Trkulja v Markovic

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0142

MILORAD TRKULJA	Appellant
v
SRBOLJUB MARKOVIC	Respondent

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JUDGES:	KYROU and KAYE JJA and GINNANE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 October 2015
DATE OF JUDGMENT:	13 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 298
JUDGMENT APPEALED FROM:	[2013] VCC 1095 (Judge Murphy)

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DEFAMATION — Judge held that the appellant failed to prove on the balance of probabilities that the respondent had published a pamphlet and material on two websites that allegedly defamed the appellant — Whether the judge denied the appellant procedural fairness.

COURTS — Duty of judge to ensure a fair hearing where a party is self-represented at trial — Whether the judge breached this duty — Both the appellant and the respondent were self-represented at trial — Principles to be applied.

EVIDENCE — Rule in Jones v Dunkel (1959) 101 CLR 258 — Failure of respondent to give evidence — Principles to be applied where the evidence is insufficient to support an inference that the respondent published the material alleged to be defamatory of the appellant — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J A Ribbands with Dr K Weston-Scheuber	Counsel appeared pro bono
For the Respondent	Mr N A Andreou with Mr T W J Greenway	Rigby Cooke Lawyers

KYROU JA
KAYE JA
GINNANE AJA:

Introduction and summary

This is an appeal against a decision of a judge of the County Court dismissing the appellant’s defamation claim on the basis that the judge was not satisfied that there was sufficient evidence to establish that the respondent had published the material that was alleged to be defamatory.[1]
[1]Trkulja v Markovic [2013] VCC 1095, [97] (‘Reasons’). It is not clear whether this finding was made in response to a no case submission by the respondent or following a full hearing of all the evidence that the parties chose to adduce. Neither party to the appeal submitted that anything turned on this.

That material comprised a pamphlet containing a photograph of the appellant with accompanying English text about him and items on two websites which contained photographs or digitally altered images of the appellant with accompanying Serbian text about him. The pamphlet and the websites contained serious — and indeed vile — allegations against the appellant and there was no issue as to whether they were defamatory (‘defamatory material’). The sole issue — upon which the judge found against the appellant — was whether he had discharged the onus of establishing that the respondent had published the defamatory material.

At trial, both the appellant and the respondent appeared in person. On appeal, the respondent was represented by solicitors and counsel and the appellant was represented by counsel who appeared pro bono.

By his notice of appeal, the appellant did not seek to impugn any discrete factual finding or the ultimate decision of the judge on the basis that they were not open on the evidence. Rather, the grounds of appeal alleged that the judge breached his duty to ensure a fair trial by failing to provide appropriate assistance to the appellant as a self-represented litigant, and that the judge failed to afford the appellant procedural fairness.

For reasons that follow, we have concluded that the appeal should be dismissed.

Facts

The appellant and the respondent are both members of the Serbian Australian community and, at one time, they were friends. The appellant had a falling out with members of the community, including Father Boris Petrovic and the respondent.

On approximately 27 June 2007, copies of a pamphlet were placed in the letter boxes of the apartment building at which the appellant resided (‘Pamphlet’). The Pamphlet contained an innocuous photograph of the appellant but the accompanying English text was seriously defamatory of him. The Pamphlet was first discovered by another resident, Jason Vladusic, who notified the appellant. The appellant reported the matter to the police.

The appellant subsequently discovered that certain websites contained photographs or digitally altered images of him with accompanying Serbian text which was seriously defamatory of him. As explained later in these reasons, although the appellant’s amended statement of claim initially relied on the contents of five websites, at trial, his claims against the respondent were confined to the contents of two websites. The contents of those websites (‘Website Publications’) may be grouped as follows:

(a) four items which were published on the website and four items which were published on the website Each of the eight items comprised one or more photographs or digitally altered images of the appellant and defamatory text; and

(b) one item which was published on the website This item (which became Exhibit WW at trial) comprised a non-defamatory article (with photographs) about a prominent Serbian-Australian named Dragutin Ivanovic, followed by text which was defamatory of the appellant and an innocuous photograph of him. That photograph also appeared in the Pamphlet.

The appellant made a statement to the police in which he indicated that he felt threatened by the defamatory material and believed that he was being stalked by its authors. He nominated the respondent as a suspect on the basis that he had previously had ‘several heated verbal arguments’ with him. He also nominated Mr Ivanovic and Father Petrovic as responsible for the defamatory material published on the internet.

On 17 December 2007, the police made a request to TPG Internet Pty Ltd (‘TPG’), an internet service provider, for information regarding the Website Publications. On 5 February 2008, TPG advised the police: that, as at 10.56 am on 26 July 2007, the IP address 60.240.48.112, ‘references’[2] to the respondent under the username ‘stefmark’ and the email address [email protected]; that the date of registration was 13 May 2005; that the account was ‘active’; and that it was an ‘ADSL 512K (Dynamic IP)’ account.
[2]This is the wording in TPG’s letter. The letter does not say in terms that IP address 60.240.48.112 was registered to or owned by the respondent.

On 5 March 2008, the police executed a search warrant at the respondent’s premises and seized his computer. The respondent’s computer hard drive was analysed by John Jensen from the computer crime squad. His analysis revealed the existence of the following material on the respondent’s hard drive:

(a) nine photographs and images which appeared in the Website Publications described at [8(a)] and [8(b)] above;

(b) the non-defamatory article about Mr Ivanovic which appeared in the Website Publication described at [8(b)] above; and

(c) a number of other original and digitally altered images of the appellant.

None of the defamatory text described at [8(a)] and [8(b)] above was located on the respondent’s hard drive.

On 5 March 2008, the police arrested the respondent for the offence of stalking. Acting sergeant Peter Tasiopoulos and detective senior constable Rebecca Hall conducted a formal interview. The contents of the record of interview, which was tendered at trial, can be summarised as follows:

(a) When the respondent was asked whether he was able to say anything about the appellant’s allegation that the respondent had stalked him, the respondent said that he had ‘no idea’ and that, as far as he was concerned, the appellant had been stalking him. The respondent added that he had made a complaint to the police and that ‘the police [had] done nothing about it.’ Later in the interview, he stated that he had ‘done nothing wrong’ and that the appellant had posted material on the internet against him.

(b) On a number of occasions, the respondent was asked about his involvement in posting material about the appellant on the internet, to which he gave ‘no comment’ answers.

(c) The respondent was also asked about his involvement in the distribution of the Pamphlet, to which he gave a ‘no comment’ answer.

(d) In response to a statement by officer Tasiopoulos that police inquiries indicated that IP address 60.240.48.112 was registered to him, the respondent stated ‘Yeah, fair enough’, however, he declined to comment further. When he was asked ‘What can you tell me about that?’, he answered, ‘I don’t know … what’s that about … What’s the meaning of that?’ When it was put to him that the IP address was used to post defamatory material against the appellant, he said ‘No’. Later he added ‘I don’t have the detail of what the allegations are, I don’t want to comment.’

(e) In response to a question from officer Tasiopoulos as to what his reason was for committing the offence of stalking the appellant, the respondent stated ‘I have not committed any stalking offence and I’m – I’m innocent’.

