) of biological evolution, of the social behaviours of insects and primates, of the essential role of nurturing in the development of individual human and non-human primates (especially as grounded in his observations of bonobos), and his review (1991) of the information surrounding the emergence of consciousness in the human species would place Mr Jeremy Griffith at the top of the class in any group of academics discussing human evolution ." (emphasis added) 569 Mr Griffith had attempted, according to Professor Churchill, something in a nature of a grand thesis of existing scientific facts. He added: (Ex T: p6) " … while Mr Griffith's grand synthesis might not itself be considered by scientists to be an 'explanation' in the traditional scientific sense (as something supportable by hypothesis-testing), what he offers in this book does indeed enter into the field of scientific discourse about the origins of human behaviour, including our moral behaviour." (emphasis in original) 570 He formed the following view of the book "Beyond": (T165) "Q. Could you tell his Honour in Ex T did you form your assessment of Ex F as being the product of a scientist or as the product of somebody who is not a scientist? A. I formulated my opinion in Ex F on the basis of someone who entered into dialogue with scientists, as an aspiring scholar. Q. As an outsider, to use your language, is that right? A. Okay. 571 However, later in cross examination, Professor Churchill added the following comment in respect of that dialogue: (T166) "Q. The key to what you say is informed dialogue, isn't that correct? A. Yes. Q. And I take it by implication also being a dialogue it is not only speaking but listening, is that correct? A. Yes. Q. And listening meaning a willingness to consider the other's point of view even if it is opposed, is that correct? A. Yes sir. Q. There is nothing in Ex F which exhibits any willingness to consider the possibility that the author's thesis is wrong and that somebody else's opposed view is right, is there? A. I don't know that there is, no." 572 Professor Churchill framed his conclusion in respect of the standard of Mr Griffith's work in these words: (Ex T: p8) "To conclude, I find the work of Mr Jeremy Griffith, both before and after 1995, to be of scientific merit insofar as it is grounded in the evidence produced by science; and to be of scholarly value insofar as he has helped to clarify the existing theories about human evolution while putting forth his own ideas (and sometimes speculations) about where we have come from and where we might be going." (emphasis in original) 573 The suggestion was put to Professor Churchill that he had been partisan, which he denied (T136). There was, nonetheless, a significant retreat on a number of issues. Professor Churchill, when asked for his comments on Mr Griffith's "grand thesis", gave the following answers in cross examination: (T160) "Q. For the scientific community, the cogency of any such grand synthesis is likely to be in direct proportion to its capacity to explain as much of the relevant data as possible, correct? A. Yes. Q. Indeed, inductive reasoning means, in relation to important data, which it cannot explain and the synthesis collapses, is that correct? A. Yes. … Q. So, one of the basic modes of self-scrutiny, if you are the author, or scrutiny if you are a scientific colleague, is to be able to know what he or she has taken into account and considered and can see how they considered it, isn't that right? A. Yes. Q. The grander the synthesis, by definition the greater the chances that there will be some awkward data that does not fit, just as a matter of numbers? A. Yes." 574 Professor Churchill was cross examined on his capacity to comment upon Mr Griffith's grand synthesis: (T160/1) "Q. But you don't claim anything like an understanding of what was up-to-date, complete and important in neurophysiology, or genetics in 1991 or 1995? A. No. Q. If you don't have that basic understanding, you wouldn't know if he has taken into account a good deal of such material, or none at all, or anything in between, would you? A. The only thing is the, 'In between and none at all," that I have the problem with. Q. You cannot judge the gradation because you do not have the standard? A. I will concede that. Q. That is also true in relation to human evolution in relation to the human fossil record; same thing, you don't have the gradation and you don't have the standard? A. I don't know about the fossil record. That is not my area of expertise." 575 It was put to Professor Churchill that his description of Mr Griffith as "the top of the class" was overstatement. He would not agree (T152/3). Counsel for the defendants then identified each of the areas of expertise required to justify such a statement, which Professor Churchill accepted. Professor Churchill further accepted that he did not have the relevant expertise in such areas. He therefore acknowledged that he was in no position to judge (T153). 576 I formed the view that very little weight could be given to the views of Professor Churchill in respect of the central issue. Whilst he was knowledgeable, he was not expert. 577 As a scientist, however, he was in a position to offer a number of useful comments concerning Mr Griffith's published work. He said that the book "Beyond" (Ex F) was not in acceptable form in terms of the peer review process (T150). He also made the following comment: (T157) "Q. In the scientific community, the bigger the scope, the greater the ambition to explain, in your opinion the more appropriate is that there be scrutiny of the components of the argument, is that correct? A. Yes." 578 He added: (T157) "Q. This book, as you read it, does not even try to set out for its reader, the author's understanding of all the relevant data and – what they are and where they are to be found – or of all the current, respectable interpretations against which his own interpretation might be assessed, you agree with that? A. Certainly not all – I agree with you." Emeritus Professor Prosen. 579 Professor Prosen has practiced as a psychiatrist for 45 years. In 1970 he established the Department of Psychiatry at Manitoba University, where he remained until 1987. He then became Chairman of the Department of Psychiatry at The Medical College Wisconsin. He is now Professor Emeritus at that College. During the last nine years, Professor Prosen has been a consultant to Milwaukee Zoo in respect of primates perceived to be suffering from mental illness, particularly bonobos. It is this interest which was thought to be of relevance to aspects of "Beyond" (cf DS: para [1.56]). 580 Professor Prosen, as with other experts called by the plaintiffs, became acquainted with Mr Griffith's work two years ago when he received what was termed "a documentary proposal" in respect of giving evidence as an expert in this case (Ex V: p3). Professor Prosen said that he was "astounded at its veracity from a scientific perspective", and how clearly it connected with his own clinical work on empathy (Ex V: p3). Professor Prosen added these words: (Ex V: p3) "I believe that Mr Griffith' work is important and significant to my field of psychiatry. I also consider that it is of significance to all of science. In my view, it explains the nature of 'The Human Condition'." 581 Professor Prosen concluded that Mr Griffith's work, "Beyond", was "of the highest scientific merit" (Ex V: p5). 582 In cross examination it was suggested to Professor Prosen that his comment that Mr Griffith's work had "significance to all of science" was a considerable rhetorical exaggeration. He disagreed (T200). However, he acknowledged the limits of his expertise. He was not an expert in evolution in the light of the primate fossil record (T182). Nor was he expert in genetics (T180). The defendants submitted, and I accept, the he could not claim to be an expert in primatology (DS: para [1.57]). Professor Prosen gave the following evidence: (T205/6) "Q. … Whether science is proceeding by deductive or inductive reasoning, one way or the other there is always a body of material that might be called data, is that right? A. True. Q. Whether they are observations of the world in what might be called a haphazard fashion or whether they are observations of a phenomena which had been organised experimentally, there will be material upon which scientific reasoning is then applied, is that correct? A. It is correct from the point of view of scientists, those people who consider themselves scientists and are acknowledged as scientists. There is much being done now, different approaches that would be frowned upon and maybe even laughed at as being science and yet do have followings, do have people that would discuss the findings. Q. You make that comment because you think that might well be a description of the position of Exhibit F, isn't that right? A. I make it deliberately for that reason, yes." 583 Although Professor Prosen is eminent in his field of psychiatry, and knowledgeable in other areas, I do not find his evidence of great assistance. Dr Casebeer. 584 Dr Casebeer holds a PhD in cognitive science and philosophy from the University of California. He is a former Associate Professor of philosophy at the US Air Academy. He is currently involved in intelligence analysis with NATO military headquarters in Belgium. He has published several books, one concerned with moral cognition and, more recently, a book on terrorist groups (T542). Dr Casebeer identified his expertise as being in philosophy of cognitive science and the philosophy of the mind (T544). He acknowledged that he had no expertise in primates (T545), genetics (T552), biology (T554), ethology, which is animal behaviour (T544), or the science of human evolution in the light of the primate fossil record (T554). 585 Dr Casebeer provided a report which included the following introductory words: (Ex A(5): p1) "Mr Griffith makes a variety of claims in the course of articulating and defending a hypothesis about the origins and upshot of the conflict between our instincts and intellect. Given the current state of play in the evolutionary sciences, many of these claims are true and relatively uncontroversial; some may be true but would be contested or can't be adjudicated given what evidence we have; and a few are probably false or not well supported." 586 He then said this: (Ex A(5): p1) "While the presence of some controversial elements may strike some as demonstrating the book is of a poor standard, any work of the breadth and scope of Beyond The Human Condition will contain claims that seem to some practitioners as being less well supported than others. On the whole, Griffith's work is well-written, lucid, and advances several plausible hypotheses in service of a philosophically interesting thesis." 587 Dr Casebeer's report, helpfully, identified the issues by which he would evaluate the standard of Mr Griffith's work. He regarded them as the indicia of good scholarship. They were: (Ex A(5): p2/3) · first, clear and concise writing; · secondly, plausible arguments with true premises and valid argument structures; · thirdly, appropriate references to current literature; · fourthly, a demonstration of familiarity with the vocabulary and debates taking place in the field; · fifthly, originality of argument; · sixthly, the hypotheses advanced must be empirically testable; · seventhly, ideally, some new insight that generates new predictions and testable hypotheses. 588 Dr Casebeer said that he found "Beyond" "eminently readable" (Ex A(5): p2) and "relatively jargon free" (Ex A(5): p2). He found it difficult to say whether the arguments were plausible, given the breadth of the work. Some claims were uncontroversial. Some ideas are less well supported than others. Dr Casebeer said this: (Ex A(5): p2) " … for instance, the theories in the book regarding how we acquired both consciousness and our conscience would be more controversial; it is not obvious that phenomenal consciousness – the experience of seeing a red rose for instance – came about because of developments in problem-solving skills, nor would it be uncontroversial to say that we must learn to be integrative and affiliative, as there is ample evidence regarding our social natures which emphasizes the plausibility of the development of altruistic behaviour via natural selection." 589 Although speaking from limited expertise, Dr Casebeer concluded that, in respect of the second criteria, the arguments "on the whole" would be familiar to students in the various fields (Ex A(5): p3). 590 The book was generally well documented (Criteria 3), although not as richly documented as a journal paper. That, Dr Casebeer said, was understandable given the intended audience (Ex A(5): p3). In respect of Criteria 4, in most respects Mr Griffith's book demonstrated, in Dr Casebeer's view, a familiarity with the vocabulary and debates in the relevant areas. 591 Moving to the fifth criterion, Dr Casebeer said this: (Ex A(5): p3) "What of originality? Mr Griffith makes several original claims in the book, and advances a thought-provoking hypothesis about the origins of human angst from the process of empathy-related indoctrination and learning that is unique and interesting. So the book can lay claim to advancing an original argument." 592 Finally, Dr Casebeer concluded the hypotheses advanced could be tested and falsified. He therefore concluded that Mr Griffith's work was "scholarly and scientific" (Ex A(5): p3). He did, however, add the proviso that the book spends as much time dealing with philosophical issues as scientific issues (Ex A(5): p3). He, personally, did not agree with all claims in the book and, were he the publisher or advising the publisher, he would call for parts of it to be rewritten (Ex A(5): p4). Dr Casebeer's conclusion was expressed in these words: (Ex A(5): p4) "Mr Griffith's book is provocative and well-written, and surfaces a large number of important issues in an intelligent manner. His project is important to think about, and while there are some things to debate from a scientific and philosophical perspective in his book Beyond The Human Condition , there is also much that would be considered true by members of the relevant scientific disciplines. On the whole, it is of good scholarly quality given its aims and intended audience." 593 Was Mr Griffith open to revision in respect of his theory, as you would expect of a scientist? Dr Casebeer acknowledged that his claims were made emphatically (T570). In cross examination he was taken to Mr Griffith's concluding words in "Beyond", where he claimed to have solved the riddle of the universe. The following was put: (T577/8) "Q. It's the case, isn't it, if you look at page 188, if you look at the second paragraph, the third sentence: 'We had to solve the riddle of human nature; discover why we were so devisive when the ideals are clearly to be integrative. This understanding was the Holy Grail we sought as a species. With it found, the new world can at least be born properly.' You would agree with me, wouldn't you, that that's not suggesting that further research or that there is any caveat associated with the ultimate claims of the book? A. Yeah, I think those sentences are used metaphorically. I don't think he has discovered the Holy Grail, but yes, in so far as they are meant metaphorically in those three sentences, there is no discussion for the need for further debate, exploration or whatever. HIS HONOUR: Q. What comment, if any, do you make on that? A. Only that there are many sections of a scientific paper, for instance, or a book that people consider to be scientific, that aren't festooned with invitations for further debate and exploration. You have to make your case first of all. It is true that generally a journal article will conclude: 'Here are some areas for further research' or 'Here are the most questionable of our assumptions. Further research needs to be done here', which allows for further funding in the future. I didn't see that in those three or four sentences. Overall I don't get the feeling that the book is unscientific in the sense that Mr Griffith wouldn't be open to questioning or probing of cross-examination of his work and respond." 594 There were, Dr Casebeer acknowledged, unstated assumptions (T583). He said this: (T585) "Q. But when one comes to Exhibit F, which is the work of Mr Griffith, 'Beyond the Human Condition', it is, you say, aiming at that wider market, not just scientists but an interested lay reader. Did it strike you as containing unstated assumptions in many of the passages? A. Yes, sir, there are parts of the book where I would, if I were a reviewer, had underlined it and written, and this is something you write on papers when reviewing, 'unpack this sentence', or 'surface and explain', something along those lines. So yes, there are times when I was reading the book when I would have asked the author to unpack the argument more clearly and trace out the steps between premise and conclusion more clearly." 595 It is fundamental to Mr Griffith's argument that the impulse to violence and evil is not part of our makeup, that is, not gene based, but learned behaviour. It is the consequence of "upset" arising from the battle between instinct and intellect. On this issue, Dr Casebeer was taken to Mr Griffith's statement in "Beyond" where the following was put: (T587/8) "HIS HONOUR: Q. … Perhaps if you could go to page 65. The passage at the top of that page, where it says; 'Our instinctive heritage is one of behaving lovingly towards others and being treated lovingly.' That, as I would understand it, postulates that in our forebears, in terms of our lineage, the evolutionary lineage, that there is at the instinctive stage, before we developed intellect and so on, this loving inheritance. Is that as you would read it? A. Yes, sir. There is ample literature discussing the evolution of cooperation and other oriented behaviours in non-human animals, so yes, sir. Q. But is it cooperation without conflict? A. No, sir. There is some conflict too of course, especially between 'in group' and 'out group' members. There are plays for dominance, even within the group. There are other aspects of our inheritance as well. Q. It's not an entirely sort of loving integrative picture, but a picture of a varied pattern, depending upon individuals and their personalities and interaction with other individuals? A. Yes, sir. Q. I am just wondering the extent to which that statement on page 65, and I am choosing these at random, contains unstated assumptions? A. Well, sir, the way I would characterise the literature, and this is painting with a very broad brush, is that – " 596 However, the qualification introduced by Dr Casebeer gives rise to a difficulty. If, within a community generally integrated, there is conflict, even violence, depending upon the interaction of individuals and their personalities and upon circumstances, then the genetic picture is far more confused than Mr Griffith's book appears to suggest. 597 Dr Casebeer dealt with one aspect which was the subject of comment by one of the defendants' experts, Professor Groves. Professor Groves was critical of the suggestion in Mr Griffith's book that consciousness emerged at a particular point in time. Professor Groves stated that it was simply not possible to say when it emerged. It evolved slowly over time. Dr Casebeer believed, however, that it was nonetheless possible for the author to offer a "theory of consciousness". Let me turn to the evidence of Professor Groves. Professor Groves. 598 Professor Colin Groves is a Professor of Biological Anthropology at the Australian National University (T599). He is unquestionably a leading expert in primatology and palaeontology and is widely published (Ex 9: appendix). He is the author of a number of books including "A Theory of Primate and Human Evolution" (Oxford University Press, 2nd ed, 1991) and "Primate Taxonomy" (Washington Smithsonian Institution Press, 2001). Reference has already been made to one of Professor Groves' later books (co-authored with Dr David Cameron), "Bones, Stones and Molecules" (2004) (supra para [515]). Professor Groves was jointly interviewed with Professor Flannery by Dr Millikan in 1995 during the making of the Four Corners programme, although the programme ultimately only included footage from Professor Flannery. Professor Groves prepared a series of reports (Exs 9 to 12), some responding to reports from experts retained by the plaintiffs. 599 Professor Groves addressed those aspects of "Beyond" which related to his area of expertise. He noted that Mr Griffith had adopted the unilineal theory of evolution, that is, the idea that there is a single evolutionary line after the separation of our ancestors from the chimpanzees. The great majority of paleoanthropologists accept that the line split many times. Many species were generated, survived and flourished for a time, and then became extinct. Mr Griffith, the defendants noted, had provided no argument or justification for his choice of the minority view (DS: para [1.106(a)]). Professor Groves said this: (Ex 9: p3/4) "Mr Griffith mentions the problem, only to dismiss it in an unacceptably cavalier manner. 'Traditionally anthropologists have postulated various divergent more branching development [sic] in early man, but now we can see that there was no branching – that one stage led to the next' ( Beyond , p55). This is about as far from a scientific attitude as it is possible to get. The hypothesis is being made to determine the facts. As a trained scientist with a BSc he should know that he has a duty to argue for and justify his choice of the (minority) unilineal model, and that his hypothesis must be made to accord with the primary data." (emphasis added) 600 Having adopted a single line, Mr Griffith then classified human development into different stages. Professor Groves commented upon that classification in these terms: (Ex 9: p4) "Even given his decision to adopt this model, how ever does he know anything about the behaviour characteristic of different stages? It is a series of hypotheses based on nothing at all. Speculation about the behaviour of our forebears is rife, but there has always to be some evidential basis for this, and there will be at least if it is a scientist who is putting forward such speculation. Stone artefacts appear in the fossil record 2.8 million years ago. At successive stages, we find artefacts associated with the remains of large animals, implying that meat eating was going on (scavenging, rather than hunting, it has been suggested); then we have evidence for actual hunting; then there is evidence for the use of fire, and so on. But we do not know, and it is impossible to know, what these creatures – some our ancestors, some our cousins now extinct – were thinking about each other, about sex, about children, for all that analogies based on living great apes and monkeys, and cladistic analysis of traits, have yielded hypotheses." (emphasis added) 601 Professor Groves elaborated when giving evidence. He addressed Figure 2 ("The Development of Mental Cleverness") and Figure 3 ("The Development of Integration") (Ex F: p130/1), which likewise divided human ancestors into "infantman", "childman" and "adolescentman". Figure 3 suggested that the australopithecines (who lived between 5 million and 2 million years ago) were perfectly integrated, and their brain size increasing during that period from 400cc average (5 million years) to 530cc (2 million years). The notes accompanying Figure 3 stated that, in the period 12 million to 2 million years ago, "we acquired our Soul and our Conscience (our instinctive orientation to integration)". In respect to Figure 3, Professor Groves said this: (T670) "HIS HONOUR: Q. you will see that there is just below the words Figure 3 the development of integration, these words: 'Period over which we acquired our soul and our conscience (our instinctive orientation to integration).' That appears to cover the period from 12 million years ago through to 2 million years ago, and if one goes up to figure 2 one sees that it intersects with a line where the brain volume was said to be at about 600cc. It is really that area that I would like to ask you questions about. To what extent does the fossil record or any other source permit you to confidently reconstruct, if you like, or hypothesise about our forebears in evolutionary terms at about that time; that is, in that period between 12 million years ago and 2 million years ago? A. Physically speaking, from about 5 million years ago until about 2 million years ago, yes, a great deal. Before that it is rather scrappy. Behaviourally, I am bound to say almost nothing , except in as far as stone tools were left around and possessions to the source of the stone can be detected, and whether they were used for cutting up the carcasses of large mammals and the sort of sites which were supposed to have been living sites where they were situated and nowadays stable isotope analysis has enabled archaeologists, particularly happening in South Africa, to detect the sort of environment which particular individuals of fossil species habitually exploited. That seems to be the sum of it." (emphasis added) 602 His evidence continued as follows: (T671) "HIS HONOUR: Q. To what extent does the fossil record or other sources that may be available, other artefacts, whatever may be uncovered, permit an inference, for instance, as appears in Figure 3 of an instinctive orientation to integration? A. It does not, your Honour. It is not possible. From the fossil record, one cannot say this from analysis. Possibly one can infer the relative proportions of instinct and intelligence, but perhaps little more, your Honour. Q. To what extent can you say whether or not at that time or in that period, say 5 million years ago to 10 million years ago, those people who were our evolutionary forebears lived in particular ways, that is, whether they lived in harmony, for instance, whether they were in competition with each other? A. No, one cannot say that, your Honour." 603 Returning to Professor Groves' report, he provided a commentary upon Mr Griffith's discussion of fossil remains (skulls) (Ex F: p56/7). He introduced his commentary with these words: (Ex 9: p4) "Given that there is a great deal of disagreement about the classification of prehuman and proto-human remains, and some minor disagreement about the course of human evolution, I cannot insist on corrections I would make to the captions of the skulls illustrating 'Childman', 'Adolescentman' and so on, but I note several claims that are questionable." 604 There followed a technical identification of particular matters which Professor Groves believed to be incorrect. He later explained the importance of details that may appear to be small differences. He said this: (T609) "Q. What effect on the overall scientific integrity of the work does this inaccuracy in Griffith's work have? A. It is part of my general qualms about the approach to human evolution in the book, whereby it is depicted as a single line of evolution during which proto-humans became naughty and upset and adjusted and fulfilled and so on, because human evolution is not regarded that way at all. It is regarded as being like the evolution of any other mammal, whereby there is diversification at every level. So that all the time you had a number of different species living, sometimes in the same place, sometimes in different places, competing with each other for resources – acting like, say, different species of monkey do in the same who live in the same forests today – and this encapsulates this, because the specimen is not generally regarded today as belonging to Homo habilis. It is generally placed in a different species Homo rudolfensis, sometimes even called Kenyan pithecanthropus rudolfensis, but that is a more recent suggestion, and it lived alongside Homo habilis. It was not Homo habilis; it was a related species with different adaptations, presumably different ways of life, certainly subsisting on a different range of resources. Q. What effect, if any, does this then have on assumptions that are made within the work? A. It shows that the assumptions are vastly over-simplified ; that the uni-lineal story, as depicted on pages 84-85, is inaccurate. It is not a sort of general story of increasing psychological change but, on the other hand, there has to be at every stage, different species with presumably different behaviours, which is what its author is getting at in this book, I suppose. And it has to be taken into account that the different species were interacting, competing in some way, and acting essentially like any other animal species." (emphasis added) 605 It is convenient, in this context, to go to the evidence of another expert relied upon by the defendants, Professor Maciej Henneberg, a Professor of Anthropological and Comparative Anatomy at the University of Adelaide. I will deal with Professor Henneberg's evidence shortly. Professor Henneberg, as it happens, also subscribed to the unilineal view of evolution. He was one of the small minority that did so. However, he took no comfort from Mr Griffith apparently sharing his view. He said this: (T1580) "Q. As you read Mr Griffith's book did you see any reference to, or engagement with this debate? A. No, not at all. And I think it is a very important debate which is still going on and I myself, although I do present my own results showing a particular interpretation of single lineage, I very seriously take into account views of those of my colleagues who state that there are many different species and there was this branching … " 606 He added: (T1580) "Q. Does the fact that – in thinking about the quality of scholarship of a book does the fact it does not engage with a different view have any relevance? A. Well, it has enormous relevance because one has to recognise variation that occurred during human evolution. The view that Mr Griffith presents is a linear progression from one particular species to another species and then to yet another species by means that are not explained. Whereas considering the prevailing view of many species coexisting at various times in human evolution one takes an account of the variety of solutions provided by evolutionary process to how humans adapted to their environment." 607 Professor Henneberg, like Professor Groves, found Mr Griffith's commentary upon fossil skulls wrong and misleading. He said this: (Ex 31: p3/4) "Dates given for three different 'species': Australopithecus africanus, Australopithecus boisei and Homo habilis all overlap period about 2 Ma (from 2.2 Ma to 1.8 Ma), and yet there is an indication inserted between A boisei and H habilis of the human condition emerging, as if these two species were consecutive, not coeval. The impression is made that when A. boisei changed into H. habilis human condition emerged, while in actual fact A. boisei and H. habilis coexisted for hundreds of thousands of years. So it is entirely unclear how and when the human condition emerged. Diagram, incorrectly, represents human evolution as a linear sequence of one species changing into another while dates, and actual fossil studies, indicate that various forms coexisted ." (emphasis added) 608 Professor Henneberg explained the importance of these corrections: (T1583) "A. Well, why it is important is this; that clearly the book, to my obviously initial pleasure, presents this linear course of human evolution, at a sort of very superficial similarity level. And then when one studies dates shown in this particular figure they contradict what Mr Griffith himself is advocating in his book. … " 609 Professor Henneberg, in his answer, then repeated the same correction provided by his report and set out above, adding these words: (T1583) "A. … Therefore we do not have progress from Australopithecus africanus, Australopithecus boisei and then to Homo habilis, because all three of them, at least for part of their existence, lived together in Africa, as the book says, at the same time. So they must have encountered each other or even seen each other. But, there is a vertical inscription inserted between Australopithecus boisei and Homo habilis saying 'human condition emerges here'." 610 Returning to Professor Groves, his report also included a commentary upon Mr Griffith's treatment of aspects of primatology, that being another major area of his expertise. Both of Mr Griffith's books included a table on primate age spans, from which inferences were drawn concerning love indoctrination and its importance to human development ("Free" (Ex D: p94); "Beyond" (Ex F: p134)). Professor Groves said that the differences between humans and chimpanzees, in terms of maturation, was not as great as depicted in Mr Griffith's graph. He added: (Ex 9: p4) "This makes a considerable difference, because it means that the stages of maturation among chimpanzees are little shorter than those among humans, apparently considerably weakening Mr Griffith's model, given that the caption states: 'The longer a species can leave its infants in infancy the more the infants can be trained in integrativeness or 'Love-Indoctrinated' resulting in more integratively behaved or co-operative adults'." 611 There were many other aspects dealt with by Professor Groves, suggesting that Mr Griffith's book was either wrong in the information provided or vastly over-simplified (the emergence of consciousness, the inference drawn from physical differences between pygmy chimpanzees and gorillas and so on) (Ex 9: p5/6). Professor Groves' conclusion included these words: (Ex 9: p6) "I have tried to show in what I have written above that the hypothesis described in the two books is based on science that is very shaky, to say the least. Mr Griffith has a tendency to lay down the law, to see things the way he wants to see them for the sake of his model. A scientists should not do this. In several points he is confused (and he sure confuses me!). He has every right to promote book sales, but in return he must expect criticism where he is wrong." 612 Little of this evidence was challenged and, where it was challenged, Professor Groves demonstrated the depth of his expertise (for instance, in respect of the Kaplan article, Ex A(10), dealing with maturation of humans and chimpanzees) (T662ff). Rather, the cross examination sought the concession, that was freely given, that the unilineal model of human evolution was a view held by respected scientists. Professor Groves agreed that there were other issues where disparate views were held by different individuals who were, nonetheless, engaging in a scientific endeavour (T622). However, the defendants, in this context, made the following submission, which I accept: (DS: para [1.26]) "However, these concessions do not disprove, or even diminish, the fact that Mr Griffith's work fails to acknowledge that the unilineal model which forms an important element in his theories was in the minority as at 1995, and fails to address any of the related arguments against it." 613 The main attack upon Professor Groves was on the question of bias. Professor Groves acknowledged in his report (Ex 9) that he had read the Experts Code of Conduct and agreed to be bound by it. In the opening paragraph of his report, he provided a history of his association with Mr Griffith. They had met in about 1992 when Mr Griffith provided him with a copy of "Beyond". He had been asked to write something on the occasion of Mr Griffith's opening of a property he had acquired at Terrey Hills. Professor Groves then said this: (Ex 9: p2) " In the meantime, I had formed an opinion about Beyond … and wrote something noncommittal , but in the interests of fairness drawing attention to an aspect of the book which I thought could be mentioned approvingly. As long as I was under the impression that Mr Griffith was just trying to sell books and publicise them, I was supportive of his right to do so, though I would certainly have liked the opportunity to correct the errors; but I became especially worried when I learned that the Foundation for Humanity's Adulthood was not merely in the business of selling books but exhibiting cultlike behaviour." (emphasis added) 614 Professor Groves, in his conclusion, returned to this issue, making the following statement: (Ex 9: p6) "Above all, he has no right to attempt to reconstruct society, let alone on this shaky basis. We have before us the examples of Lenin and Hitler , who were just as sure of the correctness of their social-evolutionary models as Mr Griffith is of his, and remodelled their own societies accordingly. I am not taking the analogy too far, but I will comment that both Soviet and Nazi societies were supported by youthful indoctrination, and indeed most or perhaps all cults operate with the aim of remodelling society." (emphasis added) 615 When giving evidence, Professor Groves disclosed a number of further matters. The organisation, Gateway Counselling, had written to him after he had provided Mr Griffith with a "usable statement", expressing its dismay. It has asserted that the Foundation was a cult, splitting up families (T634). In 2000, Professor Groves was approached by the mother of a member of the Foundation who was concerned about her son's involvement (T640). Dr Millikan, in 1995, shortly before the joint interview with Professor Flannery, said that Mr Griffith was acting like a cult leader, splitting up families (T634). 