(b) persons who did not themselves buy the book, but were given it, in whatsoever particular circumstances, to read and who then read it.
28 It is not possible further to quantify that total readership. This aspect of the present case is not like, for example, the corresponding aspect of the case of Austin, previously cited. There, the publication was in a major metropolitan daily newspaper, having a circulation, as noted by the Privy Council, in the order of 353,000 copies. Here, the probable reach of the publication was much less extensive. Of course, that is not to say that it was in any sense insignificant. The distribution throughout the general community of, as it would seem from the evidence, in the order of 2,000 copies of the subject book, was more than wide enough to do a great deal of real damage to the reputation of anyone who was imputed by the book to be a proven liar and perjurer who had made a major contribution to an appalling miscarriage of public justice.
29 Secondly, it has to be decided whether the "recipient", thus understood, had "an interest or an apparent interest" in receiving "information" on the "subject", as previously defined, of the defendant's book.
30 In this connection, the advising of the Privy Council in Austin establishes the following propositions:
"1. Information , in this particular statutory context, embraces both fact and opinion.
2. Interest , in that same context, embraces "any matter of genuine interest" to the readership of the subject book; "and there are as many matters of opinion that will be of general interest to the readership ………as there are facts upon which such opinions are based" . (1986) AC, 313A
31 The principles thus established entail, in my opinion, that the defendant has plainly satisfied the requirements of paragraphs (a) and (b) of section 22(1) of the Act.
32 It remains for the defendant, if he is to succeed on the defence of statutory qualified privilege, to satisfy on the probabilities the requirements of paragraph (c) of section 22(1). Once again, it is useful to begin by setting in place some basic propositions.
33 First, paragraph (c) focuses on the defendant's conduct in connection with the publication, not of the book as a whole, but of the defamatory imputation carried by the published material: "The more serious the imputation, the greater the obligation on the defendant to ensure that his conduct in relation to it was reasonable": Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374 per Hunt AJA at 387E.
34 Secondly, what conduct is "reasonable in the circumstances" of a given case will depend upon the particular facts of that case. It is, however, possible to define certain factors that are of general application. It is convenient to do so by way of further reference to the judgment of Hunt AJA in Morgan. His Honour says:
"The defendant must also establish:
(a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate), by making proper enquiries and checking on the accuracy of his sources;
(b) that his conclusion (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained;
(c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and
(d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers." : see at (1991) 23 NSWLR, 388B/C.
35 Thirdly, there being on the facts of the present case no doubt at all that the defendant intended to convey the defamatory imputation in question, the defendant must satisfy the Court on the probabilities that he believed in the truth of that imputation: Morgan per Hunt AJA at (1991) 23 NSWLR 387F.
36 As to the third matter in the foregoing sequence, I am satisfied that the defendant did have in fact that belief. The defendant himself gave clear and positive evidence to that effect. I do not see that the evidence was either wholly destroyed, or shaken in its substance, by cross-examination. I accept that part of the defendant's evidence.
37 As to the four matters (a)-(d) previously mentioned, I am of the opinion that the factor (d) is clearly established on the face of the published material. Whether the other three factors, (a) - (c) have been established by the defendant on the probabilities, depends upon an analysis of the relevant evidence given at trial.
38 In his evidence in-chief, the defendant said that he had first become interested in the case of the Ananda Marga Three in 1979. He was working at the time for the A.B.C. producing radio programmes. His attention was drawn to the first of the two trials, which was then current. The defendant did not spend any great length of time at this first hearing; but he did drop in to it from time to time. The impression that it made on him, he explained as follows:
"I was particularly struck, from the sections of the case that I attended, by some aspects of it which seemed to me somewhat unusual - illogical, is the best single word perhaps. Among which I now remember as perhaps the only clear example what always struck me and still does as the bizarreness of somebody driving a car with two people in it who, on his account, agreed to send off a bomb if they're stopped, when he has arranged for surveillance of what they are doing, and it is at least reasonably likely that they're going to be stopped.