(f) The respondent stated that his computer expertise was ‘reasonable’ and ‘[b]etter than the average person’. He added that he had a ‘certificate for email tech’ but he was not a ‘super expert’.

(g) The respondent stated that four or five years previously, at the appellant’s behest, he posted praise of the appellant on a website called ‘Serbian Café’ using a proxy server rather than his own computer. He asserted that the purpose of these posts was ‘so people attack [the appellant] — so he can sue them for defamation’. He said that he did not post any pictures on the Serbian Café website because it was only for chatting.

(h) The respondent stated that the appellant had, in the past, made the respondent ‘clean up [the appellant’s] computer’.

During the interview the respondent was not asked whether he had any images of the appellant on his computer and he did not make any statement about this issue.

The respondent was subsequently charged with the offence of stalking.

For the purposes of the stalking charge, the police prepared a document titled ‘Summary of Charges’ which relevantly stated:

The suspect IP addresses are 203.12.160.46 and 60.240.48.112. Results returned to investigators indicate that the IP address 60.240.48.112 was registered to [the respondent] with the user name ‘stefmark’ at the time that defamatory information was posted on the internet.
…
[The respondent] made a selective ‘No comment’ interview and denied allegations of any involvement in stalking [the appellant]. He also denied possessing any defamatory material or images of the [appellant] on his computer’s hard drive. A later examination of the computer’s hard drive revealed that the [respondent] had a large number of images of the [appellant] stored thereon. The images in some cases were identical to the ones located by [the appellant] over the internet.

The respondent was ultimately acquitted of the stalking charge.

Pleadings and information provided by TPG pursuant to subpoena

The appellant commenced the proceeding below in 2009. He was then legally represented. By his amended statement of claim dated 22 November 2010 — which was drafted by counsel — the appellant alleged that the respondent defamed him by distributing the Pamphlet in the apartment building and by publishing items on five websites.[3] The amended statement of claim relevantly stated:
[3]As explained at [24] below, at trial, the claims against the respondent were confined to the contents of two websites.

2The [respondent] was at all material times the registered proprietor and user of the IP address 60.240.48.112 (‘the [respondent’s] IP address’).
PARTICULARS
The [appellant] will adduce evidence from TPG … to establish the fact that the [respondent] was at all material times the proprietor of the [respondent’s] IP address.
…
3On or about 27 June 2007, the [respondent] published the words and photographs set out in Schedule 1 to this statement of claim (‘the Schedule 1 Words’) via printed pamphlets containing words in English and a colour photograph of the [appellant] (‘the pamphlets’) by placing the pamphlets into the postal receptacles for each and every apartment in the apartment building in which the [appellant] resided in West Melbourne in the State of Victoria and adjacent residential buildings.
PARTICULARS
Except that the fact of publication is inferred from the following facts:
(a)the contents of the document containing the Schedule 1 words is strikingly or substantially similar to the contents of many of the documents set out in Schedule 2 attached hereto (‘Schedule 2’);
(b)Victoria Police discovered all or many of the documents set out in Schedule 2 on the hard drive of a computer (‘the hard drive’) owned by the [respondent] after executing a search warrant at the [respondent’s] premises where they seized and thereafter examined the hard drive;
(c)the [respondent] falsely told Sergeant Peter Tasiopoulos of Victoria Police on 5 March 2008 that he did not have any material or images relating to the [appellant] on the hard drive when, in fact, he had the material and images found by the police as a result of the examination referred to in sub-paragraph (b) herein;
(d)the [respondent] is a supporter of Father Boris Petrovic in a long standing and bitter dispute between the [appellant] and Father Boris Petrovic
the [appellant] is unable to provide any further particulars until:
(i)the contents of a computer disc prepared by Victoria Police are examined and enumerated by a member of Victoria Police or a computer expert;
(ii)after the [respondent] gives discovery in this proceeding.

…
10At all material times the [respondent] used the [respondent’s] IP address to access the following web sites for the purpose of publishing the Schedule 2 words:
(a) and
(e) Websites’).

11From about July 2007 the [respondent] published the words set out in the documents set out in Schedule 2 (‘the Schedule 2 Words’) to a wide and extensive audience in the State of Victoria and in each and every other State and Territory of Australia and to the World at large by publishing the same on the Websites by use of the [respondent’s] IP address.
PARTICULARS
Except that the fact of publication and the fact that the [respondent] used the [respondent’s] IP address is to be inferred from the following facts:
(a)Victoria Police discovered all or many of the documents set out in Schedule 2 on the hard drive of a computer (‘the hard drive’) owned by the [respondent] after executing a search warrant at the [respondent’s] premises where they seized and thereafter examined the hard drive;
(b)the [respondent] falsely told Sergeant Peter Tasiopoulos of Victoria Police on 5 March 2008 that he did not have any material or images relating to the [appellant] on the hard drive when, in fact, he had the material and images found by the police as a result of the examination referred to in sub-paragraph (a) herein;
(c)Michelle Palaci [from TPG] provided a statement to Victoria Police wherein she stated that the [respondent’s] IP address was registered to the [respondent] and that the [respondent’s] username was ‘stefmark’;
(d)the [respondent] informed Sergeant Peter Tasiopoulos of Victoria Police on 5 March 2008 that he had completed advanced computer IT courses;
(e)the [respondent] is a supporter of Father Boris Petrovic in a long standing and bitter dispute between the [appellant] and Father Boris Petrovic

the [appellant] is unable to provide any further particulars until:
(i)the contents of a computer disc prepared by Victoria Police are examined and the documents contained on that disc are described by a member of Victoria Police or a computer expert;
(ii)after the [respondent] gives discovery in this proceeding;
(iii)after TPG … provides documents in response to a subpoena to be issued by the [appellant].

The amended statement of claim also contained English translations of the Serbian text in the Website Publications.

The respondent filed a defence dated 22 October 2011 which he personally drafted. In the defence, the respondent denied the appellant’s allegations and relevantly stated:

(a) the respondent was not the registered proprietor of IP address 60.240.48.112;

(b) the respondent at all times had a dynamic IP address, meaning that every time he logged on to the internet he would have a different IP address; and

(c) the respondent was never the owner or publisher of the five websites upon which the appellant relied.

Three days prior to the trial, which commenced on 16 August 2013 and concluded on 23 August 2013, the County Court received a letter from TPG in response to a subpoena that had been issued by the appellant. The letter contained the following relevant information:

(a) the username that was used for the IP address 60.240.48.112 at 11.43 pm on 19 July 2007 and at 12.13 am on 20 July 2007 was stefmark, which had since expired; and

(b) the customer details for the username stefmark were those of the respondent who had the email address [email protected].

In an earlier letter to the County Court dated 16 November 2010, TPG responded to a different subpoena and advised that:

(a) TPG did not keep proxy logs and therefore it was not able to provide information about the websites that its customers had accessed; and

(b) many TPG subscribers used a dynamic IP address which meant that ‘their IP address will change each time they connect to the internet’.