616 In cross examination upon this material, Professor Groves was taken to the Code of Conduct. He acknowledged the need for impartiality (T641). Indeed, he frankly agreed that his adverse view of Mr Griffith had the appearance of bias (T643). Professor Groves said that he made no attempt to hide his distaste for Mr Griffith's activities (T645). Indeed, he thought it important to disclose these matters, in fairness to Mr Griffith (T646). He said this: (T646) "A. … I will admit, certainly freely, that I was aware of this obviously when I wrote the report, but I set it aside to the extent that I could until the very last point. In fact, when I mentioned this last point, it was with the idea that people could read into it I was admitting that I might be considered biased, but I had given the reports to the best of my ability. At the end I decided to make an admission, which some people, indeed (counsel) has interpreted, as bias . I do not consider that this bias informed the section of the report entitled 'Opinion', your Honour ." Q. What I suggest to you is that, at least unconsciously, the fact that a person in your position had in his mind something as powerful as the view that the author of the work under consideration was a cult leader was a very significant matter, do you accept that? A. It was significant to me, but, if I may use analogies which you brought up a little bit earlier, in fact more than just analogies, it does sometimes happen in academic life that disputes arise which are based on perceptions of one's colleague, of perhaps a colleague having been placed in an unscholarly fashion, or something like that, and I do my best, as you implied, to avoid giving reports or reviewing their papers for example, but I always say so, if I am forced to do this. Sometimes an editor presses me to review the paper of a colleague with whom I have such a dispute ongoing, and I go out of my way to be fair. I look over everything I have written and ask myself, 'Am I being fair to this colleague of mine?' , and at the end, and perhaps at the beginning as well, I append to the editor 'I have such and such a dispute. The nature of the dispute is between him and me but there is this potential appearance of bias and I have been very, very careful to avoid it throughout .'" (emphasis added) 617 The plaintiffs submitted that the Court should exercise caution before accepting the testimony of Professor Groves (PS: para [257]). His opinion should be given little weight (PS: para [259]). The defendants said, on the contrary, his candour and undoubted expertise made him a most reliable witness (DS: para [1.28]). 618 Professor Groves struck me as a most impressive witness. I am satisfied that, in his commentary upon Mr Griffith's book "Beyond", he has provided his professional view, excluding from his mind the matters adverse to Mr Griffith. Professor Flannery. 619 It will be remembered that Professor Flannery appeared in the "The Prophet of Oz" in a sequence which lies at the heart of the imputation under consideration. It is convenient to repeat what was said: (Ex N(2): lines 976ff) "David Millikan: 'But is it an understanding based on science? Griffith has gone to enormous lengths to find endorsement. He sent eight hundred copies of his book to leading scientists and journals around the world. But today he is alone, rejected by the scientific community.' Footage of Jeremy Griffith's book 'Beyond the Human Condition' changing to Tim Flannery at The Australian Museum. The words 'TIM FLANNERY Scientist, Aust Museum' appear briefly on screen. Tim Flannery: 'No, it's a pretty poor book about the subject. It's it's very selective. It doesn't take into account the various important points of views, or differences in points of views. Its interpretation is based upon this very, very narrow data base with a very large interpretation at the top. No, I'd from what I've seen of it, I must say, I'm singularly unimpressed as, as an attempt to explain human nature and what humans are about.'" 620 Professor Flannery is an evolutionary biologist whose principal area of expertise is the taxonomy and evolution of mammals in the Australasian region. He is a Professor of Environmental and Life Sciences at Macquarie University. Professor Flannery furnished a report in which he addressed three specific questions, presumably framed by the lawyers for the ABC. The first question and answer were as follows: (Ex 16) "2.1 I have been asked to state my opinions about the following matters: (a) Whether Mr Griffith's work, particularly as expressed in his books Free – The End of the Human Condition and Beyond the Human Condition , represents credible science. I will confine my comments to Beyond the Human Condition , the work I commented on in 1995. Beyond the Human Condition takes a wholistic approach to elucidating the nature of 'the human condition'. As such it mixes religious matter with scientific findings, and discusses both in a language rarely used in science. Those parts of the book which relate scientific findings do so in a less than comprehensive manner. My principal difficulty with the book, as I expressed it in 1995, is that it builds a broad hypothesis upon a narrow factual base. Testing parts of this hypothesis is difficult. Indeed in 1995 I could not see how they could be adequately tested, which was an important consideration in prompting me to rate the work as poor science." 621 The second question concerned Professor Flannery's awareness of the support, if any, for Mr Griffith's works within the scientific community. Professor Flannery said he was not familiar with the extent to which the works were cited. He added: "As a scientist with a casual interest in these fields, however, I am aware that great advances have been made in the field of evolutionary psychology over the past decade, and hypotheses that I considered untestable in 1995 may well be testable today." 622 The third question and answer were as follows: (Ex 16) "(c) Whether the comments made by me which are included in the Australian Broadcasting Corporation's ('ABC') Four Corners program titled "The Prophet of Oz" concerning Mr Griffith were a fair representation of my opinion as expressed to the ABC and Dr Millikan at the time the program was being produced. I have little memory of the interview, but assume that what went to air was an edited transcript of a broader commentary. My conclusion that Beyond the Human Condition represented poor science in 1995 was, I believe, justifiable. The mixing of religious material with scientific findings, the idiosyncratic and at times imprecise language of the work, the narrow base of scientific data that supported the overarching hypothesis, and the untestability of parts that hypothesis (at least in 1995), all support my conclusion." 623 When Professor Flannery gave evidence, no questions were asked in chief. The cross examination was directed to other issues, including the suggestion of bias, arising from Dr Millikan's statement before the television interview (that Mr Griffith was behaving like a cult leader) (supra para [615]). He acknowledged that Dr Millikan's statement may have had an "unconscious effect" on the way he approached the matter (T972). He added that, at the time, he also had faith in the investigative journalism of Four Corners, which was no longer the case. His loss of faith, one gathered, was quite unrelated to this matter. 624 The plaintiffs, in these circumstances, in submissions attacked his evidence upon a number of bases. First, it was said that he was not expert in the relevant fields. Although he considered himself expert in evolutionary theory (and specifically non-primate mammals), his particular area of interest was not human evolution or evolutionary psychology (T965). Secondly, his evidence was elliptical. He did not identify that part of Mr Griffith's work which suffered from the defect of a "broad hypothesis on a narrow factual base", such that "testing parts of the hypothesis is difficult" (Ex 16: p2) (PS: para [262]). His report, it was said, should be given no weight (PS: para [262]). Thirdly, it was also said that Professor Flannery's evidence was affected by bias (PS: paras [269]-[271]). 625 Dealing with these criticisms, it is plain from Professor Flannery's qualifications and background, including his publications, that he is immensely knowledgeable on evolution, including human evolution. He obviously sets the bar very high in defining his own expertise. Indeed, it may be noted, with some irony, that Mr Griffith embraced the holistic approach of Professor Flannery, where his books travelled outside his particular areas of expertise in order to achieve a larger view, such as Mr Griffith had sought in "Beyond" (in his case going outside the area of biology). 626 In respect of the second criticism, the failure to identify "the broad hypothesis" and "the narrow factual base", the context I believe, that is the Four Corners programme, provided that identification. Professor Flannery's statement was made to Dr Millikan in the context of Mr Griffith's claim that he had found the answer to the human condition. It is the issue which I have identified as Mr Griffith's main thesis (supra para [546]). 627 So far as bias is concerned, I do not doubt that Dr Millikan's inappropriate comment registered with Professor Flannery and had an impact adverse to Mr Griffith. However, I do not accept that it thereby distorted Professor Flannery's view on the science. The view he provided in 1995, used in the programme, was the same view he repeated in 2007. Professor Henneberg. 628 Professor Henneberg is a biological anthropologist with a particular interest in human evolution. He has been an academic since 1973 in five major universities on four continents. He holds the Wood Jones Chair of Anthropological and Comparative Anatomy at the University of Adelaide. He prepared two reports. The first provided his assessment of Mr Griffith's works in terms of science. He said this: (Ex 29: p7) "9. Over the last few days I have familiarized myself with books written by Mr Griffith ( Free: The End of the Human Condition and Beyond the Human Condition) and consider them a well-intentioned speculative reinterpretation of existing knowledge at the level of an undergraduate essay . They are written in the way that indicates lack of clear-cut logical scientific, critical, objective approach. Instead they contain a mixture of half-understood facts of human evolution with, probably incompletely realised, Christian interpretation of human spirituality. As an expression of everyday philosophy, these books are of some value to a lay reader, and I personally sympathise with some of the views expressed there, but they are not a work of science : no original empirical research has been conducted by the Author, nor was a new theory presented following rigorously logical, critical analysis of all facts hitherto described in scientific literature. Mr Griffith is a talented publicist and well-intentioned human being, but not a respectable scientist." (emphasis added) 629 The second report was prepared shortly before Professor Henneberg gave evidence. It identified seven examples of what he regarded as untestable hypotheses and nine examples of "wrong facts/assumptions". The report began with these words: (Ex 31: p1) "general: The knowledge upon which hypotheses presented in this book are constructed is incomplete and sometimes flawed, while logic is deficient because there is no critical discussion of various existing models of human evolution and competing explanations of this phenomenon. Also, variables used in construction of some hypotheses (eg 'love', 'conscience') are imprecise and cannot be uniformly measured. Individual variation, a 'conditio sine qua non' of evolution is consistently disregarded." 630 Two of the hypotheses which he believed were untestable were the following: (Ex 31: p1) " 2. page 35 'we were once perfectly orientated to cooperative, selfless, loving ideals'. No palaeontological or archaeological evidence can be used to test selflessness or love. Selflessness and love are variables that cannot be tested using direct material evidence of past human behaviours. 3. page 65 'our forebears were gentle, loving … see item 2." 631 These aspects are important to Mr Griffith's argument that our instinctive self (at the time of the australopithecines of 5 million to 2 million years ago) was perfectly integrated (Ex F: Fig 3, p131) (supra paras [601]-[602]). I will return to this aspect later. 632 A further hypothesis Professor Henneberg regarded as untestable was the assertion in "Beyond" which was in these terms: (Ex F: p68) "Just as a child must grow through infancy, childhood, adolescence, and only then reach adulthood, so our species has had to develop through these stages." 633 That also is an important aspect of Mr Griffith's thesis. Professor Henneberg made the following comment in respect of it: (Ex 31: p2) " 4. page 68 There is no proof that individual development (ontogeny) recapitulates evolutionary history (phylogeny). Thus there is no logical support for the statement that 'our species has had to develop through these stages'. There is also no way to falsify this statement on fossils. The falsification can be done by observing living animals, for instance, apes. They, however, when fully grown up, do not behave like human children. Their behaviour is of an adult kind, but different from ours. This had to be discussed. The author does not do it and thus uses in his further argument a hypothesis that is logically incorrect and has been already falsified by others." 634 The report continued as follows, identifying another aspect said to be untestable: (Ex 31: p2) "5. page 85 'the longer the infancy, the more thorough that training [in love] will be.' No empirical proof is provided. Since 'love' is not a well defined, measurable variable this statement cannot be rigorously tested. Elephants have long infancy, but are they more 'loving' than humans? Elephants do attack and kill their keepers. So do humans. Dogs have short infancy and yet they are very 'loving' of the members of their pack, including their human 'owners'. Baboons have relatively long infancy and can be very vicious even towards members of their own group." 635 Moving to Professor Henneberg's list of "wrong facts/assumptions" I have, in the context of Professor Groves, already dealt with one aspect, namely the skull fossil diagrams appearing in "Beyond" (Ex F) at pp 56/57 (supra para [607]). Let me take two further examples. Professor Henneberg made the following comments upon Figure 1 of "Beyond" (Ex F: p54): (Ex 31: p3) " 2. fig 1. in front of page 55 lists ramapithecines as human ancestors. They have been shown to be ancestors of orangutans, not of human lineage. This has been known already before 1986. see for example Wood, Martin and Andrews (eds) 1986 Major Topics in Primate and Human Evolution, Cambridge University Press. Caption for this figure mentions also 'sudden emergence' of human consciousness. There is no direct proof of that, nor evolution is a process producing sudden emergences. Although evolution may proceed at varying rates, it never produces anything instantaneously because it must work from generation to generation of many organisms." 636 Figure 4 in "Beyond" is headed "The Development of Humanity", which is portrayed as a journey that passes through mountain ranges that bar "the way to integration" (Ex F: p132). Professor Henneberg made the following comment: (Ex 31: p4) " 7. fig 4, page 132. Many errors. The most glaring is that 'baboons' pass through a 'barrier' and somehow join orangutans. Baboons are just one group of a vast assemblage of Old World Monkeys (Cercopithecinae) which is shown on this diagram as if it only existed in the past. This group is represented by several scores of species living today in Africa, Asia and in Gibraltar, in Europe. Examples are: macaques, langurs, geladas. They should be represented in the same way as New World Monkeys and Lemurs in this diagram. Insectivores are incorrectly joined to the common stem of Primates while Insectivora are a separate biological order from the order of Primates. Also, use of the species Homo sapiens as distinct from a subspecies Homo sapiens sapiens is taxonomically incorrect. Homo sapiens sapiens is a perfect member of Homo sapiens, not a distinct entity. Each species may, but not necessarily, comprise several subspecies: Homo sapiens neandertalensis, H.S. heidelbergensis, … H.s. sapiens." 637 None of this evidence was challenged in cross examination. Rather, Professor Henneberg's views on holism, teleology in science, as well as his minority view on evolution, were explored. It was the plaintiffs' ultimate submission that Professor Henneberg was a very conservative scientist who reluctantly acknowledged that teleology could have any part to play in science (PS: paras [277]-[278]). Evaluation. 638 Can it be said that Mr Griffith's published work, as a matter of science, is of such poor standard? First, it is instructive to examine the terms in which counsel for the plaintiffs, in submissions, sought to rebut the suggestion that Mr Griffith's books were of a poor standard. Counsel said this: (PS: paras [290]-[291]) "290. Mr Griffith's work is, on its face, work of real seriousness. That is, it takes itself seriously and invites the general reader to do likewise. The questions which is asks are (it is submitted) self-evidently worth asking to all but the most narrow or incurious person. In attempting to advance a general hypothesis for why humans are the way they are, Mr Griffith's work no doubt goes beyond the available data, in the same way that any general theory must. No doubt it over-simplifies (perhaps deliberately) complex areas of discourse, and at times presents as settled or received wisdom what was (and remains) contentious or (occasionally) even a minority position. So much, again, may be regarded as unsurprising in a work of its nature and aspirations. 291. In assessing its standard however, it is submitted that it is not rhetorical overstatement or authorial largesse, which ought condemn such a work; indeed, they may be considered in part to be necessary (or at least plausible) features of any work cast on such a canvas. Once it is accepted that Mr Griffith is addressing himself to important questions and is answering them with plausible argument supported by recourse to identified data, then it is the core theory advanced and its development, rather than the minutiae of citation and prevailing scientific convention, which is the measure of his work's standard." 639 The language of these paragraphs is in marked contrast to the books. Mr Griffith's language is that of certainty. He had, with the aid of science, found the answer. Nowhere is there the slightest hint that what he was saying "no doubt goes beyond the available data" (cf PS: para [290]), nor that he had oversimplified "(perhaps deliberately) complex areas of discourse" (cf PS: para [290]). He does not suggest that he is presenting "as settled or received wisdom what was (and remains) contentious or (occasionally) even a minority position" (cf PS: para [290]). Indeed, it is this very quality of laying down the law, often without reference to the data or opposing views, that has attracted criticism from many of the experts called to give evidence. This cannot, in my view, be dismissed as "rhetorical overstatement or authorial largesse" (cf PS: para [291]). 640 Secondly, from my own reading of "Beyond" (Ex F), the inferences drawn by Mr Griffith, fundamental to his thesis, appeared to be questionable in the light of the authorities which he relied upon. Let me give one illustration, which has been the subject of comment by various experts, in the material set out above. Mr Griffith said this: (Ex F: p65) "Our instinctive heritage is one of behaving lovingly towards others and being treated lovingly." 641 He continued, condemning as evasive, those who have taken a different view: (Ex F: p65) "So our forebears were gentle, loving and cooperative, not aggressive, bloodthirsty brutes as has evasively been propounded by such anthropological commentators as Raymond Dart, Konrad Lorenz, Desmond Morris and Robert Ardrey." 642 What, then, was his authority? Mr Griffith set out the following quotations: (Ex F: p65) " We emphatically reject this conventional wisdom [that war and violence are in our genes] … the clues that do impinge on the basic elements of human nature argue much more persuasively that we are a cooperative rather than an aggressive animal. With the growth of agriculture and of materially-based societies, warfare has increased steadily in both ferocity and duration … We should not look to our genes for the seeds of war … Richard Leakey and Roger Lewin, Origins , 1977, both quotes from Chapter 9. Those who believe that man is innately aggressive are providing a convenient excuse for violence and organized warfare. Richard Leakey, The Making of Mankind, 1981." (emphasis in original) 643 The full quote of the first of these passages is instructive. It is as follows (with emphasis given to the words omitted from "Beyond"): (A(14)) "We emphatically reject this conventional wisdom for three reasons: first, on the very general premise that no theory of human nature can be so firmly proved as its proponents imply; second, that much of the evidence used to erect this aggression theory is simply not relevant to human behaviour; and last, the clues that do impinge on the basic elements of human nature argue much more persuasively that we are a cooperative rather than an aggressive animal." 644 It is a fundamental aspect of Mr Griffith's thesis that violence and evil are not genetic. They are a reaction to the nagging of instinct in the battle between instinct and intellect. With his explanation, humans may revert to their loving integrated former selves. There are, it seems to me, a number of difficulties with that thesis. First, the authority, "Origins", does not share Mr Griffith's certainty. Indeed, their criticism of the alternative view (by Dart, Lorenz, Morris and Ardrey) was that no theory of human nature can be so firmly proved. Their own conclusion that man is "a co-operative rather than an aggressive animal" is heavily qualified: the "clues" to their mind "argue much more persuasively" to that view. 645 Secondly, there seem to me, as a matter of logic, other possibilities that make any inference problematical. If humans react with violence and evil to instinct's persistent criticism, does that not suggest that genetically we had the capacity, even the predisposition, to react in particular ways to adversity or injustice? Further, Mr Griffith appears to assume that, once given the explanation, we will revert to our instinctive, integrated selves and once again be gentle and non-violent. However, we have, on his thesis, been living with "upset" for 2 million years. One would imagine that some are better than others in surviving and thriving in an upset world. Has 2 million years of "upset" had an impact upon our genes, such that we are no longer able simply to revert to our instinctive selves? Even if we were not genetically violent when we began, are we violent now? 646 Thirdly, let me turn to the scientific evidence as to the standard of the work. It is upon that material that the issue should be determined. The plaintiffs' witnesses, all eminent in their own fields, had, with the exception of Professor Hartwig, expertise which was tangential to the issues being examined. They were, apart from Professor Hartwig, knowledgeable rather than expert in relevant areas. Professor Hartwig was certainly expert in issues central to the matter being examined. 647 As a generality, I prefer and accept the evidence of Professors Groves, Flannery and Henneberg to the witnesses called by the plaintiffs. In the case of Professor Hartwig, it was observed more than once that he was a most courteous man (T41; DS: para [1.38]). He is also, I believe, a charitable man, more forgiving of shortcomings than most. His classification system – "excellent – average – poor" – was, I believe, too blunt an instrument to determine this issue. 648 The shortcomings in Mr Griffith's works, identified by the defendants' witnesses and also Professor Hartwig, were, I believe, significant. They were departures from fundamental aspects of scientific method. The paucity of citations, the absence of bibliography, the failure to meet the standards of presentation for peer review, were small matters compared to the failure to state assumptions, to identify opposing arguments and to argue persuasively to a logical conclusion. 649 I find the defendants have proved the second element of the imputation that Mr Griffith published work of such poor standard as science. 650 Did the works have no support at all from the scientific community? Let me deal with the final element, including the question of causation. What amounts to support? 651 The experts identified seven matters which the scientific community would recognise as an acknowledgement of scientific quality or an endorsement of the work by the community or a segment of it. 652 The first involved "passing through the filter" of peer review, or its equivalent within a publishing house. Publishing houses require conformity with certain standards (citations, bibliography and so on) and closely examine (with the aid of experts) the scientific merits of the manuscript. If, for instance, a work were published by the Oxford University Press (as with the work of Professor Groves, "A Theory of Primate and Human Evolution"), members of the scientific community would immediately appreciate that it was a work of some importance and interest to science. Here, it was common ground that Mr Griffith's publication had not undergone peer review before publication and did not comply with the standards required by peer review. The work was self published by the Foundation. 653 The second means by which the scientific community's view may be determined was citation and approval in the work of other scientists of repute, including favourable reviews. Here, Professor Hartwig undertook research to find references to "Beyond" from reputable scientific sources. He noted that it was published in 1991 and was not a "current item" "for most of the now common Internet search engines" (Ex Q: p9). Professor Hartwig said that the most obvious database to examine for someone's contribution to science is the "Web of Science" (www.isiknowledge.com). It has access to the world's most comprehensive academic publications database. Professor Hartwig said that it provided specific references and citations counts, information for articles in thousands of common and obscure scientific journals. It also indexed book titles. There were, however, no citations of "Beyond the Human Condition". He stated his conclusion in these terms: (Ex Q: p9) "This suggests to me that Beyond the Human Condition was not reviewed in professional academic journals (as are the majority of book-format scientific publications)." 654 Professor Hartwig noted that Mr Griffith's book, "Free", had been reviewed in the Australian Journal of Psychology in 1991. That review has been set out above (supra para [92]). The reviewer characterised the work as "more speculatively philosophic rather than scientific … ", and "not a book that can be considered to fit the notion of a psychology text". 655 Professor Hartwig, when preparing his report, had not been able to obtain a copy of that review. It was shown to him when he gave evidence. He said this: (T93) "Q. You would agree with, would you not, that the author reviews the book on a basis that does not treat it as a scientific endeavour; do you agree with that? A. Yes." 656 Professor Groves made a similar search, although he did not find the reference to the Australian Journal of Psychology. His report said this: (Ex 9: p6) "I should add that I have not seen a single reference to Mr Griffith's work, not one, of any kind, in the scientific literature. This indicates forcibly that his work is not regarded as a serious work of science." 657 Professor Hartwig made a further comment, relevant to an hypothesis based upon inductive reasoning, especially one where (as in the case of continental drift), proof may not be available at the time the ideas are formulated. Speaking of Mr Griffith's work, Professor Hartwig said this: (T73) "Q. And you put that in the same category? A. I would put it in the category that would survive in the history of ideas only through other people's recognition and printing – their recognition of it." 658 The third way in which the scientific community may make its assessment of a publication is by reference to the reputation of an author. A scientist may, through publications, establish his reputation as a person undertaking serious scientific research in a particular field. That reputation is likely to affect the scientific community's view in respect of later works, even popular works (cf Professor Groves, Ex 12: paras [7.1] and [7.2.]). Here, Mr Griffith had no established reputation as a scientist. He had not, as at 1995, published any peer reviewed articles or had any books accepted by publishing houses. Nor had he received a favourable review in a scientific publication, or even a review which took his arguments seriously. 659 The fourth method by which the scientific community confers its endorsement is the awarding of a university degree after research (Prof Henneberg, Ex 29: para [7.1(a)]). Obviously, that has no relevance here. 660 Nor has the fifth suggestion, made by Dr Casebeer, which was the presentation at a scientific conference of a paper embodying the thesis of the book (T584). 661 The sixth suggested way in which a book may receive the endorsement of the scientific community, or a segment of it, is its selection as a university text, or its inclusion in a reading list for students. Professor Hartwig, with the aid of the internet, found a biology reading list compiled by a student in biology at Portland State University, which included "Beyond". The list contained a little over 130 entries and was prefaced by this words: (Ex Q: appendix 2) "Biology Reading List Compiled by Chris Dobson June 1996 as a student in Biology, Portland State Universtiy. This reading list is the result of a survey of the faculty in the Biology department at Portland State University conducted during the 1995/1996 academic year and the faculty in the Department of Biological Sciences at Idaho State University, Spring 1998. Faculty members were asked to list important books in the field of biology. The list is intended to serve as a reference for people interested in biology. No editing was done on content. Please feel free to distribute … all I ask is that you call or email me with additions to the list. Thanks, Chris." 662 Professor Hartwig noted that many of the books in the list were "indisputably important contributions to biology" (Ex Q: p9). He drew the following conclusion: (Ex Q: p9) "By including Beyond the Human Condition among this group the professors at Portland State University and Idaho State University have indicated that its scholarly value is comparable to several of the most celebrated publications in biology." 663 Professor Groves, commenting upon this evidence, noted that the criterion used was uncertain and that the two American universities were "rather minor" (Ex 10: p2). In cross examination, Professor Hartwig conceded he knew nothing of the methodology used in compiling the list, other than the introductory words. He agreed that he did not know whether a book was put on the list because one person had read it and thought it of interest (T100). Other books on the list included the poem from 2,000 years ago "Lucretius", Karen Armstrong's book "A History of God", Donald Bartlett's book "America: What Went Wrong?". Professor Hartwig was not familiar with any of these works. He could not say whether they were scientific or had been reviewed by the scientific community (T102). 664 The defendants submitted that appendix 2 was "absolutely no indication of support" (DS: para [1.128]). I accept that submission. 665 The final way in which the scientific community may manifest support is by the words and actions of individual scientists. Here, the plaintiffs relied upon a number of scientists (Professors Birch, Morton, Davies and Groves) who provided commendation of the book "Beyond the Human Condition" at the time of its launch. In some cases, some of them did certain other things after the launch, which were also said to be manifestations of support. The defendants denied that such material amounted to support for Mr Griffith's work. The defendants' position was summarised in a submission framed in these terms: (DS: para [1.70]) "1.70 By way of summary: (a) the Plaintiffs called no scientific experts who were supportive of any of Mr Griffith's works at the time of broadcast of the matter complained of, nor any scientific experts who could provide evidence of Mr Griffith's works having support or even recognition in the scientific community at that time; (b) the Defendants called three eminent scientific experts (Professor Groves, Professor Flannery and Professor Henneberg) who were not supportive of Mr Griffith's works at time of broadcast, nor were they aware of Mr Griffith's works having any support or recognition in the scientific community at that time; (c) the Plaintiffs are not able to rely on either Professor Birch or Professor Morton as being scientists who, in their capacity as scientists, were supportive of Mr Griffith's work at the time of broadcast; and (d) the Plaintiffs are not able to rely on Professor Davies given it is without dispute that he was not supportive of Mr Griffith's works at the time of broadcast." 666 It will necessary to consider the evidence in relation to each scientist in turn. Before I do so, however, I should deal with another aspect of the defendants' case, that Mr Griffith believed he had no support from the scientific community (DS: para [1.142]). Indeed, according to the defendants, he saw it as a badge of honour (DS: para [1.143]-[1.146]). Mr Griffith's belief. 667 Two issues arise in the context of Mr Griffith's belief concerning support from the scientific community. The first is, whether it has any relevance to the defence of truth. The plaintiffs submitted that it did not. The question, according to the plaintiffs, was whether Mr Griffith's work had, in fact, no support at all (PS Reply: para [99]). The second related issue is whether, as the defendants contend, a Jones v Dunkel inference on this issue can be drawn from Mr Griffith's failure to give evidence (DS: para [1.22(a)]). The plaintiffs, in reply, asserted that no admissible evidence could have been given by Mr Griffith concerning the truth of imputation 5(a) (PS Reply: para [122]). Counsel for the plaintiffs made the following submission: (PS Reply: paras [123]-[124]) "123. The questions for the Court are: (a) was Mr Griffith's work, in 1995, of a poor standard; (b) did Mr Griffith's work have no support at all from the scientific community; and (c) was any lack of support due to the poor standard of Mr Griffith's work? 124. Mr Griffith's views on these matters would not have been admissible. The question of standard is a matter for independent expert evidence." 668 I accept that Mr Griffith could have given relevant evidence. He is a party. He is capable of making admissions. Evidence concerning the steps he took to obtain the support of the scientific community, and his success or otherwise is, in my view, relevant and admissible. There are other aspects besides. Mr Griffith's conversations with scientists said to have provided continuing support would likewise have been relevant, had he given evidence. Did their support, to his knowledge, extend to his main thesis? Did any of them acknowledge that he had found the answer to the human condition? What did they say to him concerning his claim to be a prophet? 