Denial: Melbourne barrister Amanda Meddes Da Costa explains

May 4, 2017 by J-Wire
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Over 100 people packed Cinema 4 at the Classic in Melbourne’s Elsternwick to hear Melbourne Barrister Amanda Mendes da Costa preview the critically acclaimed BBC film “Denial”.

New Senator for Victoria, Kimberley Kitching introduced Ms Mendes da Costa, explaining that there would be few barristers with her experience of litigation.

MC Michael Danby, Federal Member for Melbourne Ports introduced the two speakers after honouring the presence of 94-year-old twins Annetta Able and Stephanie Heller. The audience was astonished and moved at the presence of the oldest surviving twins who survived the Nazi Doctor Mengele’s experiments in Auschwitz.

Senator Kitching remarked on the timeliness of Amanda Mendes da Costas speech, coming at a time when a tiny group of Holocaust deniers were leafleting Australian campuses on Irving, denouncing the film.

Amanda da Costa’s address:

As you are aware, this film is a dramatic account of a defamation trial instigated by the self-proclaimed “real historian “ and Holocaust denier, David Irving, against the publisher Penguin Books and the American academic Deborah Lipstadt.

In 1993, Professor Lipstadt’s book ‘Denying the Holocaust, the Growing Assault on Truth and Memory’ was published. In that book she described David Irving as:

One of the most dangerous spokespersons for Holocaust denial. Familiar with historical evidence, he bends it until it conforms with his ideological leanings and political agenda”.

In September 1996 Irving filed a claim in the High Court in the United Kingdom, claiming that his reputation as an historian had been damaged by Professor Lipstadt and her publisher, Penguin Books. He was able to sue in the United Kingdom because the book was published there as well as in the United States of America.

The choice of venue was a strategic one and designed by Irving as plaintiff to gain advantage over the defendants. Under English Law, defamatory words are presumed to be untrue and the consequently, the burden of proving the defence of justification rests on the author and publisher. This is not the case in the United States of America where a public figure who claims to be libelled must prove that the statements are defamatory.

Amanda

David Irving also chose trial by Judge alone, rather than a jury. It is perhaps debatable where he would have had a stronger case with a jury. In any event the case was heard by Justice Charles Gray. David Irving was self-represented.

In this case, Deborah Lipstadt and Penguin Books were required to prove the substantial truth of the defamatory comments published about David Irving.

The film focuses on the legal strategies employed by the defence lawyers. Penguin Books and Professor Lipstadt were represented by separate firms of solicitors but used the same barrister in Court (Richard Rampton QC).

It is interesting to note that Deborah Lipstadt’s solicitor was Anthony Julius Deputy Chairman of the firm Mishcon De Reya. This firm was established by the later Baron Mishcon, a leading English solicitor and labour politician, who made a substantial contribution to the Jewish community in the United Kingdom and Israel and for his wok to promote peace in the Middle East.

Anthony Julius is a solicitor advocate and academic who

  • Acted for both Diana Princess of Wales and Heather Mills in their divorce proceedings
  • Has been very public in his opposition to the new antisemitism – attacks on Israel
  • He has spoken widely about this phenomenon.
  • Since 2011, he has been the Chairman of the Jewish Chronicle newspaper in the United Kingdom. (A publication which has been described as being like the Australian Jewish News but with longer words).
  • Specialises in Commercial Litigation and defamation

On the advice of their legal team, Penguin Books made some clever strategic decisions of their own. These were that:

  • The legal team for both defendants would scrutinise all of David Irving’s writings, not just those on the Holocaust.
  • Deborah Lipstadt would not be called as a witness.
  • They would not rely on direct testimony from survivors.
  • They would engage Professor (now Sir) Richard Evans, Professor of Modern History at Cambridge University as their principal witness. He was an inspired choice.

RATIONALE FOR NOT CALLING PROFESSOR LIPSTADT AS A WITNESS:

The matters to be determined by Justice Gray were ones of historical facts, and the focus of the trial was not to be a Court room contest between the Irving and Lipstadt, particularly as David Irving was representing himself.

The film shows Professor Lipstadt’s reaction to the decision not to call her as a witness. It must have been very difficult for a person who is so passionate in her views to accept that although she had written the words in contention in

the trial, the case was not about her. It was about the truth of the Holocaust and the reputation of David Irving.

CHOICE OF PROFESSOR SIR RICHARD EVANS AS PRINCIPAL DEFENCE WITNESS:

  • His general area of research was Modern German and European History.
  • He was pre-eminent in his field.
  • He spoke and read German.
  • He previously wrote In Defence of History, a repudiation of post modernistic views of history. In other words he believed that there was such a thing as truth and you can discover it.
  • He was not Jewish and had not specialised in Holocaust studies and could therefore not be accused of bias of having a personal interest in the legal proceedings.
  • Professor Evans and his research students studied all of David Irving’s writings and in their report destroyed any reputation he might have had left, not only in respect of his writings about the Holocaust but in his earlier works. Professor Evans exposed Irving as a deliberate falsifier of facts in his bestselling book The Destruction of Dresden”, which was published in 1963. Professor Evans and his researchers demonstrated that in this book, which initially made Irving’s reputation as a historian, he falsified the figures for civilian deaths in the Allied bombing of the city.Professor Evan’s evidence was based on a 740 page report which he and 2 of his graduate students wrote. Professor Evans was cross-examined by Irving for over a week during the trial.

Professor Evan’s conclusions about Irving were rightly damming. He said of Irving:

“Not one of his books, speeches or articles, not one paragraph, not one sentence in any of them, can be taken on trust as an accurate representation of its historical subject. All of them are completely worthless as history, because Irving cannot be trusted anywhere, in any of them, to give a reliable account of what he is talking or writing about … if we mean by historian someone who is concerned to discover the truth about the past, and to give as accurate a representation of it as possible, then Irving is not a historian”.

He later described Irving to a Canadian journalist as follows:

He was a bit like a dim student who didn’t listen. If he didn’t get the answer he wanted, he just repeated the question”.

It is important to understand the significance of Irving’s falsification of the figures regarding the victims of allied bombing in Dresden and other events in World War 2 as it demonstrated that he was not honest or accurate about history long before he commenced his Holocaust denial activities and writings. These findings made a substantial contribution to the findings against him by Justice Gray.

Professor Evan’s book about his participation in the trial is well worth reading:

“Telling Lies about Hitler: History, the Holocaust and the David Irving Trial”

The Defence also commissioned a report from Robert Jan van Pelt, an architectural historian, who examined the evidence of the gas chambers and gave evidence at the trial.

Justice Gray delivered his Judgment on 11 April 2000. Subsequently Mr Irving appealed. After losing that appeal he was forced into Bankruptcy in 2002 after being required to pay the legal costs of Penguin Books and Deborah Lipstadt

for the trial and the appeal. In 2006 David Irving was sentenced to a term of imprisonment in Germany for the crime of Holocaust Denial.

CONCLUSION:

Although the outcome of the trial was inevitable, it was a very public and authoritative repudiation of Holocaust Denial. Although David Irving’s revisionist views were never taken seriously by mainstream historians and held no academic positions, he was previously regarded as a skilled researcher of World War 2 material, who had gone off the rails when it came to writing about the Holocaust. He was exposed in this trial as a falsifier of fact from the early stages of his career, and now describes himself as a real historian as opposed to an actual one.

This film encourages us to continue the fight against Holocaust denial and anti- Semitism in all its forms and to be passionate about that fight and the truth behind it.

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