The trial

At trial, the appellant gave evidence in support of his case and called Mr Vladusic, officer Tasiopoulos and Mr Jensen. The respondent did not give evidence but tendered 13 documents in support of his case. In his reasons, the judge stated that the trial proceeded without transcript.[4] On the appeal, this Court was provided with transcript that was confined to the oral evidence of officer Tasiopoulos.
[4]Reasons [2].

At trial, the appellant prepared a schedule which the judge reproduced under para 7 of his reasons. According to the schedule, the respondent allegedly uploaded on to the websites and (‘Two Relevant Websites’) the defamatory material which the appellant or persons associated with him downloaded between 6 September 2007 and 28 November 2007. The schedule indicates that the only parts of the Website Publications that were found on the respondent’s computer hard drive were nine photographs and the non-defamatory text relating to Mr Ivanovic which appears in Exhibit WW. The defamatory material on the Two Relevant Websites comprised Exhibits Q to WW. Exhibit WW also contained the photograph that appeared on the Pamphlet.

At trial, the appellant admitted that he was unable to provide evidence of when the defamatory material was uploaded on the Two Relevant Websites other than that it occurred before he and his associates downloaded the material in 2007.[5]
[5]Reasons [4].

In his closing address, the appellant accepted that there was no direct evidence linking the respondent to the distribution of the Pamphlet and that the text of the Pamphlet was not found on the respondent’s computer hard drive. Notwithstanding this, the appellant submitted that the judge should draw an inference from the contents of the hard drive — in particular, the existence on the hard drive of the photograph in Exhibit WW which also appeared on the Pamphlet — that the respondent was the distributor of the Pamphlet.[6]
[6]See Reasons [4]–[6], [12].

Decision of the trial judge

As we have already stated, the judge concluded that the appellant had failed to discharge his onus of establishing that the respondent published the defamatory material. The paragraphs in the judge’s reasons which are relevant to the grounds of appeal are discussed later in these reasons. The following paragraphs encapsulate the judge’s approach to the case and his conclusions on the issue of publication.

For the [appellant] to succeed in his action against the [respondent] it must be found by the Court to be more probable than not that the [respondent] did in fact publish the defamatory material comprised in Exhibits Q to WW.
In considering the case as a circumstantial case, the whole of the evidence must be considered. In weighing the respective probabilities, the ability of one party to call supporting evidence to strengthen its evidentiary case must also be considered.
The critical gap in the proofs by the [appellant] is the failure to produce any evidence linking the actual written Serbian text of the defamatory images Exhibits Q-WW with the [respondent]. The mere proof that the [respondent’s] hard drive, Exhibit F, held the photographs of the [appellant] numbered 2-9 does not, in my assessment, take the issue of the involvement of the [respondent] in the subsequent publication of the images very far at all. This applies particularly given that the [appellant], in his statement to the police (Exhibit 6), attributed the publication to the [respondent] as well as to Mr lvanovic and Mr Petrovic.
…
The [appellant] accepted in final address that he could not give a date when the alleged defamatory material was uploaded onto the internet. In final address the [appellant] accepted his failure to link the [respondent] to the defamatory documents, for example Exhibit WW which was uploaded on 28 November 2007. He accepted that he did not have material which would link the [respondent] in that way. The [appellant] accepted that he did not or could not lead evidence from a computer or internet expert to link any IP or email address of the [respondent] to the defamatory material on the two sites. When confronted with the lack of evidentiary support, he indicated that he would ask the Court to draw an inference from the presence of the photos on the [respondent’s] computer, and on the defamatory publications.
…
Exhibits B and C state that the [respondent] had a dynamic IP address. Even if at a particular date an email address of the [respondent] had been used to register serbinfo.orgfree.com, this does not lead to the conclusion that the [respondent] was responsible for uploading any or all material onto that website. …
…
The [appellant] mounts a circumstantial case which he must prove on the balance of probabilities. To an extent it relies on an inference against the [respondent] that he had lied regarding possession of defamatory material regarding the [appellant] on his computer. I do not accept that the [appellant] has proved this. The police did not give such evidence.
Next, I regard the record of interview as being of little weight except, as I have said, it does show a capacity of the [respondent] to post material, and an admission that he had done so in the past.
The [appellant’s] reliance on the presence of email addresses sourced to the [respondent’s] username ‘stefmark’ is of some weight. Similarly, the fact that according to Exhibits A and K it was an email address sourced to the [respondent], namely [email protected] that was used for the registration of the site serbinfo.orgfree.com is a matter that I give some weight to. Those are matters that support some link at that particular time between the [respondent] and the relevant site from which the material was downloaded many months subsequently. Further, that only applies to those particular images that were downloaded from that site, and does not apply to Exhibits Q, R, U and W.
…
In both his evidence and his submission, the [appellant] has made very serious and at times gratuitous allegations against the [respondent]. He has also asserted that the [respondent] has hacked his computer and sent emails in the name of ‘Smotra’.
While the onus remains on the [appellant] to prove that the [respondent] published the internet material, and separately the pamphlet, the gravity of the conclusion sought to be reached is a matter to take into account in determining whether the [appellant] has discharged his onus of proof. A Court will not lightly make such a serious finding, and the available evidence has to be very carefully evaluated. The cases have said that inexact proofs, indefinite testimony, or indirect evidence, may be insufficient to ground serious findings. Thus, while the standard of proof remains the same, the sufficiency or weight of the evidence must be considered.
This applies in this case. The inference that the [appellant] seeks to have drawn against the [respondent] relates to serious matters. There are major gaps in the evidence in terms of dates and the times of uploading, and access logs as to the activity on the websites that the [appellant] says gave rise to the publications alleged. The [appellant] has not called such evidence, and he has been unable to identify in the [respondent’s] possession any of the defamatory text, as distinct from the photos. An inference is available that the material is not on the [respondent’s] computer. This raises a further matter, which is that in effect the [respondent] has been able to compose or acquire the relevant text, combine it with the photos, and then post it onto the relevant site, and all without leaving any electronic trace on his own computer. The same applies in relation to the inference that the [respondent] was responsible for the distribution of the pamphlet in the [appellant’s] block of units.
The evidence of the [appellant] as to the motive of the [respondent] for the alleged publications does not take the [appellant] very far, when considered in the light of the evidence that the [appellant] has also alleged that other people are responsible for similar publications.
I have considered all the evidence, both oral and documentary, as well as the submissions made by both sides. Having done so, for the reasons just set out, I am not satisfied on the balance of probabilities that the [respondent] was responsible for publishing the pamphlet.
I am also not satisfied that the [respondent] is responsible for or has published the images set out in Exhibits Q-VVW that the [appellant] said he downloaded from the two websites.
As the [appellant] has not proved that the [respondent] has published the alleged defamatory material, he cannot succeed in this proceeding, and it must be dismissed.[7]
[7]Reasons [37]–[39], [68], [70], [85]–[87], [91]–[97].

