General submissions in relation to Exhibits A, B, C, D and H
- The defendants rely not only on the transcript of evidence given on 6 February 2015, but also on the audio visual recording of that evidence, selections from which were played in open court (Exhibit 25). Mr Cohen of Counsel did not take the opportunity afforded him to play any additional selections during the hearing.
- The defendants submit that the whole of that material which I have summarised above when compared with each of Exhibits A, B, C, D and H should satisfy me that the defence has been made good, even accepting that, given the nature of the conceded available imputations affecting the character and reputation of a religious leader, the discharge of the onus of proof lying on the defendants requires cogent proofs in accordance with the principle expressed in Briginshaw v Briginshaw.
- The plaintiff argues that none of the articles are in fact "reports" because they contain the writer's own inference, deductions and constructions. It also seems to be argued that the reports cannot be fair and accurate as they do not refer to the countervailing evidence given on 9 February and in the case of Exhibits E and F, the countervailing submissions of counsel representing Rabbi Feldman.
- As is developed perhaps more fully below when dealing with the defence of justification, the gravamen of imputations (a), (b) and (n) is that Rabbi Feldman was reprehensibly ignorant that it was against the law for an adult to sexually touch the genitals of a child. There is no issue before me that it is against the law for an adult to sexually touch the genitals of a child, nor could there be. The question is really whether the matter carrying those conceded imputations are fair and accurate reports of the proceedings of the Royal Commission on 6 February 2015 conveying to readers of the various publications that Rabbi Feldman was reprehensibly ignorant of that consideration without the attraction of liability for defamation which may ordinarily follow.
- I should also say that at times, when he was appearing for Rabbi Feldman, Mr J Cohen of counsel appeared to argue that the reports were not fair because the questioning by counsel assisting, in Mr Cohen's submission, were either not fair, illogical, syntactically flawed or tainted by an erroneous statement of the law. This argument was directed in particular to the critical question and answer recorded at DTB 46 ([59] above), repeated at DTB 47 ([60] above) which were so widely reported in the press. In my judgment this is not to the point; it was not for the journalists to grade the fairness, skill, knowledge or even grammar of counsel. The journalists' task was to accurately report what actually transpired in the hearing room on the topics the subject of their reports.