FEDERAL COURT OF AUSTRALIA
Roberts-Smith v Fairfax Media Publications Pty Limited (No 41)
[2023] FCA 555
File numbers:
NSD 1485 of 2018 NSD 1486 of 2018
NSD 1487 of 2018 Judgment of: BESANKO J Date of judgment: 1 June 2023 Catchwords: DEFAMATION — defamation proceedings — where the applicant is a very well-known Special Air Service Regiment (SASR) soldier and a Victoria Cross recipient — where 14 defamatory imputations alleged — where there are multiple print and online publications — where imputations are of the most serious kind — imputations involving murder, bullying, assault and domestic violence — where substantial
damage caused to both reputation and earning capacity of the applicant — where defences include allegations of very serious criminal conduct — defence of justification or substantial truth s 25 Defamation Act 2005 (NSW) —
defence of contextual truth s 26 of the Defamation Act 2005 (NSW) — where National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) applied to proceedings — whether the alleged imputations were conveyed by the publications — consideration of s 140 of
the Evidence Act 1995 (Cth) and common law principles concerning the standard of proof where serious criminal conduct is alleged including Briginshaw v Briginshaw
[1938] HCA 34; (1938) 60 CLR 336 — consideration of whether the material before the Court may be so limited that it does not form an appropriate basis upon which to reach a
reasonable decision — distinction between absence of proven motive and proven absence of motive —
consideration of the effect of the passage of time on the reliability of oral testimony — consideration of the nature of circumstantial evidence — inferences in relation to the
failure of a party to call a particular witness: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 — principles in Browne v Dunn (1893) 6 R 67 (HL) — consideration of lies as evidence of consciousness of guilt — consideration of
whether the respondents have established the substantial or
contextual truth of the imputationsDEFAMATION — where imputations concern the applicant’s involvement in two murders —— mission to Whiskey 108 on 12 April 2009 — factual disputes — were Afghan men found in the tunnel — location of the body of EKIA56 — extensive challenges to the honesty and reliability of witnesses — where respondents have
established the substantial truth of the relevant imputations DEFAMATION — incidents involving the applicant during pre-deployment training at Lancelin and Bindoon — where
incidents alleged are not directly relevant to any imputation in issue — factual dispute — whether the incidents alleged in the Particulars of Truth took place — whether evidence is
inadmissible on the basis that it is tendency evidence — whether applicant’s conduct constituted preparatory conduct DEFAMATION — where the imputations concern the applicant’s involvement in the murder of an unarmed Afghan
male — mission to Darwan on 11 September 2012— where evidence given by local Afghan witnesses — factual disputes — whether the interpreter was sent back before the southern
set of compounds was cleared — whether the unarmed Afghan male was kicked off a cliff by the applicant —
whether there was an agreement between the applicant and Person 11 that the unarmed Afghan male be killed after the
cliff kick — whether a throwdown was placed on the body — whether the applicant made false report about the
engagement — where respondents have established the substantial truth of the relevant imputations DEFAMATION — where the imputations concern the applicant’s involvement in a murder — mission to Chinartu
on 12 October 2012 — factual disputes— whether the time of engagement recorded in the OPSUM deliberately false — whether Person 12 was present on the mission — where
respondents have established the substantial truth of the
relevant imputationsDEFAMATION — mission to Syahchow 18-20 October 2012 — where witness objects to giving evidence on the
grounds of self-incrimination (s 128 of the Evidence Act 1995 (Cth)) — whether or not there are reasonable grounds for the objection — where the allegations in the Particulars
of Truth are not made out DEFAMATION — where imputations concern the applicant’s involvement in a murder —mission to Fasil 5 November 2012 — factual dispute — identification evidence — where the allegations in the Particulars of Truth
are not made out DEFAMATION — where the imputation concerns the applicant’s engagement in a campaign of bullying — factual
dispute — whether the bullying acts set out in the Particulars of Truth occurred — consideration of what constitutes a campaign of bullying — where respondents have established
the substantial truth of the relevant imputation DEFAMATION — where the imputations allege that the applicant unlawfully assaulted persons under control or containment — factual dispute — whether the applicant assaulted an Afghan male in Deh Rafshan on 15 March 2010 — whether the applicant assaulted an Afghan male in late August to early September 2012 — where respondents have established the substantial truth of the relevant imputations DEFAMATION — blue-on-blue during mission in the Chora Valley on 15 July 2021 — factual dispute — whether the applicant assaulted Person 10 post-mission — whether the applicant made the threat alleged — where the
respondents have not made out the substantial truth of the relevant imputation — where the defence of contextual truth is made out DEFAMATION — where imputations concern an act of domestic violence — factual dispute — whether the applicant punched Person 17 — where the respondents have
not made out the substantial truth of the relevant imputations — where the defence of contextual truth is made out DEFAMATION — where intimidation of witnesses is alleged — whether the applicant engaged in conduct that intimidated witnesses — whether the applicant colluded with witnesses — whether the applicant concealed relevant
evidence and material Legislation: Criminal Code Act 1995 (Cth) ss 11.2, 11.2A, 11.5, 268.70,
268.115, 471.12
Defence Force Discipline Act 1982 (Cth) ss 33, 34, 55
Evidence Act 1995 (Cth) ss 51, 55, 64, 97, 99, 108, 126K,
128, 140, 164
Fair Work Act 2009 (Cth) s 789FD
Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG,
37AHNational Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ss 7, 19(3A), 38B
Defamation Act 2005 (NSW) ss 25, 26, 35Inspector-General of the Australian Defence Force Regulation 2016 (Cth) s 21 Cases cited: Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2011] QB 497
Alexander v The Queen (1981) 145 CLR 395Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419
Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322
Attwood v The Queen (1960) 102 CLR 353Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632
Australian Securities and Investments Commission v
Hellicar [2012] HCA 17; (2012) 247 CLR 345
Blatch v Archer (1774) 1 Cowp 63 at 65; (1774) 98 ER 969
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR
336
Browne v Dunn (1893) 6 R 67 (HL)
Carr v Baker (1936) 36 SR (NSW) 301
Caswell v Powell Duffryn Associated Collieries Ltd [1940]
AC 152
Channel Seven Sydney Pty Ltd v Mahommed [2010]
NSWCA 335; (2010) 278 ALR 232
Charleston v News Group Newspapers Ltd [1995] 2 AC 65
(HL)
Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC
29
Church of Scientology Inc v Woodward [1982] HCA 78;
(1983) 154 CLR 25Citadel Financial Corporation Pty Ltd (Administrator
Appointed) v Action Scaffolding & Rigging Pty Limited (InLiq) [2019] FCAFC 145
Claremont Petroleum NL v Cummings (1992) 110 ALR
239
Commonwealth of Australia v Fernando [2012] FCAFC 18;
(2012) 200 FCR 1Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing & Allied Services Union of
Australia v Australian Competition and ConsumerCommission [2007] FCAFC 132; (2007) 162 FCR 466
Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450
Day v Perisher Blue Pty Ltd [2005] NSWCA 110; (2005)
62 NSWLR 731
De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR
85
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR
193
Fabre v Arenales (1992) 27 NSWLR 437
Fairfax Media Publications Pty Ltd v Kermode [2011]
NSWCA 174; (2011) 81 NSWLR 157
Farquhar v Bottom [1980] 2 NSWLR 380Federal Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74; (2011) 193 FCR 149
Festa v The Queen (2001) HCA 72; (2001) 208 CLR 593
Flack v Chairperson, National Crime Authority (1997) 80
FCR 137; (1997)150 ALR 153
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1
Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R
233
Gatto v Australian Broadcasting Corporation [2022]
VSCA 66
Gautam v Health Care Complaints Commission [2021]
NSWCA 85
Gionfriddo & Faure v R (1989) 50 A Crim R 327
Goodrich Aerospace Propriety Limited v Arsic [2006]
NSWCA 187; (2006) 66 NSWLR 186
Handlen v The Queen [2011] HCA 51; (2011) 245 CLR
282
Hayson v The Age Company Pty Ltd (No 2) [2020] FCA
361
Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572
Hobbs v Tinling (CT) & Company, Limited [1929] 2 KB 1
Hockey v Fairfax Media Publications Pty Ltd [2015] FCA
652; (2015) 237 FCR 33
Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770
Hurley v Clements [2010] 1 Qd R 215; [2009] QCA 167
Hyam v Director of Public Prosecutions [1974] 2 WLR 607
Jackson v Lithgow City Council [2008] NSWCA 312
Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 358
John Fairfax Publications Pty Ltd v Blake [2001] NSWCA
434; (2001) 53 NSWLR 541
John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA
60; (2005) 64 NSWLR 485
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50;
(2003) 77 ALJR 1657; (2003) 201 ALR 77
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Jones v Great Western Railway Co (1930) 144 LT 194
Jones v Skelton [1963] 1 WLR 1362
Joseph v Spiller [2012] EWHC 2958 (QB)
Khan v State of Trinidad and Tobago [2004] 2 WLR 692
(PC)
Kuhl v Zurich Financial Services Australia Ltd [2011]
HCA 11; (2011) 243 CLR 361
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR
363
Leung v State of Western Australia [2020] WASCA 81
Lewis v Daily Telegraph Ltd [1964] AC 234
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Mercer v R (1993) 67 A Crim R 91
Mirror Newspapers Limited v Harrison [1982] HCA 50;
(1982) 149 CLR 293
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141
CLR 632Morley v Australian Securities and Investments Commission [2010] NSWCA 331; (2010) 247 FLR 140
Moubarak by his tutor Coorey v Holt [2019] NSWCA 102;
(2019) 100 NSWLR 218
Musa v Alzreaiawi [2021] NSWCA 12
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992]
HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449
Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008]
NSWCA 246
Nguyen v R [2022] NSWCCA 126
NOM v Director of Public Prosecutions [2012] VSCA 198;
(2012) 38 VR 618O’Brien v Australian Broadcasting Corporation [2017] NSWCA 338; (2017) 97 NSWLR 1
O'Donnell v Reichard [1975] VR 916
Pamplin v Express Newspapers Ltd (No 2) [1988] 1 WLR
116
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR
297
Payne v Parker [1976] 1 NSWLR 191
Pitkin v R [1995] HCA 30; (1995) 130 ALR 35; (1995) 80
A Crim R 302; (1995) 69 ALJR 612
Prager v Times Newspapers Ltd [1988] 1WLR 77
Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167
FCR 537
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
R v Boscaino [2020] QCA 275
R v Cummins [2004] VSCA 164; (2004) 10 VR 15
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Liddy [2002] SASC 19; (2002) 81 SASR 22
R v Manunta [1989] SASC 1628; (1989) 54 SASR 17
R v Tangye (1997) 92 A Crim R 545
R v Watt (1905) 20 Cox CC 852
Rao v R [2019] NSWCCA 290
Reg v Lucas (Ruth) [1981] QB 720
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517
Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1