Grounds of appeal

The appellant relied on five substantive grounds of appeal. Ground 1 alleged that the judge breached his duty to ensure a fair trial by failing to provide appropriate assistance to the appellant as a self-represented litigant. Grounds 2 to 5 alleged denials of procedural fairness. It appears that Ground 1 was drafted by counsel whereas Grounds 2 to 5 were drafted by the appellant.

On the appeal, lead counsel for the appellant informed the Court that the grounds of appeal were directed principally to the Website Publications because the evidence linking the respondent to the publication of the Pamphlet was weaker.

We will discuss each ground in turn, with Grounds 3 and 4 being considered together.

Ground 1: Breach of judge’s duty to ensure a fair trial

Ground 1 was as follows:

His Honour failed to provide the requisite assistance to the appellant in circumstances where his Honour had a responsibility towards the appellant as an unrepresented litigant to assist the appellant in the presentation of his case ‘in furtherance of the court’s fundamental task of ascertaining the rights of the parties’: per Pagone J in Noone v Operation Smile (No 2) [2011] VSC 153.
Particulars
·   His Honour failed to tell the appellant that if he wished to rely on an      allegation that the [respondent] lied to Officer Tasiopoulos, he needed to cross-examine the officer on that point [Reasons] [14], [15];
·   His Honour refused to admit evidence produced under subpoena in       another proceeding without giving the appellant the opportunity to obtain the evidence in a different way [Reasons] [19];
·   His Honour made adverse findings as to the credibility of the      appellant on the basis that he had failed to adduce expert evidence      [Reasons] [22], [40];
·   His Honour made adverse findings against the appellant on the basis      that he did not call police officers to give evidence in circumstances        where he was not warned of the consequence of not calling those         officers or given an opportunity to do so [Reasons] [45];
·   In relation to whether the material found on the [respondent’s] computer had been published by the [respondent], His Honour        should have inferred that because the [respondent] elected to give no      evidence, any evidence that he would have given would not have       supported his case, in accordance with the rule in Jones v Dunkel (1959) 101 CLR 258 [Reasons] [66].

(a) Principles relating to judge’s duty to ensure a fair trial

The authorities have not been consistent regarding the governing rationale of the duty of a judge in relation to the conduct of a civil trial in which a self-represented litigant appears. For example, in Rajski v Scitec Corporation Pty Ltd,[8] Samuels JA relevantly stated:

In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.[9]

[8](Unreported, New South Wales Court of Appeal, Kirby P, Samuels and Mahoney JJA, 16 June 1986) (‘Rajski’).

[9]Rajski (Unreported, New South Wales Court of Appeal, Kirby P, Samuels and Mahoney J JA, 16 June 1986) 27, quoted in Downes v Maxwell Richard Rhys & Co Pty Ltd (2014) 313 ALR 383, 389 [23] (‘Downes’).

Although Samuels JA’s reasons appear to be directed towards redressing any comparative disadvantage suffered by a self-represented litigant, the reasons of subsequent judgments are not so confined. For example, in Lee v Cha,[10] Basten JA (with whom Hodgson and Bell JJA agreed) stated that the relevant principles governing the duty of a judge were derived from the obligation of a trial judge to take appropriate steps to ensure that a self-represented party had sufficient information about the practice and procedure of the relevant court as was reasonably practicable for the purpose of ensuring a fair trial.[11]

[10][2008] NSWCA 13 (‘Lee’).
[11]Lee [2008] NSWCA 13, [48].

Similarly, in Hamod v New South Wales,[12] Beazley JA (with whom Giles JA and Whealy JA agreed) stated:

Courts have an overriding duty to ensure that a trial is fair … This entails ensuring that the trial is conducted fairly and in accordance with law … The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented …[13]

[12][2011] NSWCA 375 (‘Hamod’).

[13]Hamod [2011] NSWCA 375, [309] (citations omitted).

In Werden v Legal Services Board,[14] Redlich JA (with whom Tate JA agreed) expounded the rationale for the duty in terms of a duty to ‘ensure procedural fairness’. He relevantly stated:

A judge has a duty in relation to represented and unrepresented litigants alike to ensure that the trial is conducted fairly and in accordance with law. The duty, often onerous, to assist a self-represented litigant in civil proceedings, requires the judge to provide such guidance to a self-represented litigant as will ensure procedural fairness.[15]

[14](2012) 36 VR 637 (‘Werden’).

[15]Werden (2012) 36 VR 637, 650 [53] (citations omitted).

Some cases have described the judge’s duty in terms that suggest that it is owed to the self-represented litigant while others have more accurately described it as a general duty which is inherent in the discharge of the judicial function.

Whatever the rationale for the judge’s duty may be, it is clear that the boundaries of legitimate judicial intervention are flexible and will be influenced by the need to ensure a fair and just trial.[16] It follows that what a judge must do to assist a self-represented litigant depends on the circumstances of the litigant and the nature and complexity of the case. The circumstances of the litigant include his or her age, physical and mental health, level of education, proficiency in the English language, level of intelligence, personality and experience as well as his or her understanding of the case.[17]
[16]Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, 446 [29] (‘Minogue’).
[17]Abram v Bank of New Zealand [1996] ATPR 41,507, 42,347; Minogue (1999) 84 FCR 438, 445 [27]; Werden (2012) 36 VR 637, 651 [57].

The judge may also take into account whether a self-represented litigant is legally qualified or has had prior experience in litigation and whether it may be inferred from his or her qualifications or experience that he or she has a working knowledge of the substantive area of law that he or she is litigating and applicable court procedure.[18] A further relevant consideration is whether another party to the litigation, whose interests are aligned with those of the self-represented party, is represented and is able to provide assistance to the self-represented party.[19]
[18]See, eg, Rajski (Unreported, New South Wales Court of Appeal, Kirby P, Samuels and Mahoney JJA, 16 June 1986) 26–8; Werden (2012) 36 VR 637, 651 [57].
[19]Lee [2008] NSWCA 13, [48].

In determining the proper scope of assistance to be offered to a self-represented litigant, the touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed.[20] In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence.[21] It is elementary that a judge ought to ensure that the self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of those rights. Notwithstanding this, the judge should refrain from advising a litigant as to how or when he or she should exercise those rights.[22]
[20]McWhinney v Melbourne Health (2011) 31 VR 285, 293 [25] (‘McWhinney’), quoting Tomasevic v Travaglini (2007) 17 VR 100, 130 [141] (‘Tomasevic’).
[21]Werden (2012) 36 VR 637, 651 [57].
[22]Pamamull v Albrizzi (Sales) Pty Ltd [No 2] [2011] VSCA 260, [102].

The High Court has stated that a frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[23] Similarly, this Court has endorsed the proposition that ‘[c]oncealed in the lay rhetoric and inefficient presentation may be a just case’.[24]
[23]Neil v Nott (1994) 121 ALR 148, 150.
[24]Downes (2014) 313 ALR 383, 390 [26], quoting Edwards v Allmen Engineering Pty Ltd (Unreported, New South Wales Court of Appeal, Kirby P, Sheller and Powell JJA, 17 October 1995) 2.