669 Further, there are documents (to which reference will later be made) which are capable of suggesting that certain scientists gave support which had been withdrawn by the time of the broadcast. Had Mr Griffith given evidence, those documents could have been put to him. Jones v Dunkel, however, is issue specific. There are so many issues in this trial, I do not believe it appropriate to infer that, on a particular issue, Mr Griffith's evidence would not have assisted him. 670 The defendants drew attention to the lengths to which Mr Griffith and the Foundation went to obtain support from the scientific community, as revealed by Draft Newsletter #26 (October to December 1993) (Ex 7(1)) (supra para [106]ff). For convenience, I repeat part of what was said in that newsletter. Referring to the first book, "Free" (1988), Mr Griffith said this: (Ex 7(1), Newsletter #26, Part A, p2) (supra para [106]) "The reception to my first book, Free , which was properly launched and promoted turned out to be a 'tidal wave of silence ' - a lot of no response. We also sent 1,000 copies of Free to all the major scientific journals in the world without any real response. People and groups claiming to be holistic such as the New Age movement and religious people were approached but they failed to respond." (emphasis added) 671 The book, once rewritten as "Beyond", was more accessible. In the same newsletter, Mr Griffith said this, describing what I infer was a similar, if not more lavish, promotion (Ex 7(1), Draft Newsletter #26, Part A, p2) (supra para [107]) " We then put enormous effort into producing a beautiful presentation of the understandings in the form of Beyond but the book didn't succeed in attracting widespread support for the understandings as we had hoped. This despite an immaculate publicity campaign accompanied by a successful effort to solicit the support of such authorities in the world of holism as Professors Paul Davies, Charles Birch and John Morton . We launched Beyond in New Zealand without success. We went to Africa and the USA to introduce Beyond first hand to leading primatologists for no real response. We went to England when Tim Macartney-Snape threw all his credibility on the line in support of Beyond in front of the Royal Geographic Society but no genuine interest resulted. Tim also boldly threw his credibility and support behind the understandings in his book Everest: Sea to Summit and in his public lectures but still the wall of silence continued . We sent a first rate publicity package with copies of Beyond to all the leading literary agents and publishers in the world for no acceptance." (emphasis added) 672 Mr Macartney-Snape was intimately involved in the launch of "Beyond" and agreed that the response was largely a "wall of silence" (T323) (supra para [111]). Mr Macartney-Snape, in the Four Corners programme, made the following observation which was part of the material giving rise to imputation 5(a): (Ex N(2): lines 997-999) (supra para [492]) "I think, you know we are just going to have to put up with the fact that academia won't accept us, at least academia as it is now won't accept us." 673 Mr Macartney-Snape is not, relevantly, the plaintiff in respect of this imputation. His statement, therefore, is not an admission but an observation by a director of the Foundation and someone directly involved in the promotion of the book and aware of the response. 674 What inference should be drawn from the tidal wave of silence or the "wall of silence", notwithstanding such efforts? The plaintiffs asserted that, even if it were proved that there was lack of support for Mr Griffith's works from the scientific community (which was not conceded), there was no direct evidence that such lack of support was causally related to the standard of the work (PS: para [310]). Indeed, there were, it was suggested, a number of "simple alternative hypotheses" available as to why Mr Griffith's work had not attracted widespread support from the scientific community to date, including the following: (PS: para [237]) "(a) Mr Griffith's work crosses disciplines and even entire fields of endeavour. For many members of the scientific community encountering his work, it may not be the standard of the work, but rather the breadth of it, which leads to it not attracting support; (b) Mr Griffith's work is self-published. It is not always expressed, or presented in a conventional manner. Such matters may mean that for many members of the scientific community, Mr Griffith's work simply does not 'rate a second glance' but that does not mean it does not deserve a second glance; (c) Mr Griffith's work is nothing if not bold. He makes very strong claims and such boldness may not engage many members of the scientific community (but not mean that it is the poor standard of the work that accounts for the lack of their support); and (d) Finally, aspects of Mr Griffith's work are apt to make those who do take the trouble to grapple with it uncomfortable. It involves reflections upon subject-matter including the purpose of human existence which may, of its nature, cause an adverse reaction as it touches upon issues which some would regard as threatening to their ideals, values or even world views." 675 Professor Hartwig, in his report, said this: (Ex Q: p10) "I found no professional academic reference to Beyond the Human Condition. I attribute this in large measure to its limited distribution as a self-published work." 676 I accept that that may account for part of the response. It does not seem to me an appropriate inference in view of the intensive promotion described. "Beyond" is a slim, well-presented volume. A recipient would obviously be aware that someone had gone to some trouble and expense to provide a copy. I infer that most would, at least, glance at it. A number of things would be immediately apparent. It was a book making large claims, which was self-published. Without speculation, I think it reasonable to suppose some of the experts would look at the bibliography to determine whether their works had been cited (and discover there was no bibliography), or look to the index. Some may glance at the text and see immediately the absence of citations and the absence of other conventions of scientific publishing. Others, perhaps, may glance at the pictures and see the captions which are distinctly unscientific, as many of the experts have remarked. Whatever they looked at, if they spent no more than half a minute, a scientist would, I believe, quickly form a judgment that it was not worth going further. I accept, as a matter of probability, that the wall of silence was, in significant measure, a judgment that the work was, as a matter of science, of a poor standard. Few, it must be acknowledged, would be likely to take the trouble to understand Mr Griffith's thesis. I do not believe that a scientist would choose to ignore it because it was cross-disciplinary or because it purported to deal with the purpose of human existence. The boldness of Mr Griffith's claims would no doubt excite scepticism, but interest as well. 677 Having dealt with this issue, let me return to the evidence relating to individual scientists said to have shown support for the work of Mr Griffith. The support of Professor Groves. 678 The plaintiffs assert that support for Mr Griffith's work in the period 1991 (when "Beyond" was published) and 1995 (the date of the broadcast), was demonstrated by various commendations, including that provided by Professor Colin Groves on 24 October 1991 (Ex A(9)). Professor Groves was provided with a copy of the book, "Beyond", and asked, shortly before the launch in November 1991, to provide a comment. The request was made by Mr Macartney-Snape in a letter which identified the nature of the comment which was sought. Mr Macartney-Snape said this: (Ex A(7)) (supra para [65]) " … comments on the primatology - the integrativeness of pygmy chimpanzees, the possibility that nurturing played a major role in the formation of our conscience and the liberation of consciousness." 679 Professor Groves obliged. He provided what he termed "a potentially usable statement", which was in these terms: (Ex A(9)) (supra para [74]) "Beyond the Human Condition is a bold attempt to find an ethical meaning in biology and anthropology. The book's use of the fossil evidence for human evolution is innovative and intriguing, and suggests paths for future research; but perhaps the most remarkable and unusual aspect is its treatment of the Pygmy Chimpanzee. At one point the author does remark that there is a need for new and integrated fieldwork on Pygmy Chimpanzees, and this is quite right; they have a great deal to teach us, and their behaviour and ecology, taken in conjunction with their morphology, show remarkable parallels to our own. It is where these parallels stop that is going to throw real light on the human condition." 680 The statement was accompanied by a note, which was as follows: (Ex A(9)) (supra para [75]) "I hope this is going to be useful to you? I cannot go on about the religious consequences like Birch, Morton or the good Ms Jones, being an agnostic, but the scientific spin-offs are worth considering. What a pity the Pygmy Chimpanzee is confined to what must be about the most uptight, 'upset' country in the world - Zaire! Detailed comments on some parts of the book will come later. Hope to be seeing you." 681 Professor Groves, in cross examination, acknowledged that he had been asked over the years by scientists to provide some form of commendation for their work, and had done so. He agreed that his letter to Mr Griffith was of that nature (T632). He understood that it may be used to promote sales of the book "Beyond" (T652/3). He had provided the statement in good faith after reading the book (T630). Professor Groves, it was submitted, was a person who showed himself to be very frank when giving evidence. He was not the sort of person, it was said, who would have felt the need to be polite (cf T616/7) (PS: para [308]). 682 Professor Groves therefore, according to the plaintiffs, had supported Mr Griffith's work until accusations were made by Gateway Counselling that Mr Griffith was involved in a cult and in the indoctrination of cult members, an accusation later repeated by Dr Millikan (PS: para [311]). Professor Groves said that he took such accusations seriously. He then became hostile to Mr Griffith. His change in attitude, according to the plaintiffs, was not occasioned by any change in view concerning the standard of the work, but arose from the accusations that had been made (PS: para [311]; PS Reply: para [102]). Even at the time of the joint interview by Dr Millikan with Professors Groves and Flannery, Professor Groves had made a statement which suggested his support for Mr Griffith's work. Part of the transcript of that interview included these words: (Ex A(70): p5) "The book, well, is not without interest, as we've seen and in some cases it's downright intriguing as we've seen and that's what I said." 683 The defendants, in their submissions, said the commendation was written after numerous requests. It was, in Professor Groves' own words, "something non-committal" (DS: para [1.134]). It was certainly not a commendation of "the veracity of the work". By its terms, Professor Groves commended the need for field work with respect to pygmy chimpanzees (DS: para [1.135]). 684 Dealing with these submissions, there can be no doubt that Professor Groves provided support of a kind to Mr Griffith. However, it was support in his labours and the propagation of his ideas, through the sale of his book. It was not, I believe, support for his thesis, or even an important part of it. A comparison between the terms of the request by Mr Macartney-Snape for that support and the usable statement provided by Professor Groves demonstrates, I believe, Professor Groves' serious reservations. In the report he provided to this Court, Professor Groves introduced his views with these words: (Ex 9: p2) " In the meantime, I had formed an opinion about Beyond (see below), and wrote something noncommittal , but in the interests of fairness drawing attention to an aspect of the book which I thought could be mentioned approvingly. As long as I was under the impression that Mr Griffith was just trying to sell books and publicise them, I was supportive of his right to do so, though I could certainly have liked the opportunity to correct the errors … " (emphasis added) 685 There was an elaboration when Professor Groves gave evidence. He said this: (T650) "Q. But when you refer in the heading under '1. Introduction' on page 2 of Exhibit 9 to 'supportive of his right to do so', that is you were referring to the continuation up to a point in time prior to receiving the letter from Gateway or any communication from Mrs Gemmell or any information from Reverend Millikan, your continued support for Mr Griffith and his work, weren't you, up to that point in time? A. Can I qualify that? Q. Yes. A. Certainly supportive of Mr Griffith and his rights to promulgate his views and sell his books. I was not, as you will see, indeed from the statement which I wrote, what did I call it, the 'usable statement', I actually did not go out of my way to say that such and such a thing was correct or important with the sole exception of what he had said about pygmy chimpanzees." 686 I accept that evidence. It follows that Professor Groves already had an adverse view on the standard of Mr Griffith's work as science before he received the Gateway letter. That letter (and the later comments by Dr Millikan) did not cause him to change his view. Professor Groves, in my view, provided no relevant support for Mr Griffith's work. Professor Davies. 687 Professor Davies was, in 1991, the Professor of Natural Philosophy, Department of Physics, at the University of Adelaide. Mr Griffith wrote to him on 21 October 1991, shortly before the launch of "Beyond". He said that he had been inspired by Professor Davies' acknowledgement of integrative meaning and he hoped that he would provide a brief recommendation of his book (Ex A(69)) (supra para [76]). Professor Davies responded on 5 November 1991, in these terms: (Ex A(69)) (supra para [77]) "Commendation What does it mean to be human? Jeremy Griffith's challenging study of our internal conflicts - our 'upset' - will surely spark fresh debate on the human condition. In this sweeping synthesis, the author draws from the physical sciences, from anthropology, from religion and philosophy, to build a new conception of human beings and our place in the universe. From his penetrating insight into the origins of the human condition Griffith shows how, through understanding it, we may move on to achieve true peace and harmony. Here is a frank, bold and, above all, hopeful message for mankind." 688 Professor Davies was not called as a witness. His letter was received, subject to a s136 limitation. It was evidence of conduct, consisting of "sending a letter in its terms", but not the state of mind of the author (supra par [78]). 689 The terms of limitation permit me to have regard to the terms of the letter, which were unquestionably favourable to Mr Griffith's work. The plaintiffs assert, and with some justification, that it expresses support for the scientific aspects of Mr Griffith's work (PS Reply: para [118]). 690 However, Professor Davies subsequently received a letter from Gateway Counselling. The letter alleged that Mr Griffith was involved in "a cult". On 24 September 1993, Professor Davies wrote to Mr Griffith in these terms: (Ex 25) (supra para [104]) "Thank you for your letter of 20 September. I confess I am indeed becoming concerned about complications surrounding the use of my name in connection with your book. When I originally provided a few words for you I had no idea that they would be so prominently used, or that I would be dragged into any sort of controversy. I would prefer it if my name could be omitted from future promotion." 691 The defendants, in these circumstances, submitted that there was "no basis upon which the plaintiffs could rely on the retracted commendation of Professor Davies" (DS: para [1141]). They added that, although the basis of the retraction was disputed (the plaintiffs asserting that it was made as a consequence of unfounded cult allegations); nonetheless the commendation had been withdrawn before the broadcast. Hence, it could not, in the defendants' submission, constitute support. In any event, it was not clear, according to the defendants, whether Professor Davies ever gave support in the first place (DS: para [1.141]). 692 However, if Professor Davies gave support in October 1991 which was only withdrawn because of extremely damaging allegations unrelated to the science of the work, there may be a basis for inferring support. To resolve that issue, it is necessary to look more closely at the evidence relating to what Professor Davies did and said, according to the accounts provided by others. 693 It will be remembered that preparation for the Four Corners programme began in January 1995. As part of that preparation, Dr Millikan spoke to Professor Davies, amongst other scientists. His letter of 20 January 1995, to the executive producer, included these words: (Ex M) (supra para [145]) "I have contacted -- Wren-Lewis, Caroline Jones, Paul Davies -- all are embarrassed and claim to have been misquoted (of course). They have refused permission to Griffith to have their names used." 694 On 29 February 1995, Mr Griffith wrote to Dr Millikan enclosing a draft pamphlet for the Armidale Open Day. The pamphlet listed speakers, including Dr Millikan. It also included commendations from Professors Davies and Birch (Ex A(37)). Dr Millikan later spoke to Mr Griffith. He asked that his name be removed as a speaker (supra para [269]). In the same conversation, Mr Griffith explained that he had tentatively included Professor Davies' commendation in the pamphlet, even though permission had been withdrawn. He said he hoped to meet Professor Davies to reassure him concerning the "scurrilous" cult allegations against the Foundation (supra par [268]). However, when the pamphlet was reissued, the commendation of Professor Davies had been removed. It had been replaced by a commendation from Professor Morton (Ex A(38)). I infer that Professor Davies maintained his refusal to allow Mr Griffith to use the commendation. 695 Somewhat later Ms Masters interviewed Professor Davies. The request was made by him that the interview be in "strict confidence", which I take to mean "off the record". Ms Masters contemporaneous notes of that interview included these words: (Ex 23: p14) "I had not been in country, people wanting to meet me, people give me books. Manuscript of book – flicked thru in secs. New Aust okay with T McAr-Snape 'interesting issues'. Wasn't endorsing book." 696 The notes also provided insight into Professor Davies' withdrawal of consent. He was contacted by the radio commentator, Phillip Adams. Ms Masters' notes included the words: "parents contacted – appalled" (Ex 23: p14). Professor Davies thereafter wrote to Jeremy Griffith. He wanted to be left out. Ms Masters said this, elaborating upon these notes from her memory: (T1365/6) "Q. Perhaps I should ask you this: Apart from what is recorded here in your note, do you have any recollection of the conversation? Just have a look at the note again? A. His demeanour was that he was, you know, anxious about this communication, and hence its strictest confidence though, you know, this has become since much more public in the past 12 years. And the manifestation of him was that he wanted to be plain and truthful about what had happened; that he had regretted writing a review or a commendation, rather, with such a cursory glance, and that had he been very drawn to Tim's name and his endorsement, and he said he wasn't endorsing the book , and then obviously, by this note, Phillip Adams must have contacted him and said 'well, why have you written the book' – 'why have you written the endorsement', sorry. … " (emphasis added) 697 It will be remembered that Dr Millikan's final interview with Mr Griffith took place on 9 March 1995 (supra para [288]). It was followed by a letter of protest of 12 March 1995 send by Mr Macartney-Snape. Mr Macartney-Snape, amongst other things, drew attention to the commendations provided by Professors Davies, Birch, Groves and Morton, adding these words: (Ex AQ: p4) "They gave us commendations with the full knowledge that this was a controversial subject. The fact that Davies changed his mind does not alter the fact that he commended Beyond the Human Condition wholeheartedly in the first place. The fact that he changed his mind is very interesting and you ought to want to get to the bottom of it. When warned of the controversial nature of a subject, why would an eminent scientist give such a positive recommendation to a book he now claims not to have read? Would not anyone who reads that commendation believe that to give such a commendation one would have to have read the book and at least have understood some of its content?" 698 On 20 March 1995, Professor Davies sent Dr Millikan a fax, which was in these terms: (Ex 25) "I made a short comment about the book on the basis of a hurried glance only. This was not intended to be an endorsement of the book, about which I have no considered opinion." 699 At the end of March 1995, the dispute concerning the Hi-8 film erupted and the Foundation, through solicitors, demanded its return (supra paras [207]ff). On 5 April 1995, Dr Millikan sent a fax signed by Ms Masters dealing with that issue. The fax also included the following enigmatic comment: (Ex 27: p3) "In fact, Jeremy, you will have to concede that both Deb and I have made commitments which we have scrupulously kept. For example – during the interview at Terrey Hills – I said to you that we would not use the material concerning the endorsements of Birch, Morton and Davies. And we have stuck to that arrangement. I know you believe that they were coerced into repudiating their former endorsements, although that is not what they say . But not withstanding the conversation which you and I had subsequently, these men's names do not appear in the film." (emphasis added) 700 On 5 July 1995, some months after the Four Corners programme was screened, Professor Davies wrote a letter The Australian newspaper which was published. The letter included these words: (Ex 25) "It has come to my attention that Mr Jeremy Griffith, author of a book entitled Beyond The Human Condition has been citing my name in connection with his theories. The only contact I have had with Mr Griffith was to provide, at his request, a pre-publication comment on his book. This brief statement was based on a hurried scan of the book's contents, which seemed to touch on some interesting topics. However, my comments were in no way intended to constitute an endorsement of the central claims of the book." 701 What, then, is the position? The commendation, on its face, appears to support the science in Mr Griffith's work. However, Professor Davies' explanation that it was provided after only flicking through the book and was not intended as endorsement of the central claims of the book, means that it cannot be taken as support for Mr Griffith's work. Professor Birch. 702 Professor Charles Birch is the Emeritus Professor of Biology at the University of Sydney. He was the winner of the prestigious Templeton Prize for Progress in Religion in 1990. He is, as the defendants' acknowledge, an eminent scientist (Ex A(33): Interrog 42). On 20 October 1991, shortly before the launch of "Beyond the Human Condition", he provided a commendation which, for convenience, I repeat: (Ex A(67)) (supra para [72]) " Comment on Science and Religion in "Beyond the Human Condition" by Jeremy Griffith. Jeremy Griffith makes the right emphasis when he identifies the order of the universe and its cosmic and biological evolution as the issue that brings science and religion together. Science shows an increasing complexity in order with cosmic and biological evolution but it finds no meaning to that increase in complexity. Jeremy Griffith finds that a religious vision brings an 'integrative meaning' to that order. Moreover it leads him to an ethical vision of integrating love and peace. In all this he gives us a genuinely original and inspiring way of understanding ourselves and our place in the universe. His vision is one I embrace with enthusiasm and commend to all those who are searching for meaning." 703 Professor Birch did not give evidence. He was referred to many times throughout the evidence. However, neither party called him. What inference, if any, should be drawn? The defendants have the onus on this issue. However, they would say that Professor Birch was trumpeted as a supporter of Mr Griffith's ideas. He was someone "in the plaintiffs' camp" so that you would have expected Mr Griffith to call him. However, both parties make claims in respect of the views of Professor Birch. Ultimately, I believe that no inference adverse to either party can be drawn from the fact that he was not called. 704 The plaintiffs' submissions pointed to the actions of Professor Birch after he had provided the commendation. He was a keynote speaker at the Foundation's Open Day on 4 December 1993 (supra para [119]). He launched the Foundation's website at the Australian Museum on 16 October 1998. In 2003, he wrote the foreword to Mr Griffith's third book, "A Species in Denial" (Ex A(6)). The plaintiffs submitted, in these circumstances, the following: (PS: para [306]) "306. … There was ultimately no substantial evidence that Professor Birch's support was other than as revealed on the face of his letters of commendation – genuine and ongoing." 705 The defendants, in response, asserted that there had been a retreat by Professor Birch from his earlier support (DS: paras [1.139] and [1.214]). In any event, his support was for Mr Griffith's religious vision, not the science in his thesis (DS: para [1.138]). 706 In their submissions in reply, the plaintiffs said this: (PS Reply: para [115]) "115. The defendants criticise Professor Birch's commendation because it does not include 'scientific support for Mr Griffith's ideas or his works' : [1.139] Ds' subs. Professor Birch was not required, in order to demonstrate support for Mr Griffith's work, to undertake a scientific analysis of it complete with references. As is stated above in relation to Professor Morton, the test for support propounded by the defendants is not that high." 707 There was, according to the plaintiffs, no evidence that Professor Birch had, at any time during conversations with Dr Millikan or otherwise, waivered in his support. More than that, any conversation between Dr Millikan and Professor Birch could only be proved if either gave evidence, which they did not (PS Reply: para [116]). 708 Let me examine the evidence more closely to determine whether Professor Birch did provide support for Mr Griffith's thesis. Whilst it is true that Professor Birch's support need not be "complete with references", it does have to relate to Mr Griffith's thesis, or at least a fundamental aspect of it, not something else. 709 The commendation sent by Professor Birch to Mr Griffith on 20 October 1991, was accompanied by a letter. The opening words of the letter were as follows: (Ex A(67) (supra para [71]) "Here is a statement for what it is worth and to use as you wish." 710 Professor Birch then commended the book "Beyond" as "much more readable than your first effort" (Ex A(67)). He added these words which suggest scholastic naivety on the part of Mr Griffith: (Ex A(67)) (supra para [71]) "My one surprise was to find you quote Duane Gish on page 47. He is the notorious promoter of creation science so called as opposed to evolution. The God he proposes is not the sort of God you want to promote. He is a menace and the main promoter of anti-evolution in the USA. Quoting him will suggest to readers that you agree with his views on other issues." 711 Moving forward to Professor Birch's Open Day speech on 4 December 1993, the speech itself did not deal with Mr Griffith's thesis concerning the human condition (Ex A(15)). It dealt with the nature of science and the differing approaches to science. There was a mechanical or reductionist approach, which was objective, assembling the building blocks step by step. However, science had neglected the subjective response. Professor Birch said this: (Ex A(15): lines 470-476) " … Now that is the most important thing I think that one can begin to think about the nature of the world, the universe. You got to think of it [in] terms of not just external relations which is the story that science tells but in terms of, you know, the internal relations that transform entities. Be they human beings or cells or what have you, and I think this is sort of an exploratory area which could transform a lot of thinking. In other words, science can't deal with subjectivity." 712 Professor Birch went on to speak of God in response to a question from the audience (Ex A(15): p18) and whether there was a purpose in existence (Ex A(15): line 914). Mr Griffith then offered to "interpret" what Professor Birch had said (Ex A(15), lines 1058-1066). The following exchange then took place: (Ex A(15): lines 1083-1090) " Charles Birch: Yes you see I find what you write is quite difficult to read. I don't, does everybody else find it very easy to read maybe, I mean I'm the odd man out maybe. How do you get that off? Jeremy Griffith: Here Charles … Charles Birch: Sorry, okay I'm sorry. I mean maybe of course because it's so profound that they're hard to express … " 713 Mr Griffith referred to the holistic approach to science and the tendency in nature to form "wholes" (Ex A(15): p24). Professor Birch responded as follows: (Ex A(15): lines 1223/4) "But what is the purpose of human life apart from this business of creating a greater order of some of a higher level? What else is the point?" 714 Mr Griffith then began an explanation of the human condition, by providing part of his thesis, although without reference to the science for that thesis. He then said this: (Ex A(15): lines 1246-1252) "Well because of the problem of the human condition because that if you … develop the idea of relationships, the significance of, right and love, that produces a conflict in humans because if they're not able to love or be a ideal if you like … then that creates a dilemma; then why aren't you ideal? And that I'm suggesting is the human condition, this dilemma about the human situation. Of having to live on this earth … " 715 The dialogue continued: (Ex A(15): lines 1254-1264) " Charles Birch: What is your solution to that dilemma? Jeremy Griffith: Well that's what the book presents … Charles Birch: Yeah but you see I want you to put it into a sentence. (audience laughter) Jeremy Griffith: Well the solution is to explain the dilemma away. Which is… Charles Birch: So it's not a real dilemma?" 716 These exchanges do not suggest that Professor Birch had understood and endorsed Mr Griffith's thesis. Rather, one would infer that they shared a view that a holistic approach to science was needed, including the search for purpose. 717 Moving forward to 1995 and the making of the Four Corners programme, the limited nature of Professor Birch's support emerged on the first day of the Snowy Mountains walk, 4 February 1995. In the campfire talk that evening, Mr Griffith said this concerning Professor Birch: (Ex AJ: lines 486-493) "What other, oh yeah we got a letter the day before we left from Charles Birch, which is nice, saying 'keep up the good work' all of us. Because periodically I send him newsletters, just to update him in case the heat from the sceptics gets too hot, we've got somebody in that academic area that can come in and, although Charles doesn't understand deeply what this is. He's a soldier for holism at least, in a big way and a highly respected person and he was my Professor when I was at Sydney University and he's seen the early drafts of the book from fifteen years ago." (emphasis added) 718 Ms Masters' production diary for the programme was tendered (Ex 23). It was a notebook in which she made contemporaneous notes of conversations important to the production. Her notes included a reference to Professor Birch (Ex 23: p11). She explained that the notes related to a conversation she had had with Dr Millikan. There was an objection on the basis of hearsay. Ms Masters was ultimately permitted, without objection, to give her understanding: (T1364) "Q. So what was, having spoken to Dr Millikan, your understanding as to the degree of support that Charles Birch currently had for Mr Griffith's views? A. Well, I mean, my understanding is what is written there, that he didn't give it, you know, his full support; he did not – well, it says 'written him off', 'never gave unequivocal', 'was one of the ' – 'Jeremy Griffith was one of my students' – 'wrote review of book'; I mean, my sense was that he did not support the book." 719 Mr Griffith, it will be remembered, was interviewed by Dr Millikan on 9 March 1995. There followed a protest from Mr Macartney-Snape by letter of 12 March 1995 (supra para [290]ff). On 14 March 1995, Dr Millikan responded to that letter. His response referred to Professor Davies and the withdrawal of his commendation. It then said this (although it was not evidence of Professor Birch's views (T504)): (Ex 4) (supra para [303]) " … The same is true of Charles Birch. We have contacted him. He also repudiates any endorsement he gave in the past. He says such things as – 'his message is obscure, his writing is awful. There is very little science in it. There is nothing new in it. When he gets into behaviour, he takes as gospel views that are extremely contentious and at this stage unprovable'. The note that Jeremy read out in the interview is not an endorsement of his ideas, it is a non-committal note of greeting and best wishes." 720 Dr Millikan, of course, did not give evidence. The letter may be said to be self-serving. He did, however, swear answers to interrogatories which were in these terms: (Ex A(33): Interrog 40) " 40. Prior to publishing the matter complained of, did you believe each of the following matters were true of Professor Charles Birch, and if so, which: (a) That he was a noted scientist; (b) The he was Emeritus Professor of Biology at the University of Sydney; (c) That he was supportive of the work of Jeremy Griffith? 40A. (a) Yes. (b) Yes. (c) No. Based on information given to me by Griffith, I initially believed that Professor Birch was supportive of Griffith's work. However, by the time of the broadcast of the matter complained of, I did not believe this to be the case." 721 The programme was screened on 24 April 1995. On 27 April 1995, Mr Griffith wrote to the managing director of the ABC, Mr Brian Johns. Responding to Dr Millikan's words in the programme (" … today he is alone, rejected by the scientific community") (Ex N(2): lines 980/1) (supra para [492]), Mr Griffith said this: (Ex A(49)) "Dr Millikan interviewed an alleged 'expert' from the Australian Museum (failing to establish this person's credentials for making a critical judgement) but ignoring more expert and distinguished views, such as those of Emeritus Professor John Morton, which provide a more balanced view of the merit of Griffith's work. This was despite the fact that he (Millikan) spoke to Morton on at least one occasion. The result of this failure to present other relevant viewpoints was to create an impression that Griffith had no academic support for his views even though Millikan's own research must have shown this not to be the case." 722 Significantly, there was no reference to Professor Birch providing support. This was not an oversight. When Gerard Stone interviewed Mr Griffith the day before the programme (23 April 1995), the only scientist he mentioned as providing support was Professor John Morton (Ex A(53)(1): lines 583-593). I infer that Mr Griffith knew that Professor Birch did not, at that time, support his thesis. 