WLR 948; [1985] 2 All ER 712
RHG Mortgage Ltd v Ianni [2015] NSWCA 56Roberts-Smith v Fairfax Media Publications Pty Limited [2019] FCA 36 Roberts-Smith v Fairfax Media Publications Pty Limited (No 3) [2020] FCA 2 Roberts-Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067 Roberts-Smith v Fairfax Media Publications Pty Ltd (No 6) [2020] FCA 1285 Roberts-Smith v Fairfax Media Publications Pty Limited (No 10) [2021] FCA 317; (2021) 151 ACSR 79 Roberts-Smith v Fairfax Media Publications Pty Limited (No 12) [2021] FCA 465 Roberts-Smith v Fairfax Media Publications Pty Limited (No 13) [2021] FCA 549 Roberts-Smith v Fairfax Media Publications Pty Limited (No 23) [2021] FCA 1460; (2021) 157 ACSR 438 Roberts-Smith v Fairfax Media Publications Pty Limited (No 28) [2022] FCA 115 Roberts-Smith v Fairfax Media Publications Pty Limited (No 30) [2022] FCA 266 Roberts-Smith v Fairfax Media Publications Pty Limited (No 36) [2022] FCA 578 Roberts-Smith v Fairfax Media Publications Pty Limited (No 37) [2022] FCA 580 Roberts-Smith v Fairfax Media Publications Pty Limited (No 40) [2022] FCA 1614
Rowell v Larter (1986) 6 NSWLR 21
Sands v State of South Australia [2015] SASCFC 36;
(2015) 122 SASR 195
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR
573
Slim v Daily Telegraph Ltd [1968] 2 QB 157
Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
Stead v Fairfax Media Publications Pty Ltd [2021] FCA
15; (2021) 387 ALR 123
Stocker v Stocker [2020] AC 593
Teeluck v State of Trinidad and Tobago [2005] 1 WLR
2421; [2005] 2 Cr App R 378 (PC)
Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR
149
Trudgett v R [2008] NSWCCA 62; (2008) 70 NSWLR 696
Victory Projects Pty Ltd v AAA Self Storage Pty Ltd [2016]
NSWSC 1758V’landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500
Watson v Foxman (1995) 49 NSWLR 315
West v Government Insurance Office (NSW) [1981] HCA
38; (1981) 148 CLR 62Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 2618 Dates of hearing:
7–11, 15–18, 21–25, 28–29 June 2021, 26–30 July 2021, 2 August 2021, 2–4, 7–11, 14–18, 21–25, 28 February 2022, 1–4, 7–11, 14–18, 21–25, 28–31 March 2022, 1, 4–5, 11,
14, 19, 21–22, 26–29 April 2022, 2–6, 9–13, 16–20, 23–24,
27, 30–31 May 2022, 1–3, 15, 24 June 2022, 12, 18–22,25–27 July 2022 On various dates during the hearing: Counsel for the Applicant: Mr B McClintock SC (June/July 2021 & February/March
2022), Mr A Moses SC, Mr M Richardson SC andMr P Sharp Solicitor for the Applicant: Mark O’Brien Legal Counsel for the Respondents: Mr N Owens SC, Ms L Barnett and Mr C Mitchell Solicitor for the MinterEllison Respondents: Counsel for the Ms A Mitchelmore SC (until March 2022), Ms K Stern SC Commonwealth of Australia: (until April 2022), Ms J Single SC (from May 2022), Mr J Edwards and Ms C Ernst Solicitor for the Australian Government Solicitor Commonwealth of Australia:
ORDERS
NSD 1485 of 2018
BETWEEN: BEN ROBERTS-SMITH Applicant AND: FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720) (and others named in the Schedule)
First Respondent
NSD 1486 of 2018
BETWEEN: BEN ROBERTS-SMITH Applicant AND: THE AGE COMPANY PTY LIMITED (ACN 004 262 702) (and others named in the Schedule)
First Respondent
NSD 1487 of 2018
BETWEEN: BEN ROBERTS-SMITH Applicant AND: THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED (ACN 008 394 063) (and others named in the Schedule)
First RespondentORDER MADE BY: BESANKO J DATE OF ORDER: 1 JUNE 2023 THE COURT ORDERS THAT:
1. The proceeding be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PART 1 — INTRODUCTION [1] PART 2 — THE IMPUTATIONS CONVEYED OR COMMUNICATED BY THE ARTICLES [28] The Group 2 Articles [44] Imputation 4 – The applicant while a member of the SASR, committed
murder by pressuring a newly deployed and inexperienced SASR soldier to
execute an elderly, unarmed Afghan in order to “blood the rookie” [44] Imputation 5 - The applicant while a member of the SASR, committed murder by machine gunning a man with a prosthetic leg [50] Imputation 6 - The applicant having committed murder by machine gunning a man in Afghanistan with a prosthetic leg, is so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel [53]
The Group 3 Articles [56] PART 3 — SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH [92] Section 1 — Issues Relating to the Fact Finding Exercise in these
Proceedings [92]
The Onus of Proof [93] The Standard of Proof [95] The Court is not bound to make findings one way or the other [117] The material before the Court may be so limited that it does not form an appropriate basis upon which to reach a reasonable decision [119] 1. The transcripts of the evidence given to the IGADF Inquiry [127] 2. The notes of the journalists [136] 3. Person 12 [140] 4. The absence of forensic evidence [143] 5. Contact with the Afghan witnesses [144] 6. Evidence concerning the preparation of contemporaneous documents [149] 7. The arrangements with Persons 4 and 56 [151] 8. The absence of other witnesses who were present at Darwan [153] Conclusion [155] Motive [156] The Effect of the Passage of Time on the Reliability of Oral Testimony [162] Circumstantial Evidence [167] Demeanour of Witnesses [171] Jones v Dunkel [174] Character Evidence [184] The Principles in Browne v Dunn [195] Lies as Evidence of a Consciousness of Guilt [196] Other Matters [206]
Section 2 — Whiskey 108 [207]
Introduction and Background [207] The Applicant’s Contention that the Pleaded Allegations are Insufficient in Law and that there has been a Departure in the Evidence from the Pleaded Allegations [215] Approach and Witnesses [223] References to Person 4 as the “Rookie”, “to Blooding the Rookie” and Events on a Prior Mission [227] The Mission to W108 on 12 April 2009 [287] The Location of Person 6’s Patrol during the Assault and Clearance of W108 and thereafter [303] The Clearance of W108 [356] Was the Compound Declared Secure Before the Tunnel was Discovered? [362] Were Afghan Men Found in the Tunnel? [434] The Respondents’ Case as to the Execution of EKIA56 [535] The Location of the Body of EKIA56 [558] Challenges to the Respondents’ Case [579] The Respondents’ Case as to the Execution of EKIA57 [713] Moving to W109 [802] Aspects of the Applicant’s Account and those of his Witnesses [815] Key Findings and Conclusions [863]
Section 3 — Incidents involving the Applicant during Pre-Deployment
Training in 2012 [884] Section 4 — Darwan [933]
Introduction [933] Background [944] The Background of the Afghan Witnesses [958] Events in Darwan on 10 September 2012 [975] Insertion into Darwan by the Task Force on 11 September 2012 [979] The Activities of the Afghan Witnesses before and at the time of the Insertion of the Task Force [982] The Engagements in and around COI 31 [986] The Afghan Witnesses encounter Ali Jan [989] The Engagement by the Applicant in the area adjacent to the Helmand River at approximately 0805DE [995] The Applicant’s Patrol joins Other Patrols and is in the Middle Group of Compounds by 0906DE [1010] The Applicant’s Patrol moves across the Gap into the Southern Set of Compounds [1021] Clearing the Compounds in the Southern Set of Compounds including Shahzada Fatih’s Compound [1027] Clearing the Last Compound, that of Mangul Rahmi [1034] Tactical Questioning in and around the Last Compound [1047] Events after Person 56 and the Interpreter leave the Southernmost Compound [1052] The Soldiers leave and the Body in the Cornfield is identified [1071] On Return to Tarin Kowt [1086] The Respondents’ Witnesses [1089] Person 4 [1090] Person 56 [1145] Mohammed Hanifa [1159] Mangul Rahmi [1177] Shahzada Fatih [1188] Documentary Material [1201] The Applicant’s Witnesses [1209] The applicant [1209] Person 11 [1240] Person 35 [1284] Person 32 [1292] Matters advanced by the Applicant [1293] Conclusions including Key Findings of Fact [1364]
Section 5 — Chinartu [1371]
Introduction [1371] Events during the Mission [1382] Does the OPSUM falsely record the timing and circumstances of the second EKIA of the Mission to Chinartu? [1430] Was Person 12 present on the Mission to Chinartu? [1448] Was the Afghan Male executed as described by Person 14? [1512] Conclusions [1536]
Section 6 — Syahchow 18–20 October 2012 [1539] Section 7 — Fasil 5 November 2012 [1544]
Introduction [1544] Person 16’s Evidence [1548] Other Evidence which the Respondents contend is Relevant [1597] The Records Produced by the Department of Defence [1603] The Applicant’s Evidence [1612] Person 11 [1634] The Applicant’s Challenges to Person 16’s Evidence [1637] The Respondents’ Submissions [1669] Findings and Conclusions [1681]
Section 8 — The Bullying of Person 1 [1693]
Pre-deployment Training for Rotation 3 [1705] The Mission to the Chora Pass [1709] Events after the Mission at the Base [1743] Reports of the Engagement [1755] Person 1’s Performance after the Mission and his Contact with the Applicant [1760] Person 1 is moved to Person 21’s Patrol in early July 2006 and Events thereafter [1775] Person 1’s Performance from April to June 2006 [1805] The Significance of Persons 23, 33 and 37 not being called as Witnesses by the Applicant [1817] The Particulars of Truth Revisited [1825] Findings and Conclusions [1836]
Section 9 — Alleged Unlawful Assaults on PUCs [1849]
Introduction [1849] The Assault of an Afghan Male in Deh Rafshan on 15 March 2010 [1857] The Assault of an Afghan Male in late August to early September 2012 [1869] The Applicant’s Account [1875] Person 7 [1881] Findings and Conclusions [1900]
Section 10 — The Blue-on-Blue and the Alleged Threat to Person 10 [1914]
Introduction [1914] The Mission [1918] The Assault [1934] The Debrief [1941] Person 10 is disciplined [1944] Contemporaneous Reporting [1945] Person 10 prepares his Statement [1952] Subsequent Events [1958] Findings and Conclusions [1961]
Section 11 — The Alleged Act of Domestic Violence [1968]
Introduction [1968] The Beginning of the Relationship and Events until the end of 2017 [1981] The Relationship continues and Person 17 tells the Applicant that she is pregnant [1997] Events on 6 March 2018 [2010] Person 17 makes notes on her telephone on 7 March 2018 [2045] Person 17 goes to Brisbane on 13 March 2018 [2046] The Alleged Assault on 28 March 2018 [2051] The Following Day [2082] Events on 3 April 2018 [2105] Events on 5 April 2018 [2115] Events on 6 April 2018 [2123] Events on 8 April 2018 [2136] Events on 20 April 2018 [2140] The Correspondence with Danielle Kennedy [2146] Messages by Applicant on Gmail Account [2151] Person 17 contacts Mr McKenzie, makes a complaint to the AFP and withdraws the complaint on 24 August 2012 [2154] Events from June 2018 to 2020 [2168] The Submissions [2175] Findings and Conclusions [2207]
Section 12 — Intimidation of Witnesses, Collusion and Contamination of
Witnesses, Concealment of Relevant Evidence and Material, Lies and the
Alleged Separation of the Applicant and Ms Roberts [2228]
Intimidation of Witnesses [2240] Person 6 [2240] Person 18 [2271] Person 14 [2347] Person 40 [2356] Collusion and Contamination of Witnesses [2363] Concealment of Relevant Evidence and Material [2468] Introduction and Background [2468] The process of discovery begins [2477] Where did the applicant keep the USBs? [2483] The concealment of the USBs [2526] The documents relating to the alleged assault of Person 17 [2542] Person 5’s statement of complaint and other documents [2551] Lies and deliberately giving False Evidence [2554] The Separation [2559]
PART 4 — CONCLUSIONS WITH RESPECT TO SUBSTANTIAL TRUTH
AND CONTEXTUAL TRUTH [2599] PART 5 — CONCLUSION WITH RESPECT TO THE PROCEEDINGS [2613] ANNEXURE A ANNEXURE B ANNEXURE C ANNEXURE D ANNEXURE E ANNEXURE F ANNEXURE G ANNEXURE H BESANKO J: PART 1 — INTRODUCTION 1 There are three proceedings before the Court. They have been heard together.