I remember walking back from one occasion when I was at that trial when thinking about that event said, thinking of that, it was extremely puzzling and bizarre and anti-logical."
39 When it came to his notice that the jury had not been able to agree upon a verdict in the case of any one of the three accused persons, and that there was to be in consequence a second trial, the defendant made it his business to attend parts of that trial also. His best recollection was that he had seen, in that connection, at least a part of the plaintiff's evidence as it was being given.
40 The defendant said that he had remembered aspects of the two trials over the following years until 1981 when he had conceived the idea of looking again at the trials as potential sources of material from which he might fashion one or more radio programmes of the kind which he was then producing. The defendant did in fact obtain various materials connected with the two trials; and did in due course produce and broadcast two one-hour radio programmes. There ensued some listener feed-back, the tenor of some of which tended to strengthen the defendant's own growing conviction that there was something amiss in the convictions of the Ananda Marga Three. The defendant described as follows what then ensued:
"By that stage, I can't pin it down precisely, but around that time, I had become fairly firmly persuaded that the case was, in fact, a serious miscarriage of justice. When I say 'by that stage', I mean after I had done all the work and put those programmes together. At some point around there, perhaps up to a year or so after I made the programmes, again I can't tie that down exactly, I decided that I should write a book about the case."
41 And so, the defendant set to work on the writing of the subject book. The exercise took a long time, being done intermittently and as opportunities arose; and being necessarily interrupted from time to time by developments concerning the cases of the three convicted men, principally in the form of the Hilton bombing inquest and of the subsequent inquiry conducted by Wood J. The defendant described as follows what he had been trying to achieve as he progressed with the writing of the subject book:
"I wanted the book to be a documentation of all the major aspects of the case so that people who were concerned about what I saw as an important public issue, an important question of public interest, those who were willing to spend the effort to search out the book, by whatever means, and willing to spend the time and effort of writing (sic: but read 'reading') a fairly sizeable treatment, would have something available to them so that they could find out great and complex details about it which they have no chance of getting from any other source."
42 The defendant attended the whole of the Hilton bombing inquest. After its conclusion he obtained a transcript and "a large amount of associated material", the precise details of which the defendant could not recall except to say that it included witness statements of the various witnesses and some additional material such as police running sheets. Thereafter the defendant continued work on the subject book.
43 In due course, the inquiry conducted by Wood J was formally established. The defendant made contact with various of the professional legal representatives of Messrs. Anderson, Alister and Dunn; and was eventually retained formally as part of the team of such representatives acting on behalf of the three petitioners before the inquiry. The defendant's work in that connection occupied him full-time from August 1984 to February 1985. The defendant was closely involved in the inquiry. Part of that involvement concerned the preparation of the detailed submissions made to Wood J on behalf of the three petitioners. At the conclusion of the inquiry the defendant was in possession of a very large amount of transcript and ancillary documentation deriving from the work done in connection with the enquiry.
44 After the conclusion of the inquiry, the defendant continued to write the subject book, working from time to time in what spare time he had from his other personal and professional preoccupations. After the publication of Wood J's report, the defendant obtained a copy of the report and studied it closely. He found himself in agreement with parts of it and in disagreement with other parts of it.
45 The defendant finished writing the subject book "somewhere in late 1985". He was not optimistic about finding a commercial publisher for the work; and, ultimately, he published it himself but had it distributed to the retail trade by a commercial distributor.
46 The defendant, having given the evidence which I have summarised, described as follows his approach, over all, to the writing of the subject book:
The writing of the book was a quite vast effort, really. I tried throughout to carefully cross check everything I wrote. I believe I did. Indeed, I would say I went through an exercise of some scupulousness in ensuring that I was, to the best of my ability, accurately representing the events I described and the material I was reproducing.
The account of the inquiry in particular was a very difficult one, because it was an exercise not only in compression, but finding a workable narrative shape to fit it all into. One of the difficulties with detailed analysis is that it often stops dead the momentum of the narrative and there is considerable difficulty in finding an accommodation between those two. I don't know if I succeeded, but I am very conscious that one of the difficult aspects of the task was to find some accommodation that developed a narrative and also which has an inter-relationship between things in a progress order and also to get successfully into a detailed analysis of things.