723 Nonetheless, Professor Birch did not sever his ties with the Foundation. In 1998, he launched the Foundation's website. In 2003, he wrote the foreword to Mr Griffith's book, "A Species in Denial" (Ex A(6)). The terms of the foreword are instructive. It dealt with the objective and subjective approaches to science, and the need for a holistic approach. He ended his review by then referring to "A Species in Denial" with these words: (Ex A(6): pp18/19) "In his book A Species In Denial Jeremy Griffith seeks to bring together the two streams of thought, the objective and the subjective. He is not, of course, the first person to try to do this. The questions the reader will ask are these. Is it true? What light does it throw on the human condition? I don't propose to answer these questions directly but to suggest to the reader to bear in mind that Jeremy Griffith's ideas have taken root in his Foundation for Humanity's Adulthood. Its many supporters testify to the transforming influence of the ideas they have discovered in this Foundation. That is the story that primarily interests me rather than to make critical analysis of the ideas which every reader should be encouraged to do for themselves as they read this book." 724 These words cannot be taken as support for the science of Mr Griffith's thesis. Professor Birch, no doubt, supported the holistic approach of Mr Griffith, but I do not regard that as support in any relevant sense. It is not support for the science of the thesis, Mr Griffith's answer to the question of good and evil, nor even an important aspect of that thesis. Professor Morton. 725 Emeritus Professor John Morton is a marine biologist. He was, until 1988, the inaugural professor of Zoology at the University of Auckland. He had held that Chair from 1960. He published widely, including about one hundred articles in peer-reviewed journals on biological and zoological topics, including evolution (Ex A(64)). He has also wrote a number of books, including "The New Zealand Seashore" (co-authored with Michael Miller) and "The Seashore Ecology of New Zealand and the Pacific" (2004). Having retired, he was made Emeritus Professor of Zoology. 726 Professor Morton, throughout his life and in his retirement, has also maintained an interest in philosophy and religion. He has been active in the Anglican church. He is a Lay Canon Emeritus of the Diocese of Auckland. He has also published important works on religion, including "Man, Science and God" (1972), "Redeeming Creation" (1984), "Christ, Creation and the Environment" (1989) and has contributed chapters to other works. 727 Professor Morton lives in New Zealand. At the time of the trial he was unwell. He did not give evidence. However, an affidavit was tendered that he had sworn on 19 June 2003 (Ex A(64)). He stated in that affidavit that he first became aware of Mr Griffith's book, "Free", in 1990. He wrote to Mr Griffith. Mr Macartney-Snape thereafter wrote to him, on 23 September 1991, advising of the launch of "Beyond the Human Condition". Mr Macartney-Snape asked for his "comments on the reconciliation between biology and theology being presented" (Ex A(68)). Professor Morton responded in these words: (Ex A(68)) "[ Beyond The Human Condition ] is a book about anthropology and the human future. So it is necessarily about Christianity and importantly relates it – as it must be related – to biology. I am sure it should be read by Christians, especially young ones in schools, and also taken home by them. I believe it foresees the same vista as Teilhard de Chardin did in his more orthodox terms, which is in fact the consummation promised for humanity set free, in the Christian Gospel. This book, though not in traditional Christian language should concern all Christians, because it will stir them to think, and its challenging message contains nothing out of line with a Christian world." 728 A document was later prepared (and sent by Mr Griffith to Professor Colin Groves), which included the following words, under the heading "Summary", attributed to Professor John Morton: (Ex A(8)) (supra para [73]) "'Importantly, Beyond The Human Condition relates biology to Christianity. It should be read by Christians. I believe it foresees the same vista as Teilhard de Chardin did, which is in fact the consummation promised for humanity set free, in the Christian Gospel.'" 729 The defendants, in submissions, drew attention to the differences between the original statement and the summary, suggesting that the summary was the consequence of "clever editing" by a person unknown (DS: para [1.137]). Certainly, the circumstances in which the summary was prepared are unknown. Indeed, it cannot be certain that it was prepared by Professor Morton. However, the summary was included as an annexure to Professor Morton's affidavit (Ex A(64): annexure B). One infers the he felt comfortable with it. Indeed, one gathers that annexure B was a pamphlet used in the launch of "Beyond" by Professor Morton in New Zealand. 730 Moving forward to 1995, and the making of the Four Corners programme. Dr Millikan wrote to the executive producer on 20 January 1995, identifying people "loudly proclaimed by Griffith as endorsing his work". Professor Morton was amongst those people (Ex M) (supra para [145]). During the course of making the programme, Dr Millikan wrote to Mr Macartney-Snape on 14 March 1995 stating that Professors Paul Davies and Charles Birch had been contacted and had not endorsed Mr Griffith's book. However, the paragraph of his letter, in which that information was conveyed, began with these words: (Ex 4) "As to the reception of Jeremy's ideas in the world of academia – I stand by the tone and content of the questions I put to him. The fact is, at the moment he has the endorsement of only one person. John Morton a retired academic in Auckland ." (emphasis added) 731 However, shortly after sending that letter, Dr Millikan spoke to Professor Morton. According to the chronology prepared by the plaintiffs, the conversation took place on 20 March 1995 (Ex A). Dr Millikan, of course, did not give evidence. There is, nonetheless, some material which related to the content of that conversation. Ms Masters, as the producer of the programme, regularly spoke to Dr Millikan. It was obviously important that she keep abreast of the work that he was doing. She gave her understanding of his enquiry with Professor Morton. Referring to the book, "Beyond the Human Condition", she said this: (T1375) "Q. By the time the broadcast went to air what was your understanding of the degree of support that Professor Morton was giving to Mr Griffith's ideas? A. Well, the communication I had about Mr Morton came through David, so everything that I kept telling you was as a result of my conversation with David. I did not speak to John Morton. Q. As a result of speaking to David, what was your understanding? A. Was the John Morton didn't see the book as quality science." 732 A letter was sent by Dr Millikan to Mr Griffith (and signed by Ms Masters) on 5 April 1995, which was consistent with Professor Morton having not endorsed the science of Mr Griffith's thesis. The letter included the following paragraph: (Ex 27) "In fact, Jeremy, you will have to concede that both Deb and I have made commitments which we have scrupulously kept. For example – during the interview at Terrey Hills – I said to you that we would not use the material concerning the endorsements of Birch, Morton and Davies. And we have stuck to that arrangement. I know you believe that they were coerced into repudiating their former endorsements, although that is not what they say . But not withstanding the conversation which you and I had subsequently, these men's names do not appear in the film." (emphasis added) 733 The programme was screened on 24 April 1995. Mr Griffith wrote a letter of protest to the ABC on 27 April 1995, which included these words: (Ex A(49)) (supra para [395]) · "Dr Millikan interviewed an alleged 'expert' from the Australian Museum (failing to establish this person's credentials for making a critical judgment) but ignoring more expert and distinguished views, such as those of Emeritus Professor John Morton, which provide a more balanced view of the merit of Griffith's work. … " 734 Professor Morton, as it happened, was in Sydney at the time the "Prophet of Oz" was shown on television. The next day he went to the studios of the ABC and was interviewed by Andrew Olle. Segments of that interview have been set above in paras [392] to [394]. The defendants, in submissions, emphasised the following words, which they suggested were supportive of the theology, rather than the science, of Mr Griffith's work: (Ex A(46): lines 37-61) (DS: para [1.137(e)]) "This is prophecy I believe. A prophetic utterance … It's not an orthodox theological book … it's about man's biological future as it must relate to religion." 735 The ABC responded to Mr Griffith's complaint on 29 May 1995. The response included these words: (Ex A(54)) "(iii) In fact 'Four Corners' sought out the opinion of a range of scientists on the veracity of the ideas contained in your book 'Beyond the Human Condition'. In particular, John Morton, Paul Davies and Charles Birch were contacted during the research phase. In each case, I gather their response was less supportive than you appear to believe ." (emphasis added) 736 The defendants suggested that these words are a further contemporaneous record confirming the understanding of Ms Masters that Professor Morton, when he spoke to Dr Millikan, was not supportive of the science of Mr Griffith's work (DS: para [1.213]). 737 Much later (22 January 1999), the ABC responded to a number of complaints made by Mr Griffith to the Australian Broadcasting Authority. The response included these words: (Ex A(44): p18) "Prof. Morton is a retired New Zealand biologist and Four Corners was keen to include his opinions in the program. Prior to broadcast, Millikan contacted Prof Morton seeking clear support for JG's hypothesis. Millikan took file notes of the conversation with Prof Morton which revealed that Morton was ambivalent about JG's work. 'I gave his book an endorsement, but I have kept very little track of things.' ' It's not science, it's prophetic gloss. It's like a poor man's Thielhard. ' " (emphasis added) 738 The plaintiffs tendered interrogatories sworn by the ABC and by Dr Millikan relating to their belief concerning the views of Professor Morton. The relevant interrogatories in respect to the ABC are as follows: (Ex A(33): Interrog 37) " 37 . Prior to publishing the matter complained of, did the ABC believe each of the following matters were true of Professor John Morton, and if so, which: (a) That he was a noted scientist; (b) That he was Emeritus Professor of Zoology at the University of Auckland; (c) That he was supportive of the work of Jeremy Griffith?" 37A (a) No. The ABC via at least Millikan believed that Professor Morton had been a scientist some years earlier, but did not believe that he was a noted scientist at the time of production and publication of the matter complained of. At the time of publication, Professor Morton was, amongst other things, a Fellow of St John's Theological College in Auckland, New Zealand. (b) Yes. The ABC via at least Millikan, Masters and Carroll believed this. (c) By the time of the broadcast of the matter complained of, the ABC did not believe this to be the case." 739 Dr Millikan's sworn answers to the same questions were as follows: (Ex A(33): Interrog 35) "35A. (a) No. I believed that Professor Morton had been a scientist some years earlier, but I did not believe he was a noted scientist at the time of production and publication of the matter complained of. At the time of publication, Professor Morton was, amongst other things, a Fellow of St John's Theological College in Auckland, New Zealand. (b) Yes. (c) No. Based on information given to me by Griffith, I initially believed that Professor Morton was supportive of Griffith's work. However, by the time of the broadcast of the matter complained of, I did not believe this to be the case." 740 Did Professor Morton give support to the science of Mr Griffith's work? The defendants submitted that, by the time "Beyond the Human Condition" was launched, Emeritus Professor Morton had retired. His support was not given in his scientific capacity, but rather reflected his interest in theology (DS: para [1.136]). The plaintiffs, in reply, pointed to Professor Morton's continuing interest in science, which included his publication of "The Seashore Ecology of New Zealand and the Pacific" in 2004. I accept that Professor Morton, even after his retirement, remained an eminent scientist. 741 However, the difficulty is that Professor Morton wore two hats, although he was capable of wearing both at once. He was both an eminent scientist and also an eminent theologian. He was also a committed Christian. As such, he believed that life had meaning, that man was fundamentally good, that he had sinned but that he was capable of redemption (through Christ). His handwritten endorsement (being the longer endorsement) (A(68)), although referring to anthropology and biology, is written in a religious idiom. His responses to Andrew Olle speak of Mr Griffith's "prophetic utterance" and the book, "Beyond", as being like "the stamped carvings of Michelangelo", "just emerging out of the rough stone", "much of [it] is still rough hewn", where it is necessary to take a chisel to it intellectually (Ex A(46): lines 48-55) (supra para [393]). These comments are not the endorsement of the science, so much as the message (that once we were gentle, that we can be again, and that life has meaning). Professor Morton plainly does not accept that Mr Griffith was a prophet, in the sense that Mr Griffith suggests that he is. He accepts that he has made a prophetic utterance, which is not the same thing. 742 So far as the science of Mr Griffith's book is concerned, the absence of Dr Millikan and Professor Morton plainly creates a difficulty in appreciating precisely what Professor Morton does and does not accept. However, as a matter of probability, I accept that Professor Morton said to Dr Millikan words to the effect of those which appear in Exhibit A(44), even though I recognise that the particular exhibit is a response to a complaint and that there is a self-serving quality to it. It is a document written well after the programme. However, its contents are consistent with Ms Masters' understanding at the time of Dr Millikan's conversation with Professor Morton. It is also consistent with the correspondence which followed, as well as the sworn interrogatories of the ABC and Dr Millikan himself. 743 Although Professor Morton was unquestionably supportive of Mr Griffith in his labours and thought it useful for Christians to read his book, I do not accept that he supported the science of Mr Griffith's main thesis, or even a significant aspect of it. 744 I have therefore reached the position that none of the scientists nominated by the plaintiffs in fact gave relevant support. I am satisfied that the defendants have established each of the elements of the imputation and the substantial truth of the imputation. They have therefore succeeded in their defence of justification in New South Wales and the companion defences in other States. There should be a verdict for the defendants in respect of Mr Griffith's action. 745 I will now briefly deal with the other defences. Qualified privilege at common law. 746 The defendants rely upon the defence of qualified privilege, both at common law and, where available, under statute. Qualified privilege at common law is available in all States and Territories. New South Wales, Queensland and Tasmania, have also introduced by statute a separate statutory qualified privilege or protection, which I will consider shortly. 747 A convenient statement of the position at common law was recently provided in Tankard v Chafer [2005] VSC 171 at [59] and [60]: "The principles have been developed by the common law based upon a broad general principle that the common convenience and welfare of society or a general interest of society demands that certain communications should be protected. The circumstances that may constitute a privileged occasion cannot be catalogued. Reference to the well-known text books shows categories of occasions of privileged communications, but the categories are not closed. See Perera v Peiris . The classic statement of the law concerning qualified privilege was stated by Parke B in Toogood v Spyring. There are three broad categories of qualified privilege at common law, namely: (i) where there is a duty, legal, social or moral, resting on the publisher to publish the defamatory words to a publishee who has an interest or a duty in receiving them; (ii) where the publisher in legitimate defence of his own interest publishes the defamatory words to a publishee who has an interest or duty in receiving them; (iii) where the publisher has an interest which corresponds with the interest of the publishee – that is community of interest." (footnotes omitted) 748 The plaintiffs, in their submissions, make it clear that their concession that the imputations related to a matter of public interest was not a concession that every, or any, of the almost one million viewers had such an interest as to give rise to an occasion of qualified privilege at common law (PS: para [335]). 749 The defendants supported the defence of qualified privilege at common law upon three bases. First, it was acknowledged that the public interest/duty requirement will depend upon an evaluation of the information conveyed through the publication (DS: para [1.156]). Here, on ordinary principles, and in the context of this programme, it was submitted that the ABC (and Dr Millikan) had a duty or interest in broadcasting the matter complained of, and the public had a corresponding duty or interest in receiving that publication (DS: paras [1.163]-[1.165]) (Adam v Ward [1917] AC 309 at 334). Secondly, attention was drawn to the nature of Four Corners, a long established weekly programme relating to issues of importance, including politics, religion, science and such matters. Section 6 of the Australian Broadcasting Corporation Act 1983 (Cth), sets out the charter of the ABC. Section 27(1) of the Act obliges the ABC to develop and maintain an independent service for the broadcasting of news and information (DS: paras [1.159]-[1.162]). These obligations are relevant to the duty of the ABC. Thirdly, reference was made to a number of recent decisions of the House of Lords which have broadened qualified privilege, introducing the concept of "responsible journalism" (Reynolds v Times Newspapers [1999] UKHL 45; [2001] 2 AC 127; Jameel & Ors v Wall Street Journal Europe SPRL [2006] UKHL 44; [2007] 1 AC 359). "Responsible journalism" was described by Lord Nicholls in these words in Bonnick v Morris [2002] UKPC 31; [2003] 1 AC 300 at 309 (DS: para [1.183]) "Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals." 750 The defendants formally submitted that Jameel forms part of the law of Australia (DS: para [1.180]). 751 The plaintiffs submitted that qualified privilege at common law plainly had no application in the context of this programme, disseminated to such a large audience. First, as a generality, qualified privilege was difficult to maintain in the context of mass media publications, whether the newspapers, radio or television (PS Reply: para [137]). There had been no reported case in Australia where it had succeeded (PS: para [A65]). Secondly, the statutory obligations of the ABC did not change that position. Attention was drawn to Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510; 68 ALR 259, which concerned a Four Corners programme dealing with the effect of a bauxite mine operated by Comalco upon the Aborigines living at Weipa. The ABC, in that case, relied upon similar provisions in the Broadcasting and Television Act 1942 (Cth). Neaves J, in that context, said this: (at 581) "In my opinion, the appellant has not established that it had a duty in the accepted sense to publish the programme or that the public at large had a correlative interest to receive the information contained in it so as to make the occasion one of qualified privilege. It is implicit in what I have said that I do not regard sub-s 59(1) of the Broadcasting and Television Act 1942 as establishing the necessary duty." 752 Thirdly, it was submitted by the plaintiffs that Jameel and Reynolds were not part of the law of qualified privilege in Australia. 753 I accept the submissions of the plaintiffs. In Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211, McHugh J made the following comment: (at 264) " … common law courts have taken a restricted view of the occasions when a person has an interest or duty to publish material to the general public. Protection of reputation has generally been preferred to the right of the public to know. It is not surprising that successive generations of common law judges have been loath to extend the categories of qualified privilege to protect publications in the general media." 754 The limited availability of qualified privilege at common law was again emphasised by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, where the Court said this: (at 570) "Only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public." 755 In Gillooly, "The Law of Defamation of Australia and New Zealand" (1998), the author, in my view, accurately, summarised the position in these words: (pp179/80) "Generally speaking, media defendants who publish defamatory material to a wide audience are unable to avail themselves of the protection of qualified privilege. For, in order to establish that the publication complained of took place on a privileged occasion, it must normally be proved that the public at large had a duty to receive or an interest in receiving that publication, and further, in Australia, that the defendant had a corresponding duty to publish or interest in publishing to the public at large. Given the narrowness of the traditional concepts of 'duty' and 'interest', almost inevitably in a large audience, many of the recipients will lack a duty or interest of the requisite type. The mere fact that the public is 'interested' in the matter complained of it not enough to give rise to an interest or duty to publish." (footnotes omitted) 756 Here, the information communicated by the programme concerned a relatively small group of people. The audience, on the other hand, was massive (in aggregate almost one million people) (cf PS: para [335]). The information communicated was important (such that public interest was conceded). However, some of the information was more important than other parts of it. None of it was "life and death". It was not a public emergency, whether war, contagion or a natural disaster (PS: para [337]). On ordinary principles there was, I believe, no duty or interest to impart that information or a correlative interest in receiving it. By no stretch could it be considered an exceptional case, so as to justify the publication of defamatory material. 757 Nor do I believe that the Australian Broadcasting Corporation Act 1983 (Cth) changes that position. I accept the reasoning of Neaves J in Australian Broadcasting Corporation v Comalco Ltd (supra para [751]). 758 The English concept of responsible journalism has not yet been incorporated into the law of Australia. It is at odds with the approach of the High Court in Lange v Australian Broadcasting Corporation (supra para [754]) (cf Vilo v John Fairfax & Sons Ltd [2000] NSWSC 937; Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419, paras [1165]-[1171]). 759 The defence of qualified privilege at common law therefore fails. Statutory qualified privilege in New South Wales. 760 The New South Wales Defamation Act 1974 (now repealed) modified the common law defence of qualified privilege by removing the need for the publisher to show that the publication was made in the discharge of a duty, or the protection of an interest. It required, instead, "reasonableness" on the part of the publisher. Section 22 was in these terms: " 22. Information (1) Where, in respect of matter published to any person: (a) the recipient has an interest or apparent interest in having information on some subject, (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the publisher in publishing that matter is reasonable in the circumstances, there is a defence of qualified privilege for that publication. (2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest. (2A) In determining for the purposes of subsection (1) whether the conduct of the publisher in publishing matter concerning a person is reasonable in the circumstances, a court may take into account the following matters and such other matters as the court considers relevant: (a) the extent to which the matter published is of public concern, (b) the extent to which the matter published concerns the performance of the public functions or activities of the person, (c) the seriousness of any defamatory imputation carried by the matter published, (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, (e) whether it was necessary in the circumstances for the matter published to be published expeditiously, (f) the sources of the information in the matter published and the integrity of those sources, (g) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the publisher to obtain and publish a response from the person, (h) any other steps taken to verify the information in the matter published. (3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward." 761 The defendants asserted that their conduct was reasonable, for the following reasons: (DS: para [1.187]) "(a) it is not disputed that the matter, namely the extent of the scientific support of Mr Griffith's works was a matter of public concern and it did concern the performance of public activities of the Plaintiffs; (b) the Defendants took reasonable steps to verify the accuracy of the material and took care to accurately report the material and information which they had in their possession; (c) the Defendants spoke to scientists whom the Plaintiffs alleged were supportive of their ideas and to other scientists; (d) the Defendants spoke directly to the Plaintiffs about the seeming lack of support in the scientific community at the time of broadcast; (e) the Plaintiffs themselves acknowledged the lack of support, the tidal wave of silence they had received from the scientific community, both in their communications with the Defendants and generally; (f) the Plaintiffs themselves predicted and attempted to explain the lack of support in the scientific and academic community; and (g) given that Mr Griffith held himself out as a scientist and believed his 'breakthrough ideas' were a result, in part, of a scientific explanation, the extent of support or lack of support within the scientific community was pertinent to the publication." (emphasis in original) 762 The first defendant swore interrogatories concerning their intention, in these terms: (Ex A(33): Interrog 16(a)) " 16. At the time of publication of the matter complained of, did the ABC intend it to convey any of the following imputations and, if so, which; (a) Jeremy Griffith, who holds himself out as a scientist, publishes work of such a poor standard that it has no support at all from the scientific community; 16A. (a) Yes. The ABC via least Millikan, Masters and Carroll intended that the matter complained of would convey this imputation in substance." 763 Dr Millikan's sworn response in respect of the same question was as follows: (Ex A(33): Interrog 18(a)) "18A. (a) Yes, in substance." 764 The plaintiffs, in response, asserted that the defendants' conduct was unreasonable. The onus in proving reasonableness is upon the defendants. Rearranging the plaintiffs' submissions, and leaving to one side matters concerning Mr Macartney-Snape, which will be considered separately in Pt 4 of this judgment, the plaintiffs submitted in substance that the defendants' conduct towards Mr Griffith was unreasonable, and the programme was not a fair representation, for the following reasons: · first, the defendants did not interview, or attempt to interview, supporting scientists (PS Reply: para [149(a)]); · secondly, the defendants only aired one negative comment by a scientist about Mr Griffith's work, even though it had film of positive comments from other scientists (PS Reply: para [149(e); para [157]); · thirdly, there was no evidence the defendants put to Mr Griffith the allegations concerning the standard of his work (cf s22(2A)(g) of the Act) (PS Reply: para [144]); · fourthy, the defendants did not speak to or interview any supportive parent (PS Reply: para [149(b)]) and failed to include in the programme the views of supporting parents (PS Reply: para [168(e)]); · fifthly, the defendants included in the matter complained of footage of Mr Griffith (swearing) that was taken out of context and not an example of him speaking about his ideas (PS Reply: para [149(g)]); · sixthly, the defendants dissembled to the plaintiffs about the proposed content of the matter complained of, as demonstrated by the letter of 20 January 1995 (Ex M) and by representations made, including representations about the millennium documentary (PS Reply: para [149(i)]; · seventhly, that for many of these reasons the programme was not a fair representation of Mr Griffith or the Foundation. On the contrary, the programme was "entirely negative and inaccurate" (PS Reply: para [167]); · eighthly, in particular, the programme, by including repeated religious references, was not a fair representation of Mr Griffith's work since the defendants well knew that his work was not grounded in religion but in science (PS Reply: para [168(a)]); · ninthly, it was unfair to include the footage of Rosy and Howard Whelan without giving the plaintiffs to opportunity to respond (PS Reply: para [168(c)]); · tenthly, it was unfair to include the footage of the Belfields without giving the plaintiffs the opportunity to respond (PS Reply: para [168(d)]); · finally, the editing of the Juliet Belfield interview suggested a conversion experience, which had not taken place (PS Reply: para [168(f)]). 765 The plaintiffs also challenged whether there was any admissible evidence (given the absence of Dr Millikan) concerning research said to have been undertaken by the ABC in respect of scientists put forward by the plaintiffs as being supportive. I believe, however, that there was evidence, which I have set out above. 766 The plaintiffs asserted that there was no evidence that the defendants believed in the truth of imputation 5(a). They submitted the evidence was confined to the defendants having an intention to convey imputation 5(a) (PS Reply: para [151]). The defendants' silence did not assist them on the question of reasonableness (PS Reply: paras [152]/[153]). However, I infer that each defendant believed in the truth of imputation 5(a). It was acknowledged by the plaintiffs, and known to the defendants, that academia did not support Mr Griffith's ideas. Research was undertaken concerning the nature of Mr Griffith's ideas and the views of scientists said to support those ideas. That research demonstrated that there was no relevant support. Ms Masters, for her part, thought the ideas "simplistic" (T1378) and, in many respects, "unconvincing" (T1378-80). It was her perception, as the producer of the programme, that there was no scientific support for Mr Griffith's ideas (T1410). She was, for over three months, in continuous dialogue with Dr Millikan. She said that Dr Millikan made a real effort to understand the ideas (T1380). He did not accept that Mr Griffith was a prophet (T1395). He remained deeply sceptical about the ideas themselves (T1397). Indeed, his views did not, in the course of preparing the programme, greatly change from those expressed in The Bulletin article, which were adverse to the ideas (T1397). Ms Masters said this: (T1531) (supra para [473]) "A. Did he have a closed mind in reference to Jeremy Griffiths ideas? I think his mind was open to exploring them but I think in the end he did not believe that Jeremy was a prophet. He did not believe that the science, or the explanation, was rooted in science and I don't think he believed that this would change the world. That this claim would change the world." 767 No doubt, Ms Masters' account was based upon her conversations with Dr Millikan, which was evidence of his state of mind (Evidence Act 1995, s 72). 768 Dealing with these submissions, the first two issues are complaints relating to scientists. The defendants spoke to a number of scientists, including those identified by the plaintiffs as providing support. Ultimately the defendants characterised such scientists as not providing support. For the reasons given, I believe that characterisation was accurate (supra paras [678] to [744]). The programme ultimately included only the comments of Professor Flannery, which were certainly negative. The defendants did not include the comments of Professor Groves, interviewed at the same time, which one infers were also negative (supra paras [598]ff). Indeed, no reference was made to conversations with other scientists, although none provided support for the science in Mr Griffith's thesis, or even a significant part of it. 769 That is not to say that the evidence of each scientist was wholly adverse to Mr Griffith. The plaintiffs, in submissions, pointed to favourable comments, such as those given by Professor Colin Groves in his interview, which included the following: (Ex A(70): p5) "The book, well, is not without interest, as we've seen and in some cases it's downright intriguing as we've seen and that's what I said." 770 Graham Robertson was another scientist interviewed by Four Corners. He described how he had spent nine months in Antarctica and the experience had made him receptive to Mr Griffith's ideas. His interview included these words: (Ex 32(1): lines 22-27) "… I used to get pleasure over watching the weather come and go, and watching the animals I was working on go through their daily cycle, uh, trials and tribulations of life, the simple things. And when I came back, at about that time, Jeremy had produced a first draft of his book and I latched on to it. I liked the fundamental concept that he was peddling at the time." 771 Graham Robertson elaborated in these terms: (Ex A(70): p4) "Well, I initially am attracted to the underlying concept of it which is a ah that there is a fundamental nexus between the instinctive self, through our evolution, the instinctive human being and the intellectual self. I'd never thought of that until I read it in Jeremy's prose and I think it struck a chord of common sense with me. And I suppose why I am fairly happy with that observation, with the merit in it, is that you can just look at your weekly and monthly lives and the interactions you have with people round you and people at work and you often notice a very large difference between the words or the sentiments that are coming out of somebody's mouth and the sentiments that are expressed by their body language and I suspect just to extend that thought that their body language is coded in hundreds of thousands of years of evolution that is very strong and their point-of-view might be tempered by the mind at the time to be compatible with the social scene." 772 Balance in the presentation of this issue did not, however, require the inclusion of such statements. Both statements were embedded in material otherwise adverse to Mr Griffith and his ideas as science (Groves: supra paras [598]ff; Robertson: Ex 32(1)). The defendants' approach was to state that Mr Griffith stood alone, rejected by the scientific community (Ex N(2): lines 976-1005), and to include the statement of Professor Flannery which spoke of the book's poor quality. I believe that approach to have been reasonable. An elaboration upon the research undertaken by the ABC concerning the issue of science would, I believe, have created an impression far more unfavourable than that conveyed by the limited material which was in fact broadcast. 773 Let me move to the third criticism, that the defendants did not put to Mr Griffith that his work was of such poor standard (PS Reply: para [144]). The final interview with Mr Griffith on 9 March 1995 was described, but not tendered. The plaintiffs, in their submissions, invite the inference that the issue of the standard of the work was not canvassed or, at least the defendants (having the onus) have not established that it was. 774 However, I believe the poor standard of the work as science was canvassed. It was implicit in questions concerning the absence of academic support. Dr Millikan, for instance, wrote to Mr Macartney-Snape in advance of the second interview (which took place on 22 February 1995), identifying issues which he intended to take up, including the following: (Ex AL) (supra para [235]) "How do you maintain your belief in the truth of the Foundation when the response of the academic world has been so negative." 