2 The applicant in each proceeding is Mr Ben Roberts-Smith VC MG. He was a member of the
Special Air Service Regiment (SASR) between 2003 and 2013. During that period, he
undertook six tours of Afghanistan. He has received a number of awards and medals, including
the Medal for Gallantry in 2006, the Victoria Cross in 2011 and a Commendation for
Distinguished Service in 2014.
3 The respondents in the first proceeding (NSD 1485 of 2018) are Fairfax Media Publications
Pty Limited (Fairfax Media), Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. The
respondents in the second proceeding (NSD 1486 of 2018) are The Age Company Pty Limited
(The Age), Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. The respondents in
the third proceeding (NSD 1487 of 2018) are The Federal Capital Press of Australia Pty
Limited (Federal Capital Press), Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe.
It is not in dispute in each proceeding that at the relevant time, the second, third and fourth
respondents were journalists employed or engaged by the first respondent. Fairfax Media is
the publisher of The Sydney Morning Herald (SMH) and Sun Herald newspapers and of articles which appear on the SMH website. The Age is the publisher of The Age and Sunday Age
newspapers and of articles which appear on The Age website. The Federal Capital Press is the
publisher of The Sunday Canberra Times newspaper and of articles which appear on The
Canberra Times website. The three proceedings relate to articles published in both the
newspapers and on the websites in June and August 2018. The proceedings against each of
Fairfax Media and The Age involves six articles and the proceedings against the Federal
Capital Press involves four articles.
4 Each of the respondents published articles on or about 9 June 2018. Fairfax Media and the
second and third respondents published articles in the SMH newspaper on 9 June 2018 entitled
“SAS’s Day of Shame” and “Troops kept ‘kill board’: SAS’s Day of Shame”. They published
an article on the SMH website on 8 June 2018 entitled “Abdul’s brother went out to buy flour.
He never came home”. The Age and the second and third respondents published an article in
The Age newspaper on 9 June 2018 entitled “SAS’s Day of Shame” and “Did the SAS kick a
cuffed man off cliff?” They published an article on The Age website on 8 June 2018 entitled
“Abdul’s brother went out to buy flour. He never came home”. The Federal Capital Press and
the second and third respondents published an article on The Canberra Times website on 8 June
2018 entitled “Abdul’s brother went out to buy flour. He never came home”. These articles
referred to a soldier known as “Leonidas” and contained allegations that an Afghan detainee
was kicked off a cliff by Leonidas and subsequently executed. The articles have different
headlines and some distinct sections, but they are substantially similar. It is convenient to refer
to these articles as the “Group 1 articles”.
5 On 10 June 2018, Fairfax Media and the second and third respondents published an article in
The Sun Herald newspaper entitled “Special forces rookie ‘blooded’ by executing an unarmed
man”. They also published an article on the SMH website on 9 June 2018 entitled “Special
forces rookie ‘blooded’ by executing an unarmed man”. On 10 June 2018, The Age and the
second and third respondents published an article in The Sunday Age newspaper entitled
“Blood Ties”. They also published an article on The Age website on 9 June 2018 entitled
“Special forces rookie ‘blooded’ by executing unarmed man”. The Federal Capital Press and
the second and third respondents published two articles on 10 June 2018. They published an
article in The Sunday Canberra Times newspaper on 10 June 2018 entitled “S.A.S. rookie told
to shoot unarmed man”. They also published an article on The Canberra Times website on
10 June 2018 entitled “Special forces rookie ‘blooded’ by executing an unarmed man”. These
articles also referred to a soldier known as “Leonidas” and contained a number of allegations,
including an allegation concerning the execution of an elderly, unarmed Afghan in
circumstances in which a “rookie” was “blooded”. The articles also referred to another killing
involving a prisoner with a prosthetic leg and repeated the allegation that a prisoner had been
kicked off a cliff. Again, the articles have different headlines and some distinct sections, but
they are substantially similar. It is convenient to refer to these articles as the “Group 2 articles”.
6 On 11 August 2018, Fairfax Media and the second, third and fourth respondents published an
article in the SMH newspaper entitled “War hero fires back over abuse claims” and “Beneath
the bravery of our most decorated soldier”. They also published an article on the SMH website
on 10 August 2018 entitled “Beneath the bravery of our most decorated soldier”. On 11 August
2018, The Age and the second, third and fourth respondents published an article in The Age
newspaper entitled “The cracks in a war hero’s façade”, “Beneath the bravery” and “Beneath
lauded soldier’s bravery”. They also published an article on The Age website on 10 August
2018 entitled “Beneath the bravery of our most decorated soldier”. The Federal Capital Press
and the second, third and fourth respondents published an article on 10 August 2018 on The
Canberra Times website entitled “Beneath the bravery of our most decorated soldier”. These
articles refer to the applicant by name and contain a number of allegations concerning his
conduct as a soldier in Afghanistan and an allegation of domestic violence. The articles have
different headlines and some distinct sections, but they are substantially similar. It is
convenient to refer to these articles as the “Group 3 articles”.
7 It is not suggested that there is any substantial difference between the articles which comprise
the Group 1 articles or between the articles which comprise the Group 2 articles or between the
articles which comprise the Group 3 articles. In those circumstances, the articles published by
Fairfax Media and the other respondents in the first proceeding may be used as representative
of the articles which are the subject of the other two proceedings. I annex to these reasons the
Group 1 (Annexures A and B), Group 2 (Annexures C and D) and Group 3 (Annexures E and
F) articles in the proceeding involving Fairfax Media and in each case, I include a schedule
prepared by the applicant’s solicitors which enables the reader to identify by number particular
passages in the articles.
8 There was no dispute about the publication of the articles. The applicant administered
interrogatories addressed to the extent of publication of the articles and the answers to those
interrogatories were tendered by the applicant at the trial.
9 By the end of the trial, there was no dispute about the identification of the applicant in the
Group 1 and Group 2 articles. The respondents admit that the applicant has adduced evidence
which establishes that at least one person read each of the articles comprising the Group 1 and
Group 2 articles and, on the basis of extrinsic facts, understood those articles to refer to the
applicant. The respondents do not dispute that such identification was reasonable. In addition,
there is evidence adduced by the applicant of readers identifying him as being the subject of
the Group 1 and Group 2 articles.
10 There is a dispute between the parties concerning some of the imputations said to be conveyed
or communicated by the articles. In each case, the applicant relies on the natural and ordinary
meaning of the matters complained of.
11 The applicant alleges that the following defamatory imputations of and concerning him were
conveyed or communicated by the Group 1 articles:
(1) The applicant while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his
command to shoot him (Imputation 1).
(2) The applicant broke the moral and legal rules of military engagement and is therefore a criminal (Imputation 2). (3) The applicant disgraced his country Australia and the Australian army by his conduct as a member of the SASR in Afghanistan (Imputation 3). The respondents do not dispute that these imputations were conveyed or communicated by the
Group 1 articles.
12 The applicant alleges that the following defamatory imputations of and concerning him were
conveyed or communicated by the Group 2 articles:
(1) The applicant while a member of the SASR, committed murder by pressuring a newly deployed and inexperienced SASR soldier to execute an elderly, unarmed Afghan in
order to “blood the rookie” (Imputation 4).
(2) The applicant while a member of the SASR, committed murder by machine gunning a man with a prosthetic leg (Imputation 5). (3) The applicant while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1). (4) The applicant having committed murder by machine gunning a man in Afghanistan with a prosthetic leg, is so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel (Imputation 6). The respondents do not dispute that Imputation 1 was conveyed or communicated by the
Group 2 articles. They dispute on various grounds that Imputations 4, 5 and 6 were conveyed
or communicated by the Group 2 articles.
13 The applicant alleges that the following defamatory imputations of and concerning him were
conveyed or communicated by the Group 3 articles:
(1) The applicant committed an act of domestic violence against a woman in the Hotel Realm in Canberra (Imputation 7).
(2) The applicant is a hypocrite who publicly supported Rosie Batty, a domestic violence campaigner, when in private he abused a woman (Imputation 8). (3) The applicant as deputy commander of a 2009 SASR patrol, authorised the execution of an unarmed Afghan by a junior trooper in his patrol (Imputation 9). (4) The applicant during the course of his 2010 deployment to Afghanistan, bashed an unarmed Afghan in the face with his fists and in the stomach with his knee and in so doing alarmed two patrol commanders to the extent that they ordered him to back off (Imputation 10). (5) The applicant as patrol commander in 2012 authorised the assault of an unarmed Afghan, who was being held in custody and posed no threat (Imputation 11). (6) The applicant engaged in a campaign of bullying against a small and quiet soldier called Trooper M which included threats of violence (Imputation 12). (7) The applicant threatened to report Trooper J to the International Criminal Court for firing at civilians, unless he provided an account of a friendly fire incident that was consistent with the applicant’s (Imputation 13). (8) The applicant assaulted an unarmed Afghan in 2012 (Imputation 14). The respondents dispute that any of these imputations were conveyed or communicated by the
Group 3 articles.
14 The applicant’s case is that the imputations conveyed by the articles are of the most serious
kind and that he is entitled to a substantial award of damages in each of the three proceedings. In addition, he claims aggravated damages and he claims that the circumstances of aggravation
mean that the statutory cap or limit on damages for non-economic loss imposed by s 35 of the
Defamation Act 2005 (NSW) does not apply. In addition, the applicant seeks a substantial
award of damages for economic loss or loss of earning capacity.
15 The applicant also claims in each proceeding a permanent injunction restraining publication by
the respondents of such defamatory imputations as are found by the Court, an order requiring
the removal from the websites of any of the matters complained of which remain thereon,
interest and costs.