It is clear that a judge cannot become the advocate of the self-represented litigant. This is because the role of a judge is fundamentally different to that of an advocate. Further, a judge must maintain the reality and appearance of judicial neutrality at all times and to all parties.[25] Accordingly, the restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one litigant is self-represented.[26]
[25]McWhinney (2011) 31 VR 285, 293 [25], quoting Tomasevic (2007) 17 VR 100, 130 [142].
[26]Malouf v Malouf [2006] NSWCA 83, [94].

Where all the parties are self-represented, the need for the judge to act fairly and in a balanced manner becomes particularly acute. The judge must be very careful to provide an equal playing field having regard to the parties’ circumstances and the nature and complexity of the case. In many cases, the judge will need to provide the same level of assistance to both parties. However, a more selective approach may be appropriate where only one of the self-represented litigants is a lawyer or has extensive litigation experience.

The judge must also consider carefully the type of assistance that is to be provided to each self-represented litigant. Assistance to a self-represented party which may be appropriate where the other party is represented and has the expertise to determine how best to protect its interests in response to such assistance may not be appropriate where the other party is also self-represented and lacks that expertise. In such a situation the judge’s attempt to be fair to one self-represented party may result in unfairness to the other self-represented party.

A failure by a judge to provide the necessary advice and assistance to a self-represented litigant may constitute a denial of procedural fairness and warrant an appellate court setting aside the trial judge’s decision and remitting the matter for a further hearing in accordance with law.[27] It is well established that not every departure from procedural fairness at a trial will entitle the aggrieved party to a new trial. An appellate court will not order a new trial where such a trial would inevitably result in the making of the same order as that made by the trial judge at the first trial. However, where a denial of procedural fairness affects the entitlement of a party to make submissions on a material issue of fact, it is more difficult for an appellate court to conclude that compliance with the requirements of procedural fairness could have made no difference.[28]
[27]See, eg, Downes (2014) 313 ALR 383, 403 [105]–[106], 404 [115]; Bahonko v Moorfields Community [2008] VSCA 6, [27], [39].
[28]Stead v State Government Insurance Commission (1986) 161 CLR 141, 145–6.

In Downes v Maxwell Richard Rhys & Co Pty Ltd,[29] this Court considered the conduct of a trial judge who had failed to warn two self-represented defendants that an adverse inference may be drawn against them on the basis of Jones v Dunkel[30] if they did not give evidence. The judge subsequently drew such an adverse inference against the defendants in his reasons. Osborn JA (with whom Whelan JA agreed) held that, because the defendants were not warned of the risk of such an inference being drawn, they were not given a proper opportunity to adduce evidence and make submissions rebutting that inference.[31] He held that such a failure, when viewed in the context of the trial as a whole, gave rise to a denial of procedural fairness to the defendants.[32]
[29](2014) 313 ALR 383.
[30](1959) 101 CLR 298.
[31]Downes (2014) 313 ALR 383, 403 [105].
[32]Downes (2014) 313 ALR 383, 403 [106].

(b) Submissions and decision on broad issues raised under Ground 1

In his oral submissions, lead counsel for the appellant submitted that, in the present case, the judge’s duty to ensure a fair trial by providing appropriate assistance to the appellant was informed by the following considerations:

(a) The appellant’s knowledge of the English language was limited whereas the respondent was proficient in English.

(b) The defamatory material greatly offended the appellant and caused him to be emotional and agitated. As a result, he was less measured than he may otherwise have been in making wide-ranging allegations against the respondent and his wife during the trial.

(c) The appellant did not understand the rules of evidence.

(d) As both parties were self-represented, the judge was required to be impartial and to balance the interests of both parties without being an advocate for either of them. Such a balance could be achieved by the judge using ‘gentle judicial probes’ and other techniques to assist the parties.

According to counsel, the judge failed to properly balance the interests of both parties and favoured the interests of the respondent because the judge drew adverse inferences against the appellant without adequately advising him of what he should do to avoid such inferences being drawn.

In our opinion, Ground 1 lacks merit for three broad reasons. First, the allegation that the judge breached his duty to ensure a fair trial — particularly having regard to the appellant’s circumstances — must be considered in the context of the trial as a whole. In the present case, that context is missing because no transcript of the entire hearing is available. Secondly, the only part of the hearing that was transcribed — the oral evidence of officer Tasiopoulos — demonstrates that, for that part of the hearing, the judge was scrupulously fair and provided extensive assistance to the appellant. Thirdly, none of the individual matters in the five particulars of Ground 1 indicate that there was any breach of the judge’s duty to ensure a fair trial. We will elaborate on the first two broad reasons before considering each of the five particulars.

Appellant’s circumstances

In relation to the first broad reason, in the absence of a transcript of the whole trial, this Court cannot determine what guidance the judge gave to the parties at the commencement of the trial and during the trial about matters such as the issues in the case, the role of the judge and each of the parties, the facts that the appellant would need to establish in order to succeed and how evidence was to be presented. Similarly, save for the contents of the transcript of officer Tasiopoulos’s oral evidence, this Court is not in a position to know what warnings the judge gave to the parties on issues that are relevant to the appellant’s grounds of appeal. However, although we do not have a transcript of the entire trial so as to be able to ascertain the precise course that it took, it seems clear from our analysis of the judge’s reasons and the transcript of officer Tasiopoulos’s oral evidence that there is no substance in Ground 1.

We accept that the level of the appellant’s proficiency with the English language was relevant to the content of the judge’s duty to assist him. However, while the appellant was less articulate than the respondent, the transcript of the oral evidence of officer Tasiopoulos indicates that the appellant understood the forensic process.

It is of relevance that the appellant had been legally represented at earlier stages of the proceeding, including during the drafting of pleadings. As is apparent from [18] above, the amended statement of claim contained detailed particulars of how it was alleged that the respondent published the defamatory material and those particulars provided a clear framework for the appellant to use in proving publication. On the other hand, it is not clear whether the respondent received any legal assistance. The defence to the amended statement of claim was drafted by him.

We also accept that the defamatory material was particularly vile and that the appellant was entitled to be upset that it was published. However, he had the onus of proving that the respondent had published that material and, based on legal advice and the assistance the judge provided to him (as disclosed in the transcript of the oral evidence of officer Tasiopoulos), he would have understood that he could not discharge that onus by making unsubstantiated allegations but had to adduce admissible evidence.

Transcript of oral evidence of officer Tasiopoulos

We will now discuss the second broad reason for our conclusion that Ground 1 lacks merit, namely, the contents of the transcript of the oral evidence of officer Tasiopoulos.

Officer Tasiopoulos’s oral evidence is recorded on 45 pages of transcript. The transcript indicates that, on several occasions, the judge:

(a) advised the appellant on the questions he should ask officer Tasiopoulos, on the process of asking officer Tasiopoulos to identify a document and on the need to tender documents that he had put to officer Tasiopoulos;

(b) reminded the appellant of the allegations in the amended statement of claim and the need to focus on adducing evidence to support those allegations;

(c) intervened to clarify for officer Tasiopoulos the appellant’s questions and which documents were the subject of those questions; and

(d) asked officer Tasiopoulos questions that supplemented the appellant’s questions.