775 Further, an indication of the questions put by Dr Millikan to Mr Griffith in the final interview can be gauged from the appendix prepared by Mr Griffith on 13 March 1995, after that interview. The appendix, it will be remembered, accompanied Mr Macartney-Snape's letter of complaint dated 12 March 1995 (Ex AQ). The appendix included a document with two columns, on one side the allegations put by Dr Millikan and on the other Mr Griffith's response. On the issue of science, Mr Griffith identified Dr Millikan's allegation in these words: (Ex AQ: appendix p2) "H. Ideas have absolutely no scientific/authoritative credibility or support. …" 776 Dr Millikan's letter in response of 14 March 1995, expressly dealt with the standard of Mr Griffith's work. Without offending the s 136 limitation in respect of that letter, it said this: (Ex 4) "As to the reception of Jeremy's ideas in the world of academia – I stand by the tone and content of the questions I put to him. The fact is, at the moment he has the endorsement of only one person, John Morton a retired academic in Auckland." 777 The letter then referred to Professor Davies and the circumstances in which, after a hurried look at the book, he had provided a commendation. It then said this, concerning Professor Charles Birch: (Ex 4) "We have contacted him. He also repudiates any endorsement he gave in the past. He says such things as – 'his message is obscure, his writing is awful. There is very little science in it. There is nothing new in it. When he gets into behaviour, he take[s] as gospel views that are extremely contentious and at this stage unprovable.' The note that Jeremy read out in the interview is not an endorsement of his ideas, it is a noncommittal note of greeting and best wishes." (emphasis added) 778 Dr Millikan's letter was, or course, sent after the last interview. The parties did not thereafter meet again. Nonetheless, they remained in contact. 779 The fourth issue, said to demonstrate unreasonable conduct on the part of the defendants, concerned supportive parents. I have dealt with that issue when describing the making of the programme (supra paras [363]ff). Although I believe it would have been better and fairer had the programme included a statement from Dr Millikan that there were supportive parents, or a statement from one of the supportive parents (supra para [384]), this issue was one amongst many. In the treatment of that issue, which I have described, I believe the conduct of the defendants was reasonable. 780 The fifth issue concerned the footage of Mr Griffith swearing. I have found that there was nothing unfair (or unreasonable) in the presentation of Mr Griffith swearing in the course of the programme (see especially supra paras [214]-[217]). 781 The sixth issue concerned the deception of Mr Griffith and the Foundation by Dr Millikan. I have discussed the evidence concerning the statement by Dr Millikan: "I got it wrong". It was a misrepresentation and secured Dr Millikan the co-operation of Mr Griffith and the Foundation (supra para [440]). However, Dr Millikan was ultimately forced on the first night of the walk to clarify his position, and did so (supra para [187]). The misrepresentation was then spent (supra paras [456]/[457], [470]). It was not material thereafter to the relationship between the parties. In respect of the representations concerning the millennium series, I have found, as a matter of probability, that Dr Millikan did not misrepresent his position (supra para [448]). He did not misstate the nature of the series or his intention (supra para [454]). He was aware, nonetheless, that Mr Griffith and the Foundation had made assumptions based upon his words and did nothing to disabuse them (supra para [454]). Nonetheless, I do not believe it can be said that his conduct in this respect, was unreasonable. 782 The remaining issues can be dealt with quickly, in the light of findings already made. The programme, contrary to the assertions of the plaintiffs, was not completely negative and inaccurate (supra para [489]). It was not unreasonable for Dr Millikan to employ a religious idiom when describing Mr Griffith's ideas (supra para [238]ff). Mr Griffith, in the final interview, was, I infer, taken to the comments of Rosy and Howard Whelan (leaving aside the comments of Howard Whelan relating to Mr Macartney-Snape, which will be dealt with in Pt 4 below). Mr Griffith, in the programme, described Rosy Whelan's involvement in the Foundation and her dismissal (Ex N(2): lines 476-480). He elaborated on this in his written commentary upon the final interview (Ex AQ: appendix pp3-6). The Belfield footage was part of the segment dealing with the effect upon families of the Foundation and Mr Griffith's ideas. That issue was taken up with Mr Griffith and Mr Macartney-Snape (supra paras [364]ff). 783 The Juliet Belfield interview was edited. However, Ms Masters explained, and I have accepted, that the editing rearranged the interview into chronological order (supra para [203]). It was not edited to give the appearance of a "conversion experience". Indeed, I do not believe the heavily qualified wording of Juliet Belfield could reasonably be described as a conversion experience (supra para [204]). 784 In the context of the imputation concerning Mr Griffith, imputation 5(a), I accept that the defendants' conduct was reasonable. They have, subject to malice, established the defence of statutory qualified privilege in New South Wales. 785 Dealing with the plaintiffs' case on malice, it was said that there was, unanswered, considerable evidence of misconduct on the part of the defendants. It may therefore be inferred that the defendants were actuated by an improper motive in publishing the matter complained of (PS Reply: para [241]). Again, I will confine my comments to the imputation concerning Mr Griffith. The material identified by the plaintiffs included much of the material relied upon to suggest unreasonable conduct on the part of the defendants. In addition, the plaintiffs pointed to the following: · first, the letter from Dr Millikan to Mr Carroll of 20 January 1995 (Ex M) which, they suggested, disclosed Dr Millikan's true feelings towards Mr Griffith and his ideas (PS Reply: para [250]) (supra paras [143]ff); · secondly, Dr Millikan's statements to the Belfields after each interview (PS Reply: paras [258] to [259]) (Ex A(36); Ex A(40)) (supra paras [262] and [309]); · thirdly, Dr Millikan's statement to Professors Flannery and Groves before their interview, where he said that Mr Griffith was acting like a "cult leader" (PS Reply: paras [255] to [257]) (supra paras [615] and [623]); · fourthly, other publications including "Backchat" (Ex AX) and the ABC's website (Ex A(61)) (PS Reply: paras [292] to [295]); · fifthly, the failure to debate Mr Griffith at the end of the programme, notwithstanding repeated requests (PS Reply: paras [296] to [298]). 786 These issues and the conduct of the defendants generally were considered in Pt 2 of these reasons, "The Making of the Programme" (supra paras [471] to [489]). To repeat my conclusion, I do not accept that the matter complained of was actuated by malice or an improper purpose. The analysis leading to that conclusion did not, however, consider whether the defendants (or either of them) knew that the imputations were false. I later dealt with that issue. I inferred that the defendants each believed that imputation 5(a) was true (supra para [766]). I am therefore not satisfied that the plaintiffs have established malice or an improper purpose. Statutory qualified privilege in Queensland and Tasmania. 787 Under s 377(1) of the Criminal Code (Qld), and s 16(1) of the Defamation Act 1957 (Tas), statutory qualified protection has been introduced in each State. In substance, there are three requirements (DS: paras [1.168]/[1.169]): · first, the publication must be published in "good faith"; · secondly, the publication has to be for the purpose of giving information to the person to whom it was made; · thirdly, the publication has to be in respect of some subject as to which that person has, or is believed, on reasonable grounds by the person making the publication, to have, such an interest in knowing the truth, as to make the person's conduct in making the publication reasonable under the circumstances. 788 Here it was submitted, and I accept, that the publication was on a "subject of public interest", that is "the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invites public criticism or discussion" (Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 215) (DS: para [1.170]). On that basis, I further accept that the defendants believed, on reasonable grounds, that the audience had an interest in knowing the truth about the subject of the programme (DS: para [1.171]). 789 The plaintiffs challenged the suggestion that the publication in each State was "in good faith" (PS Reply: paras [186] to [189]). The Queensland Act provided the following definition of "good faith" (DS: appendix A, p193/4) " Good faith 378 When any question arises whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication was made under circumstances which would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith lies upon the party alleging such absence." 790 The Tasmanian statute included the following provision: (DS: appendix A, 195/6) " 16 Qualified protection … (2) For the purposes of this section, a publication shall be deemed to be made in good faith if -- (a) the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; (b) the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion; and (c) the person by whom the publication is made - (i) is not actuated by ill-will to the person defamed, or by any other improper motive; and (ii) does not believe the defamatory matter to be untrue." 791 The plaintiffs submitted that there was no evidence to prove Dr Millikan published the programme in good faith. In circumstances where he had failed to give evidence, the Court should infer that his evidence would not have assisted him (PS Reply: para [187]). There was, in any event, significant material (being in the plaintiffs' case on malice) that Dr Millikan was not acting in good faith. It was further submitted that, although Ms Masters gave evidence, there was no evidence adduced from her as to the ABC's motive in publishing this material (PS Reply: para [188]). 792 However, I am satisfied, for the reasons given in the context of the plaintiffs' allegations of malice and improper purpose, that the defendants were acting in good faith. In my view, the statutory defences of qualified protection under the Queensland and Tasmanian statutes have been established. 793 Let me move from that to the final defence, which is that of "comment". The defence of fair comment (NSW). 794 The defendants relied upon the defence of fair comment, which is available in the States and Territories of Australia, either under statute, or the common law, or in some cases, both. The position is as follows: · It is available under statute, but not the common law, in: New South Wales ( Defamation Act 1974, Divn 7) Queensland ( Criminal Code 1889, s 375) Tasmania ( Defamation Act 1957, s 14) · It is available under statute and the common law: Western Australia ( Criminal Code 1913, s 355) Northern Territory ( Defamation Act 1938, s 6A) · It is available only under the common law in Victoria, South Australia and the Australian Capital Territory. 795 I will begin by considering the Defamation Act 1974 (NSW) (Divn 7). Whereas the common law requires that the comment should be based on facts that are true or privileged, the New South Wales Act moderated that requirement. In substance, the defence can still be made out where some of the facts relied upon, as the basis for the comment, were untrue, or could not be proved to be true, provided that the comment represented an opinion that might reasonably be based upon other material, also relied upon, which was true (s 30(3)). Here, however, it is asserted by the defendants that the facts, which formed the basis of the comment, were all true, so that s 30(3) can be put to one side. In that context, and adapting the helpful analysis of Simpson J in Fawcett v John Fairfax Publications Pty Limited [2008] NSWSC 139 at para [142], the following issues arise: · First, was the imputation a comment or a statement of fact? · Secondly, if it was a comment, is the factual basis for it sufficiently indicated or identified in the published material? · Thirdly, if so, are the facts substantially true? · Fourthly, did the imputation relate to a matter of public interest (s 31)? Here, the plaintiffs concede public interest (PS: para [316]) · Fifthly, where the comment is that of the defendant (s 32) or a servant or agent of the defendant (s 33), was the opinion expressed by the comment held by the defendant, its servant or agent, as the case may be? The onus is upon the plaintiffs to prove that the opinion represented by the comment was not honestly held by the defendants (s 32(2)) or the servant or agent (s 33(2)), as the case may be. · Alternatively, where the comment is that of a stranger, and in context, not the comment of the defendant, its servant or agent (s 34(1)), the onus is upon the plaintiffs to prove that the publication complained of was not in good faith for public information or the advancement of education (s 34(2)). 796 Dealing with these issues, let me for convenience, repeat the imputation: "5(a) Jeremy Griffith, who holds himself out as a scientist, publishes work of such a poor standard that it has no support at all from the scientific community." 797 Addressing the first issue, the question is, having regard not only to the terms of the imputation but the matter published, whether the imputation would be regarded by the ordinary reasonable viewer as a comment or a statement of fact (John Fairfax Publications Pty Limited v O'Shane [2005] NSWCA 164 paras [28]/[29]). Here, the plaintiffs identified the following passages as giving rise to the imputation: (PS: para [319]) " Jackson: They'll be asked to devote their lives to the promotion of Griffith's ideas and an increasing number are taking up the challenge. The intriguing question is, why? What do they see in a man whose theories are widely derided by the scientific community? How does he command their devotion? Our guest reporter is Theologian, Doctor David Millikan. (Ex N: lines 46-51) Millikan: The answer, he believed, lay in the evolutionary process. As human beings developed minds, they became aggressive and took it out on the innocence of animals. Griffith became obsessed with his ideas but he'd been a poor student and in the world of philosophy and theology he was an amateur. (Ex N: lines 380-385) Macartney-Snape: He didn't do very well at university. You know, he was described as almost backward at school. And you know, he's a kid from the Australian bush it's. You know he's not in the main stream of, of intellectual thought, yet he's dealing with the most important idea of all. (Ex N: lines 390-394) Millikan: For thirteen years Griffith wrote compulsively. As he did it began to dawn on him that his writings were answering the great questions of life. In the end he was convinced that he was a prophet and he had written half a million words. But he felt like a voice crying in the wilderness. It was not until he met Tim Macartney-Snape and his friends associated with 'Australian Geographic' that Griffith began to find the public recognition he craved. (Ex N: lines 398-405) Millikan: But is it an understanding based on science? Griffith has gone to enormous lengths to find endorsement. He sent eight hundred copies of his book to leading scientists and journals around the world. But today he is alone, rejected by the scientific community. (Ex N: lines 976-980) Flannery: No, it's a pretty poor book about the subject. It's it's very selective. It doesn't take into account the various important points of views, or differences in points of views. Its interpretation is based upon this very, very narrow data base with a very large interpretation at the top. No, I'd from what I've seen of it, I must say, I'm singularly unimpressed as, as an attempt to explain human nature and what humans are about. (Ex N: lines 986-993) Macartney-Snape: I think, you know we are just going to have to put up with the fact that academia won't accept us, at least academia as it is now won't accept us. It's up to young people coming up in the ranks to, who who are sufficiently outrageous if you like in their preparedness to accept new ideas who who will take it on, who will realise the truth in it. (Ex N: lines 997-1002)" 798 The defendants identified the context a little more broadly. They identified the following parts of the programme as giving rise to the lack of support in the scientific community: (cf DS: para [1.227] – referring to Ex N(2)) "(a) set out … the history of the evolution of Mr Griffith's ideas (lines 356-385, 398-405); (b) described Mr Griffith's works as relayed by Mr Griffith (lines 311-321, 498-501, 508-515, 541-544, 798-803, 810-825, 887-896, 959-965, 1021-1027, 1032-1046), Dr Millikan (lines 326-339, 503-506, 517-523, 546-550, 792-796, 805-808, 835-837, 869-873); (c) set out the view of Mr Griffith (lines 101-102) and Mr Macartney-Snape (lines 255-259, 1096-1097) that the ideas have a rational, scientific explanation; (d) set out the attempts made by Mr Griffith to obtain support from the scientific community (lines 976-980); and (e) set out the views of Mr Macartney-Snape and Mr Griffith as whether they had received support and the reasons for why they may have received no support. Mr Macartney-Snape stated that Mr Griffith is not in the main stream of intellectual thought (lines 390-394); and Mr Macartney-Snape stated that they have to put up with the fact that academia will not accept them (lines 997-1003)." 799 As pointed out in O'Shane (para [25]), extracting from Gately on Libel and Slander (10th ed, 2004, para [12.6]), the defence of fair comment, fundamentally distinguishes between statements of fact and expressions of opinion, where the latter embraces much more than mere opinion – extending to deductions, inferences, conclusions, criticisms, remarks and observations (cf Fawcett at para [139]). 800 The onus is upon the defendants to establish that the imputation is comment. Here the defendants, in submissions, provided the following analysis in support of the conclusion that the imputation was comment: (DS: para [1.224]) "1.224 Imputation 5(a) contains qualitative terms (' holds out', 'support', 'poor standard' ), and quantitative terms ( 'at all', 'scientific community' ). Both sets of terms are in themselves judgmental and suggestive of opinion. It could possibly be a defamatory allegation of fact if it did not contain multiple qualitative and quantitative terms. Further, the fact that imputation contains the subordinate conjunction 'that' is a conclusion arising from what immediately precedes it. The words of the imputations appear to the reasonable reader to be conclusionary: Mitchell v Sprout [2002] 1 NZLR 766 at [19]." 801 The plaintiffs submitted that, on the contrary, the imputation was a statement of fact (PS: para [318]). Alternatively, one aspect but not others, was capable of being characterised as comment. The following submission was put: (PS: para [320]) "320. … It is submitted that, in the context of the matter complained of, the only aspect of the imputation that may amount to comment is the question of standard as discussed in the matter complained of by Professor Flannery. In relation to the issues of support and whether the standard of the work has resulted in a lack of support the imputation arises from express statements of fact made by either Dr Millikan or Mr Macartney-Snape. In these circumstances, in the context of the matter complained of, imputation 5(a) does not amount to a comment." 802 I accept that the imputation was a comment. Professor Flannery's contribution, incidentally, went further in my view than simply providing an opinion on the standard of Mr Griffith's published work. As a scientist, and a person of some standing in the scientific community, he plainly did not support Mr Griffith's published work as science. 803 Moving to the second and third requirements, the defendants must show that the comment was based upon a proper foundation, that is, based upon "proper material" (s 30). The facts which form the basis for the comment must be set out in the matter complained of. Alternatively, they must be sufficiently identified to be ascertainable by the viewer, or a matter of notoriety (cf PS Reply: para [193]). The viewers are thereby put in the position of being able to judge for themselves the extent to which the publisher's opinion is well founded (Kemsley v Foot [1952] AC 345 at 356; Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 327). The facts as stated or identified must (in the context of this case) also be substantially true. 804 The defendants in the Amended Defence identified the material in the programme which formed the basis for the comment ("the proper material for comment"). The Amended Defence was in these terms: "10.1 Imputation 5(a) … (a) The Defendants contend that it is a fact that the First Plaintiff holds himself out as a scientist. (b) The Defendants contend that it is a fact that the First Plaintiff is the author of a book titled Beyond the Human Condition . This fact was set out in the matter complained of at line 258. (c) The Defendants contend that it [is] a fact that the First Plaintiff has actively sought support from the scientific community for his work. This fact was set out in the matter complained of at lines 976 to 980. (d) The Defendants contend that it is a fact that almost all of the scientists from whom the First Plaintiff has sought support for his work have declined to offer such support. This fact was stated by the Third Plaintiff and set out in the matter complained of at lines 997 to 999. (e) The Defendants contend that it is a fact that the prominent scientist Tim Flannery has described the First Plaintiff's book, Beyond the Human Condition , as 'a pretty poor book about the subject' which 'fails to take into account the various points of views, or differences in points of views'. Dr Flannery's account of the First Plaintiff's work was set out in the matter complained of at lines 986 to 994. (f) The Defendants contend that each of the matters set out in paragraphs 10.1(a), (b), (c), (d) and (e) above are proper material for comment." 805 The defendants assert, and I accept, that each of these matters has been established by the evidence (DS: para [1.232]). Indeed, paragraph (d) of the Amended Defence is expressed in terms of "almost all … scientists". The case made out, however, went further. There was, in my view, no relevant support from any scientist, including those scientists identified by the plaintiffs as having provided support (supra paras [678]ff). Such "support" as scientists provided to Mr Griffith did not extend to support for the science of his thesis, or even an important aspect of it. 806 The plaintiffs made the following submission: (PS: para [324]) "324. In circumstances where: (a) the defendants interviewed three (3) scientists and during those interviews positive comments were made about Mr Griffith's work (Ex A(70)); (b) the defendants failed to interview scientists whom they knew were supportive of Mr Griffith's work (discussed under 'Defendants' Conduct', above); (c) Professor Flannery has no expertise in relation to most of the areas of science covered by Mr Griffith's work (Ex 16; T965.2); and (d) Dr Millikan sought to influence Professor Flannery's opinion by informing him that Mr Griffith was running a cult and ruining families (T971.50), the single statement made by Professor Flannery cannot amount to proper material for comment." 807 The basis for that submission is not entirely clear. Certain paragraphs appear to be relevant rather to the issue of whether, given the asserted facts, the defendant, its servant or agent, honestly held the opinion provided by the comment (cf s 32(2), s 33(2)). Other paragraphs may be suggesting that the factual material presented to the viewer was not proper material, because it was incomplete (O'Shane at para [51]). Each aspect has been considered (supra paras [624]-[627], [768]ff)). I reject the submission. The material was, I believe, proper material for comment. It was substantially true. It was, I believe, sufficiently identified. 808 Moving to the fifth element, the defendants submitted that the comment was made by the defendant, its servant or agent, Dr Millikan and Ms Liz Jackson. According to the defendants, there was no basis upon which it could be said that the opinion was not honestly held by each (DS: para [1.236]). Additionally, the defendants suggested that the defence of comment of a stranger had application (s34), the strangers being Professor Tim Flannery (EX N(2): lines 986-993) and Mr Macartney-Snape (Ex N(2): lines 997-1002) (DS: para [1.240]). In each case it was said that their comments "did not purport to be the comments of the defendants or its servant or agent" (DS: para [1.239](c)). There was no basis, it was said, upon which it could be suggested that the requirements of s 34(2) had not been satisfied. 809 The plaintiffs, responding to these submissions, drew attention to the fact that neither Ms Jackson nor Dr Millikan had given evidence (PS: para [327]). For a number of reasons, it was said, the Court would not be satisfied that either honestly held the opinion represented by the comment. Dr Millikan could not honestly have held that opinion because he was aware that Professors Birch and Morton supported Mr Griffith's work. He also knew that Professors Groves and Davies had earlier provided support (PS Reply: para [202]). More than that, Dr Millikan was aware, according to the plaintiffs, that Professor Robertson agreed with, and supported, aspects of Mr Griffith's work (PS Reply: para [203]). The Court should infer from Dr Millikan's failure to give evidence, that his evidence would not have assisted him. 810 Again, I have, in the context of qualified privilege, earlier dealt with the suggestion that Dr Millikan did not honestly believe Imputation 5(a) (supra para [766]). In my view, the evidence established that he did. Ms Liz Jackson, on the evidence, was not involved in the making of the programme. It appears that she was brought in to provide an introduction (Ex N(2): lines 35-51) and a conclusion (Ex N(2): lines 1172-1178). I infer that she did so based upon her viewing the programme and access to the script. I also infer that, upon the basis of that material, she held the opinion expressed. 811 Turning to the suggestion that the comment may be characterised as the comment of a stranger, based upon the words of Mr Macartney-Snape and/or Professor Flannery, the plaintiffs made the following submissions: (PS Reply: paras [218]-[220]) "218. It is submitted that the words spoken by Professor Flannery in the matter complained of only give rise to a portion of imputation 5(a) – namely, the question of standard: Ex N, lines 986-993. The remainder of the sting was conveyed by words spoken by Dr Millikan and Liz Jackson – both servants and agents of the ABC: [319] Ps' subs. 219. Similarly the statement made by Mr Macartney-Snape could only possibly rise to one aspect of the imputation: Ex N, lines 997-1002. 220. In circumstances were neither of the statements made by Professor Flannery or Mr Macartney-Snape is congruent with the imputation in question, then the defendants cannot rely on the defence of comment of a stranger in relation to either of these statements." 812 I accept these submissions. The comment cannot, in my view, be characterised as the comment of a stranger in terms of s 34 of the Act. It was, relevantly, the comment of the defendant, the ABC, by its servant or agent. Subject to what follows concerning "malice", I believe the defence of comment in New South Wales has been established. 813 Since the issue under ss 32 and 33 concern the defendant's real opinion, or that of its servant or agent, malice is relevant in the sense that it may warp or distort judgment (cf Nicholas J, Brett May v TCN Channel Nine Pty Ltd & Ors [2007] NSWSC 760 at para [21]). In Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225, Hunt J said this: (at 237) "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." 814 Here, for the reasons given in the context of the plaintiffs' case on malice (supra paras [421]-[490]), I do not accept that the judgment of those making the programme, including Dr Millikan, was distorted or warped by an improper purpose. On the contrary I accept, as I have said, that the imputation represented the opinion of Dr Millikan. It also represented, if it be relevant, the opinion of Ms Jackson. 815 Although there are differences in the statutory provisions in those States and Territories which have replaced or supplemented the common law, the position is broadly the same. The defendants have established, in my view, the defence of comment in each such jurisdiction. 816 Let me turn to the common law. The elements of fair comment were considered by the Victorian Court of Appeal (that being a state where the common law applied) in Herald & Weekly Times Ltd & Andrew Bolt v Popovic [2003] VSCA 161, where Gillard AJA said this (Winneke ACJ and Warren AJA agreeing): (at para [259]) "259. The defence of fair comment has in the past been somewhat complex because of the differing views as to what constitutes the essential elements of the defence. However, in my opinion, over the last 25 years, the elements of the defence have been settled. In Duncan and Neill on Defamation , the elements are stated as follows -- '(a) The comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can consist of or include inferences of fact, must be recognisable as comments; (d) the comment must satisfy the following objective test: could any fair minded man honestly express that opinion on the proved facts?'" (footnotes omitted) 817 A useful elaboration upon this terse statement of the elements (also adopted by Gillard AJA in Popovic), was given by Lord Nicholls in the Court of Final Appeal in Hong Kong in Cheng v Tse Wai Chun Paul [2000] 3 HKLRD 418. Lord Nicholls said this: (Popovic para [263]) "First, the comment must be on a matter of public interest. Public interest is not to be confined within narrow limits today. Second, the comment must be recognisable as comment, as distinct from an imputation of fact … Third, 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. Next, 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 should be in a position to judge for himself how far the comment was well founded. Finally, 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." 818 In Popovic, again adopting Duncan and Neill, Gillard AJA said that the defence of comment was defeated at common law if the defendant was actuated by express malice (Popovic para [260]). The plaintiffs, in helpful written submissions, suggested that the real matter of defeasance at common law, was the absence of belief in the truth of the comment (PS: para [A45]). Again, a useful elaboration on that issue was provided by Lord Nicholls in Cheng's case, where he said this: (at 438) "… To summarise, in my view, a comment which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view he expressed. Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injury, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred. Proof of motivation may also be relevant on other issues in the action, such as damages. It is said that this view of the law would have the undesirable consequence that malice would bear different meanings in the defences of fair comment and qualified privilege, and that this would inevitably cause difficulty for juries. I agree that if the term 'malice' were used, there might be a risk of confusion. The answer lies in shunning that word altogether. Juries can be instructed, regarding fair comment, that the defence is defeated by proof that the defendant did not genuinely believe the opinion he expressed. Regarding qualified privilege, juries can be directed that the defence is defeated by proof that the defendant used the occasion for some purpose other than that for which the occasion was privileged. This direction can be elaborated in a manner appropriate to the facts and issues in the case." 819 Adopting the formulation of the elements of the common law by Lord Nicholls, and for the reasons already stated, I believe the defendants have established comment in respect of those jurisdictions where the common law applies. 820 The defendants have, therefore, in my view succeeded in establishing a number of defences to imputation 5(a). In respect of those defences that may be defeated by malice, I am not satisfied that malice towards Mr Griffith has been demonstrated on the part of either defendant. I will not, in these circumstances, assess damages in respect of that imputation, unless directed by the Court of Appeal to do so. 821 I turn now to the imputations relating to the third plaintiff, Mr Macartney-Snape. 4. THE MACARTNEY-SNAPE IMPUTATIONS The imputations. 822 Let me repeat the two imputations relating to Mr Macartney-Snape, which the defendants seek to defend. The first may be termed the deception imputation and was as follows: "6(a) Tim Macartney-Snape deceives schools who invite him to talk to students about climbing Mt Everest by exploiting the occasion to promote Jeremy Griffith and his teachings." 823 The second was the recruitment imputation and was in these terms: "6(b) Tim Macartney-Snape abuses his position of influence, derived from his reputation as a mountaineer, to recruit students at schools for Jeremy Griffith." 824 Again, it is useful to have the context. The plaintiff identified the following passages from the programme as giving rise to both imputations. The words not in bold relate to imputation 6(a). All the material, including the words in bold, relate to imputation 6(b) (PS: [377]-[383]) " Millikan: His philosophy is being promoted in our schools and universities by mountaineer, Tim Macartney-Snape, the prophet's first disciple (Ex N, lines 24-26). Millikan: Tim Macartney-Snape has given his life to Griffith's organisation, the Foundation for Humanity's Adulthood. He follows Griffith's ideas with the enthusiasm of a convert and his reputation is a potent tool in the promotion of the Foundation. He has become Griffith's public face. In schools and clubs around Australia he tirelessly advocates the prophet's words (Ex N, lines 194-200). Millikan: voice over the above bracketed dialogue : Mr Gordon Steward, principal of Concord High School, nineteen ninety-five speech night. Like many Australian schools they've invited a contemporary hero to talk about the triumph of the human spirit (Ex N, lines 214-217) Millikan: voice over 'Everest from Sea to Summit' footage: This is where he earned his reputation as one of the heroes of contemporary Australian culture (Ex N, lines 235-237). Millikan: Macartney-Snape is here not just to talk about his conquest of Everest. Whenever the opportunity allows, he talks about the prophet (Ex N, lines 248-250). Howard Whelan: I like Tim. I I love Tim. He's he's a mate. We've shared some good times, but I think that he has the responsibility to try and look clearly at what he's doing to these young kids because Tim is a hero. Jeremy may come across as a bumbly bloke who's a nice guy but Tim is a national hero. He's had two Orders of Australia. I mean he's he's there, he's. Society recognises him, as a great achiever and in that respect he has the responsibility to the people who he is trying to recruit (Ex N, lines 421-428). Millikan: And what of Tim? He remains a mystery. Of all those connected to Griffith, he has most to lose. He's now put his reputation and future in the hands of a person who many in the world outside see as mad, but he has the passion of a convert, and wherever schools and groups invite him, he will be Griffith's voice (Ex N, lines 1080-1085). Howard Whelan: It usually works, Tim is going to give a talk about climbing Everest, and the kids go out and go 'Oh great, we're going to go meet an Australian hero'. I wonder how much the administration of these schools know what is going to be perpetrated. Do they know that in the background is Jeremy with his separate agenda and this is what what concerns me. I think it's got to be out in the open (Ex N, lines 1106-1112)." The defence of truth. 825 The Amended Statement of Defence was accompanied by particulars identifying the material relied upon to prove the truth of each imputation. In respect of imputation 6(a), two matters were statements said to have been made by Mr Macartney-Snape, which were not tendered (paras [7.2(a)] and [7.2(d)]). Another was a letter not tendered by the defendants (para [7.2(c)]). The only matter identified, which became evidence, was correspondence between Mr T C Murray, the headmaster of Canberra Grammar School, and Mr Macartney-Snape dated 10 April 1995 and 3 May 1995. 