In respect of the defamation case Karam vs Parker-Purkiss did not have the large amount of money required to defend his action against me and a large contributing factor for the ruling coming out against me was lack of resources and lack of legal representation. Because of that, I feel the need to frame the allegedly defamatory events that led to the trial in context, a context that I failed to communicate in court.
Justice Courtney has allowed the honest opinion defence in a large percentage of the comments that Karam put before the court and I believe that I can rightfully make some opinions about the trial and its content. Attached are both Justice Courtney's ruling and my analysis of it. Of a total of 88 comments that were allegedly defamatory, 38 were considered defensible while 50 were not. Of those comments I was responsible as publisher, but not necessarily the author, of a total of 71 comments, 37 comments that failed, and 34 comments that passed. Of those comments I was author of 21 that passed and 15 that failed.
Comments that were defensible
Most of the comments that were defensible have been included in the attached analysis. Lets look at some of them, starting with:
“Joe Karam made much of the computer turn on time and the bloody sock prints, but they are probably both red herrings”
This is just part of an intellectual discussion about the merits of the computer turn on time. Red Herring simply means that the event or fact has no bearing on the result.
Here are two more:
“This site has been put together to counter the spin surrounding David Bain that has been publicly promoted by Joe Karam”
“The objective of the site is simply to counter the spin that Joe Karam has supplied about the case”
Spin, as we all know, and as repeated by Justice Courtney, simply involves putting our angle on a matter and promoting that above other possible angles. Fortunately the purpose of counterspin has been successfully defended here and therefore the site remains in publication.
“Joe Karam … has created an atmosphere of constant threat in the media which has had the effect of strangling constructive criticism of his campaign”
The following two comments had an interesting context within the defamation trial. Among Karam's witnesses that he enlisted to testify in his support, was Helen Cull QC and an expert witness from the retrial whose name I cannot remember. Anyway, the judge allowed the defense.
“Karam enlisted experts from around the world to testify on technical aspects of the case and smudging what would have been otherwise incriminating evidence against David Bain”
“With careful use of overseas experts, Karam was able to narrow the requirements of reasonable doubt to such an extent that even the most unlikely sequence of events is given a reasonable chance of occurring”
Following are more comments that were defensible:
“ The result was a power of a lot of propaganda”
Propaganda in itself is an extension of spin. All product advertisements are propaganda items.
“empirical facts have been smudged and the door of reasonable doubt has been opened so wide that many now claim that Bain is innocent.”
“Karam would do anything in his quest for a compensation handout”
“He [author of book, Muddied Waters] describes Karam's uncompromising style, his penchant for 'obfuscating' the facts of the case and his tendency to play 'justice' like a game of rugby using the rules of the game to maximum advantage.”
“Perhaps Joe's real gift lies in writing fiction”
“The only conclusion I can make is that he sought to bully and intimidate. What does this say about the man [Karam] and his methods?”
“That book [David and Goliath] really should be in the fiction section”
Comments not defensible
One of the most noticeable features of some of the opinion that the judge found indefensible is that she considered that there were insufficient facts supplied in support, even though other similar opinions had been successful elsewhere because the author had taken the time to outline supporting facts. This meant that while original posts often passed the honest opinion test, comments that followed sometimes failed, even though the necessary facts were presented in the original comment. The reality is that often a commenter simply makes an opinion without reiterating the supporting facts. This is the nature of discussion. There are precedents for this and a good lawyer might have been able to successfully convince the judge that a further 10 comments are defensible as follows: FB4, FB15, FB20. FB31, CS39, CS41, CS65, CS66, CS72 and CS86.
There are also a number of other comments I have reproduced in some substance, and each requires separate context:
“It is true that the hearsay evidence regarding Laniet’s alleged relationship with her father was omitted from the first trial, but there is more to the story than what Karam makes out.”
The very next sentence is as follows: “The judge considered Dean Cottle, the main witness to this to be unreliable and ruled that his evidence was inadmissable. However David Bain could have still got the evidence heard in the trial if he was prepared to make that claim himself or at least backup Dean Cottle's evidence. ” That sentence explains in full the “more to the story”. This comment should have been defensible.