Set out below are statements made by the judge or questions asked by him which illustrate how he provided the assistance referred to at [54] above:

[To the appellant:] Are you going to try and tender [the DVD containing the contents of the respondent’s computer hard drive] into evidence?[33]
[33]Transcript of Proceedings, Trkulja v Markovic (County Court of Victoria, CI-09-04453, Judge Murphy, 19 August 2013) 7 (‘Transcript’).
…
[To the appellant:]: Show [officer Tasiopoulos] the pages and ask him whether he downloaded them, or whether they are on the disk.[34]
[34]Transcript, 9.
…
[To the appellant:] No, [officer Tasiopoulos has] only given evidence that he was accessing images on the computer, right, or on the bit that was extracted. You haven’t asked him whether he’s done anything else.[35]
[35]Transcript, 10.
…
[To officer Tasiopoulos:] So Exhibit G is part of the images that are in Exhibit F, correct?[36]
[36]Transcript, 10.
…
[To the appellant:] Well, ask [officer Tasiopoulos] where it came from. Show him a copy of it.[37]
[37]Transcript, 11.
…
[To the appellant:] Well, if [officer Tasiopoulos] can’t identify the document … You are going to have to prove it through someone else.[38]
[38]Transcript, 11.
…
[To the appellant:] But look, if [officer Tasiopoulos] got a statement from someone else, that’s hearsay, that’s not admissible. … Unless you can find some way of getting it in. If it’s part of a police investigation, it might be part of the business records of the police and if he’s got it there and it’s relevant it may be admissible, and it’s got to also be in this court book.[39]
[39]Transcript, 16.
…
[To the appellant:] If you’ve got any evidence from [officer Tasiopoulos] that’s relevant in the statement of claim, which is about the publication of the eight photographs which you’ve identified and the writing, that is somehow or other connected with what this gentleman seized, you can ask him.[40]
…
[To the appellant:] [I]n order to support your case you’ve got to prove that the text and the photos were found together as they are here in p 32 on his computer, right? I am helping you and asking [officer Tasiopoulos] whether he ever saw that on this computer that he seized from [the respondent].[41]
…
[To the appellant:] You have got to prove that those two IP addresses were in fact used to post some of the images in our list one to eight or the pages in the court book.[42]
…
[To the appellant:] You have got to prove the defamation. The fact [that officer Tasiopoulos] arrested [the respondent], he thought he had enough material on him. The magistrate threw the charge out so it’s all over. You have got to prove this case separately in this court … You do need to prove on the balance of probabilities that [the respondent] published defamatory images of you.[43]
…
[To the appellant:] You have got to prove the case, so you can have a look at [the DVD containing the contents of the respondent’s computer hard drive] tonight and if you can find a chunk of Serbian that matches any of the pages in your statement of claim and pull it up tomorrow, that’s fine, you can prove it, but unless you can, that’s it.[44]

[40]Transcript, 22.

[41]Transcript, 26.

[42]Transcript, 28.

[43]Transcript, 30–1.

[44]Transcript, 38–9.

Another example of the judge providing assistance to the appellant was in relation to the record of interview. When the respondent pointed out that the copy of the transcript of the record of interview that was in the court book was incomplete in that only every second page had been copied, the judge arranged for court staff to make a complete copy of the document.[45] The judge also explained that the tape of the record of interview constituted the record of interview, rather than the transcript of it, and that he would listen to the tape.[46] The following exchange then took place between the judge and the appellant:
[45]Transcript, 20.
[46]Transcript, 19.

[Judge]:[To the appellant:] And the question is whether there [were] any conversations with [the respondent] that [were] not recorded on the interview?

[Appellant]: I don’t believe, I don’t believe — everything should be here and should be on the tape.
…
[Judge]:[To the appellant:] Show [officer Tasiopoulos] the transcript and ask him did he get a transcript of the tape made.

…
[Judge]: [To officer Tasiopoulos:] Does that appear to be the transcript of the record of interview?[47]

[47]Transcript, 20–1.

It is not entirely clear what issue prompted the judge to observe that the question was ‘whether there [were] any conversations with [the respondent] that [were] not recorded on the interview’. However, before this Court, the parties proceeded on the basis that the issue was whether the respondent had falsely stated to officer Tasiopoulous that, at the time of his arrest, he did not have in his possession any images of the appellant.

A further example of the judge assisting the appellant appears on the last page of the transcript, just prior to the afternoon adjournment. In response to the appellant’s statement to the judge that he probably had one more witness to call, the respondent asked for the name of the witness. The judge stated: ‘No, he doesn’t need to give you the name of his witnesses. They have got to relate to stuff in the court book’.[48]
[48]Transcript, 46.

It appears from the transcript that the judge’s associate kept an up-to-date list of all of the exhibits and that this list was provided to both parties on an ongoing basis.[49]
[49]Transcript, 15.

The discussion of the transcript of the oral evidence of officer Tasiopoulos at [54] to [59] above constitutes objective evidence that undermines the appellant’s contention that the judge failed to adequately assist the appellant. The transcript indicates that the judge was well aware of his responsibilities to assist the parties where appropriate in order to ensure a fair trial and that he faithfully discharged this duty during the oral evidence of officer Tasiopoulos.

We will now discuss each of the five particulars of Ground 1.

(c) Submissions and decision on the first particular of Ground 1

It will be recalled that the first particular of Ground 1 is as follows:

His Honour failed to tell the appellant that if he wished to rely on an allegation that the [respondent] lied to Officer Tasiopoulos, he needed to cross-examine the officer on that point [Reasons] [14], [15].

Paragraphs 14 and 15 of the judge’s reasons, upon which the first particular relies, were as follows:

Next, the [appellant] alleges that the [respondent] lied to officer Tasiopoulos on 5 March 2008 as to whether he had any material relating to the [respondent] on his computer when he was interviewed by the police. The [appellant] did not lead evidence from officer Tasiopoulos that the [respondent] lied to him. I regard this as a very significant omission.
The record of interview, Exhibit H, transcript Exhibit I, is in evidence. The record of interview does contain a number of ‘no comment’ answers from the [respondent] when asked as to whether he had been posting defamatory material on the internet. Given that the [respondent] was being charged with stalking on the information of the [appellant], I do not, in the context of the interview as a whole, regard the ‘no comments’ as amounting to a lie by the [respondent] that could be used as part of a process of inferential reasoning that he in fact had published the defamatory material. I have listened carefully to the whole of the record of interview. The assertion that the [respondent] had in fact lied regarding possession of defamatory material is contained in the police summary for the unsuccessful police stalking prosecution (Exhibit 3). It is hearsay only and it cannot be given weight in circumstances where officer Tasiopoulos was called and was not asked about it.[50]

[50]Reasons [14]–[15].