826 The particulars in the Amended Defence in respect of imputation 6(b) were as follows: (para [7.3]) "(a) Speech Day address at Geelong Grammar School by Tim Macartney-Snape, October 31 1993. (b) Speech Night address at Concord High School by Tim Macartney-Snape, 1995. (c) Failure of Tim Macartney-Snape to inform the principal of Concord High School, before giving the speech [night] address, of his intention to discuss Jeremy Griffith and the Foundation for Humanity's Adulthood." 827 Whilst giving evidence, Mr Macartney-Snape identified a third occasion where he spoke to school children mentioning Mr Griffith and his ideas. It was during a Speech Day address given in November 1994 to the Scots School Albury (Ex AG) (supra para [130]). 828 The plaintiffs objected to the use of that material upon the basis that it had not been particularised. It was said that the plaintiff's case had been run upon an assumption that there were two occasions only. The defendants responded that it was Mr Macartney-Snape who had introduced the Albury Speech for his own purposes. It was an acknowledged occasion where reference to Mr Griffith's ideas had been made, when speaking to school children. I accept that the defendants may rely upon the Albury Speech. It was introduced relatively early in the trial, during Mr Macartney-Snape's cross examination. 829 Against this background, let me deal with the truth of each imputation. The truth of the deception imputation. 830 I should begin with the dictionary and the two concepts, "deception" and "exploitation". The Shorter Oxford Dictionary defines "deceive" to include: (at p606) " deceive … Trap or overcome by trickery; take unawares by craft or guile; lead astray. … Cause to believe what is false; delude, take in; … allow oneself to be misled, … Be or prove false to, betray. … " 831 To "exploit", according to the Shorter Oxford Dictionary, includes to "utilise for one's own end, taking advantage of (a person) … " (at p888). The word carries the suggestion of opportunism. 832 In Pt 2 of this judgment, when describing the making of the programme, the evidence concerning the speech at Geelong Grammar (supra paras [120]ff), the Albury speech (supra para [130]) and the speech at the Concord High School (supra paras [271]ff) were examined. It may be useful briefly to restate the findings made. 833 The Geelong Grammar Speech Day address was made on 31 October 1993 (Ex K). Both Mr Macartney-Snape and Mr Griffith had been students at the school. No directions were given by the school concerning the content of the speech (supra para [121]). Mr Macartney-Snape spoke of his career as a mountaineer, including climbing Mt Everest. That, however, formed a relatively small part of his address. He concentrated rather on "the inner journey of exploration" that each of us must take. He spoke of his "heroes", which included Sir James Darling, who was the headmaster during his time at school. In dealing with moral leadership, he referred to Jeremy Griffith. His speech included these words: (Ex K) (supra para [122]) "Those of you who know much about me will know that I have the highest regard for the work of Old Geelong Grammarian, Jeremy Griffith. After some six years of studying his biological, rational explanation for human nature, (principally written in his book 'Beyond the Human Condition') I am convinced he has made that crucial breach in our war to understand ourselves. In fact, without these understandings I would have had great difficulty in describing the problem as I have today, and I suggest that that in itself is some evidence that a break-through has been made." 834 Mr Macartney-Snape ended by urging students who were young and able "to take that path" (Ex K). 835 The speech was well received. The headmaster, Mr Lewis, wrote to Mr Macartney-Snape thanking him, saying that he had "struck a cord" (Ex R) (supra para [124]). Mr Lewis, in evidence, said that nothing in the speech struck him as inappropriate. There were no complaints (supra para [125]). When cross examined, Mr Lewis, a distinguished headmaster of Geelong Grammar and Eton, agreed that proselytising a particular religious view would be inappropriate (T110). He did not believe, however, that commending a prophet concerning the human condition was proselytising (supra para [126]). He entertained the possibility of Mr Macartney-Snape returning to speak on another occasion. 836 Mr Collins-Persse, a master, immediately wrote to Mr Macartney-Snape in these terms: (Ex W) (supra para [127]) "As I said during our very brief meeting on Speech Day, I thought - as did so many others - that your speech here on that occasion was magnificent." 837 He thought the speech "noble" and "thought provoking". Whilst he did not believe proselytising would be appropriate on such an occasion, he did not accept that a reference to Mr Griffith and his book could be so described. His evidence was as follows: (T229) "Q. And they are words which, to use the vulgar expression, plug the book by naming it, isn't that right? A. I would have understood by plug a good deal more than just naming it. Q. Well, there are soft sells and hard sells, I suggest. Do you understand that? A. Not really. What do you mean? Q. Vehement urging which might be a hard sell and a well placed reference to a book's name in the course of this speech which might be a soft sell. Do you accept that view of things? A. I'm afraid it's not the way I think so I can't." 838 Mr Collins-Persse asked Mr Macartney-Snape to provide a copy of his speech, which was then reproduced in the school magazine, The Corian (1993) (Ex K). 839 There was evidence of the reaction of others, who had not heard the speech, but read the text in The Corian. Mr Murray, headmaster of Canberra Grammar, read the speech and wrote to Mr Macartney-Snape. He said the speech was "terrific" and extended an invitation to speak at his school on Speech Day at the end of the year (Ex AF). He later withdrew that invitation after seeing the Four Corners programme (supra para [132]). I will deal with that aspect below. Mr Griffith provided Dr Millikan with a copy of the speech at their first meeting on 19 January 1995 (supra para [141]). At their next meeting (24 January 1995), Dr Millikan made the following comment: (Ex A(62)(1)) (supra para [155]) "Wow, I've got to say the, I thoroughly enjoyed Tim's speech. He is a thoughtful fellow, isn't he?" 840 Ms Masters, the producer of the Four Corners programme, made a similar comment. It was, she said, "a very good speech, very thoughtful …" (Ex 21(3), line 4019) (supra para [160]). 841 The speech at Scots College Albury was given in the following year (1994). It was, likewise, a Speech Day address. It closely followed the text of the Geelong Grammar speech (Ex AG) (supra para [130]). However, the promotion of Mr Griffith's ideas was rather more explicit. Mr Macartney-Snape, towards the end of his speech, said this: (supra para [130]) "Though one of us has broken through, it is of little use unless the mass of us do so. I urge those of you who are young and able, to take that path. I have attempted an introduction to these ideas in my Sea to Summit book but to gain a proper understanding will take your youthfulness and all the strength and sensitivity you have but surely to reach that coveted summit of our ideals must be the worthiest goal of all and worth the greatest hardships. I urge you to look into these understandings. " (emphasis added) 842 Mr Macartney-Snape said that he believed it appropriate to refer to Mr Griffith in this speech, because of his family association with the area. His family had been pioneers in the district (T270). When cross-examined, Mr Macartney-Snape accepted that there was no reference in the text of the speech to these matters. I accept, nonetheless, that in his elaboration upon the text, Mr Macartney-Snape referred to them (T432/3) (supra para [131]). 843 Moving to the Concord High School speech, made on 8 March 1995, Mr Macartney-Snape had some instructions from the school as to what was expected of him (supra paras [271]ff). The Head of English, Ms Whiddon, provided a copy of the Principal's draft address and suggested that Mr Macartney-Snape stress the importance of commitment and dedication to goals (Ex AM). Mr Macartney-Snape also spoke to the Principal, Mr Stewart. Their conversation, according to his evidence, was in these terms: (T285) "A. … he said, 'Tim, I understand you've seen a draft. It's only a draft. It would be really good if you could talk to the students about your idea of what achievement is because my concern is that young people these days are getting the wrong message about consumerism being a purpose in life and I think it's very unhealthy,' and I said, 'Well, I think – I totally agree. I think I can certainly give you my version of what I think achievement is' and that was the essence of that conversation. Q. Thank you. A. Could I correct myself? Q. Yes, sorry? A. The important phrase is 'deeper meaning of achievements'. That is what he wanted me to talk about, what I thought the deeper meaning of achievement was." 844 Mr Macartney-Snape, in the light of these instructions, determined that it was appropriate to refer to Mr Griffith and his ideas (T287). Ms Masters had asked to be told of any speaking engagements (if they arose) (supra para [283]). She was therefore informed, as was Dr Millikan. The speech was a shortened version of the Geelong Grammar speech (supra para [276]-[278]). It included the following, the words in bold being the words that appeared in the Four Corners programme: (supra para [277]) " I have the highest regard for the work of a bloke called Jeremy Griffith. After some six years of studying the biological, rational explanation, studying his biological, rational explanation for human nature, principally written in his book Beyond the Human Condition, I'm convinced he's gone up river and reached the source of the problem. He's made a crucial breach in our war to understand ourselves. He explains that the dark side of our nature which I've referred to, stems from a battle within each one of us. It's a war that rages on in an attempt to reconcile the 'spiritual opposites' in our nature, left and right if you like. From the evidence pieced together in the discipline of palaeontology which looks at fossil remnants of our ancestors. We can deduce that this battle began about two million years ago, and that was the advent of conscious thinking, and prior to consciousness developing. Our primate ancestors lived in harmony or to use a word closer to home here, they lived concordantly. It's not something they had any conscious understanding of though … with its inevitable mistakes and egocentricity. But unable to explain the problem made us upset and angry which only compounded the problem as the more upset we became the less concordant was our behaviour and the greater was the older brain's disdain." 845 Mr Macartney-Snape urged students to look at what he was saying and see for themselves whether it was true (supra para [278]). 846 The Principal, Mr Stewart, Ms Whiddon, and another teacher Mr Moule, gave evidence. All knew Mr Macartney-Snape's reputation as a mountaineer. None knew of his association with Mr Griffith, his ideas or the Foundation. Nothing was said by Mr Macartney-Snape signalling his intention to deal with those issues. However, Mr Stewart understood that he would be referring to his beliefs and values (T84). Most thought the speech too long. Ms Whiddon recalled feeling distinctly uncomfortable during part of the speech. She thought some of it inappropriate, in the sense that it would be of no interest to the children (Ex 43: para [13]). Mr Moule was not "particularly concerned" with the "passing mention" of Mr Griffith's ideas (T1597) (supra para [279]). 847 Mr Macartney-Snape, when cross-examined, said he saw no need to alert the school as to what he intended to say concerning Mr Griffith and his ideas. In cross examination, the following was put: (T437) (supra para [280]) "Q. From what you told his Honour you claim you regarded it as entirely appropriate to aim this plug for the very unorthodox to school children, correct? A. It's totally harmless to express one's interests in an idea you think is important and interesting but -- " 848 Mr Macartney-Snape denied that he had been deceitful (T437). Submissions concerning the deception imputation. 849 The defendants sought to demonstrate the truth of the deception imputation by pointing to a number of matters: · First, in each case, Mr Macartney-Snape did not tell the schools that he intended to speak about Mr Griffith and his ideas. · Secondly, the schools had no independent means of anticipating that he would deal with that material. · Thirdly, Mr Macartney-Snape, neither told the schools nor sought permission in advance, because he knew that Mr Griffith's ideas were unorthodox, indeed outrageous, even dangerous. The newsletters carried a health warning for that reason. He also knew from the "absurd cult saga" that, for certain parents, they were divisive. · Fourthly, the schools, being aware of Mr Macartney-Snape's reputation as a mountaineer, and the fact that he had climbed Mt Everest, expected him to speak on those matters. · Fifthly, that in these circumstances, there was deception because Mr Macartney-Snape also chose to speak of Mr Griffith's ideas. · Sixthly, Mr Macartney-Snape therefore exploited the occasion by introducing something extraneous and inappropriate. He did so because he was the front man, the foremost apologist for Mr Griffith's ideas. He regarded it as his duty to do so. · Finally, it was no accident that he did so to an audience of school children. The young had been identified as the target audience. Their youth and impressionable minds meant that they were open to persuasion on the unorthodox. 850 Before considering the plaintiffs' response to these arguments, I should deal with a preliminary issue. It gives definition to the conduct of Mr Macartney-Snape to be examined. As explained, Mr Macartney-Snape said that he referred to Mr Griffith's ideas in the course of a school speech on three occasions only, and then because he regarded it as appropriate (supra para [129]). It was appropriate at Geelong Grammar because of his and Jeremy Griffith's connection with that school. It was appropriate at The Scots School, Albury, because of Mr Griffith's association with that district. It was appropriate at Concord High School because he had been asked to speak on the "deeper meaning of achievement" (T287). 851 The defendants contended, however, that the practice of insinuating Mr Griffith's ideas into school speeches was far more widespread. Mr Macartney-Snape, as the apologist for Mr Griffith's ideas and the Foundation (DS: para [2.34]), believed it was his duty to stand up for the ideas (DS: para [2.35]). It did not cause him embarrassment to do so (DS: para [2.42]). In his public life, whether in publicity in The Sydney Morning Herald (Ex X), when talking to Caroline Jones (Ex AA) or in his speech to the Royal Geographic Society, he had identified himself with the ideas (DS: para [2.45]). He was a director of the Foundation, which had been set up to promote Mr Griffith's ideas (DS: para [2.46]). People with young minds had been identified as the target audience (supra para [60]). It was a logical extension of his mission that he should promote the ideas in schools, as described in newsletters by the Foundation (DS: para [2.50]). According to the defendants, the Court, in these circumstances, should infer that Mr Macartney-Snape when speaking to schools, mentioned Mr Griffith's ideas on many more occasions than he acknowledged (DS: para [2.58]). There was, moreover, according to the defendants, a contradiction in his position. He defended mentioning the ideas at Concord on the basis that it was "totally harmless to express one's interest in an idea you think important and interesting" (T437) (supra para [847]). Why then, not mention it more often? (DS: para [2.58]). 852 The defendants also drew attention to a letter written by Mr Macartney-Snape on 4 May 1995, after his return from overseas. Having seen the programme, he wrote a letter of reassurance to various headmasters, which included this passage: (Ex AV). "The majority of engagements require me to talk on achievement in relation to mountaineering, of the geography and culture of the Himalaya and my work with the Nepal Eye Program. Naturally I do my best to stick to those subjects. When I am asked to be a guest speaker at speech days I'm commonly given a brief to inspire the students and asked to discuss my outlook on life. I do this by talking about climbing, my Eye Program work and my compulsion to explore the deeper issue of human nature. Typically a 20 minute talk might spend 5 minutes referring to today's crucial need to understanding human nature." 853 That letter, it was suggested, indicated a practice far more widespread than three occasions. The defendants also pointed to the newsletters which suggested that Mr Griffith's ideas were promulgated in schools (DS: para [2.93]). The defendants described the evidence of Mr Macartney-Snape, in which he sought to make a distinction between Speech Day addresses and those which may be described as "mountaineering talks" as "artificial" and not supported by the evidence (DS: para [2.93]). It must be acknowledged that Mr Macartney-Snape's letter of 4 May 1995 does appear to describe a practice more numerous than three occasions. 854 Nonetheless, as a matter of probability, I accept Mr Macartney-Snape's account. First, he gave the following evidence of a conversation with Ms Masters on the second day of the walk, she having asked him to alert her to Geelong style talks. When asked whether he had been invited to speak to schools, he said: (T278) (supra para [192]) "Well, yes, I do have but none of them are - they are all mountaineering, Himalayan style talks, but if I do get a speech day type talk, you know, I could possibly do a Geelong Grammar style speech and, you know, for the purposes of filming." Ms Masters replied saying: "That would be good." 855 I do not find the distinction between Himalayan talks and Speech Day talks artificial. Mr Macartney-Snape gave 80 or more talks to schools. Most were Himalayan style talks, where it was inappropriate to speak of Mr Griffith's ideas, because they were irrelevant. A Speech Day address was less focussed. It may be the occasion for the transmission of wisdom on a broader canvas. Further, at Geelong and Albury, the connection with Mr Griffith made it appropriate to make reference to him. At Concord the connection was less obvious. Mr Macartney-Snape said that, apart from being asked to speak on "the deeper meaning of achievement", he was also trying to be helpful to the ABC. That likewise is plausible. 856 Secondly, there was corroboration for his account. Within a short time of the Geelong speech, Mr Macartney-Snape gave a Speech Day address at Cranbrook School in Sydney (supra para [129]). He made no reference to Mr Griffith or his ideas, although he did deal with matters of personal philosophy and the need for inner strength. 857 Thirdly, and more generally, Mr Macartney-Snape was an impressive witness. He struck me as endeavouring to live his life in accordance with the precept of Sir James Darling, which he included in his Geelong address, namely: (Ex K) (supra para [121]) "We need in this generation, as we have had them in the past, men of conscience, driven, even against their wills, certainly against their own interest, to take a stand for principles. Men not afraid of facing unpleasant facts, not afraid of being different in their views from other people, men who cannot rest so long as opportunities remain to work for the really great human objectives - peace, justice, honesty and decency between men." 858 There was one blemish in his evidence which I should record, where I believe his answer was less than frank. He said this: (T395/6) "Q. You accept, don't you, that when the broadcast was made, there was a position taken that the work of the foundation was too important for its members to be able to [marry] and have children, as others do? A. Well, I don't think the evidence supports that. I think I don't know what evidence you have for that, but generally speaking --- " 859 Mr Macartney-Snape was shown Mr Griffith's words in "A Species in Denial" (Ex A(6): p503) (supra para [254]). The cross examination continued: (T396) "Q. The fact is that since before the time of the broadcast, you, Jeremy Griffith and others involved in the foundation, in leading positions, had decided not to have children because you had more important work. Isn't that right? A. That's correct for most of us, that's correct." 860 I have no doubt that Mr Macartney-Snape well knew, when the question was first asked, the position within the Foundation without having to be reminded of Mr Griffith's words. It was an issue of some sensitivity. This aspect of the Foundation's philosophy was naturally distressing to some parents. It was used to suggest that the Foundation was behaving like a cult. That said Mr Macartney-Snape, in a long cross examination, presented as an intelligent, responsive and, I believe, an honest, witness. 861 Against that background, let me return to the defendants' submissions concerning the truth of the deception imputation. The plaintiffs, in response, said and I accept, that the imputation attributed serious misconduct to Mr Macartney-Snape, namely deception. The defendants have the onus. The Briginshaw standard is appropriate (PS Reply: para [24]). Further, the imputation was general in terms (PS Reply: para [21]). Yet the defendants relied only upon two occasions in particulars (Geelong and Concord) and a third (Albury) added during the trial. The plaintiffs questioned whether, even were there proof of deception (which was denied), three occasions could be enough to justify a general allegation. 862 Let me pass over that issue and deal with the plaintiffs' response to the matters raised by the defendants, interpolating my own comments. The first matter was the suggestion that Mr Macartney-Snape did not tell schools in advance what he planned to say. The plaintiff drew attention to Mr Macartney-Snape's practice, or that of his agent, of providing each school with a one page profile. It was annexed to the statement of Ms Noelle Oke of The Scots College, Albury. It described Mr Macartney-Snape's mountaineering achievements. It also said this: (Ex 40) (PS Reply: para [30]) " … Tim has always been active in communicating the mountaineering experience to a wider audience. However, his concerns extend beyond the world of ice and snow . He is passionately interested in all aspects of natural history and in particular the relationship between human beings and nature. He believes that we will only be able to deal effectively and finally with problems such as the environment and human aggression by first fully understanding human development. He thinks our future lies in reconciling the great and heroic achievements of human intellect with our collective and universal unconsciousness thus achieving what he calls our 'psychological maturity'. Tim us a director of the Foundation for Humanity's Adulthood and chairman of The Nepal Eye Program Australia, an organisation which promotes and raises money for appropriate economic development in Nepal." (emphasis added) 863 One infers that the same document was provided to the Concord High School. The student introducing Mr Macartney-Snape clearly used the profile in her speech. She referred to the fact that he was a director of the Foundation for Humanity's Adulthood and chairman of the Nepal Eye Programme (Ex AP: lines 32/33). The plaintiffs submitted there was no deception. Nor could it be assumed there was a duty to inform, as the defendants' implied. Mr Lewis, the headmaster at Geelong Grammar, said the school imposed no limitation upon Mr Macartney-Snape in his choice of subject. He added that the choice made did not strike him as inappropriate (supra para [125]). 864 The second matter asserted by the defendants was that there was no basis, absent information from Mr Macartney-Snape, upon which the schools would know of Mr Macartney-Snape's association with Mr Griffith, his ideas or the Foundation. Again, the plaintiffs pointed to the profile, which certainly included a reference to the Foundation. Mr Macartney-Snape made no secret of his links with Mr Griffith. He had placed the Foundation flag on the top of Mt Everest. He had spoken of Mr Griffith's ideas in his lecture tour after the climb. He wrote the Foreword to "Beyond" and included a chapter on Mr Griffith in his book, "Sea to Summit". There had been other publicity beside. 865 Dealing with that issue, there is no doubt that, in some circles, the association between Mr Griffith and Mr Macartney-Snape was well known. I accept, however, that it would not be known to most schools, unless disclosed. I further accept that Mr Macartney-Snape's profile identified him as a member of the Foundation, and gave an indication (without identifying Mr Griffith) of Mr Macartney-Snape's wider interests in philosophy. Ms Batstone became his agent soon after 20 September 1992 (supra para [99]). 866 The third suggestion made by the defendants was that Mr Macartney-Snape had deliberately withheld information from schools because he knew that Mr Griffith's ideas were dangerous, and would be so regarded, such that permission would be withheld, were it sought. I am not persuaded, however, that this furnishes a plausible motive for concealment. Mr Macartney-Snape acknowledged, in evidence, that the ideas were unorthodox, even dangerous, and that the newsletters were subject to a health warning. But the context was quite different. These statements presupposed an intensive exposure to Mr Griffith's ideas and their implications. A passing reference to them, such as recorded in his speeches, was a horse of a different colour. 867 The fourth matter was that schools expected Mr Macartney-Snape to speak about mountaineering and conquering Mt Everest. That cannot be doubted. However, it is another thing to suggest that schools expected Mr Macartney-Snape to speak on such matters, to the exclusion of all else. Mr Stewart, the principal at Concord, said he expected the speech to include something about the man and his values. I believe most would share that expectation. What was it that drove him in such feats of endurance? Was it Christianity, Zen Buddhism or something else? 868 Nothing in the first four matters raised by the defendants, to my mind, suggests deception. 869 However, unless the schools knew in advance exactly what would be said (which was not the case here), there can still be deception and exploitation, depending upon the content of the speech. A speaker can be expected to know the limits, imposed either by society or the institution being addressed, in this case schools. To take an obvious example, it would be inappropriate for a speaker to advocate the use of marijuana, smoking cigarettes or drinking alcohol to a group of school children. Such things would immediately be recognised as self evidently harmful, and therefore inappropriate. Other topics, such as politics, religion, and references to sex, require caution. A speaker who, pursuing his or her own agenda, knowingly transgresses these conventions to a captive audience, may be said to be behaving deceptively and exploiting the occasion. 870 Mr Macartney-Snape and the Foundation insisted that Mr Griffith's ideas were not a religion. They were, nonetheless, a philosophy, or view of life. In 1992, Mr Macartney-Snape spoke to the headmaster of Shore School concerning the distribution of Foundation literature. He said that he understood that it was a sensitive area and care had to be taken (T342) (supra para [94]). 871 Turning to the contents of Mr Macartney-Snape's speeches, can it be said in respect of any of them, that he stepped over the line so that he, arguably, deceived the school who had invited him and exploited the occasion? Each speech commended Mr Griffith's teachings as worthy of exploration. Arguably, that amounted to promotion of Mr Griffith and his teaching, as suggested by the imputation. But was there deception and exploitation? Mr Lewis, the headmaster of Geelong, and Mr Collins-Persse, both agreed that proselytising would be inappropriate, that is, using the occasion to seek converts to a particular religion or philosophy. The plaintiffs, although dealing with the word "exploitation", made the following submission, equally apposite in the context of deception (PS Reply: para [42]) " … A term used by the defendants during the course of the hearing comes close to the mark of what need be proved: proselytising. For reference to any particular subject-matter to involve an 'exploitation' of the occasion, it has to be shown to have involved conduct that was quite out of keeping with the occasion ." (emphasis added) 872 Neither Mr Lewis nor Mr Collins-Persse believed that Mr Macartney-Snape's speech amounted to proselytising (supra paras [835]-[837]). Indeed, counsel for the defendants, in his cross examination of Mr Collins-Persse, characterised Mr Macartney-Snape's approach as "soft sell", in contrast to "hard sell" (supra para [837]). 873 Those who heard the speech thought it was a fine speech and appropriate (supra para [835]-[837]). By no stretch could it be said, in my view, that it "crossed the line". 874 Indeed, it is instructive in this context to look again at the response of Mr T C Murray, the headmaster of Canberra Grammar (supra para [132]), which was relied upon by both the plaintiffs and the defendants. Mr Murray, it will be remembered, wrote to Mr Macartney-Snape a matter of days before the Four Corners programme (10 April 1995). He said that he had read the Geelong Grammar speech and thought it "terrific". He invited Mr Macartney-Snape to speak to his students on their Speech Day in December that year. On 3 May 1995, having seen the programme, he wrote again. The invitation was withdrawn. For convenience, I again reproduce his letter: (Ex AF) (supra para [132]) "Since extending the Speech Day invitation I have become aware of the importance of The Foundation for Humanities Adulthood and the importance of Jeremy Griffith in your life. You have publicly and unequivocally stated that you are a disciple of Jeremy Griffith and what he stands for. While this is, of course, your business I am not prepared for The School, either directly or indirectly, to be associated with either The Foundation or its Prophet. If I believed it was possible for your presence at Speech Day to be seen in isolation from the other key aspects of your life I would be able to confirm the invitation. However this is clearly not possible and I'm afraid I must withdraw the invitation for you to join us on Speech Day on 5th December. It would clearly be unrealistic of me to expect you to speak without direct or indirect reference to either Jeremy Griffith or the Foundation." (emphasis in original) 875 In the context of this correspondence, the defendants made the following submission: (DS: para [2.77]) "2.77 Proof of this lack of appreciation which schools had had for Mr Macartney-Snape's association with and promotion of Mr Griffith and his ideas is evident from the correspondence from Mr Murray, a previous Master from Geelong Grammar, to Mr Macartney-Snape (Exhibit AF). Whilst Mr Murray had read Mr Macartney-Snape's Geelong Grammar speech, he was not aware until some time later (after inviting Mr Macartney-Snape to come and speak at the school) about the importance of the FHA and Mr Griffith in Mr Macartney-Snape's life." 876 The plaintiffs, in reply, said this: (PS Reply: para [27]) "In his first letter (Ex AF) Mr Murray stated that he had read Mr Macartney-Snape's Geelong Grammar School speech, which of course made reference to Mr Griffith and his views, along with those of other thinkers: see Ex K. It follows that prior to the broadcasts, Mr Murray had no concerns about Mr Macartney-Snape's references to Mr Griffith – indeed, he was enthusiastic about the Geelong speech. The defendants did not call Mr Murray; in his absence the likely explanation is that his concerns arose as a result of seeing the broadcasts or of having their contents directly or indirectly relayed to him. … " 877 I prefer the submissions of the plaintiffs. Before the broadcast, a passing reference by Mr Macartney-Snape to Mr Griffith and his ideas was "terrific". It was evidently not considered proselytising. It became unacceptable in the context of the programme. Whilst the programme was, I believe, balanced in terms of the material available to the ABC (supra paras [471]ff), there were matters which were unquestionably adverse, including the three imputations, the subject of this action, and other matters besides. On hearing the imputations and knowing more about Mr Griffith and his theories, Mr Murray chose to withdraw the invitation. 878 However, the correspondence (Ex AF), to my mind, reinforces the conclusion that Mr Macartney-Snape's speeches were acceptable when they were given. There was no deception. He did not exploit the occasion in any inappropriate way. The defendants have failed to prove the truth of imputation 6(a). 879 Let me turn to the companion imputation. The recruitment imputation. 880 Imputation 6(b) incorporated a number of phrases. Some were uncontroversial. Mr Macartney-Snape had a reputation as a mountaineer. He was, as Howard Whelan said in the programme, "a national hero" (Ex N(2): line 425), recognised by society as "a great achiever" (Ex N(2): line 427). His reputation, therefore, provided him with "a position of influence". So much was common ground. 881 However, the sting in the imputation derived from the conjunction of these elements with the other two phrases, that is, "having these qualities" he "abuses his position" to "recruit students at schools for Jeremy Griffith". 882 Looking at the Shorter Oxford Dictionary, the verb "abuse" includes "misuse; making a bad use of; wrongly taking advantage of" (p10). The Macquarie Dictionary Online suggested "to use wrongly or improperly", as in the abuse of authority or abuse of confidence. 883 "Recruit", as a verb, is defined by the Shorter Oxford Dictionary to include "reinforce, supplement, or keep up the number of (a class of people or things)" or "enlist as a recruit to the armed forces" (p2508). 884 The superstructure for the defendants' argument, in respect of this imputation, involved many of the same propositions, including: · First, Mr Macartney-Snape regarded it as his duty to disseminate Mr Griffith's ideas for the good of mankind. · Secondly, young minds were the target audience, because they were less resistant to unorthodox ideas. · Thirdly, Mr Macartney-Snape and the Foundation recognised that what was needed, if the ideas were survive and flourish, was a "critical mass" of young people who subscribed to them (DS: para [2.6]). 885 Against that background, it was said by the defendants that there had been an abuse of his position of influence, for the following reasons: (DS: para [2.6]) "(e) The relevant schools had no consciousness that Mr Macartney-Snape was associated with Mr Griffith, his work or the FHA; (f) The schools believed that he would speak about climbing Mt Everest and other mountaineering feats; (g) The schools were unaware that he would be speaking about Mr Griffith and his ideas." 886 By "recruitment", the defendants meant this: (DS: para [2.6]) "(h) By recruitment, all the Defendants are required to prove is that Mr Macartney-Snape was attempting to expose and persuade students of the merit of following Mr Griffith's ideas. As will be set out below, Mr Macartney-Snape conceded that he intended, by commending Mr Griffith's ideas to school children, and hoped that introduction would lead to their ultimate acceptance of Mr Griffith's ideas." 887 The defendants added: (DS: para [2.6]) "(d) Given the nature of the audience and the fact that his speaking was meant to be inspirational in nature, it created ideal circumstances for recruitment." 888 The defendants added that "without question … commending listeners to pursue Mr Griffith's ideas constitutes recruitment" (DS: para [2.80]). Reference was made to the cross examination of Mr Macartney-Snape. It was said that he had made a number of concessions (DS: para [2.81]). The cross examination began with the following questions: (T453) "Q. It would be fair to say, wouldn't it, of Angus Gemmell, that you recruited him? A. Well, I don't like the term 'recruit' in the sense it is used by Four Corners. It's true that I introduced him to Mr Griffith's ideas." 