I was well conscious there were selections to be made. There were things I decided not to include. There were a number of, for example, arguments in favour of the petitioners' case. I think a number of findings made in a general case which would be in their interests by Justice Wood which I regarded as, let's say, second rank, less important, and probably fairly represented in their nature by other matters that I regarded as more important and some of those second rank things are left out. In the nature of the inquiry, I thought that was quite inevitable if any treatment of practical length was to be devised.
The complaint in this case, the imputation complained of, that the plaintiff framed members of the Ananda Marga by committing perjury, is something I have believed for a very long time - it is still my belief now. It certainly was throughout the time of writing and publishing the book. It became intensified by some of the matters which surfaced at the inquiry.
I should say I do not claim now to be able to revisit, to recall, the whole process mentally or physically that I went through in researching the book and writing it. At this distance, any attempt by me to do that is likely to be a recreation of what I thought I would have done rather than what I actually did. I can't account now for the process by which I originally arrived at that conclusion. I think I was fairly firm in it, at least after the Hilton Inquest - from then on.
My reasons for that belief are in the book and I don't know that sensibly I could put them in any priority order and there is a cumulative effect, in any event, as between them."
47 The plaintiff rounded out this summary of his approach to the subject book by explaining that he had chosen the illustrations which appear throughout the subject book; and that he had done so having in mind, in particular, what he saw as the importance of recreating in the mind of a reader, in so far as that was possible: "……. the rather over-excited atmosphere of the time, as I judge it in some respects ……".
48 The defendant went on to explain that he had taken particular care to give as full and as fair an account as he could of the case against the Ananda Marga Three, as well as the case in their favour. He said that his approach had been that it was not possible "with credibility or honesty for that matter, effectively (to) take apart a case without first acknowledging what its strengths are, what its high points are. I thought it was necessary to reproduce in quite extensive form the precise terms of the evidence against the three men in relation to the Yagoona matter; and that is really the reason why there are such extensive verbatim extracts from the transcript of the second trial, being the one which secured the convictions, throughout the chapters which deal with the afternoon of Thursday, 15 June, the question of crossing Carillon Avenue and who got the bomb, the events out at Yagoona and the events back at Newtown with the press releases."
49 The defendant explained, finally in his evidence in-chief, that there had been of necessity an element of compression in the composition and structure of the subject book; that it had been necessary on that account to make particular judgments concerning the inclusion or the exclusion of various matters of detail; but that he had sought to keep, overall, a fair balance having regard to the over-riding objective of the subject book, which was to bring to the public attention what he, the defendant, himself believed genuinely then, and believes genuinely now, to have been a serious miscarriage of public justice deriving in large part from the perjury of the plaintiff.
50 The defendant was extensively cross-examined. Two or three different particular lines of cross-examination were followed by the cross-examiner; but, in one way or another, they all had to do with a constant theme, namely, the propositions, put repeatedly to the defendant in cross-examination, that he had been, from the first, a partisan ally of the Ananda Marga Three; and that this partisanship had caused him to ignore material available to him in connection with the writing of the subject book and either casting the Ananda Marga movement in an unflattering light; or reflecting favourably, at least to some extent however limited, upon the plaintiff.
51 I have come to the conclusion that the defendant's evidence is, to speak in general terms, reliable and truthful; and I accept it. I do not accept that the available evidence, considered fairly, demonstrates partisanship on the part of the defendant of so extreme a kind as led to his deliberate suppression in the subject book of material, then available to him, and capable if accepted of contradicting the substance of the imputation which is now in point.
52 I have come to the conclusion that the defendant has established on the probabilities each of the matters referred to in the paragraphs (a), (b) and (c), as set out in paragraph 35 of this judgment. It follows that, in my opinion, the defendant has established the defence of statutory qualified privilege. Whether that defence has been successfully rebutted by proof of malice in the defendant is a separate question to which I shall return later in this judgment.