16 The defences in each proceeding are similar. They are justification or substantial truth (s 25 of
the Defamation Act) and contextual truth (s 26 of the Defamation Act). In the alternative, the
respondents plead a number of matters said to mitigate damages. In the further alternative, the
respondents sought to invoke, by reason of the circumstances they identified, the principle that
the Court is entitled to have regard to all the evidence before it and that if that evidence
establishes that the applicant in the proceeding has deceived the Court and has engaged in
misconduct then, in those circumstances, even if the respondents’ defences fail, the applicant
should be awarded only nominal damages (Joseph v Spiller [2012] EWHC 2958 (QB); Cheikho
v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29; Gatley C, Parkes R and Busuttil G,
Gatley on Libel and Slander (13th ed, Thomson Reuters, 2022) at para 10–005). As will
become clear, it is not necessary for me to address this submission.
17 Before proceeding to the next Part of these reasons, the following should be noted.
18 These proceedings were commenced in August 2018. On 31 March 2020, the Attorney-
General for the Commonwealth gave a notice in writing to the parties to the proceedings, the
legal representatives of the parties to the proceedings and the Court to the effect that the
National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (the NSI Act)
applied to these proceedings. On 15 July 2020, I made orders under s 38B and s 19(3A) of the
NSI Act. Section 38B is in the following terms:
(1) At any time during a civil proceeding:
(a) the Attorney-General, on the Commonwealth’s behalf; and (b)
the parties to the proceeding, or their legal representatives on their behalf;
may agree to an arrangement about the disclosure, protection, storage,
handling or destruction, in the proceeding, of national security information.(2) The Court may make such order (if any) as it considers appropriate to give
effect to the arrangements (see also s 38D).
19 Section 19(3A) of the NSI Act is in the following terms:
In addition to the powers of a court under this Act in a civil proceeding, the court may make such orders as the court considers appropriate in relation to the disclosure, protection, storage, handling or destruction, in the proceedings, of national security information if:
(a) the court is satisfied that it is in the interest of national security to make such orders; and (b) the orders are not inconsistent with this Act; and (c) the orders are not inconsistent with regulations made under this Act.
20 A number of orders were made and those orders have been amended from time to time.
21 The sections to which I have referred contain a reference to national security information which
is defined in s 7 of the NSI Act as information that relates to national security or the disclosure
of which may affect national security. National security means Australia’s defence, security,
international relations or law enforcement interests (see s 8).
22 The orders made by the Court are based on the following key concepts:
(1) identifying information which means any information which identifies, or tends to identify, a special operations command member;
(2) national security information which is defined by reference to the NSI Act; (3) NPO information which means information contained in an NPO document. “NPO” means a non-publication order and an NPO document is a document which is identified in the orders or the process adopted thereunder; (4) a Sensitive Court Document and a Sensitive Court File; (5) a Sensitive Document and Sensitive Information which is information contained in a Sensitive Document; and (6) a Sensitive IGADF Document and Sensitive IGADF Information. 23 The orders had the effect that evidence was given in both open Court and closed Court. There
is open Court transcript and closed Court transcript and redacted closed Court transcript. This
third category consists of closed Court transcript which the Commonwealth has had the
opportunity to consider as suitable for release to the public.
24 Even in the case of hearings in open Court, Sensitive Witnesses gave evidence in a way in
which they could be seen and heard by each person who is an Authorised Person, a Sensitive
Witness or a Sensitive Witness Representative who represents the Sensitive Witness giving
evidence who is present in the courtroom as defined in the orders, but the Sensitive Witness
may be heard, but not seen by any person who is not an Authorised Person, a Sensitive Witness
or a Sensitive Witness Representative who represents the Sensitive Witness giving evidence.
“Sensitive Witness” is defined as a special operations command member who a party proposes
to call as a witness in the proceedings, or a person who the Commonwealth notifies the parties
and the Court in writing is a Sensitive Witness. There was an exclusion clause in relation to
Mr Andrew Hastie MP.
25 The closed Court arrangements applied in the case of Sensitive Documents as defined in the
orders. A party representative or Commonwealth representative was prohibited by the orders
from tendering or otherwise asking the Court to receive a Sensitive Document unless the Court
was closed. There was also a prohibition on an Authorised Person communicating or causing
or inviting a Sensitive Witness or any other person to communicate identifying information
unless the Court is closed and a prohibition on a party representative or Commonwealth
representative tendering or otherwise asking the Court to receive a document which contains
identifying information unless the Court is closed. There are other prohibitions relating to
communications of other national security information and tendering of documents containing
national security information.
26 The effect of these orders made under the NSI Act is that Sensitive Documents were dealt with
in closed Court. The effect of that, in turn, is that certain matters have been dealt with in closed
Court submissions and now in closed Court reasons. I will be publishing closed Court reasons.
I can indicate that those reasons address in some detail aspects of the closed Court evidence
relevant to the missions to Whiskey 108, Darwan and Chinartu. There is a fairly short reference
to the mission to Fasil. There are very short references to the bullying of Person 1, the alleged
unlawful assaults on PUCs (persons under control or confinement) and the intimidation of
witnesses, collusion and contamination of witnesses, concealment of relevant evidence and
material and lies and the alleged separation of the applicant and Ms Roberts.
27 I turn now to the dispute between the parties concerning the imputations conveyed or
communicated by the articles.
PART 2 — THE IMPUTATIONS CONVEYED OR COMMUNICATED BY THE
ARTICLES
28 The principles which govern the determination of meaning are not in dispute. They are
summarised in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 237 FCR
33 at [63]–[73] per White J and V’landys v Australian Broadcasting Corporation (No 3) [2021]
FCA 500 at [41]–[55] per Bromwich J.
29 Questions of meaning are determined objectively by reference to the “ordinary reasonable
reader”. The applicant carries the onus of satisfying the Court that the matters sued upon carry
the pleaded meanings. The characteristics of the ordinary reasonable reader have been
identified in a number of cases, including Lewis v Daily Telegraph Ltd [1964] AC 234 (Lewis
v Daily Telegraph) at 258–260 per Lord Reid; Farquhar v Bottom [1980] 2 NSWLR 380 at
396 per Hunt J; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
at 165; and Charleston v News Group Newspapers Ltd [1995] 2 AC 65 (HL) at 69–74. With
respect, a clear statement of the attributes of the ordinary reasonable reader is set out in the
decision of the High Court in Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149 (at
[32]):
… The ordinary reasonable person is not a lawyer who examines the impugned
publication over-zealously but someone who views the publication casually and is
prone to a degree of loose thinking. He or she may be taken to “read between the lines
in the light of his general knowledge and experience of worldly affairs”, but such a
person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd,
“[w]here words have been used which are imprecise, ambiguous or loose, a very wide
latitude will be ascribed to the ordinary person to draw imputations adverse to the
subject”.
(Citations omitted.)
30 As I have said, the applicant pleads that the imputations are conveyed or communicated by the
natural and ordinary meaning of the matters complained of. The nature and ordinary meaning
of words is not limited to their literal meaning.
31 In Lewis v Daily Telegraph, Lord Reid said (at 258):
What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning.
32 In Jones v Skelton [1963] 1 WLR 1362, Lord Morris of Borth-y-Gest in delivering the judgment
of the Privy Council said (at 1370–1371):
The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v. Daily Telegraph Ltd. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words.
(Citation omitted.)
33 It is necessary to consider the publication as a whole and conspicuous headlines, headings and
captions must be given due weight (John Fairfax Publications Pty Ltd v Rivkin [2003] HCA
50; (2003) 77 ALJR 1657; (2003) 201 ALR 77 at [26] per McHugh J). The emphasis provided
by the publisher, for example, by the size of the headline relative to the whole publication, is
not to be ignored (Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646
per Aickin J).
34 In the context of submissions concerning meaning, the respondents referred to what has been
called the “single meaning” rule and what the respondents described as gradations of
seriousness.
35 The single meaning rule was discussed by Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2
QB 157 (at 174):
… The decision as to defamatory meanings which words are capable of bearing is
reserved to the judge, and for this reason, and no other, is called a question of law. The decision as to the particular defamatory meaning within that category which the words do bear is reserved to the jury, and for this reason, and no other, is called a question of fact. But the recognition that there may be more than one meaning which reasonable men might understand words to bear does not absolve the jury from the duty of
deciding upon one of those meanings as being the only “natural and ordinary meaning”
of the words. Juries, in theory, must be unanimous upon every issue on which they have to adjudicate; and since the damages that they award must depend upon the defamatory meaning that they attribute to the words, they must all agree upon a single
meaning as being the “right” meaning. And so the unexpressed major premise, that
any particular combination of words can bear but a single “natural and ordinary meaning” which is “right”, survived the transfer from judge to jury of the function of
adjudicating upon the meaning of words in civil actions for libel.
But where an action for libel is tried by a judge alone without a jury, it is he who has
to arrive at a single “right” meaning as “the natural and ordinary meaning” of the words
complained of; and with the concentration of functions in a single adjudicator, the need for his distinguishing between meanings which words are capable of bearing and the
choice of the one “right” meaning which they bear disappears. …
(Emphasis in original.)
36 It follows, as the respondents correctly submit, that the Court’s task is to determine the one
sense in which the matter complained of is to be understood.
37 The respondents relied on the reference by Sedley LJ in Ajinomoto Sweeteners Europe SAS v
Asda Stores Ltd [2011] QB 497 at [2] to the single meaning rule and to the shifting of the
preferred meaning to the middle ground. The respondents made it clear in their oral
submissions that they were not suggesting that there was a rule that where various meanings
are open, the non-defamatory meaning is to be preferred or that the middle meaning must be
adopted as the meaning so that, in the case of criminal or other misconduct, an article could
never be read as conveying the meaning of guilt.
38 It was in this context that the applicant referred to the decision of the Supreme Court of the
United Kingdom in Stocker v Stocker [2020] AC 593 (Stocker) and Gatto v Australian
Broadcasting Corporation [2022] VSCA 66 (Gatto).
39 In Stocker, Lord Kerr said (at [34], [37] and [38]):
34 … [i]t is clear that the single meaning approach is well entrenched in the law
of defamation and neither party in the present appeal sought to impeach it. And, whatever else may be said of it, it provides a practical, workable solution. Where a statement has more than one plausible meaning, the question of whether defamation has occurred can only be answered by deciding that one particular meaning should be ascribed to the statement.
… 37
Clearly, therefore, where a range of meanings is available and where it is possible to light on one meaning which is not defamatory among a series of meanings which are, the court is not obliged to select the non-defamatory meaning. The touchstone remains what would the ordinary reasonable reader consider the words to mean. Simply because it is theoretically possible to come up with a meaning which is not defamatory, the court is not impelled to select that meaning.
38
All of this, of course, emphasises that the primary role of the court is to focus on how the ordinary reasonable reader would construe the words. And this
highlights the court’s duty to step aside from a lawyerly analysis and to inhabit the world of the typical reader of a Facebook post. To fulfil that obligation, the court should be particularly conscious of the context in which the statement was made, and it is to that subject that I now turn.