889 The cross examination continued: (T453) "Q. And the fact is that upon introducing them, it is your hope for the good of the world and of that individual that he or she will accept them, come to understand them and believe them, correct? A. Correct. Q. That is your hope? A. That is my hope. Q. If you put all of that together, wanting to introduce, hoping the introduction will lead to acceptance, then, and you may find the word ugly, it is fairly described as an attempt by you to recruit people, isn't it? A. Well, if it's used – if it's couched in terms of an antisocial group, then it is an ugly word. If it's couched in terms of a philosophical debate or bringing someone into a football club, then that is a different meaning, I suggest. Q. For a Christian, 'Onward Christian Soldiers' is a recruiting song to be proud of, not embarrassed about, correct? A. I hadn't thought of it that way, but yes." 890 Shortly thereafter, the following exchange occurred: (T454) "Q. You understand and have understood for years, haven't you, that for many people, who may be right or wrong, recruiting to any kind of large and unorthodox ideas is to be deplored? That might be wrong, but you understand many people think that is deplorable don't you? A. I think in an open society I don't think introducing different ideas is deplorable. I don't think most people would think that." 891 Mr Walker SC then went to the issue arising under the imputation. The cross examination was in these terms: (T454) "Q. You intended every time you mentioned Jeremy Griffith's ideas, commandingly to school children, that if what you hoped came to pass, that would be an introduction leading to their acceptance of his ideas ultimately, didn't you? A. If they chose to investigate. Q. By the same exercise of free will, which, in the military sense, involves somebody signing the oath, and, in the religious sense, involves someone joining a church, it is still free will which results in recruitment, isn't it? A. In that sense, yes. Q. I suggest to you that it is perfectly fair and accurate, in the sense you have agreed with in the last 10 minutes of cross examination, to say that your talk about Jeremy Griffith to school children was part of your intention to recruit them to his ideas, you agree with that don't you? A. Well, I think if Thomas Huxley had gone out and answered an invitation to Eton, hypothetically – he was a well known supporter of Darwin, to talk at a Speech Day at Eton and he talked about Darwin's ideas, I think that's – I think there is a good similarity there. I don't think people would take the view that he was recruiting people for Darwin, for the Darwinian model. He was just introducing them to an interesting new, if not controversial idea." 892 The plaintiffs, in response, again drew attention to the words in the imputation, which were general in character. In circumstances where Mr Macartney-Snape had spoken to schools on over 80 occasions, the defendants sought to support that imputation by reference to three occasions (PS: para [363(a)]). There was no evidence of any student being recruited as a result of such talks (PS: para [263(d)]. Angus Gemmell, when introduced to the ideas, had already left school (T534). Damon Isherwood, if he was introduced to the ideas by Mr Macartney-Snape, was 26 or 27 years old (T534). The imputation was not that Mr Macartney-Snape attempted (without success) to recruit students, nor he had made speeches capable of creating an interest in those ideas (PS: para [363(d)]). It was that he had abused his position of influence to recruit students. The plaintiffs made the following submission: (PS: para [367]) "367. The mere fact that Tim Macartney-Snape mentions Jeremy Griffith in speeches would not, one would think, suffice to prove that he recruits students from schools (or even that he attempts to do so)." (emphasis in original) 893 I accept the plaintiffs' submissions. I am unpersuaded that the defendants have proved that Mr Macartney-Snape abused his position of influence. For the reasons given in the context of the deception imputation, nothing said could reasonably be characterised as an abuse. By no stretch could it be said that he stepped over the line. Nor do I believe that planting an idea that may or may not germinate amounts to recruiting. Recruiting, to my mind, suggests something much more active and direct, in terms of securing new members (cf Masters: T1466) 894 Accordingly, the defendants have failed to prove the substantial truth of imputation 6(b). The defence of justification therefore fails in respect of both imputations. Qualified privilege. 895 The defendants relied upon qualified privilege at common law in respect of the Macartney-Snape imputations. The availability of that defence, in the context of the Four Corners programme, was considered in respect of the Griffith imputation (supra paras [746]ff). The defence failed (supra para [759]). For the same reasons, I believe it is not available in respect of the Macartney-Snape imputations. 896 Turning to statutory qualified privilege under s 22 of the New South Wales Act, to obtain that privilege, the publisher must demonstrate, amongst other things, that its conduct was "reasonable in the circumstances" (s 22(1)(c)). For the purposes of that subsection, when considering that issue, the Court is enjoined to take account of, amongst other things, the following: "Section 22(2A) … (g) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the publisher to obtain and publish a response from the person." 897 Here, the allegations which were the subject of imputation 6(a) and 6(b) were made by Mr Howard Whelan in an interview with the ABC on 3 February 1995 before the Snowy Mountains walk (supra paras [168]ff). Throughout February there were opportunities to put this material to Mr Macartney-Snape, or even Mr Griffith. Yet the allegations were not put. That was a matter of concern to Ms Masters. She raised it with the executive producer, Mr Carroll (T1452). She assumed, nonetheless, that the issue would be dealt with at a later stage. On the evening of 8 March 1995, after Mr Macartney-Snape had spoken to the students at Concord High School, she asked him to wait behind. He did so. She then saw Dr Millikan and raised with him whether the allegations of Howard Whelan should be put to Mr Macartney-Snape. Dr Millikan felt that he had covered a lot of "that territory" (T1474). Mr Macartney-Snape was allowed to go. To the regret of Ms Masters, the allegations were not put (T1473/4). 898 Nor were they put the following day in the final interview with Mr Griffith. In the result, Mr Macartney-Snape never had the opportunity of answering the serious allegations that had been made. The conduct of the defendants was unreasonable. The defence under s 22 fails. 899 Let me turn to the equivalent provisions in Queensland and Tasmania. Each requires that the publication should be in "good faith" (supra para [787]). Here, I believe that good faith required that Mr Macartney-Snape be given the opportunity to respond to serious allegations which directly concerned him, which were to be given great prominence in the publication. I do not believe that the ABC or Dr Millikan were actuated by malice (supra paras [471]ff). However, the decision by Dr Millikan not to put the allegation to Mr Macartney-Snape on the evening of 8 March 1995 was, I believe, influenced inappropriately by the proximity of the final interview with Mr Griffith, scheduled for the next day. The questions Dr Millikan needed to put to Mr Macartney-Snape were serious and adverse. There was the danger that, had they been put, Mr Griffith may have then refused to participate in the final interview. That would have been unfortunate for the programme. It was therefore expedient not to put them. However, fairness required that Mr Macartney-Snape should have the opportunity to answer the serious imputations that the programme would carry against him. 900 The defence of statutory qualified privilege, or protection, also fails. The defence of fair comment. 901 The defence of fair comment is available throughout Australia, either under statute or the common law, or both (supra para [794]). 902 I will begin by dealing with the Defamation Act 1974 (NSW), Div 7. The defendants, in the context of the Macartney-Snape imputations, also relied upon s 30(3)(b) of the Act, which is an alternative available should they not be able to prove the substantial truth of the facts upon which the comment was based. That section was in these terms: "30(3) The defences under this Division are available as to any comment if, but only if: (a) … or (b) the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment." 903 The issues, therefore, are as follows: (cf para [796]) · First, was the imputation a comment or a statement of fact? · Secondly, if it was a comment, is the factual basis for it sufficiently indicated or identified in the published material? · Thirdly, if so, are the facts substantially true? · Fourthly, if the imputation is a comment, and is based on material which is to some extent proper material for comment, does the comment represent an opinion that might reasonably be based on that material? · Fifthly, did the imputation relate to a matter of public interest (s 31)? Here, the plaintiffs concede public interest (PS: para [316]) · Sixthly, where the comment is that of the defendant (s 32) or a servant or agent of the defendant (s 33), was the opinion expressed by the comment held by the defendant, its servant or agent, as the case may be? The onus is upon the plaintiffs to prove that the opinion represented by the comment was not honestly held by the defendants (s 32(2)) or the servant or agent (s 33(2)), as the case may be. · Alternatively, where the comment is that of a stranger, and in context, not the comment of the defendant, its servant or agent (s 34(1)), the onus is upon the plaintiffs to prove that the publication complained of was not in good faith for public information or the advancement of education (s 34(2)). 904 Dealing with the first issue, the question of whether the imputation is a comment or statement of fact depends upon whether, in the context of the programme, the meaning arises as a comment or a statement of fact. The plaintiffs submitted that each of the Macartney-Snape imputations were statements of fact (PS: paras [376], [382]). The defendants made the following submissions in respect of imputation 6(a): (DS: para [2.126]) "2.126 Imputation 6(a) contains judgmental terms such as 'deceives' and 'exploits' , which are expressive of an opinion rather than of fact. The imputation constitutes a conclusion, because it identifies the circumstances giving rise to the deception (the invitation to talk to students about climbing Mt Everest) and then the deceptive result (because in fact Mr Macartney-Snape exploits the occasion) to promote Mr Griffith and his teachings." (emphasis in original) 905 The defendants also submitted that the recruitment imputation 6(b) was comment: (DS: para [2.127]) "2.127 Equally, Imputation 6(b) contains critical, qualitative terms such as 'position of influence', 'abuses' and 'recruit' which are expressive of an opinion rather than fact. For example, one person's abuse is someone else's use. Further, the identification of his position of influence is expressed as a conclusion arising from his reputation as a mountaineer (which is a notorious fact). The suggestions of an abusive act results from an identification of the position of influence and the impressionable class 'students at schools' , again expressed as conclusionary." (emphasis in original) 906 I accept that, in context, each imputation was a comment and was sufficiently identified. 907 Moving to the third issue, that is, whether the facts were substantially true, the Amended Statement of Defence identified the "proper material" for comment in relation to the deception imputation (6(a)) in these terms: "10.2 … (a) The Defendants contend that it is a fact that the Third Plaintiff is invited by schools to talk to students about climbing Mt Everest. This fact was set out in the matter complained of at lines 205 to 252. (b) The Defendants contend that it is a fact that the Third Plaintiff has used such occasions to promote Jeremy Griffith and his teachings. This fact was set out in the matter complained of at lines 248 to 261. (c) The Defendants contend that each of the matters set out in paragraphs 10.2(a) and (b) above are proper material for comment." 908 The following particulars were provided by the Amended Defence in relation to the recruitment imputation (6(b)): "10.3 … (a) The Defendants contend that it is a notorious fact, well known to viewers of the matter complained of and in any event set out at lines 215 to 217 of the matter complained of, that the Third Plaintiff is a person who is a 'contemporary hero', and thus in a position of influence, as a result of his reputation as a mountaineer. (b) The Defendants contend that it is a fact that the Third Plaintiff seeks to recruit school students to join or otherwise become involved in the Foundation for Humanity's Adulthood. (c) The defendants contend that each of the matters set out at paragraphs 10.3(a) and (b) above are proper material for comment." 909 For the reasons given, I do not accept that it was substantially true to say that, in the context of the addresses which had been identified (which were Speech Day addresses), Mr Macartney-Snape was "invited by schools to talk to students about climbing Mt Everest". The invitation in each case was much broader than that. In respect of imputation 6(b), it was not substantially true to say that, in addressing school students, he was seeking to recruit them. He was planting an idea, no more. 910 The fallback position of the defendants, based upon s 30(3)(b), does not, I believe, assist them. To the extent that the material relied upon in respect of each imputation can be regarded as proper material for comment, the comment in each case does not, in my view, represent an opinion that might reasonably be based on that material. 911 In my view, therefore, the defence fails in respect of each imputation. However, I should proceed with the requirements of s 33 and s 34 since the plaintiffs contend that these elements also cannot be met. The plaintiffs asserted that, if the comment was that of the servants or agents of the defendants (s 33), the defence must fail since the ABC (including Liz Jackson) and Dr Millikan acknowledged, in interrogatories, that they did not hold the opinion represented by the comment in 6(a) and 6(b) (Ex 33(A): Interrogs 17(b) and (c) (1st Def) and 19(b) and (c) (2nd Def) (Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474; Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 735/6). 912 The defendants appear to accept that position. No submission was made relying upon s 33. However, it was submitted that the comments embodied in each imputation "essentially arose from the opinion expressed by a stranger, namely Mr Howard Whelan" (DS: para [2.136]). They added that there was no basis upon which it could be assumed that the imputations arose from other aspects of the broadcast, other than Mr Whelan's statement (Ex N: lines 1106 to 1112) (DS: para [2.137]). The plaintiffs described that submission as "curious" given that the Amended Defence also asserted that the comments were those of the servants or agents of the first defendant. Most the material said to give rise to imputations 6(a) and 6(b) were statements made by Dr Millikan (supra para [824]) (PS Reply: para [225]). Nonetheless, I am inclined to think that the comment in each imputation was that of a stranger, namely Howard Whelan. 913 The test in respect of such comments is different. Section 34(2) is in these terms: " 34 Comment of stranger (1) … (2) A defence under subsection (1) is defeated if, but only if, it is shown that the publication complained of was not in good faith for public information or the advancement of education." 914 The plaintiffs submitted, first, that the Court would not be satisfied that the statement in the programme (Ex N: lines 1106 to 1112) was the statement of Howard Whelan. Secondly, in any event, the publication complained of had not been made in good faith for public information or the advancement of education. 915 Dealing with the first argument, the plaintiffs suggested that the defendants had not proved that Howard Whelan actually said the words broadcast (PS Reply: para [227]). The interview with Mr Whelan was, according to the plaintiffs, heavily edited (PS: para [397]). The plaintiffs provided a possible version of that interview (Ex A(35)). The best that Ms Masters could say was that: "I suspect it is not" accurate (T1355). No alternative version had been put forward (PS: para [397]). Nor had the defendants called Mr Whelan, who was unquestionably a person in the defendants' "camp" (PS: para [398]). Indeed, Mr Whelan at one point was a defendant in the proceedings and was represented by the lawyers for the defendants (PS: para [398]). The plaintiffs submitted there must be real doubt that Mr Whelan actually stated the words, as edited. The onus is upon the defendants to prove that it was the comment of a stranger, and that he did use those words (PS Reply: para [231]). 916 The defendants responded to these issues in the following terms: (DS: para [2.139]) "2.139 There is no evidence that the footage was heavily edited at all. Of course it was edited but the extent is not relevant, rather what is relevant is if the meaning of Mr Whelan's words was changed. There is no certainty that the Plaintiff's reconstruction is correct, given that there is no surety that the film available constitutes the entire film (given it is tangible and some may have been lost literally on the cutting-room floor). Ms Masters, who was in attendance at the interview and involved in the editing, gave evidence that the Defendants did not misrepresent what Mr Whelan said (T1355:24-47). Ms Masters was the producer, intimately involved in the editing (T1461:5-8). She had watched the raw footage more than once (T1461:14-18)." (emphasis in original) 917 I accept that it is probable that the words in the programme were the words of Howard Whelan and that the programme had not been so heavily edited as to distort their meaning. 918 So the issue is whether the plaintiff has demonstrated that the publication, which included the comments of a stranger, was not in good faith for public information or the advancement of education. The plaintiffs argued that the publication was not in good faith for three reasons. The first concerned the defendants' conduct (in broad terms, the plaintiffs' case on malice). The second reason was that Mr Whelan, according to the plaintiffs, plainly did not have first hand knowledge. He had an "understanding" of what had happened, but no more. The third reason was linked to the second. Appreciating the limitations of Howard Whelan's knowledge, the defendants chose to publish without independently checking the facts. In particular, they published without putting the material to Mr Macartney-Snape to ensure that it was accurate. 919 Dealing with what I have described as the second reason, the comments used in the programme and attributed to Howard Whelan arose, according to the reconstructed transcript, immediately after Howard Whelan had branded Mr Griffith "very dangerous", having described his conduct towards his wife Rosy. The reconstructed transcript was in these terms: (Ex A(35)(1): lines 173-178) " Howard Whelan: Well ( sighs ) … what I think of him? I think he's a man who doesn't care about how other people feel. I think he is a man who has got his own agenda to fulfil, bugger the rest. He didn't care about me, he didn't care about my relationship with Rosy. Ahh, it's not part of the equation for him. He doesn't care who he damages along the way and I think that's really, really sad and I think that's very, very dangerous ." (emphasis added) 920 Following that comment, Dr Millikan then invited Howard Whelan to comment upon the dissemination of Mr Griffith's ideas in schools. The transcript was in these terms, the parts in bold being the material shown on the Four Corners programme: (Ex A(35)(1): lines 180-206) " David Millikan: What about him and the schools though? What, what I mean have you got a view about, do do, I mean the case is look, people have got a right to make up their own minds, you had a hard time with him … Howard Whelan: Yep. David Millikan: … let him into the damn schools you know. Howard Whelan: Yeah look, you know I mean I was raised in a country that believed in freedom of religion, freedom of the press. I think that we all have those civil rights. I've carried that across even when I became an Australian. And ahh, so to me I think schools yeah, I mean why not? You know why not let them come in and talk? Ahh but I think there has to be some sort of balance, I think there has to be some way of letting the kids know. This is where this guy is coming from. It isn't. I mean if he comes in and says 'look I'm here to give you a philosophy, I'm here to change the world' that would be good but from my understanding it doesn't work that way. It usually works, Tim is going to give a talk about climbing Everest, and the kids go out and go 'Oh great, we're going to go meet an Australian hero' we're going to go on this bushwalk and all of a sudden they get out in the woods and it's suddenly, they're going 'hang on a second, what is this?' I don't think that's honest and I wonder how much I wonder how much the administration of these schools know what is going to be perpetrated when these really nice healthy adventurous young blokes or women come in and have a chat at those schools. Do they know that in the background is Jeremy with his separate agenda and this is what what concerns me. I think it's got to be out in the open." 921 The plaintiffs, in submissions, drew attention to the words immediately before the first excerpt (in bold), which was included in the programme. Howard Whelan was describing his "understanding". He plainly was not involved in arranging speeches. He was not present when Mr Macartney-Snape spoke. It was a hearsay account. 922 I accept these submissions. I also accept that these matters ought to have been recognised by Dr Millikan and the ABC. It was an account provided on 3 February 1995, months before the programme was screened. It was important to determine what Mr Macartney-Snape actually did when he spoke to schools. The ABC had some information concerning that issue. They had been provided with the text of Mr Macartney-Snape's Geelong Grammar address (Ex K). Ms Masters had been told by Mr Macartney-Snape that some talks were Himalayan style talks and others, speech day addresses. That information had been imparted shortly after the Whelan interview (supra para [192]). Ms Masters recognised the importance of seeking Mr Macartney-Snape's response to the Whelan material. That was an obvious means of testing its accuracy, quite apart from fairness. However, that was not done before the Concord High School speech on 8 March 1995. That evening, Ms Masters sought to persuade Dr Millikan to reinterview Mr Macartney-Snape. He declined to do so, apparently believing it unnecessary. Dr Millikan did not give evidence. I have no elaboration upon his reasons. I have inferred that, at least part of his motivation was expedience, linked to the final interview with Mr Griffith the next day, which he did not wish to jeopardise (supra para [899]). However, the publication of serious allegations, based on hearsay, given great prominence, without the rudimentary step of seeking Mr Macartney-Snape's commentary upon them cannot, in my view, be said to be publication in good faith for the purposes of public information or the advancement of education. 923 Accordingly, for a number of reasons, the defence of fair comment under the New South Wales statute fails. I believe it also fails, and for the same reasons, under the Queensland and Tasmanian statutes (cf supra para [815]). It fails as well under the common law because the comments in each case were not based upon facts which were true. 924 It is therefore my view that all defences fail. Mr Macartney-Snape is entitled to damages. I turn to that issue. 5. DAMAGES: MACARTNEY SNAPE The reputation of Mr Macartney-Snape. 925 Mr Macartney-Snape was born on 5 January 1956. The Four Corners programme was screened on 24 April 1995 and again on 2 May 1995, when he was almost 40 years old. He had, in that almost 40 years, established a formidable reputation. Indeed, both imputation 6(a) implicitly and 6(b) expressly, assume that reputation. His achievements were set out in Appendix D to a report of Mr Paul Lom, the forensic accountant retained by the plaintiff (Ex A(74)(1)). 926 Mr Macartney-Snape began climbing in 1978 whilst still at university. In October 1984, he became, with Greg Mortimer, one of the first Australians to climb Mt Everest. His achievement was the more remarkable because it was accomplished in what is termed a "light weight style", without the aid of high altitude porters or supplementary oxygen. The expedition had been sponsored by Channel 9. He and his companion shot footage of themselves as they made their climb. The footage was then used in a documentary. In 1985 he was appointed the Chairman of the Commonwealth Community Volunteer Scheme for Young Australians. In 1986, he was awarded the Medal of the Order of Australia (OAM) for achievement in mountaineering. The same year he was appointed Chairman of the Nepal Eye Programme, an organisation he helped to establish with the late Professor Fred Hollows. 927 In 1990, Mr Macartney-Snape undertook the sea to summit walk from the Bay of Bengal to the top of Mt Everest. He was the first person to do so. Again, a documentary film was made. He also wrote a book: "Sea to Summit" (supra para [96]). In 1994, he was made a Member of the Order of Australia (AM) for services to mountaineering and international relations. 928 Apart from mountaineering, Mr Macartney-Snape worked as a consultant with World Expeditions, a company which organised trekking. He also established himself as a speaker. He was described by the plaintiffs, in submissions, as having an "excellent reputation as a mountaineer, as a motivational speaker and as a notable Australian prior to the broadcast" (PS: para [438]). 929 A number of witnesses gave evidence concerning his reputation. The headmaster of Geelong Grammar, Mr Lewis, said that in October 1993, when he was invited to give the Speech Day address, his reputation was "very high". It was, of course, a singular honour to be asked to give that address. Mr Lewis said this: (T105) "A. … He was admired for his courage and endurance and for his skills, but he was also admired because he was evidently and patently a humble and humane person." 930 Mr Collins-Persse, a master at the school, who had taught Mr Macartney-Snape history, said that he was a person with a "high reputation", "a person of great integrity, great achievement … and great humanity". He had a reputation for honesty "unsullied since his school days" (T220). 931 Mr Nicholas Kostas, a Director of World Expeditions, regarded Mr Macartney-Snape as the pre-eminent mountaineer in Australia with a world reputation (T684/5). Before 1994, Mr Macartney-Snape had worked for one of Mr Kostas' competitors. His company made the decision to acquire the competitor, simply because they wished to have the services of Mr Macartney-Snape. He regarded having him as a consultant, available for trekking, as a "tremendous comparative advantage" (T685). The company's catalogue for 1994/95 included Mr Macartney-Snape on the inside cover with a photograph and a brief description of his achievements (Ex A(12)). Mr Kostas said that his reputation, apart from mountaineering, was that of a person "highly honest" and having "extremely high integrity" (T686). 932 Mr Athol Whimp gave evidence concerning Mr Macartney-Snape's reputation as a mountaineer. Mr Whimp was himself an accomplished mountaineer having, amongst other things, been awarded the Piolet d'or, the French Golden Ice Axe award, for a particular climb. In mountaineering circles, Mr Macartney-Snape was regarded as a strong climber who performed well at high altitudes. He was also a very genuine, "authentic person, a very honest person" (T402). Mr Whimp had attended one of his talks, which he thought very good. 933 Ms Gabrielle Hollows knew Mr Macartney-Snape from the Nepal Eye Programme and through her husband, the late Professor Fred Hollows. She described him in these terms: (Ex A(29)) "9. Prior to 1995 Tim was highly revered by many people –- he is an extraordinary man. He was known as strong and steady. He was known as one of nature's true gentlemen – very respectful of nature and things greater than you. He was also known to be humble and modest. He was also very respectful of the Nepalese people and the Sherpas that assisted him in his achievements." 934 Ms Hollows heard Mr Macartney-Snape speak on a number of occasions. He was, she said, a very good speaker "eloquent and knowledgeable" (Ex A(29): para [10]). 935 The defendants, whilst acknowledging these achievements and the reputation of Mr Macartney-Snape in the wider community, drew attention to the words of Windeyer J in Uren v John Fairfax & Sons Pty Limited (1965-66) 117 CLR 118, where his Honour said: (at 150) (DS: para [3.7]) "… the common rule that truth is a complete defence … has been rationalised by saying that the law does not protect the reputation that a man has, but only the reputation that he deserves" 936 Within a narrower circle, those familiar with the Foundation there was, according to the defendants, another aspect. The following was said: (DS: para [3.8]) "As will be discussed further below, it is of relevance to the assessment of damages, that the Plaintiffs had been the subject of opposition prior to the broadcast of the matter complained of, that they were aware that their ideas were seen to be outrageous, preposterous and dangerous . They were aware of, predicted and accepted the risk of odium by their association with the dissemination and content of Mr Griffith's ideas. Mr Griffith had promoted himself as either a 'crackpot' or 'prophet'. The Plaintiffs expected opposition, Mr Griffith's colourful, polemical style and the unusual, extremely controversial nature of the ideas themselves must be taken into account when assessing any monetary compensation." (emphasis in original) 937 The defendants, in this context, drew attention to the letter from Mr Dick Smith to Mr Macartney-Snape, sent on 24 November 1993 (Ex 2) (supra para [105]). Mr Smith dissociated himself and Australian Geographic from Mr Macartney-Snape's belief in Mr Griffith's ideas. Further, Mr Macartney-Snape, in cross examination, said this: (T327) "Q. You, by October 1994, had begun quite specifically to consider the effect on your reputation of going public in your support for those ideas, hadn't you? A. It had always been a consideration. Q. And it had always been a consideration because you appreciated that, to the great bulk of listeners, there was a high likelihood of the ideas striking them as preposterous or worse, that's right, isn't it? That's right, isn't it? A. Preposterous, yes. I don't know whether worse." 938 Mr Macartney-Snape acknowledged that the "price or risk" of promoting Mr Griffith's ideas could be a diminution of his own reputation to a degree (T327). The cross examination continued: (T327/8) "Q. I am asking you, first of all, about your recall. You would agree, wouldn't you, that by October 1994 your appreciation of the risk of a diminished reputation from personally promoting these ideas was such that it can go to losing respect? A. It could do. Q. That was something that you were quite specifically aware of and had weighed up, correct? A. Yes. Q. And reached by October 1994 the stage of awareness of it but a capacity not to regret it? A. Yes. Q. Which means a willingness to court the risk of losing respect. Correct? A. Yes, I – yes. Q. A willingness to court to risk of a diminished reputation. Correct? A. Yes." 939 There was, according to the defendants, a question of causation with respect to any damage to Mr Macartney-Snape's reputation (DS: para [3.23]/[3.24]; [3.39]/[3.40]). I will deal with that issue below. It may be accepted that, at the time of the broadcast, Mr Macartney-Snape had a considerable reputation as a mountaineer and a notable Australian. He was also known as a person of integrity and humanity. He had been able to use that reputation to secure work in trekking and as an inspirational speaker. An aspect of his reputation was that he subscribed to the ideas of Jeremy Griffith, which some thought preposterous. His good reputation is relevant to the degree of harm suffered. The damage to a person who enjoys an exceptionally high reputation is likely to be greater than that to a person of lesser standing (Bickel v John Fairfax & Sons Pty Limited (supra) at 481-483). Hurt to feelings. 940 Mr Macartney-Snape was in Chile mountain climbing when the programme was screened on 24 April 1995 and again on 2 May 1995. He returned to Australia shortly thereafter (supra para [402]). When he saw the programme he said he was "totally stunned" (T293). He thought it twisted and misrepresented the truth. He felt angry that such an honourable good group of people could be "trashed" (T293). This, of course, was a reaction to what he perceived to be the damage to the Foundation (of which he was a Director) and to Mr Griffith. He provided, in the passage which follows, his reaction to that portion of the programme which directly concerned him: (T293/4) "Q. Mr Macartney-Snape, when you saw the program for the first time back in 1995, do you recall how you felt when you saw the portions of the program in which you are depicted speaking at Concord High School and in which Mr Howard Whelan is depicted saying certain things about your activities in that regard, that is in regard to speaking at schools. How did you feel then? A. I felt betrayed. I felt embarrassed that I had apparently misled Concord High. I just – I felt very embarrassed that every school I had been to would be thinking in the background about this hidden agenda, which is complete and utter rubbish. I felt – I just felt terrible. Q. And over the period of time from the time you first saw it over the months thereafter, did your feelings, which you have described on first watching it, quickly abate or did they persist, or what happened to them? A. It slowly – the enormity of what was perpetrated had slowly sunk in. That was an incredibly well-crafted documentary and it – I – I mean it gradually dawned on me that, you know, any interest in me as a public speaker was, you know, pretty-well shot." 941 Ms Hollows, in her statement, provided her observation of Mr Macartney-Snape's reaction to the programme. She said this: (Ex A(29)) "12. So many people were thrown by Four Corners. Tim was hurt deeply by it. I am aware that he had friends that would not defend him after the programme. A lot of people were wary of being associated with Tim after that programme. He had previously been on the top of many lists to be a guest speaker as a motivational speaker. The Four Corners Programme caused people to raincheck or cancel this invitation." 942 Mr Macartney-Snape knew that the imputation concerning him was false. That, no doubt, increased the hurt to his feelings. 943 I should, in this context, deal with one issue relevant to damages, namely the extent of publication. The plaintiffs, in submissions, asserted that the viewing audience the first time the programme was screened exceeded 1.7 million people. The audience was approximately 170,000 when the programme was re-run on 2 May 1995 (PS: para [404]). The "huge audience" was, they said, relevant to the extent of the damages awarded. 944 I accept that there was a very substantial viewing audience and that this is relevant to the damages to be awarded. However, the source for the estimated audience was Exhibit A(55), which was a table produced by Nielsen Media Research, which was no doubt an extrapolation from market research undertaken by that company. The exhibit identified the average audience for each capital city. It included a column, "metro-all". The plaintiffs have, I assume, aggregated the audience in each capital city with the column "metro-all" to reach the viewing audience mentioned. However, "metro-all" is the total of each of the capital cities. The estimated viewing audience, therefore, on 29 April 1995, was, I believe, about 865,000 people and 86,000 people on 2 May 1995. Damage to Mr Macartney-Snape's reputation. 