AFFIDAVIT OF FREDRICK TÖBEN

On 07 September 2007 I, Fredrick Töben, of  Wattle Park, in the State of South Australia, say on oath:

1. I refer to the Applicant’s Statement of Charge filed on 16 November 2006 and state that I am unable to fully answer this Statement of Charge for the following reasons:

1.1 The Statement of Charge refers to a Schedule which was purportedly attached to the Statement of Charge. No such schedule was attached.

1.2 The Schedule was intended to indicate the dates upon which I had published or re-published the articles or material that forms the basis of these proceedings.

1.3 In the absence of those dates I am unable to ascertain the details of the allegations against me sufficiently to be able to properly know the charges against me.

1.4 I have no independent means of knowing when the materials were placed on the website.

  2. The failure of the Applicant to provide sufficient details of the alleged breaches of the Order made by Her Honour, Justice Branson, on 17 September 2002 means that I am unable to properly consider whether I have a  defence to the charges based on the delay of the Applicant bringing these contempt proceedings. In particular I state that

2.1  It is my recollection that some of the articles have been on the Adelaide Institute website for a period of time. I had deleted all material off the website after the Order of Branson J. I then gradually placed new material on the website whilst attempting to comply with the Order.

2.2. The potential defence would involve argument that the Applicant’s failure to prosecute this matter at the earliest reasonable opportunity is a basis for dismissing the current proceedings. Without the dates of the alleged breaches of the Order I am unable to properly pursue this defence.

  3. That that part of the Order made by Branson J on 17 September 2002 which is referred to as “A. There is serious doubt that the Holocaust occurred” is ambiguous. I have attempted to comply with it when I have published and republished material on the website without being certain as to its precise meaning. I say that it is ambiguous for the following reasons:

3.1 It is unclear to me what constitutes a “serious doubt”;

3.2  It is unclear to me what the word “Holocaust” means in the context of the Order

4. That that part of the Order made by Branson J on 17 September 2002 which is referred to as “B. It is unlikely that there were homicidal gas chambers at Auschwitz” is ambiguous. I have attempted to comply with it when I have published and republished material on the website without being certain as to its precise meaning. I say that it is ambiguous for the following reason:

4.1  The phrase “unlikely” is so uncertain in that it might mean:

4.1.1  It was possible that there were not homicidal gas chambers;

4.1.2. It was probable that there were not homicidal gas chambers;

4.1.3  There is some doubt that there were homicidal gas chambers; 

4.1.4    There are other alternatives to those referred to above.

5.  The fact that the Order in “A” refers to “serious doubt” and in “ B” refers to “unlikely” has reinforced my difficulty in understanding precisely what level of uncertainty, doubt or likelihood is required to be present in material that I have  wanted to publish before that the publishing or republishing of that material becomes a  potential breach of the Order. I have attempted to comply with my understanding of what the Order means.

6. That the delay in the Applicant seeking to prosecute any alleged breach of the Order led me to believe that my attempts to comply with the Order had been successful. If I had been advised by the Applicant that a particular article was offensive or may have led to a potential breach of the Order I would have removed the article. I have removed articles upon the request of individuals on a number of occasions.