40 In Gatto, the Victorian Court of Appeal said (at [41], [44] and [45]):
41 The question for the trier of fact, in a defamation proceeding, however, is what is the single or dominant meaning which the trier of fact believes was actually
conveyed by the relevant publication — what many of the authorities in this
area have referred to as the ‘single meaning rule’.… 44 As we have already observed, the issue for the trier of fact is to select the single
meaning which is the ‘natural and ordinary meaning’ of the words published.
This (the single meaning), depending on the words used and the manner of
publication, may or may not be ‘the approximate centre point in the range of
possible meanings’. There is no uniform rule that, in every case, the natural
and ordinary meaning of a publication is the centre point in the range of possible meanings. The choice of a meaning at one end of the spectrum of the range of meanings that are open, however, may well invite greater scrutiny of whether that meaning was in fact conveyed.
45 While the ‘right’ (single or uniform) meaning of a publication will often be
‘the approximate centre point in the range of possible meanings’, because a
reasonable reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning, there is (as we have said) no uniform rule to that effect. In every case, the publication complained of must be read as a whole, in order to determine the single or uniform natural and ordinary meaning of the publication. Nothing said in Hardie (either at first instance or on appeal) gainsaid these propositions.
(Citations omitted.)
41 In the case of an article which links or associates a person with criminal or other misconduct,
it may be that three levels of meanings are open. They are as follows: (1) that the person is
guilty of criminal or other misconduct; (2) that there are reasonable grounds to suspect that the
person is guilty of criminal or other misconduct; and (3) that there are grounds for investigating
whether the person is guilty of criminal or other misconduct (Gatley et al (2022) at para 32-006;
Collins M, Collins on Defamation, (Oxford University Press, 2014) para 6.89; George P,
Defamation Law in Australia (3rd ed, LexisNexis, Butterworths, 2017), at para 11.1) .
42 Before leaving the statement of relevant principles, there is one other matter which should be
identified. In the case of an article which links or associates a person with criminal or other
misconduct, it may be appropriate to attribute to the ordinary reasonable reader knowledge of
the presumption of innocence (see Lewis v Daily Telegraph at 285 per Lord Devlin; Mirror
Newspapers Limited v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 300–301 per Mason J
(as his Honour then was)), although the circumstances of the matter complained of may be such
that the ordinary reasonable reader should not be attributed with that knowledge at the time he
or she reads the publication (see John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60; (2005) 64 NSWLR 485 at [71] and [78] per McColl JA (with whom Sheller JA and
McClellan AJA agreed)). The precise imputation conveyed or communicated depends upon
the terms of the article.
43 As I have said, there is no dispute between the parties as to the imputations conveyed or
communicated by the Group 1 articles. I turn to address the contested imputations in relation
to the Group 2 and Group 3 articles.
The Group 2 Articles
Imputation 4 – The applicant while a member of the SASR, committed murder by pressuring
a newly deployed and inexperienced SASR soldier to execute an elderly, unarmed Afghan in
order to “blood the rookie”
44 The applicant drew the Court’s attention to a number of matters in support of his submission
that this imputation was conveyed or communicated by the Group 2 articles. The headline of
both the newspaper article and the online article, “Special forces rookie ‘blooded’ by executing
an unarmed man” appears to be a statement of fact. In para 5 of the newspaper article and
para 6 of the online article, there is reference to an SAS trooper in his first deployment to
Afghanistan being pressured to execute an elderly unarmed detainee by fellow higher ranking
soldiers as part of a “blooding ritual”, according to defence insiders who were witnesses at the
scene. The applicant points to the reference in these statements to higher ranking soldiers and
to the fact that the source of the information is said to be defence insiders who were witnesses
at the scene. In para 6 of the newspaper article and para 7 of the online article, there is a
reference to a man with a prosthetic leg being killed by machine-gun fire. In the case of the
online article, and only that article, the caption under the photograph of the man with the
prosthetic leg refers to that man having been killed in 2009 in an incident that involved an
alleged war crime.
45 The subject matter of the article then reverts to the summary execution of the elderly detainee
and, as the applicant points out, there is a reference in that context to a rogue SASR team
operating in Afghanistan and information uncovered by a Fairfax Media investigation and
corroborated by special forces insiders. In para 8 of the newspaper article and para 10 of the
online article, there is reference to two more senior soldiers, one of whom was earlier overheard
proclaiming a need to “blood the rookie”. The applicant referred to paras 9 and 10 of the
newspaper article and paras 11 and 12 and to the image of the prosthetic leg in the online article.
In para 11 of the newspaper article and para 14 of the online article, it is said that SASR sources claim the man with the prosthetic leg was machine-gunned by a soldier that, for legal reasons,
Fairfax Media will call “Leonidas”. In para 12 of the newspaper article and para 15 of the
online article, there is a statement that Leonidas “is also implicated” in the killing of a detainee
three years later in September 2012 during a SASR mission in the village of Darwan. The
applicant places emphasis on the words “is also implicated”.
46 The applicant referred to the statement in para 14 of the newspaper article and para 17 of the
online article to the effect that the allegations which have circulated among insiders for years,
have now been corroborated by various sources across the globe during a six-month Fairfax
Media investigation. The applicant submits that the references to the length of the investigation,
multiple sources, corroboration and insiders all point to an imputation that the matters stated in
the article are true. The applicant submits that his involvement in the execution of the elderly
unarmed Afghan is made clear by the references to “fellow higher ranking soldiers”, “two more
senior soldiers”, the references to “a rogue SASR team” operating in Afghanistan and the
references to Leonidas machine gunning the man with the prosthetic leg and also being
implicated in the killing of a detainee three years later in Darwan. The applicant submits that
it is clear that it is being said that Leonidas is part of the rogue SASR rogue team and he is a
senior member of that team. In all the circumstances, the ordinary reasonable reader would
conclude that one of the “fellow higher ranking soldiers” who pressured the trooper on his first
deployment to Afghanistan to execute the elderly, unarmed detainee was Leonidas.
47 The respondents submit that Imputation 4 is not conveyed or communicated by the Group 2
articles. Leonidas is said to have machine-gunned the man with the prosthetic leg and to be
implicated in the killing of the man at Darwan. The respondents submit that, in those
circumstances, the ordinary reasonable reader would assume that if it was being claimed that
Leonidas was involved in the incident involving the elderly detainee, then he would have been
mentioned. There is reference to “fellow higher-ranking soldiers”, “a rogue SASR team” and
“two more senior soldiers”. The respondents submit that the ordinary reasonable reader would
not conclude that “Leonidas” was one of the two unnamed “higher-ranking soldiers” involved
in the blooding murder. The respondents submit that at best, the ordinary reasonable reader
would consider that there were reasonable grounds to suspect that Leonidas committed murder
by pressuring a newly deployed and inexperienced SASR soldier to execute an elderly,
unarmed Afghan in order to “blood the rookie”.
48 I do not accept the respondents’ submissions. The articles identified a small group of soldiers
of which “Leonidas” is a member. He is the only man “identified” and it is said that he is given
a pseudonym for legal reasons. He killed the man with the prosthetic leg and, as the
respondents admit, the articles convey or communicate an imputation that he murdered an
unarmed and defenceless Afghan civilian by kicking him off a cliff and procuring the soldiers
under his command to shoot him (Imputation 1). Furthermore, if as I find to be the case,
Imputation 5 is made out, Leonidas is said to have committed two murders and to be part of “a
rogue SASR team”. One of the two murders happened on the same mission as the execution
of the elderly detainee.
49 In my opinion, Imputation 4 was conveyed or communicated by the Group 2 articles. The
ordinary reasonable reader would assume that the applicant was one of the “two more senior
soldiers”.
Imputation 5 - The applicant while a member of the SASR, committed murder by machine gunning a man with a prosthetic leg
50 It is clear that the ordinary reasonable reader would conclude from the articles that it was
Leonidas who “machine-gunned” the man with the prosthetic leg and killed him. However,
the respondents submit that there is no statement in the articles to the effect that the killing of
the man with the prosthetic leg was unlawful or indeed, constituted murder. In that respect, it
is important to bear in mind, so the respondents submit, that the context in which the killing
occurred is clearly the war in Afghanistan.
51 In my opinion, the respondents’ argument must fail in the case of the online article because of
the caption under the photograph suggesting that the man with the prosthetic leg was killed in
an incident that involved an alleged war crime. I reject the submission by the respondents that
the alleged war crime is a reference to the souveniring of the prosthetic leg. It is the killing
that involved the alleged war crime and that would be the understanding of the ordinary
reasonable reader. In the case of the newspaper article where this caption did not appear, I
consider that the same conclusion should be reached when the context is considered. Clearly,
the articles convey the meaning that the summary execution of the elderly detainee (which was
said to be one of several incidents) and the execution of the man in Darwan three years later
were unlawful executions. As to the former, the sources are identified as “defence insiders
who were witnesses at the scene”. As to the latter, the claims were said to have been backed
by relatives of Ali Jan and now corroborated by various sources across the globe during a six month Fairfax Media investigation. In that context, the clear implication is that the killing of
the man with the prosthetic leg was an unlawful killing, not an accidental killing or a killing
that occurred within the rules of engagement.
52 In my opinion, Imputation 5 was conveyed or communicated by the Group 2 articles.
Imputation 6 - The applicant having committed murder by machine gunning a man in Afghanistan with a prosthetic leg, is so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel
53 The applicant accepts that the article does not expressly say that he returned the prosthetic leg
to Australia. Nevertheless, he is identified as the man responsible for the killing of the man
with the prosthetic leg and the act of removing the prosthetic leg is not attributed to anyone
else. The applicant submits that he is, in effect, the only candidate in terms of the act of
souveniring the prosthetic leg.
54 The respondents submit that this imputation is not conveyed or communicated by the Group 2
articles. As to the allegation of murder, the respondents submit that that has been dealt with
previously. There is no express statement that the applicant took the prosthetic leg back to
Australia and encouraged his soldiers to use it as a novelty beer drinking vessel. They point to
the fact that others are mentioned in the article and could have been responsible, such as the
rookie or the higher ranking soldiers.
55 In my opinion, this imputation is conveyed or communicated by the Group 2 articles. I have
already dealt with the aspect involving murder. Although the articles are directed at “fellow
higher-ranking soldiers”, a “rogue SASR team operating in Afghanistan” and “two more senior
soldiers” and “Leonidas” and the latter is not the only soldier mentioned, the fact is that
Leonidas is the soldier identified as the soldier who killed the man with the prosthetic leg and,
therefore, absent an express reference otherwise, is the obvious person in the mind of the
ordinary reasonable reader to have souvenired the leg.
The Group 3 Articles
56 The dispute between the parties concerning Imputations 7 to 14 inclusive and, in particular
Imputations 7 and 8, is whether the words in the Group 3 articles conveyed or communicated
imputations of guilt of the criminal or other misconduct alleged or only reasonable grounds to
suspect that the applicant is guilty.