“Defamation law was brought in to stop papers from making just those very unfounded allegations that you describe so that people with a lot more merit than Joe Karam could defend themselves from false allegations. ”
The previous sentence was “I think that you will find that newspapers in the past were just as, if not even more candid than you think the internet is now.” This frames the comment as opinion and in my opinion should have been defensible.
“They made their testimonies because they got paid to, and we understand many were paid fares to fly from the other side of the world to turn up for the trial, and oh, maybe do a bit of site seeing as well. That's how the system works. Karam went through more than $2 million of Legal Aid which gave him access to quite a bit of legal testimony.”
This is largely just fact, if you interpret that the mention of Karam here refers to the Bain defence team of which he is an integral part, bearing in mind that this comment comes from an informal discussion forum and not a formal document. The judge has interpreted this as meaning that I suggest that the witnesses would say whatever they were paid to say, which in my opinion is too far fetched for the reasonable person.
“Yes, and it is exactly the kind of person like Jane whom Karam intended to deceive through his presentation of the 'expert' Defence testimony. - Maybe 'deceive' is too strong a word. Anyway, in Jane's case ignorance is bliss. She is certainly an interesting example of the effectiveness of a good PR/propaganda campaign, the absolute antithesis of all the things that we should have in a good justice system”
Here I admit that deceive is too strong a word, thereby removing the sting and rephrasing the presentation as good PR/propaganda.
“Yes, Koch and Buckley's evidence was not heard by the court because Karam battled tooth and nail to get them suppressed because he wanted to maximize his chance of getting a not guilty verdict by suppressing as much of the evidence as possible. If Karam represented the truth, then there would have been no need to have this evidence suppressed.”
Again and again, our defense struck the problem that the magic words, “in my opinion” did not precede some of our comments which are clearly just opinion. In my opinion, the reasonable person would see the last sentence of this comment as an opinion.
“..all that demonstrates is that you are prone to a good bit of Karam's propaganda-ising.”
This refers to Karam's claims that the police messed up the investigation and was made in response to a comment “because the police didn't do a good job at gathering evidence and testing it” and is followed by the sentences: “The police did no less or better job than they do most days, nor for that matter yourself in whatever line of work you are in. They certainly had no idea that the case would get such scrutiny.Also, you try organizing and collating evidence in a scene that amounts to little more than an organized rubbish tip.”
There are plenty of facts supporting this comment about propaganda, yet it failed despite similar comments succeeding elsewhere.
“How would you like if I attacked your standard of work in whatever job you do with the full force of persuasive rhetoric and multiplie publications and media presentations? Do you think I will find that you make mistakes? Yes, definitely, I will. We all make mistakes. Joe Karam has made lots of mistakes but no one has as yet put it all up under the spotlight. Further how would you like it if I started saying unfounded and slanderous things about one of your dead relatives? Do you understand that if Robin was alive and the allegations of incest made against him were tested in a defamation court, that Karam would lose hands down? Because Robin is dead and you can't defend a dead person against defamation, then Karam has been able to promote hearsay as 'truth'. Obviously you are one of the many who has bought this story hook, line and sinker.”
The judge, in her explanation, in my opinion, misinterprets this paragraph, thinking that the comment in bold is made in the context of relation to a number of statements about defamation law, when in it is made specifically in relation to the allegation of incest against Robin (para 159) The testimony of Cottle is the hearsay, which is by fact hearsay, and is “second rate and unreliable”.
With good counsel, through an Appeal, I might have reduced the number of defamatory comments without defence to 20 out of 70 but there remains, undoubtfully some regrettable comments, and little would have been achieved.
As a result of the legal ordeal that Karam put me through I have resolved to continue with my involvement in the campaign of counter-spin with a different approach. I got involved in it because certain aspects of it made me angry, and I have dealt with that anger and come out a better person. I now look forward to taking more constructive actions to achieve the goals of counterspin and the Justice for Robin Bain Group.
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