945 Damage is, of course, presumed. The imputations are each expressed in general terms. They are serious and reflect upon Mr Macartney-Snape's honesty and integrity. He was described as a person who had deceived schools, and a person who had abused his position of influence for his own ends. It is unsurprising that the impact upon his career as a speaker was dramatic and immediate (supra para [403]). The headmaster of Canberra Grammar wrote to him on 3 May 1995, withdrawing his invitation to give the Speech Day address at the end of the year (Ex AF). The Samuel Gilbert School wrote on 28 April 1995, likewise withdrawing its invitation to speak (Ex AU). An information forum, "Applause", withdrew an invitation to speak on 28 April 1995 (Ex AU). 946 Mr Kostas, as the Director of World Expeditions, received a number of phone calls from clients, complaining of the association between his organisation and Mr Macartney-Snape (T688). A private school, which had organised a trek to be led by Mr Macartney-Snape to Nepal, said that they would not agree to have him lead the proposed trek (T690). The catalogue published by World Expeditions in the following year removed Mr Macartney-Snape's name from the inside front cover, so that it appeared on page 22 of the catalogue (Ex A(12): Catalogue 1996/97). Mr Kostas added that, after the programme, he found it difficult to attract customers for treks led by Mr Macartney-Snape (T690). Claim for special damages. 947 The Fifth Amended Statement of Claim, paragraph [48](b), included a claim for "special damages". Particulars were provided under the heading "Consequences of Defamatory Publication" (para [10]), which were in these terms: "(iii) Tim Macartney-Snape maintains a claim for general damages based on Andrews , and a claim for special damage; (iv) Loss of particular speaking engagements, which were booked prior to the matters complained of being broadcast; (v) Loss of expected revenue from corporate talks; (vi) Loss of expected revenue from school talks; (vii) Loss of prospective endorsements; (viii) Loss particularised in correspondence between the parties; and (ix) Loss referred to in the report of Paul Lom served in these proceedings." 948 Mr Paul Lom, referred to in Particular (ix), is an experienced forensic accountant retained by the plaintiffs to provide a report. His report quantified the loss from the various matters identified as "Particulars of Special Damage" (Ex A(74)(1) and (2)). The letter providing instructions to Mr Lom asked him to make the following assumption: (Ex A(74)(1): appendix A) " Initial Assumption 1. That any downturn in revenue earned in speaking engagements by Mr Macartney-Snape after the date of the 4 Corners Broadcast was caused by the publication of the defamatory imputations about Mr Macartney-Snape set out in the current version of the Statement of Claim." 949 The defendants retained Mr Paul Vincent, who was also a chartered accountant, who prepared a commentary upon Mr Lom's methodology and calculations. Mr Vincent provided an alternative assessment (Ex 28(1)). Each prepared a second report, adjusting the calculations made in the first (Exs A(74)(2) and 28(2)). 950 The methodology adopted by Mr Lom, and used by Mr Vincent, involved a number of steps: · First, upon the basis of Mr Macartney-Snape's speaking engagements and earnings before the broadcast, how many school lectures and corporate lectures, on average, did he give each year? · Secondly, what fees were payable, on average, for such lectures? · Thirdly, what was the cost of giving each lecture (motor vehicle expenses and fixed costs)? · Fourthly, what was the likely duration of Mr Macartney-Snape's speaking career? 951 Once these calculations and assumptions had been made, Mr Macartney-Snape's loss could be calculated, giving credit for earnings made from the modest number of lectures he was invited to give after the broadcast, and credit for the cost saving for each lecture not given. 952 Mr Lom's analysis demonstrated an immediate and significant downturn in invitations to speak, whether to schools or corporate bodies (Ex A(74)(1): para [4.3]). Such lectures as he gave were usually for a reduced fee (Ex A(74)(1): para [4.5]). 953 Each expert responded to the commentary provided by the other, sometimes accepting a criticism and adjusting their calculation. Mr Lom's initial analysis suggested an average number of corporate and school lectures. Mr Vincent's commentary arrived at a different and lower figure. He believed that, in respect of some lectures, there had been double counting and, in any event, there was an offsetting benefit in not delivering lectures, in that Mr Macartney-Snape then had greater time to devote to trekking. There were other matters besides. Mr Vincent further suggested that the cost of giving each lecture had been understated by Mr Lom by about $10 per lecture. Mr Lom accepted Mr Vincent's analysis of the cost of giving each lecture. He adjusted his figures accordingly. He also moderated the number of corporate lectures each year (Ex A(74)(2): para [5.8]/[5.9]). The average was still higher than Mr Vincent because Mr Lom believed it appropriate, as a matter of valuation practice, to take the years immediately before the projection into the future as being more relevant to the likely future. The early years, in any event, were "start up" years (T1554-6). Whilst these adjustments reduced the loss to some extent, there was an offsetting benefit to which Mr Vincent had referred in his report, the effect of inflation. Mr Lom had assumed a fixed fee for lectures given after the broadcast, whereas the fees ought to have been adjusted in accordance with the Consumer Price Index. The movement in the Consumer Price Index was relatively modest. Mr Vincent, as a rejoinder, said that persons providing lectures for a fee do not ordinarily adjust such fees in accordance with that Index. 954 Mr Lom did not, however, believe it was appropriate to regard fees earned from trekking as something which should be offset against any loss. He had, in his original analysis, been conscious of trekking and had adverted to it. An examination of the treks undertaken before the broadcast did not suggest that they conflicted with the giving of lectures (Ex A(74)(2): para [3.6]). The lectures tended to be compressed within a relatively short period. Mr Macartney-Snape, for instance, had been able in the financial year ended 30 June 1995, to trek in Chile and lecture at a level consistent with the average number of lectures which Mr Lom had assumed. 955 In calculating the loss, Mr Lom identified his assumption in respect of Mr Macartney-Snape's likely future, in these words: (Ex A(74)(1)) "6.1 In section 4 I estimated the loss of revenue for the period from the date of the Four Corners program to 30 June 2000. The estimated loss is based on a comparison between the actual number of lectures and the number of lectures that would have been undertaken by Tim Macartney-Snape but for the Four Corners program. The estimate includes an assumption that the number of lectures would have been constant up to 30 June 2000 but the estimate does not continue beyond that date. I have not made an assessment of losses beyond 30 June 2000 because I have not been provided with information as to the income of Tim Macartney-Snape beyond that date. A further reason is that I expect there may have been some reduction in the demand for lectures by Tim Macartney-Snape over time even if the Four Corners broadcast did not take place, however I am not able to assess the rate of reduction in demand." 956 Mr Vincent prepared an alternative calculation in respect of the same five year period, making adjustments where he differed from Mr Lom. He termed the aggregate the "maximum loss" that Mr Macartney-Snape may have suffered. He pointed to the following which, he suggested, may have diminished such loss: (Ex 28(1)) "7.7.2 In my opinion, it is reasonable to assume that the 1994 and 1995 financial years in isolation are not representative of the likely activities of Mr Macartney-Snape over the five year period from 1996 to 2000. In this regard, I note that: (a) Mr Macartney-Snape first climbed Mount Everest in 1984 and completed his second climb, which was the subject of a documentary and book, in 1990. I note that the documentary and book were released in 1992. (b) Based on 'other' lectures undertaken by Mr Macartney-Snape, a series of film lectures on the Mount Everest documentary were undertaken in 1993. It would appear reasonable to assume that demand for Mr Macartney-Snape as a public speaker would have peaked in 1993/1994 after the release of the documentary and book. (c) In my opinion, it is likely that Mr Macartney-Snape's popularity as a public speaker would have declined over time as his achievements, the documentary and the book aged and as more recent adventurers entered the public speaking market with similar achievements, books and films. (d) In addition, it is likely that the income derived in an occupation such as public speaking would be erratic over time. (e) I note that DMR [Mr Lom's company] acknowledge that the demand for Mr Macartney-Snape as a public speaker is likely to have diminished over time. In their report they state ' there may have been some reduction in demand for lectures by Tim Macartney-Snape over time even if the Four Corners broadcast did not take place, however I am not able to assess the rate of reduction in demand.' " (footnotes omitted) 957 Mr Vincent added the following: (Ex 28(1)) "7.7.3 Further, it is my opinion that had Mr Macartney-Snape's association with the FHA been made public by the ABC without the alleged defamatory content, or by some other means, then possibly that would have been sufficient to have had a negative effect on demand for his services as a public speaker." 958 Mr Lom questioned the basis for this commentary, making the following statement: (Ex A(74)(2): para [7.3]) "7.3 I have no particular expertise with the public speaking market, however I note that a number of the achievements of Tim Macartney-Snape, such as being the first person to climb Mount Everest from sea to summit, cannot be equalled. I also believe that public speakers obtain future bookings off the back of previous engagements and it is therefore, at least to an extent, a self perpetuating activity. This view is consistent with the assumption that you have invited me to make in paragraph 4(b) of your letter of instructions dated 21 February 2007 (Appendix A)." 959 Mr Vincent likewise acknowledged that he had no particular expertise in respect of the public speaking market. The ultimate loss calculated by Mr Lom was as follows: (Ex A(74)(2): para [8.1]) Year ended 30 June 1995 1996 1997 1998 1999 2000 $ $ $ $ $ $ Loss of Income 2,034 38,104 31,898 40,408 31,553 29,298 Avoided Expenses 770 4,620 4,620 5,544 4,620 4,620 Net Loss of Income 1,264 33,484 27,278 34,864 26,933 24,678 960 The total loss, according to these figures, was as follows: $ Loss of Income 173,295 Avoided Expenses 24,794 Net Loss of Income 148,501 961 The comparison between the calculations made by the two experts in respect of the net loss to 2000 was as follows: (Ex A(74)(2): para [8.1] Lom; Ex 28(2): schedule A, Vincent) Net loss of income Lom $148,501 Vincent $84,410 962 It was said by Mr Lom, and submitted by the plaintiffs, that the approach adopted, assuming a speaking career terminating after five years, was conservative. The plaintiffs relied upon a statement of Mr Michael Groom (Ex A(26)). Mr Groom was a mountaineer who now earned his living as a public speaker. He was three years younger than Mr Macartney-Snape (born in 1959). He had climbed the five highest mountains in the world, including Mt Everest in 1993. In 1996 he was one of two survivors in a disastrous climb of Mt Everest, famously described by the other survivor, John Krakauer, in his book "Into Thin Air". Mr Groom had written his own book, "Sheer Will", published in hard back in 1997 and in soft cover in 1999. A documentary of the same name had been shown on Channel 7 in 2000. 963 Mr Groom began speaking about mountaineering in 1991. He continues to speak to the present day. His statement incorporated a schedule of each of his speaking engagements from 2000. He has given between 30 and 40 speeches a year (Ex A(26): paras [16]ff). He looked for, but was unable to locate, his diaries before the year 2000. 964 The defendants, in response, said that there was no comparison between Mr Groom and Mr Macartney-Snape (DS: para [3.57]). He has continued to climb mountains. His climb of Mt Everest was six years after Mr Macartney-Snape. His book was published five years later than "Sea to Summit" and the documentary was shown eight years after the documentary concerning the feats undertaken by Mr Macartney-Snape. 965 Acknowledging these differences, Mr Groom nonetheless has had a speaking career very significantly longer than the assumption made by Mr Lom. I accept that the assumption that Mr Macartney-Snape would have ceased earning income from speaking after 2000 was very conservative indeed. I prefer the approach of Mr Lom to Mr Vincent and his calculation of the "lost lectures". The amount earned by Mr Macartney-Snape after 1995 from trekking was minimal. For the reasons given by Mr Lom, it is not I believe, a matter in mitigation. Mr Macartney-Snape's damages should, subject to the question of causation, include a sum of $148,500, being the net loss calculated by Mr Lom which I have rounded. Causation. 966 I have, when describing Mr Macartney-Snape's reputation before the programme, adverted to an argument which the defendants pursued on the question of causation. Mr Macartney-Snape, it was said, was well aware that his association with Mr Griffith and the promotion of his ideas, carried the risk of damage to his reputation (supra paras [935]ff). 967 The defendants claimed that risk materialised in the Four Corners programme, where Mr Griffith's ideas were explained to a larger public and analysed. It was said (truthfully) that they derived from a book written by Mr Griffith which was of such a poor standard that it had no support at all from the scientific community. In that context, the defendants said this: (DS: paras [3.23]/[3.24]) "3.23 Mr Macartney-Snape has not proven that the damage suffered arose from the two imputations. 3.24 To the extent that there has been any injury to Mr Macartney-Snape's reputation, it has been a result of his association with Mr Griffith's ideas rather than the imputations themselves." 968 The defendants drew attention, in their submissions, to the evidence of Mr Macartney-Snape where he was invited to identify the "main lies" of the programme (DS: para [3.27]). He responded by pointing to many aspects which directly concerned Mr Griffith and his ideas, including that he claimed to be a figure greater than Jesus Christ, that he considered himself a religious deity, that he treated women in a negative way, that he repeatedly used expletives, and so on (DS: para [3.27]). These were not, according to the defendants, the imputations which Mr Macartney-Snape had sued upon (DS: para [3.27]), although he also referred to the imputations that directly concerned him as amongst the "main lies". The defendants said this: (DS: para [3.43]) "3.43 Mr Macartney-Snape conceded in cross-examination that the kind of opposition to Mr Griffith's ideas and to himself, displayed in 'Backchat' was the kind of criticism he had anticipated would result from his promotion of Mr Griffith's ideas." 969 The plaintiffs, in reply, responded as follows: (PS Reply: para [304]) "304. The defendants submit that Mr Macartney-Snape has not proven that he suffered damage from the two imputations: [3.23] Ds' subs. The plaintiffs submit that this assertion is misconceived – Mr Macartney-Snape does not need to prove these matters. In circumstances where no other defamatory imputations have been proved to arise from the matter complained of and to be true, and where the jury has found that a range of other meanings did not arise from the matter complained of, this is not an issue that is relevant to any issue before the Court. The submission made by the defendants at [3.24] is unsubstantiated by any evidence, is not in accordance with the principles that apply to the award of damages in defamation and should be outright rejected. The defendants' submissions at [3.26]-[3.44] are in a similar vein and should also be rejected." 970 I generally accept the position as stated by the plaintiffs, although a distinction must be made between general and special damages. Damage from each imputation is presumed. However, in respect of special damages, the plaintiff has the onus of establishing that such damage was caused by the imputations, and was not too remote (Andrews v John Fairfax & Sons Limited [1980] 2 NSWLR 225, per Mahoney JA at 258/9). 971 In Selecta Homes and Building Co Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd [2001] SASC 140; (2001) 79 SASR 451, Gray J (with whom Doyle CJ agreed), stated the principle in respect of general damages in these terms: (at 470) "144 When some of the defamatory imputations in a publication are actionable, the judge must eliminate from his mind those which are not. The judge must ascertain the actual defamation and assess damages in relation to the injury caused by that defamation." 972 His Honour referred to Lord Radcliffe's words in Associated Newspapers Ltd v Dingle [1964] AC 371: (at [394]) "The judge's task in arriving at a figure of damages for the defamation contained in the article … was not a simple one. He had first to eliminate from his mind that small part of the imputation that he found to have been justified … Next the judge had to eliminate that part of the article that consisted of extracts from the select committee's report, since under the [ Parliamentary Papers Act 1840 (UK)] such extracts could not in law be treated as a libel. Having done all this, he had to ascertain and measure what was the actionable defamation and assess a figure of damages in relation to the injury it had caused." 973 That passage was approved by Kirby J in Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519, where the following was said: (at [183]) "Irrelevant considerations such as the existence of other discreditable matter which might have been published of the plaintiff, but was not, or the existence of some accurate allegations in the midst of unsustainable ones must simply be put out of mind. The plaintiff is only entitled to recover damages for the actionable wrongs proved. But for them, the plaintiff is entitled to full recovery without subtractions and without reductions." 974 Returning to Gray J in Selecta Homes, his Honour referred to the trial Judge's reasons at para [147], where reference was made to part of the published letter that had been justified. The trial Judge added: "The plaintiff is to be compensated only for such additional loss as was caused by the unjustified parts of the letter." 975 Gray J, in that context, said this: (at [148]) "148. The trial judge erred. He failed to put aside that part of the letter he considered to be justified. His view that Selecta should only be compensated for such 'additional loss' was simply the corollary of the deprecated practice of subtracting or deducting an amount. This approach was incorrect. The trial judge did not put out of his mind irrelevant considerations of accurate observations in the midst of other unsustainable observations." 976 Here, Mr Macartney-Snape was seriously defamed by two imputations. He is entitled, without subtractions or deductions, to be compensated for the harm occasioned to him by those imputations. That harm must be measured in the context of the programme, which included a discussion of Mr Griffith's ideas. The ideas that he deceptively propagated were ideas which had no support at all from the scientific community. He had abused his position of influence to recruit students at schools for Jeremy Griffith. 977 Mr Macartney-Snape gave evidence of his reaction to the programme. His reaction included a reaction to material which he perceived to be disparaging of Mr Griffith and the Foundation. Any hurt associated with that, however, was not relevant to his claim for damages. Whilst he obviously does not compartmentalise his emotions, isolating those which relate to imputations 6(a) and 6(b), nonetheless, in assessing the damages to which he is entitled, my focus must be exclusively upon the imputations found in his favour and their consequences for him. 978 Let me move to Mr Macartney-Snape's claim for special damages. Again, it is helpful to return to the judgment of Gray J in Selecta Homes. His Honour said this: (at 470) "142. The trial judge correctly observed that damage to reputation is to be presumed where a corporation is defamed in its trade or business. He also recognised that when loss of earnings are claimed as special damage, different considerations apply. A party defamed carries the onus of proving such damage. However, the trial judge concluded that Selecta was obliged to prove that the defamatory imputations were the cause of loss. 143. Selecta submitted that the trial judge erred in his approach to causation. It was said that Selecta only needed to establish that the defamatory imputations were a cause of the loss. I agree. This proposition is well established." (emphasis in original) 979 Reference was made to March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 509, 524, 530; Chappel v Hart (1998) 195 CLR 232; Chakravarti v Advertiser Newspaper Ltd (supra) per Kirby J at [177]. One may add Shorey v P T Limited [2003] HCA 27; (2003) 197 ALR 410, where Gleeson CJ, McHugh and Gummow JJ said this: (at 411) " … the question became whether the fall for which the respondents were responsible was a cause of the appellant's condition as it manifested itself at trial. That there were other factors which contributed to that condition was beyond doubt; but if it were correct to conclude that the fall was a cause of the condition, then the appellant was entitled to succeed." 980 In the context of Mr Macartney-Snape's claim for economic loss the defendants, in submissions, acknowledged the three cancellations of speeches immediately after the programme, adding these words: (DS: para [3.47]) "3.47 … The extent to which schools chose not to engage Mr Macartney-Snape as a result of the broadcast is unknown." 981 The submissions continued: (DS: para [3.48]) "3.48 Mr Macartney-Snape was unable to point to any circumstance of which he gave evidence in this case that enabled him to say that but for the broadcast of the imputations he would have maintained the income that had previously come in close association with his book publication." 982 The decline, the defendants suggested, was occasioned by a number of factors, namely: (DS: para [3.49]) "(a) he did not write to schools saying that he would not promote Mr Griffith or his ideas in schools (see Ex AV); (b) five years had passed since he had climbed Mount Everest; (c) he conducted an extensive tour of Australia in the wake of the 'Sea to Summit' expedition and exhausted many of his speaking opportunities during that period; (d) at the time of broadcast it was 3 years since he had published the book 'Sea to Summit' (Ex E), and equally it was 3 years since he had written a chapter for inclusion in Caroline Jones' book The Search For Meaning (Ex AA); (e) since broadcast, Mr Macartney-Snape has not published any further publications. There is no suggestion by him that this is the result of the matter complained of; (f) Mr Macartney-Snape has not climbed any comparable peaks to those he climbed prior to the broadcast (T507: 16-18)" 983 Mr Macartney-Snape, when giving evidence, described a number of his mountaineering expeditions. He did so without notes and without pausing, providing a narrative that was riveting. It gave a glimpse of his gifts as an inspirational speaker. The period contemplated by Mr Lom's analysis (five years) was, as I have remarked, very short. The factors identified by the defendants are, to my mind, unpersuasive in that context. I consider the imputations caused, or materially contributed to the decline in demand for Mr Macartney-Snape's services as a speaker. There may have been other causes, including his association with Mr Griffith's ideas. However his loss, I believe, is compensable. Aggravated damages. 984 A claim is made for aggravated damages (Fifth Amended Statement of Claim: para [10]). To justify an award of aggravated damages, the aggravating conduct of the defendants must be improper, unjustifiable, or lacking in bona fides (Triggell v Pheeney (1951) 82 CLR 497). Such conduct justifies an increase in the damages awarded. The damages are compensatory in nature. To justify an award of aggravated damages, the misconduct must have caused additional harm to the plaintiff. Sometimes the harm will be in the nature of an increase in the emotional distress caused to the plaintiff by the publication. It may, in addition, enlarge the reputational damage suffered. 985 Here, the particulars said to justify an award of aggravated damages against the ABC and Dr Millikan were extensive. I have dealt with many of them when describing the making of the programme (Pt 2). As a generality, I have not found that either defendant was actuated by an improper purpose or malice (supra paras [421]-[490]). There are, nonetheless, aspects of their conduct which may arguably come within the rule and which therefore need to be considered. 986 First, Mr Macartney-Snape was immediately aware that the imputations against his character were serious and were false. He is, I believe, a person who, much more than most, has endeavoured to live a moral life. I have no doubt that his mental stress was the greater by reason of his appreciation of the falsity of the accusations. 987 Secondly, the defendants were criticised for persisting with the defence of justification in respect of both imputations. It was submitted on behalf of Mr Macartney-Snape that this was a matter of aggravation. It was, in the circumstances, unjustifiable. It increased the hurt to Mr Macartney-Snape. I accept that submission. The persistence by the defendants in the defence of justification in respect of both imputations was puzzling. The litigation began on 6 April 2001. On 15 February 2007, the defendants unreservedly apologised to Mr Macartney-Snape. Their apology, which I will refer to more fully in a moment, asserted that they (the ABC and Dr Millikan) did not intend to convey either imputation and did not think that either arose, although they accepted that the jury had so found. In the interrogatories both defendants acknowledged that they did not believe either imputation was true (Ex A(33): Interrogs 1st Def 17(b) and (c); 2nd Def 19(b) and (c)). Persisting with the defence of justification in such circumstances was, I believe, unjustifiable and hurtful. 988 The third matter related to the apology to which I have just made reference. It was in these terms: (Ex P) "In 1995 the ABC broadcast a Four Corners program about the plaintiffs. The program was titled Prophet of Oz and Dr Millikan was its presenter. A jury has found that the program conveyed the following imputations about Tim Macartney-Snape: · Tim Macartney-Snape deceives schools who invite him to talk to students about climbing Mt Everest by exploiting the occasion to promote Jeremy Griffith and his teachings. · Tim Macartney-Snape abuses his position of influence, derived from his reputation as a mountaineer, to recruit students at schools for Jeremy Griffith. The ABC and Dr Millikan did not intend the program to convey either of those imputations, and did not think it did. The ABC and Dr Millikan unreservedly apologises to Mr Macartney-Snape for any hurt of embarrassment caused." 989 When the apology was drafted, and read to the Court, Dr Millikan's name was absent. Clarification was sought as to whether it was intended to include Dr Millikan. It was. His name was then added. The plaintiffs drew attention to that sequence, suggesting it was a further aspect of the aggravation upon which they relied. Their main complaint was that the apology itself was inadequate. Mr Macartney-Snape said, indeed, that he felt insulted by it. It had not, to his mind, reduced the hurt occasioned by the publication (T301). It did not retract the defendants' allegation. Submissions also suggested that it did not acknowledge Mr Macartney-Snape's hurt and embarrassment (PS: para [471]). 990 Dealing with these matters, I accept that the absence of Dr Millikan's name was an oversight, and not an aspect of aggravation. I also accept that the defendants did unreservedly apologise to Mr Macartney-Snape for any hurt and embarrassment. At first, I was inclined to think that the absence of a retraction of the imputation was probably careless drafting. The apology, including the absence of Dr Millikan's name, had the appearance of something drafted at the last minute. On reflection, however, I infer that it was deliberate. It was consistent with the defendants maintaining the defence of truth in respect of each imputation. I accept that, to this extent, it was a matter of aggravation. The apology was read out at a mention at 9.30 am when the Court was empty, or nearly empty. It was given no publicity that I recall. There was no evidence concerning any publicity in respect of it. The aggravation is limited to Mr Macartney-Snape's emotional response, rather than further damage to his reputation. 991 Finally, the plaintiffs relied upon the failure of the ABC and Dr Millikan to put the substance of the imputation to Mr Macartney-Snape for his response. Their failure meant that the harm arising from publication was the greater, as was the hurt to Mr Macartney-Snape. He well understood that the viewing public had the accusations without his explanation or correction. This was, as I have said, an aspect of the programme which was given great prominence. The footage of Mr Macartney-Snape addressing Concord High School was repeated three times. It was also included in a promotional trailer. It was, I believe, a matter justifying aggravated damages. Exemplary damages. 992 The programme, "The Prophet of Oz", was screened throughout Australia. Section 46(3)(a) of the Defamation Act 1974 (NSW) provided that damages for defamation shall not include exemplary damages. However, exemplary damages may be awarded, where appropriate, in all states other than New South Wales (John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503). 993 The circumstances in which an award of exemplary damages is appropriate were described by the Privy Council in Australian Consolidated Press Ltd v Uren [1967] 117 CLR 221, in these terms (quoting from Mayne and McGregor on Damages, 12th ed. (1961)): at 236/7 "Such damages are variously called punitive damages, vindictive damages, exemplary damages, and even retributory damages. They can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights … Such damages are recognized to be recoverable in appropriate cases of defamation." 994 Here, the plaintiff asserted that it was appropriate to award exemplary damages in respect of all states apart from New South Wales. The particulars accompanying the Fifth Amended Statement of Claim were as follows: (para [10]) " Particulars of exemplary damage against the ABC and David Millikan (xix) Failure of the ABC and David Millikan to apologise, despite recommendation of the Australian Broadcasting Authority that they do so; (xx) Particulars of aggravated damages, pleaded above; (xi) The malice of the defendants in publishing the matter complained of (particularised in 'particulars of malice' provided in correspondence)." 995 The plaintiffs, in written submissions, acknowledged that such an award will only be made in exceptional circumstances. It was said that the following circumstances could be so described: (PS: para [477]) "(a) the defendants published imputations 6(a) and 6(b) in circumstances where they were aware that they were not true; (b) the defendants never gave Mr Macartney-Snape an opportunity to respond to the allegations prior to the broadcast of the matter complained of, despite many opportunities to do so; (c) Dr Millikan refused Ms Master's request to put the allegations to Mr Macartney-Snape on the evening that Concord was filmed; (d) The defendants persisted in a justification defence knowing the imputations to be untrue; and (e) the defendants, despite apparently 'apologising' in February 2007, still did not retract the allegations made about Mr Macartney-Snape." (emphasis in original) 996 Paragraph (a) does not meet the test, in my view. Whilst both defendants acknowledged that they knew that the imputations were untrue, each also said that they did not intend to publish imputations in the terms of imputation 6(a) and 6(b). They each asserted they had not thought such imputations had been conveyed, whilst acknowledging that the jury had so found. 997 In respect of paragraphs (d) and (e), I have found each to be a matter of aggravation, for which Mr Macartney-Snape should be additionally compensated. I do not, however, believe that they went beyond aggravation, so as to merit punishment. 998 Paragraphs (b) and (c) are aspects of the same general allegation, that Mr Macartney-Snape was never given the opportunity to respond to serious allegations which impugned his character, thereby damaging his reputation. I have held that the defendants' failure was certainly a matter of aggravation. However, I am not persuaded that the defendants, or either of them, acted in contumelious disregard for the plaintiffs' rights. There were certainly opportunities to put the allegations made by Howard Whelan before Mr Macartney-Snape made the Concord speech, and yet they were not put. It was perhaps not unreasonable to wait until the Speech Day talk had been delivered by Mr Macartney-Snape on 8 March 1995. The opportunity arose, as I have described, after the speech when Ms Masters spoke to Dr Millikan. It will be remembered that she described her conversation with Dr Millikan in these terms: (T1473/4) (supra para [286]) "Q. Could you tell us about that conversation please? First, when do you recall it occurring? A. Oh, I had mentioned to Tim would he be prepared to stay back to do an interview. He said he would. I talked to David about it and David indicated that he would - said, 'What sort of questions do you want to ask?' and I raised questions which I can't recall and David felt that he had covered a lot of that territory, so, you know, we had a debate and in the end it didn't proceed." 999 That was misjudgement on the part of Dr Millikan and unfair. It was, I believe, influenced by matters of expedience, as I have said (supra para [899]). Dr Millikan did not wish to jeopardise the interview with Mr Jeremy Griffith the next day. It was not necessarily the final word. As it happened, there was a rupture of relations with the Foundation and Mr Griffith after the final interview the next day. The parties continued to speak and correspond. However, there were no further interviews. The questions, therefore, were never put to Mr Macartney-Snape. 1000 Although that sequence does not reflect well on Dr Millikan, I am not satisfied that the conduct of the defendants merits exemplary damages. Quantification of damages. 1001 The imputations against Mr Macartney-Snape were most serious. I accept that they have caused him great anguish. They reflect upon his honesty and integrity. They would have significantly lessened his reputation in the minds of many right-thinking people. 1002 In determining the appropriate amount of damages to be awarded, s 46A of the New South Wales Act obliges me to have regard to a number of things. I must ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded (s 46A(1)). The damages appropriate in respect of the various heads of damage, including the vindication of Mr Macartney-Snape's reputation and aggravated damages, is $300,000. That sum represents $170,000 in respect of imputation 6(a) and $130,000 in respect of imputation 6(b). There should be added the special damages awarded, namely, $148,500. The total verdict for the plaintiff, therefore, combining these two amounts, is $448,500. Orders. 1003 I therefore make the following orders: 1. In respect of the action for defamation by Mr Jeremy Griffith against the ABC and Dr Millikan, there should be a verdict for the defendants. 2. In respect of the action by Mr Timothy Macartney-Snape against the same defendants, there should be a verdict for Mr Macartney-Snape in the sum of $448,500. 3. I reserve costs and interest for further submissions. 4. I note that, in the action by Mr Jeremy Griffith against the same defendants in respect of injurious falsehood, I gave judgment for the defendants on 4 July 2007, reserving costs ( Griffith v ABC [No 1] [2007] NSWSC 711). Those costs have yet to be determined. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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