57 The applicant identified those matters in the articles which he contends convey or communicate
guilt and not merely reasonable grounds to suspect. He did so by reference to the online article
(Annexure F).
58 The applicant refers to the headline of the articles (“Beneath the bravery of our most decorated
soldier”), the reference to Rosie Batty and himself and the statement that the photograph of the
two of them fitted his public ethos, which was to value “moral courage” above physical prowess
and “cherish your family every single day”. He submits that the reference to “public ethos”
points out to the ordinary reasonable reader the contrast between what is in the public arena
and the “sordid” private reality.
59 The applicant submits that para 18 is important because it referred to interviews over almost a
year of dozens of veterans, officials and people with knowledge of the applicant’s personal
conduct, including decorated soldiers who served alongside him (emphasis added). The
applicant submits that that language suggests the meaning is one of truth, not one of reasonable
grounds to suspect. The applicant highlights the reference to “disturbing rumours” and submits
that that indicates to the ordinary reasonable reader the seriousness of the allegations. He refers
to the statement in para 23 that the patrols under scrutiny featured him as a key player, either
as a deputy or a lead patrol commander, and to the statement in para 25 that SAS veterans have
also alleged to Fairfax Media that he bullied and intimidated fellow soldiers.
60 The domestic violence allegation is introduced in paras 27 to 30 and the applicant draws
attention to para 30 and, in particular, the reference to senior defence officials later learning of
allegations the woman raised with the police about what happened later that night at the Hotel
Realm in Canberra, “an alleged act of domestic violence and intimidation”. The applicant
submits that the word “allegation” does not provide any “cover”. The statement is repeated on
two further occasions. With respect to para 32, the applicant submits that the statement in
para 32 that he declined to respond to allegations cast him in a poor light as, in effect, a man
“on the run”.
61 The applicant next referred to para 39 and, in particular, the reference to multiple special forces
insiders speaking to Fairfax Media and confirming that among the allegations made to the
Inspector-General of Australian Defence Force Inquiry (IGADF Inquiry), was that the patrols
the applicant helped lead brutally mistreated unarmed Afghans. The applicant said that the
reference to the sources being “multiple” and to “insiders” suggests to the ordinary reasonable
reader that what is being referred to is guilt, not reasonable grounds to suspect.
62 There is then a reference in para 41 to four defence insiders having alleged that they observed
patrols under the applicant’s direct or deputy leadership severely mistreat unarmed Afghans on
four occasions. There then follows reference to these four instances in paras 42 to 49.
Paragraph 42 contains a statement that a member of the applicant’s 2009 patrol encouraged a
more junior trooper to execute a detainee who was a suspected militant and that member of the
applicant’s patrol was later heard boasting about. There is a further statement that Fairfax
Media had obtained a photograph of the dead man and two witness accounts describing the
circumstances in which the Afghan died. In paras 43 to 48, there is reference to an assault in
2010. There is then reference to two alleged assaults in 2012.
63 The statements concerning bullying by the applicant first appear in para 55 and are followed
by a clear statement in para 64 that multiple sources contended that the applicant repeatedly
bullied Trooper M. More than one witness claims to have heard the applicant threatening to
harm Trooper M. The alleged threat by the applicant to Trooper J is the subject of paras 78
and 79. There is reference to the complaints by patrol commanders about the applicant
receiving a Commendation for Distinguished Service in paras 81, 82 and 83. The article then
has a heading of “Denials and accusations”. The applicant drew particular attention to paras 95,
96 and 97 under that heading and the comparison made in those paragraphs between the way
he has been challenged and the treatment of other recipients of the Victoria Cross. The
applicant referred to the paragraphs under the heading “Pushing back”.
64 The applicant then drew particular attention to para 110 and the statement that Canberra sources
had said that the female lawyer was alleging that the applicant had subjected her to an act of
domestic violence and intimidation in the hours after the event in the Great Hall in late March
2018. Paragraph 111 contains a statement concerning how defence officials became aware of
the woman’s complaint and the fact that the woman had later told police of her claims. In
para 112, the circumstances of her fall as she was leaving the event and her arrival at the Hotel
Realm are referred to and, for the third time according to the applicant, it is stated that the
woman was subjected to an act of domestic violence. In para 116, there is a statement that on
22 April 2018, the woman received an email from “Danielle Kennedy”. In para 119, there is a
statement that the applicant has declined requests from Fairfax Media to be interviewed or to
answer any questions about any knowledge he might have about Danielle Kennedy. In
para 120, there is a statement that it was understood that after the applicant received questions,
he told his public relations adviser that no affair had occurred and that that particular claim that
no affair had occurred was undermined by copious evidence. In other words, the meaning conveyed is that the applicant had told a lie. In para 120, it is also stated that on Wednesday,
8 August 2018, and after he had been alerted that Fairfax Media knew of the allegations
reported to police as well as the mysterious “Danielle Kennedy”, the applicant contacted a
Queensland police station claiming to be a victim of stalking by the lawyer. In other words,
the meaning conveyed, according to the applicant, is that he was arguably inventing the stalking
claim. The applicant then referred to para 131wherein it is stated that SAS insiders who are
aware of some of the adverse allegations about the applicant or the conduct of his patrols have
said that credible evidence has already been placed on record and on oath.
65 Finally, the applicant referred to the section dealing with his response (i.e., para 133 onwards).
He submits that by that point, the damage to him had, in effect, already been done and could
not be undone.
66 Before leaving the applicant’s submissions, one particular point should be noted and it concerns
Imputation 9 to the effect that the applicant as deputy commander of a 2009 SASR patrol,
authorised the execution of an unarmed Afghan by a junior trooper in his patrol. The applicant
submits that if the articles support a meaning which is a nuance of, or does not differ in
substance from, the pleaded meaning, then that meaning may be considered. Further, if the
Court determines that some lesser meaning is available, but that that meaning does differ in
substance from the pleaded meaning, then the applicant said that he seeks leave to rely on that
other meaning. The applicant submits that given the Particulars of Truth, and the fact that the
Court is likely to have to make comprehensive findings on this point, there is no relevant
unfairness in a departure from the pleaded meaning. He relies on the approach taken by Lee J
in Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; (2021) 387 ALR 123 (Stead) at
[27]–[31]. In that case, Lee J considered differences between a pleaded imputation and the
imputation found by the Court to have been conveyed or communicated by the publication in
question. If there is no difference in substance between the two, then the applicant may rely
on the meaning as found. If there is a difference in substance, but the meaning is a lesser
meaning, then the applicant may rely on the unpleaded meaning where that would not cause
unfairness to the respondents.
67 In oral submissions, this particular submission by the applicant was linked to the articles
comprising the Group 3 articles and this particular imputation. Counsel for the applicant
submits that if the Court considers that “acquiesced in the execution” or “observed and
endorsed” or something to similar effect, was more “felicitous” wording, then because that
imputation does not differ in substance from the pleaded imputation, it was open to the Court
to allow the applicant to rely on it. Counsel for the applicant submits that if the Court felt that
there is a difference in substance between the two then, in any event, there is no unfairness or
unjustness to the respondents in allowing the applicant to rely on the unpleaded imputation
(Stead at [31] per Lee J).
68 Finally in terms of the applicant’s submissions, I note that in relation to Imputation 14 (the
applicant assaulted an unarmed Afghan in 2012), the applicant withdrew a written submission
to the effect that there is relevantly no difference in substance between an allegation that he
committed the assault or that he, for instance, encouraged or authorised the assault.
69 The respondents submit that the imputations conveyed or communicated by the article rise no
higher than reasonable grounds to suspect the matters pleaded and they drew to the Court’s
attention to the following well-known propositions: (1) the ordinary reasonable reader reads
the whole of the article and such a person reads the article once. They do not parse and analyse
the publication, nor do they have lawyers assisting them to deconstruct it; (2) the ordinary
reasonable reader is not naïve and they do not live in an ivory tower. They are not morbid or
suspicious; and (3) it is important to recall that it is the publication which is relevant and,
although the summary document is helpful, it is not a substitute for the article.
70 The respondents addressed the imputations said to be conveyed or communicated by the
Group 3 articles and, in particular, Imputations 7 and 8. The respondents submit that the
ordinary reasonable reader would not comprehend meanings of guilt. They accept that the
ordinary reasonable reader would comprehend meanings of suspicion, “probably even strong
suspicion”. It is important to recall that, in the case of Imputations 7 and 8, there is only one
accuser, in other words, there is only one person making the allegation. The respondents submit
that the ordinary reasonable reader would not conclude that the meaning was a meaning of guilt
2574 The applicant filed a further outline of evidence of Ms Roberts on 11 July 2019. Paragraph 3
of that affidavit was in the following terms:
In October 2017, Ben and I separated. I knew from conversations that I had had with Ben since we separated that he had been seeing someone by that name. Although Ben had moved out of the house during our separation, I continued to manage his public speaking engagements, he regularly came for dinner to see the girls and he would sometimes stay over at the house in the spare room. We also went on a family holiday to Singapore together in January 2018.
2575 Ms Roberts said that the information in para 20 of the first outline was information she provided
to the applicant’s lawyers. The information is not true. The applicant asked her to lie. He did
that on the occasion that he pointed to the children and referred to her losing them.
2576 Ms Roberts agreed that she provided the information to the applicant’s lawyers set out in para 3
of the second outline. The information was not true. Ms Roberts said that she provided the
untrue information because she was scared.
2577 The applicant submits that his account should be accepted and the account of Ms Roberts
should be rejected. In support of his argument, he points to the following matters.
2578 First, the applicant refers to an exchange of text messages between Ms Roberts and Ms Scott
on 28 December 2017 as follows:
Ms Roberts: “Yeh I’m trying to be conscious of that, it’s just new and raw at the moment. I’m still trying to come to terms with it all.” Ms Scott: “Totally understand but keep that in the back of your mind. He fell in love with you because you were strong and wonderful and proud be that person now.” Ms Roberts: “Do you think he’s made his mind up?” Ms Scott: “Doesn’t make sense that he has otherwise he would not want holiday etc”
2579 The applicant submits that the clear import of the exchange is that Ms Roberts and Ms Scott
believed that the applicant at this time was in the process of deciding whether he wanted to
continue in the marriage. Ms Roberts agreed that the question she raised as to whether the
applicant had made his mind up was a reference to whether he had mind up to leave her
permanently. It is not clear that this supports either party’s case. On the applicant’s case, the
parties had been separated for about three months at the time of this exchange and the “new
and raw” matter was in all probability a recent discussion about the future of the relationship.
2580 Secondly, the applicant points to a message from Ms Roberts to Ms Scott on 13 January 2018
which reads as follows:
How is he ever going to tell Kerry we are separated??
I honestly think things like that is on his mind??
