Truth: poor standard
37 Mr Smark made detailed submissions to the effect that, although the primary judge (in his own assessment of the standard of the appellant's work) considered that the appellant's work could be science, even if it was not carried out by deduction or with in a reductionist framework, or directed to fellow scientists, or devoid of teleological explanations, the primary judge did not consider these attributes in evaluating the standard of the work. Nor did he seek to evaluate the appellant's claims, apart from the statement that "our instinctive heritage is one of behaving lovingly towards others and being treated lovingly"; and he erred in treating that statement as an assumption rather than as an hypothesis. Mr Smark also submitted that the primary judge erred in mistaking what was a matter of form (the use of forceful definite language) for the matter of substance (the merit of the theories).
38 He submitted that the primary judge did not sufficiently explain reasons for each of the steps in reaching his conclusion that the appellant's work was of a poor standard, namely (1) finding that the appellant's experts other than Professor Hartwig had expertise tangential to the issues, (2) his general acceptance of evidence of the respondents' experts, and (3) finding that the shortcoming identified by those experts led to his conclusion.
39 Mr Smark made detailed submissions (in addition to those concerning expertise) concerning the evidence of each expert, the general thrust of which I will briefly summarise.
40 As regards Professor Hartwig, Mr Smark submitted that aspects of his cross-examination relied on by the primary judge, as showing that he identified shortcomings in the appellant's work, did not detract from Professor Hartwig's expert opinion was that the appellant's work was of better than poor standard, in particular when the nature of the appellant's work put it outside the domain of professional academic publishing.
41 As regards Professor Churchill (who found the appellant's work to be of scientific merit insofar as it was grounded in evidence produced by science and of scholarly value insofar as it had helped to clarify existing theories about human evolution, while putting forth his own ideas), Mr Smark submitted that the primary judge's conclusion that he engaged in a significant retreat in cross-examination was in error, because it did not take account of the nature of the appellant's work as an unorthodox grand synthesis. He submitted that Professor Churchill's evidence was also important in supporting the view that any lack of support for the appellant's work from the scientific community was due to its nature as a grand narrative explanation from a holistic approach, involving teleological elements, independently of its standard.
42 As regards Dr Casebeer, Mr Smark submitted that his opinion that the appellant's work was scientific, original, plausible, testable and hence scholarly was entitled to considerable weight; and the primary judge's disregard of it was not supported by appropriate reasoning.
43 As regards Professor Prosen, Mr Smark submitted that the primary judge's rejection of his glowing account of the appellant's work was not supported by appropriate reasoning.
44 As regards Professor Groves, Mr Smark submitted that his detailed criticisms (concerning reliance on a unilateral evolutionary model for humans, and factual errors concerning facial features of certain ape species) did not take into account the scale and scope of the appellant's work, and that he did not engage in any wholesale assessment of the appellant's main thesis. The primary judge's acceptance of his evidence in preference to that of the appellant's witnesses was not supported by appropriate reasoning.
45 As regards Professor Flannery, Mr Smark submitted that his opinion was little more than a statement of position, and should have been given little weight.
46 As regards Professor Henneberg, Mr Smark submitted that acceptance of his evidence in preference to the evidence of the appellant's witnesses was not supported by appropriate reasoning.
47 In submissions in reply Mr Smark submitted that an answer by Professor Hartwig to the effect that the book did not rate as a work of science, properly construed, meant only that it was not an original contribution within the limits of the science of human evolution in the light of the fossil record. He also submitted that the book did make original contributions to science in the broader sense, for example the hypothesis of "love indoctrination".
48 It is convenient to consider this issue, as the primary judge did and the parties have done in their submissions, by reference to the book Beyond the Human Condition. The imputation was primarily directed to that book. It is in relation to that book that the appellant's claim of support and the respondents' denial of support were directed.
49 There are three preliminary points I would make.
50 First, the question of the standard of a work like this is problematic in a number of respects, in particular in that (a) it is a matter on which reasonable minds can very widely differ; and (b) it very much depends on what the work is being assessed as: for example, whether it is assessed as an undergraduate essay in science or philosophy of science, a professional scientific publication, a popular science publication to inform a general readership about what is happening in the relevant science, a popular science publication for the promulgation of original scientific work, and so on. I would also note that the identification of the category in which the work is to be assessed may also be a matter on which reasonable minds can differ.
51 Second, while the question of whether the appellant's work is or is not of a poor standard simpliciter is raised by the imputation, in that if the work is not of a poor standard at all, the imputation could not be true, it is to be kept in mind that the thrust of the imputation is that it is of such a poor standard that it has no support at all from the scientific community. This thrust is conveniently dealt with later under the heading of causation; but it does presuppose that there are degrees to which a work can be of poor standard, and that it is the degree to which this work is of a poor standard that accounts for its lack of support. The relevant finding of the primary judge was that the work was of "such" poor standard; but in my opinion a finding as to "such" should be considered in connection with the question of causation. The primary judge's finding necessarily involved a finding that the work was of "a" poor standard, and it is that finding I will be considering here.
52 Third, it will later be seen that (like the primary judge) I consider that the assertion in the imputation as to the standard of the appellant's work was comment; and a question arises whether there can be both a defence of truth and also a defence of comment to the same imputation or element of an imputation. It is accepted in the judgment of the primary judge that there can be both defences, because the primary judge has upheld both defences; and although the appellant has submitted that the primary judge was wrong to find that the imputation was comment, he has not submitted that the primary judge was necessarily wrong to uphold both defences, on the ground that only one of them can possibly succeed.