The appellant submitted that the judge acted unfairly in relation to the evidence of the alleged lie by the respondent because when the appellant sought to ask questions of officer Tasiopoulos about the record of interview, the judge discouraged him from doing so by stating that ‘the interview speaks for itself’.[51] The appellant also submitted that unfairness resulted from the judge’s failure to warn him that the judge would not place weight on the ‘Summary of Charges’ document if officer Tasiopoulos was not asked questions about it. In addition, the appellant submitted that the judge acted unfairly because, when the appellant asked officer Tasiopoulos about previous evidence he had given, the judge interrupted and said that the witness had not previously given evidence in the defamation proceeding, causing the appellant to not elicit the evidence from the witness.
[51]Transcript, 19.

In his oral submissions, lead counsel for the appellant contended that, when it became apparent that the alleged lie did not appear in the record of interview, the judge should have advised the appellant to ask officer Tasiopoulos a question to the following effect: ‘As the alleged lie is not in the record of interview, when did the respondent deny that he had images of the appellant on his computer?’ Counsel noted that no such advice was provided by the judge who ultimately concluded that the alleged lie had not been proved and that the absence of proof reflected adversely on the appellant’s credit.

In our opinion the appellant’s submissions cannot be accepted.

The respondent’s alleged lie to officer Tasiopoulos about the absence of images of the appellant on his computer hard drive was an important component of the evidence by which the appellant sought to prove that the respondent had published the defamatory material. The alleged lie features prominently in the particulars of publication in the appellant’s amended statement of claim which was drafted by his former counsel.[52] The appellant was aware of the importance that his pleading placed on proof of the alleged lie and he sought to adduce evidence of the alleged lie by asking officer Tasiopoulos to read out the part of the ‘Summary of Charges’ document that referred to the alleged lie.[53] However, apart from the hearsay nature of that document, it referred to the possession of ‘defamatory material or images of the [appellant]’, denial of which did not necessarily constitute a lie. This was because it was the text that the respondent did not have in his possession — rather than the images — which was the subject of the appellant’s subsequent defamation proceeding.
[52]See [18] above.
[53]See [16] above. See Transcript, 3–4 .

It would have been obvious to the parties that the alleged lie did not appear in the record of interview. As appears from [55] above, the judge told the appellant that, if he had ‘any evidence from [officer Tasiopoulos] that’s relevant in the statement of claim ... [he could] ask him.’ Further, as appears from [56] above, the judge told the appellant that the question was whether officer Tasiopoulos had any conversations with the respondent which did not form part of the record of interview. However, the appellant did not pursue the line of questioning that the judge had suggested which, in any event, was fairly obvious.

In these circumstances, it is not possible to sustain the contention that the judge did not provide sufficient assistance to the appellant. For the judge to have gone further by giving specific advice to the appellant on how the alleged lie was to be proved, as suggested by the appellant’s lead counsel, would have been inappropriate. This is because such advice would have involved the provision of more favourable assistance to the appellant compared to the respondent who was also self-represented.

Further, we note that there was no evidence of any conversations between officer Tasiopoulos and the respondent apart from the record of interview and the formal statements that officer Tasiopoulos made when he executed the search warrant at the respondent’s home. Accordingly, it is highly doubtful that the alleged lie would have been proved even if the appellant had questioned officer Tasiopoulos about it.

Read as a whole, paras 14 and 15 of the judge’s reasons address the appellant’s failure to adduce admissible evidence to establish that the respondent had lied to officer Tasiopoulos in stating that, at the time of his arrest, he was not in possession of defamatory material or images of the appellant. The judge was entitled to rely on the absence of such evidence. It is to be doubted that the judge’s statement that the appellant did not lead evidence from officer Tasiopoulos that the respondent lied to him was intended as a criticism of the appellant for not asking officer Tasiopoulos whether the respondent lied to him. This is because it is the objective evidence of such a lie that was potentially relevant rather than a bare opinion by officer Tasiopoulos as to whether he thought that the respondent had lied to him.

The judge was correct in informing the appellant that the record of interview spoke for itself, particularly since it would have been obvious from officer Tasiopoulos’s evidence that he had very little recollection of the events relating to the stalking charge against the respondent, which had occurred over five years earlier.

The appellant’s complaint about the judge’s interruption while the appellant was asking officer Tasiopoulos about evidence he had previously given is difficult to understand. The transcript reference in the appellant’s written submissions does not bear out his assertion that the judge interrupted his line of questioning on the basis that officer Tasiopoulos had not previously given evidence in the defamation proceeding.

(d) Submissions and decision on the second particular of Ground 1

It will be recalled that the second particular of Ground 1 is as follows:

His Honour refused to admit evidence produced under subpoena in another proceeding without giving the appellant the opportunity to obtain the evidence in a different way [Reasons] [19].

Paragraph 19 of the judge’s reasons, upon which the second particular relies, was as follows:

The [appellant] did not seek to produce any proxy logs that would indicate that the 60 ... 112 address was used to upload any particular document onto any particular website. The [appellant], who admitted in evidence that his computer expertise was limited, gave evidence as to what an IP address was. It was what was required in order to have an email address. He then sought to allege that the [respondent] had registered the email address [email protected]. This evidence was later excluded, as it was produced in response to a subpoena issued in other proceedings. In any event, I fail to see how it would make any difference to the [appellant]'s case.[54]

[54]Reasons [19].

The appellant submitted that the evidence that had been produced on subpoena was a key element of the claim that linked the respondent to the publication of the defamatory material. He contended that, had the evidence been permitted, it would have shown that the IP address of the respondent’s computer was used to post defamatory material by reference to the email address [email protected] and that the secondary address for the email was the acknowledged email address of the respondent.

There are two key difficulties with the appellant’s submissions. First, the material before this Court does not disclose the nature of the evidence that the judge excluded. This is sufficient to dispose of the second particular of Ground 1. Secondly, the appellant’s grounds of appeal did not seek to impugn the judge’s finding that the excluded evidence would not have made any difference to the appellant’s case. Accordingly, the second particular of Ground 1 does not assist him in establishing that ground.

(e) Submissions and decision on the third particular of Ground 1

It will be recalled that the third particular of Ground 1 is as follows:

His Honour made adverse findings as to the credibility of the appellant on the basis that he had failed to adduce expert evidence [Reasons] [22], [40];

Paragraphs 22 and 40 of the judge’s reasons, upon which the third particular relies, were as follows:

Under sustained questioning, the [appellant] finally admitted that defamatory images upon which he sued were not found on the [respondent]'s computer hard drive. Under cross-examination in the course of his evidence, I had the opportunity to consider the demeanour of the [appellant]. I have serious reservations as to his credit. He is prepared to make wild assertions against the [respondent] and the [respondent]'s wife, who was originally a defendant in the proceeding, namely that they are computer hackers, yet he has not produced expert evidence as to how that occurred or even how it is relevant to his claim.
…
In addition, the [appellant] did not explain why he did not call proper expert evidence to make good his assertion of a link between the [respondent] and the defamatory material.[55]

[55]Reasons [22], [40].

The appellant submitted that the judge’s adverse findings on his credibility based on his failure to adduce expert evidence constituted a breach of the judge’s duty to ensure a fair trial. According to the appellant, the judge should have advised him that he should call an expert witness and should have explained the consequences of failing to do so. The judge’s failure to give such advice was said to constitute appealable error.