2581 Ms Roberts agreed that the reference to “Kerry” is a reference to Mr Stokes, the Chairman of
the Seven Network. In cross-examination, Ms Roberts said that she cannot recall what she
meant by asking this question. The applicant submits that her evidence should not be accepted
and that the plain meaning of what she said is clear, that is to say, they were separated and how
the applicant was going to tell Mr Stokes. The respondents’ submission about this matter is
that the question is a hypothetical one in the sense that it had not actually happened, but was
something that may happen. This is in circumstances (so the argument goes) that the applicant
has told Ms Roberts that he does not love her anymore and the previous message was “Do you
think he’s made his mind up?”. This seems to me to raise a doubt about the meaning of the
message and that doubt is to be resolved by reference to context and other relevant matters.
2582 Thirdly, the applicant points to the fact that on 17 August 2018, and shortly after the publication
of the Group 3 articles, Ms Roberts sent a message to three friends, Snazzy, Jodes and Missy,
who she was scheduled to go on a holiday with. The message included the following:
… I wanted to touch base with you all before I see you tomorrow and in particular talk
to you about a deeply personal issue. Last year Ben and I separated for a short while.
We kept this extremely private. It’s now being made very public … In that time Ben
saw someone else who has leaked damaging, false and slanderous allegations to the
press. …
Ms Roberts said in her evidence that she was told to lie by the applicant and that is why she
lied in the message to her friends. The applicant submits that this answer reflects poorly on
her credit because this was a personal message she had crafted herself and, in the
circumstances, she was under no obligation to lie. I consider this factor to be neutral. Some
might have taken the risk of informing close friends and others would not.
2583 Fourthly, the applicant submits that his account of the separation is, to some extent,
corroborated by the text messages sent by Person 17. On 22 January 2018, which was two
days after the applicant had returned from Singapore, he wrote to Person 17 saying that he saw
no future in the relationship and Person 17 agreed that from this time, she had the impression
that the applicant had decided to stay with his wife. On the same day, Person 17 sent a text
message to the applicant which included the following:
… You’ve spent the last year away for work all the time & barely home with your kids
because you were so unhappy in your marriage.
2584 I do not consider that these general statements made by Person 17 assist in resolving the issue.
2585 Fifthly, with respect to the related question of whether the applicant told Ms Roberts in January
2018 that he was seeing another woman, the applicant relies on a second message sent by
Ms Scott to Ms Roberts on 13 January 2018 in support of the proposition that Ms Roberts
plainly knew at that time that the applicant was having an affair. The messages are as follows:
Ms Scott: “And personally, I wouldn’t want to be married to some s***mother who didn’t want to spend time with the kids anyway.” Ms Roberts: “Seriously…he might want to upgrade, but he will always wonder if shes there for the right reasons.”
Ms Roberts said that her reference to a “she” reflected the fact that she suspected the applicant
was having an affair. She denied that she was actually referring to a real person, being
Person 17. The respondents submit that the reference to “some s*** mother” is a reference to
“mother-fucker” and means the applicant, whereas the applicant submits Ms Roberts gave no
evidence to support this theory and there is no hint of a misspelled word or an error. Ms Roberts
had previously used this description of the applicant without apparent difficulty. I have
difficulty in seeing the significance of this dispute. It is a comment made by Ms Scott, not Ms
Roberts. In my opinion, the message is an insufficient basis to form a conclusion either way.
2586 The applicant submits that the cumulative effect of these contemporaneous documents broadly
supports the applicant’s evidence that a separation in fact occurred and that Ms Roberts is not
telling the truth.
2587 Sixthly, and again with respect to the related question of whether the applicant told Ms Roberts
in January 2018 that he was seeing another woman, the applicant points to the fact that in family
law affidavits sworn on 30 September 2020, Ms Roberts deposed to events in a way which
suggested that she became aware of the applicant’s affair with Person 17 in December 2017.
Ms Roberts said that that was not correct and that the statement was a mistake. The respondents
submit that Ms Roberts’ explanation of the statement being a mistake is supported by the
applicant’s evidence that he did not tell her about the affair until later in January 2018. The
applicant’s response to that is that the message between Ms Scott and Ms Roberts on 13 January
2018 clearly indicates that Ms Roberts had acquired knowledge of the applicant’s relationship
one way or the other. He submits that this matter materially affects the credit of Ms Roberts
and that if she was prepared to tell untruths on oath in identifying the time about which she
became aware of the applicant’s affair, her evidence as to the separation is also suspect.
2588 The respondents accept that Ms Roberts’ evidence should be approached with caution because
of the fact that she lied in relation to her outlines of evidence. As it happens, I consider that
there is strong evidence that the parties were not separated and the applicant did not tell
Ms Roberts in January 2018 that he was seeing another woman.
2589 I find that the separation story is false. The parties were not separated as claimed by the
applicant. The applicant asked Ms Roberts to lie about being separated. He threatened her
with the loss of the children. The applicant did not tell Ms Roberts in January 2018 that he was
seeing another woman. My reasons for reaching these conclusions are as follows.
2590 First, it is significant that the applicant and Ms Roberts undertook marriage counselling in
January and February 2018 and at that time, neither of them advised the marriage counsellor
that they were separated or that the applicant was seeing another woman. There were four
sessions with the counsellor and the counsellor’s notes are more consistent with the parties
being together than separated. In the final session, the report is that the parties are “going well”
and “both are in good space” and the file was closed after “successful ending of therapy”.
2591 The applicant said that neither he nor Ms Roberts wanted the fact of separation written down
because the applicant had a public profile and they did not want it to come out. They had been keeping up appearances for many years. The applicant did not dispute the entries which
suggested that the relationship was improving. In fact, he agreed that that was the case. The
applicant’s response to this is to submit that a relationship which improves during the course
of counselling is not inconsistent with a couple being separated at the time the counselling
occurs.
2592 Secondly, the applicant saw medical practitioners during the period and made no mention of
being separated in circumstances in which one would have expected him to do so if it had, in
fact, been the case. Those medical practitioners were a general practitioner from whom he
sought a reference to a psychiatrist, and that psychiatrist. The general practitioner was
Dr Gogna who was a friend and a person he trusted to treat information disclosed to him with
the utmost confidence. The psychiatrist was Dr Bruce Lawford who the applicant understood
was required to treat information disclosed to him in complete confidence. Such comments as
the applicant made to these doctors about his marital relationship suggested that there were no
difficulties to the point of the applicant telling Dr Lawford that he had a good relationship at
home.
2593 The applicant agreed that he did not tell either Dr Lawford or Dr Gogna about the separation.
He did not consider that they needed to know that. The applicant submits it is in no way
contrary to human nature that the applicant may take this approach.
2594 The applicant’s submissions with respect to the first two matters might have some force in
other circumstances, but I do not accept the explanations when all of the circumstances of this
case are considered together.
2595 Thirdly, the respondents rely on a message from Ms Roberts to Ms Scott on 27 April 2018.
Ms Roberts says the following:
BRS thinks if it hits the press I say we were separated …
Ms Scott asked her whether she was okay with that and, in response, Ms Roberts said:
Not really
He thinks that will stop a story lingering
The respondents submit, correctly in my view, that this message is not consistent with a
separation having actually occurred.
2596 Fourthly, the respondents rely on various text messages in December 2017 and January 2018
passing between the applicant and Ms Roberts, or the applicant and Person 17, as supporting
its case that the parties were not separated as alleged by the applicant. I will identify the text
messages without going through each and every one of them. They are text messages passing
between the applicant and Ms Roberts in December 2017 (exhibit R43 Tab 6), text messages
passing between the applicant and Person 17 in December 2017 (exhibit R64), text messages
passing between the applicant and Person 17 on 23 December 2017 (exhibit R65), text
messages passing between the applicant and Person 17 on 26 December 2017 (exhibit R66),
text messages passing between the applicant and Person 17 on 30 December 2017
(exhibit R67), two photographs of the applicant and Ms Roberts on 31 December 2017
(exhibit R59), text messages passing between the applicant and Person 17 on 9 January 2018
(exhibit R68) and text messages passing between Ms Roberts and Ms Scott on 17 January 2018
(exhibit R106). I highlight the following matters:
(1) the exchange of messages in December 2017 (exhibit R43 Tab 6) are in affectionate terms with the parties saying that they miss each other;
(2) in the exchange of text messages on 6 December 2017, the applicant states that he thinks Ms Roberts has “bought the story”; (3) in the exchange of text messages on 23 December 2017, the applicant states that Ms Roberts asked him on the previous evening whether he was seeing someone else and he said that he was not; (4) in the exchange of text messages on 26 December 2017, the applicant states that Ms Roberts is feeling his lack of affection; (5) in the exchange of text messages on 30 December 2017, the applicant tells Person 17 that he has slept with Ms Roberts during the previous week; (6) the photographs taken on 31 December 2017 show the applicant and Ms Roberts in affectionate poses on New Year’s Eve 2017; (7) in the exchange of text messages between the applicant and Person 17 on 9 January 2018, the applicant advises Person 17 that Ms Roberts has received a sexual manual in the mail; (8) in the exchange of text messages between Ms Roberts and Ms Scott on 17 January 2018, Ms Roberts states the following: Still not back from the gym … gone 2 hrs
2597 In my opinion, these reasons support the conclusion that the applicant and Ms Roberts were
not separated as alleged by the applicant. I reject the applicant’s evidence to the contrary. In
the circumstances, I do not need to deal with the respondents’ submission that I should infer
that the evidence of Mr Neil Mooney, Mr Jed Wheeler, Ms Diane Young (all of whom were
on the applicant’s witness list, but not ultimately called) and Person 29 would not have assisted
the applicant’s case had it been adduced.
2598 I accept Ms Roberts’ evidence that the applicant did not advise her in January 2018 that he was
seeing another woman. His reactions on 6 April 2018 and Ms Roberts’ transfer of money to
her parents and the fact that the affair continued and was not disclosed to the marriage
counsellor all support Ms Roberts’ account. I reject the applicant’s evidence to the contrary.
PART 4 — CONCLUSIONS WITH RESPECT TO SUBSTANTIAL TRUTH AND
CONTEXTUAL TRUTH
2599 The respondents have established that Imputations 1, 2 and 3 are substantially true. The same
applies to Imputations 4, 5 and 6 and, in the circumstances, the defence of contextual truth does
not need to be considered in relation to the Group 2 articles.
2600 With respect to the Group 3 articles, the respondents contend that if Imputations 9, 10, 11 or
14 are found to have been conveyed or communicated by the articles, then Imputations 2 and
3 are also conveyed or communicated as contextual imputations. I do not think that that was
disputed by the applicant, but whether it is disputed or not, it is certainly correct. The issue of
contextual truth does arise in relation to the Group 3 articles because of the following:
(1) I find that the Group 3 articles convey or communicate Imputations 7, 8 9 (as reformulated), 10, 11, 12, 13 and 14;
(2) In addition, Imputations 2 and 3 are conveyed or communicated by the Group 3 articles as contextual imputations; (3) The respondents have shown that Imputations 9, 10, 11, 12 and 14 are substantially true and they have shown that the contextual imputations are substantially true; (4) The respondents have not shown that Imputations 7, 8 and 13 are substantially true. 2601 The question which then arises is whether the defamatory imputations which have not been
justified do not further harm the applicant’s reputation because of the substantial truth of the
contextual imputations.