53 There are statements in the authorities to the effect that, although the distinction between a statement of fact and a comment is difficult to draw, a decision has to be made as to whether an imputation is one or the other. For example, in John Fairfax Publications v O'Shane [2005] NSWCA 164; (2005) Aust Torts Rep 81-789 at [27], Giles JA said this:
[27] There can not be a clear line between comment and statement of fact. Many defamatory words have elements of fact, conclusion from facts and expression of opinion. A characterisation must nonetheless be made, and the context and circumstances of the use of the words will be important.
54 Certainly, for a defence of comment to succeed, the Court must determine that the relevant material is comment, not a statement of fact; and as I have said, I agree with the primary judge that what the imputation in this case says about the standard of the appellant's work is comment. However, I think the better view is that this does not necessarily exclude the possibility of a successful defence of truth. If the content of what is asserted is in fact true, I see no reason why the defendant should be deprived of the defence of truth, merely because what is asserted is comment rather than a statement of fact. However, it is not necessary for me to express a concluded view on this because, as will be seen, my opinion is that the defence of truth fails for other reasons.
55 Even accepting that my preferred view is correct, the fact remains that, because reasonable minds can differ so widely on the matter, imputations about the standard of a work of science or art are more often defended as comment, so that the question addressed is whether the view was one that was actually held, rather than its truth or falsity. However, where as in this case the defence of truth is raised, the Court has on my preferred view no alternative but to do its best on the question of truth or falsity. This consideration has consequences in relation to the disposal of an appeal. In my opinion, where a primary judge has reached a conclusion as to the standard of a work, the appeal court should only attempt to reach its own conclusion if it is satisfied that the primary judge's conclusion is vitiated by error.
56 As regards the question of what the appellant's work (and in particular Beyond the Human Condition) is to be assessed as, in my opinion this book is to be assessed as a scientific publication for general readership, the object of which is not to inform the readership of what scientific work has achieved and is achieving in the relevant area, but rather to promulgate original scientific ideas of the author. This follows in my opinion from (1) the reference in the imputation to the appellant holding himself out as a scientist and the reference to the scientific community; (2) the content of the work itself, which purports to present to a general readership original and highly significant ideas, rather than to be a popularisation of work done elsewhere; and (3) the content of the respondents' publication (the ABC broadcast) generally, which focuses on the merits and impact of the appellant's own ideas.
57 It follows in my opinion that central to the assessment of the standard of the appellant's work are both assessment of the merit of the appellant's ideas, and assessment of the reasonableness of his arguments in support of them. This latter assessment covers such things as the scope and accuracy of his references to scientific work on which his arguments are based, the cogency of his arguments, the fairness of his treatment of different views, and the reasonableness with which he draws conclusions. Expert evidence would be particularly relevant to the merit of the appellant's ideas and to the scope and accuracy of his references to scientific work, and to a lesser extent to the fairness of his treatment of different views. It would be relevant, but of less significance, in relation to the cogency of his arguments and the fairness and reasonableness with which he draws conclusions, these being matters on which the Court can draw its own conclusions, without necessarily having to rely on expert evidence. To the extent that the expert evidence does not speak with one voice on the matters to which it is more directly relevant, the Court necessarily has to reach its own conclusion on them.
58 In my opinion the approach of the primary judge in this case was entirely consistent with these views. He was justified in considering that the scientific qualifications most relevant to the issues on which expert scientific evidence was important were qualifications in anthropology and in primate and particularly human evolution. The primary judge was justified in giving less weight to the evidence of Professor Churchill, Dr Casebeer and Professor Prosen because they lacked expertise in those areas, and because the evidence which they did give fell more within areas in which the Court could make its own judgment; but it is in any event to be noted that the primary judge did still consider their evidence with some care, and in my opinion gave appropriate reasons for not acceding to their conclusions as to the merits of the appellant's work.
59 It is true, as submitted by Mr Smark, that Professor Flannery's expertise was in evolutionary biology generally rather than primate or human evolution; but in my opinion the field of evolutionary biology was closer to the most relevant area for expert scientific evidence than the fields of expertise of the appellant's experts (other than Professor Hartwig); and his expression of opinion that there was a narrow factual base for the appellant's broad conclusion was within his field of expertise. It is true that this was a brief opinion which did not descend into detail; but in my opinion it was still an opinion to which weight could appropriately be given.
60 In my opinion the primary judge appropriately took into account the nature of the appellant's work as a grand synthesis, not within a deductive or reductionist framework or excluding teleological explanations, and that it was directed to a general readership and not specifically to scientists. Since the merits of the appellant's claims was only one consideration going to the standard of the work, it was sufficient in my opinion for the primary judge to address at length just one claim; and in my opinion that claim (about the instinctive heritage of behaving lovingly) was appropriately regarded by the primary judge as something which the appellant treated as a matter of certainty, not as a mere hypothesis. In my opinion, the primary judge was correct to consider this as reflecting adversely on the standard of the appellant's work as a work of science. The appellant's general use of forceful definite language, when his arguments could at best support merely tentative conclusions, also reflected adversely on the standard of his work.
61 More generally, in my opinion the primary judge's extensive reasons did appropriately explain his conclusions, and Mr Smark's submissions do not identify any respect in which they were inadequate. Neither do the submissions identify any error in the reasoning which would justify this Court reaching its own view. I would add that I have carefully read Beyond the Human Condition (Exhibit F), and I consider the view of the primary judge that the work is of poor standard to be a view that could reasonably be reached, and not itself suggestive of any error.
62 In those circumstances, I would not overturn the primary judge's finding that the work was of a poor standard.