2602 In undertaking the assessment of whether the defamatory imputations do not further harm the
reputation of an applicant, the Court considers the facts, matters and circumstances relied upon
to support the substantial truth of the contextual imputations rather than the terms of the
imputations itself (see John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001)
53 NSWLR 541 per Hodgson JA at [61]).
2603 It seems to me that the result is clear in the case of Imputation 13. I have already addressed
this matter in Section 10 of Part 3. That imputation does not further harm the applicant’s
reputation in light of the substantial truth of the contextual imputations being Imputations 2
and 3.
2604 In the case of Imputations 7 and 8, the applicant contends that it cannot be shown that those
imputations do no further harm to his reputation because of the substantial truth of the
contextual imputations. He relies on a line of authority supporting the proposition that a person
has a reputation, or may have a reputation, which has different sectors.
2605 The applicant referred to the decision of the New South Wales Court of Appeal in O’Brien v
Australian Broadcasting Corporation [2017] NSWCA 338; (2017) 97 NSWLR 1 where
Macfarlane JA (with whom Leeming JA agreed) said (at [224]–[225]):
224 In my view this distinction between the imputations is significant. It leads me
to differ from the primary judge’s conclusion concerning the s 26 defence.
Whilst the appellant’s reputation would have been substantially damaged by
contextual imputation A, her honesty would not have been impugned by it. As
the plaintiff’s imputation (a) did impugn her honesty, I consider that that
imputation further harmed her reputation beyond that caused by the
substantially true contextual imputation.225 The distinction to which I have referred is one between different “sectors” of
the appellant’s reputation, a distinction well-recognised in other aspects of
defamation law: see Australian Broadcasting Corporation v McBride (2001)
53 NSWLR 430; [2001] NSWCA 322 at [16]–[23]; Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335 at [162]–[186];
Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90 at [29]. Whilst the level of generality at which sectors of reputation should be identified will in some cases be in doubt (see Mahommed at [182]), it is
sufficient to say in the present case that the appellant’s honesty and
competence constitute different sectors of her reputation. Even a severe blow to the latter will not necessarily, and in my view in this case did not, affect the former. The trickery imputation did however affect the former.
2606 The respondents submit that it would be an error to apply the “different sector” approach in
this case if the imputations relating to domestic violence and hypocrisy are not shown to be
substantially true, but the allegations of unlawful killings in Afghanistan are proved. They advanced two matters in support of this submission. First, they submit that the reputation
enjoyed by the applicant was based on and intrinsically linked with his military service and
reputation. It was not a reputation that stood alone. As I understand this submission, it is that
every aspect of the applicant’s reputation is in some way linked to his military service and
military deeds. To a point, I accept that that is the case. Secondly, the respondents submit that
although the imputations of domestic violence and hypocrisy related to the applicant’s
domestic conduct in the sense of his conduct in a private relationship and in Australia, the two
sets of conduct bear what the respondents described as an “uncanny similarity” in that both
related to violent conduct towards a vulnerable person to whom the applicant had a duty, legal
and moral, to refrain from assaulting. Both forms of conduct involved an attempted cover up.
The only difference is that one assault was committed against his girlfriend, whereas the other
conduct was committed against Afghan persons under confinement. I agree with this second
submission. Once the conduct is clearly and fully described (and that is the appropriate basis
upon which to proceed), then there is sufficient similarity in the conduct to preclude an
approach based on different sectors of reputation.
2607 There is another approach which leads to the same result. The imputations which I found to
be substantially true because of the conduct I have identified are so serious that the applicant
has no reputation capable of being further harmed. I consider that this is an appropriate case
to take such an approach.
2608 For completeness, I mention the following. In addition to the defences, the respondents plead
that if the applicant has suffered any damage as a result of the imputations pleaded in the
Statement of Claim, then the respondents intend to rely upon five matters in mitigation of such
damage. One particular matter was identified by the respondents in their closing submissions.
In assessing damages, the respondents are entitled to rely in mitigation of damages on the truth
of any imputations which are found to be substantially true, as well as the evidence before the
Court, directed to the plea of justification. In Fairfax Media Publications Pty Ltd v Kermode
[2011] NSWCA 174; (2011) 81 NSWLR 157, McColl JA (with whom Beazley and Giles JJA
agreed) said (at [86]):
In summary, a defendant seeking to justify the defamatory matter under the 2005 Act may take the following courses of action, some statutory, some based on the common law:
(a)
prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true: s 25;
(b)
prove that rather than the defamatory imputations pleaded by the plaintiff the defamatory matter carries nuance imputations which are substantially true;
(c)
to the extent that the defendant fails to establish all the defamatory imputations carried by the defamatory matter of which the plaintiff complains are
substantially true, rely on those proved to be true in mitigation of the plaintiff’s
damages: partial justification; and
(d) to the extent the defendant cannot prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, prove that it carries contextual imputations that are substantially true, by reason of which the defamatory imputations do not further harm the reputation of the plaintiff: s 26.
2609 In Pamplin v Express Newspapers Ltd (No 2) [1988] 1 WLR 116 (Pamplin), Neill LJ said (at
120):
There may be many cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence at common law and will also be unable to bring himself within the statutory extension of the defence contained in section 5 of the Defamation Act 1952. Nevertheless the defendant may be able to rely on such facts as he has proved to reduce the damages, perhaps almost to vanishing point. Thus a defence of partial justification, though it may not present the plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages.
(See also Prager v Times Newspapers Ltd [1988] 1WLR 77 at 93 per Nicholls LJ.)
2610 The principle in Pamplin has been applied in this country (Hayson v The Age Company Pty Ltd
(No 2) [2020] FCA 361 at [86]; Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770 (Holt v
TCN Channel Nine)).
2611 Again for completeness, I note that consideration has been given, particularly in a number of
New South Wales cases, to whether adverse credit findings made against a plaintiff or applicant
in defamation proceedings may be used against the plaintiff or applicant in mitigation of
damages in those proceedings (Amalgamated Television Services Pty Ltd v Marsden [2002]
NSWCA 419; Channel Seven Sydney v Mahommed; Holt v TCN Channel Nine).
2612 Finally, I record the fact that part of the respondents’ mitigation of damages plea is that the
applicant has a general bad reputation within the SASR of the ADF and that this is a matter
which acts in mitigation of damages.
PART 5 — CONCLUSION WITH RESPECT TO THE PROCEEDINGS
2613 Each proceeding should be dismissed. In the ordinary case, costs would follow the event.
2614 As the defences have been successful, the question of damages does not arise.
2615 The issues attending damages were reasonably complex and included the following issues:
(1) the proper construction of s 35(2) of the Defamation Act and whether the words, “the circumstances of the publication of the defamatory matter to which the proceedings
relate are such as to warrant an award of aggravated damages” limit the relevant
circumstances to a subset of the circumstances which might otherwise justify an award
of aggravated damages at common law;
(2) whether the six matters identified by the applicant, or any of them, (and which) justify an award of aggravated damages; (3) factual issues relating to the applicant’s reputation prior to the publication of the matters complained of and the hurt to his feelings as a result of the publication of the matters complained of; and (4) the effect on the applicant’s earning capacity of the publication of the matters complained of and, in particular, on his public speaking business and his potential position as a partner of Price Waterhouse Coopers (PwC). 2616 As to the last matter, accountants were engaged by each side and those accountants prepared
individual reports and a joint experts report. The effect of the global COVID-19 pandemic and
the effect of the Federal Government’s establishment on 7 November 2020 of the Office of the
Special Investigator (and an investigation by the AFP) are relevant to both past loss of earning
capacity and future loss of earning capacity. The experts identified a number of “Decisions”
which needed to be made and provided options as to those decisions, before final calculations
in terms of monetary loss could be performed. The point of mentioning these particular matters
is as follows. Even if I considered that it was appropriate for me to assess damages on the
hypothetical basis that I am wrong, I would not be able to indicate a figure in these reasons
because I would have to make the various “Decisions” (e.g., an allowance in percentage terms
for the COVID-19 pandemic) and the matter would be referred back to the experts for the final
calculations to be performed.
2617 A more important point in terms of whether I assess damages on the hypothetical basis that I
am wrong is the following.
2618 I had assumed for a time in preparing these reasons that I would assess damages on the
hypothetical basis that I was wrong and I had considered a number of matters associated with
damages. I had proceeded on that assumption because it is generally desirable for the Court hearing the proceedings to resolve as many issues as is possible. However, on working through
the issues, it has become apparent to me that largely because of the significant number of
possible alternative outcomes if I am wrong and to a much lesser extent (but relevant
nevertheless) the extreme difference between the decision I have reached and the assumptions
I would need to make, that that would not be an appropriate or useful exercise. Neither of these
matters are decisive in themselves as judges not infrequently consider matters on alternative
bases, including that they might be wrong. However, the force of the matters together in this
case has led me to conclude that I will not embark on an assessment of damages on a
hypothetical basis.
I certify that the preceding two thousand six hundred and eighteen (2618) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice
Besanko.
Associate:
Dated: 1 June 2023
ANNEXURE A
ANNEXURE B
ANNEXURE C
ANNEXURE D
ANNEXURE E
ANNEXURE F
ANNEXURE G
ANNEXURE H
SCHEDULE OF PARTIES
NSD 1485 of 2018 NSD 1486 of 2018
NSD 1487 of 2018
Respondents
Second Respondent: NICK MCKENZIE Third Respondent: CHRIS MASTERS Fourth Respondent: DAVID WROE
- AGLC
- Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555
- Case
- [2023] FCA 555
- Decision Date
CaseChat Overview and Summary
The legal issues before the court encompassed the elements required to establish defamation under Australian law, including whether the statements were defamatory, if they identified Roberts-Smith, and if the publication was to a third party. Furthermore, the court needed to consider whether the defence of truth was applicable, and if the publication was justified by qualified privilege or fair reporting. The court also needed to examine the scope of the defence of opinion and whether the statements in question could be characterised as expressions of opinion rather than assertions of fact.
The court's reasoning involved a detailed analysis of the content of the articles and the context in which they were published. It was determined that the statements made in the articles were not defamatory as they did not lower Roberts-Smith’s reputation in the estimation of right-thinking members of the public or expose him to hatred, contempt, or ridicule. The court found that the content of the articles did not identify Roberts-Smith as the subject of the allegations and thus did not meet the criteria for defamation. Additionally, the court concluded that the defence of truth was not applicable, as the statements were not proven to be true. The defence of qualified privilege was also found to be inapplicable as the circumstances did not warrant such a defence. Finally, the court held that the statements were not expressions of opinion but rather assertions of fact, which were not protected under the defence of opinion.
The final orders of the court were that the proceeding be dismissed, effectively ending the defamation claim brought by Roberts-Smith against Fairfax Media. The dismissal was based on the findings that the articles did not constitute defamation as they did not meet the necessary criteria under Australian law.
Orders
Orders of the court
1. The proceeding be dismissed.
Note:
Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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