As appears from [18] above, the amended statement of claim envisaged that the allegation that the respondent published the defamatory material would be proved either by police witnesses or by a computer expert. Thus, the appellant was at all relevant times aware of the importance of expert evidence in the event that the police evidence was not sufficient to establish that the respondent had published the defamatory material. Despite this knowledge, the appellant made a forensic decision not to call any expert evidence.

Unfortunately for the appellant, there were significant gaps in the police evidence. In these circumstances, the absence of expert evidence to fill the evidentiary gaps was a highly relevant matter for the judge to take into account in determining whether the appellant had discharged his onus of proving that the respondent had published the defamatory material.

Paragraph 40 of the judge’s reasons is merely a statement of the obvious. Paragraph 22 criticised the appellant for alleging that the respondent and his wife were computer hackers without producing expert evidence to make good the allegation. The judge was entitled to make this criticism. He was also entitled to take into account his finding that the appellant made wide-ranging and unsubstantiated allegations in assessing the appellant’s credibility. As the appellant had given oral evidence and had sought to rely on this evidence as part of the factual matrix against the respondent, the judge was entitled to make findings about the appellant’s credibility and to use those findings in assessing the reliability of his evidence.

It follows that the third particular of Ground 1 does not demonstrate any error on the part of the judge.

(f) Submissions and decision on the fourth particular of Ground 1

It will be recalled that the fourth particular of Ground 1 was as follows:

His Honour made adverse findings against the appellant on the basis that he did not call police officers to give evidence in circumstances where he was not warned of the consequence of not calling those officers or given an opportunity to do so [Reasons] [45].

Paragraph 45 of the judge’s reasons, upon which the fourth particular relies, was as follows:

The [appellant] relied on the contents of the police summary (Exhibit 3) in support of his case that the [respondent] had published material on the web. I give that little weight on the basis that the [appellant] did not call any other evidence other than himself, and did not call the police officers who had allegedly checked the website. Further, the evidence of Officer Tasiopoulos was of little assistance because he was not asked what documents he had shown to the [respondent] in the course of the record of interview.[56]

[56]Reasons [45].

The appellant submitted that the judge breached his duty to ensure a fair trial by failing to warn him of the consequences of not calling the police officers or giving him an opportunity to do so.

The observations we have made in relation to the first particular of Ground 1 are also relevant to the fourth particular. As is apparent from [55] above, the judge informed the appellant that the allegation that the respondent had published the defamatory material would need to be established by admissible evidence, including the material on the DVD containing the contents of the respondent’s computer hard drive. The judge also advised the appellant of the importance of evidence that the hard drive contained the defamatory material. Additionally, having regard to the amended statement of claim, the appellant was aware that the link between the contents of the hard drive and the defamatory material could either be established by police witnesses or by a computer expert.

In these circumstances, the judge did not have a duty to provide any additional assistance to the appellant in relation to proof of the allegation that the respondent had published the defamatory material.

It follows that the fourth particular of Ground 1 does not establish any error by the judge.

(g) Submissions and decision on the fifth particular of Ground 1

It will be recalled that the fifth particular of Ground 1 is as follows:

In relation to whether the material found on the [respondent’s] computer had been published by the [respondent], His Honour should have inferred that because the [respondent] elected to give no evidence, any evidence that he would have given would not have supported his case, in accordance with the rule in Jones v Dunkel (1959) 101 CLR 258 [Reasons] [66].

Paragraph 66 of the judge’s reasons, to which the fifth particular of Ground 1 refers, and para 65 were as follows:

The failure of the [respondent] to provide evidence that the photos did not emanate from the [appellant] but were found on his computer is one matter to be placed in the overall factual matrix, but the overall burden to prove publication and the involvement of the [respondent] remains on the [appellant].
In some of his submissions the [appellant] appeared to assume that the [respondent] carried an onus. He did not. In relation to onus, at most a party might carry an evidentiary onus in relation to matters exclusively within his own knowledge. That does not strictly apply here when the [appellant] had access to the computer hard drive seized from the [respondent], and when the [appellant] did not seek to adduce any evidence as to access to the two websites at times which might have coincided with times when the alleged material was published.[57]

[57]Reasons [65]–[66].

The rule in Jones v Dunkel[58] is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. The failure to call a witness may also permit the court to draw with greater confidence any inference that is unfavourable to the party that failed to call the witness, if that inference is open on the evidence and the uncalled witness appears to be in a position to cast light on whether the inference should be drawn.[59] There is no compulsion on a trial judge to draw either of these inferences.[60]
[58](1959) 101 CLR 298, 308, 312, 319–22.
[59]Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, 384–5 [63] (‘Kuhl’).
[60]Manly Council v Byrne [2004] NSWCA 123, [52].

It is clear that, where the absent witness is a party, an adverse inference may be more readily drawn against that party. The authorities in support of this proposition were recently summarised by this Court in Chong v CC Containers Pty Ltd[61] as follows:

In Dilosa v Latec Finance Pty Ltd [No 2], Street J recognised that where the absent witness is a party then considerable importance may well attach to the inference that nothing which the party could say would assist his or her case. As Gleeson CJ said in Azzopardi, the judgments in Weissensteiner recognise that the inference that may be drawn from the silence of a party to civil litigation may be significant. Santow J drew such an inference in ASIC v Adler because the parties who were available and not called had a personal involvement in the transactions in question. Where a party elects not to give evidence ‘the court is entitled to be bold’. As Heydon, Crennan and Bell JJ stated in Kuhl v Zurich Financial Services Australia Ltd, the rule has a particular application where it is the party which is the uncalled witness and may permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.[62]

[61][2015] VSCA 137 (‘Chong’).

[62]Chong [2015] VSCA 137, [212] (citations omitted).

Further, where the absent witness or party is the only person capable of giving evidence on a particular issue in dispute, his or her failure to enter the witness box may attain a particular significance.[63] It has been said that, although the silence of one party cannot fill the place of actual evidence on an issue, it may serve to resolve a doubt or an ambiguity, especially where the facts are peculiarly within the knowledge of the silent party. In these circumstances, a failure to call or give evidence may have more than ordinary significance.[64]
[63]R v Cengiz [1998] 3 VR 720, 729.
[64]Tozer Kemsley & Millbourn (A’Asia) Pty Ltd v Collier’s Interstate Transport Service Ltd (1956) 94 CLR 384, 403.

However, there are a number of limitations to the application of the rule in Jones v Dunkel. Relevantly for the purposes of this appeal, the rule does not permit an inference that the evidence not called by a party would have been adverse to the party.[65] The rule also does not enable the absence of a witness to make up for any deficiency in a party’s evidence.[66] The rule will not support an adverse inference unless the evidence otherwise provides a basis on which that unfavourable inference can be drawn.[67] It has therefore been said that the rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference.[68]
[65]Kuhl (2011) 243 CLR 361, 384–5 [64].
[66]Jones v Dunkel (1959) 101 CLR 298, 308, 312, 322; Chong [2015] VSCA 137, [208].
[67]Chong [2015] VSCA 137, [208].
[68]Jones v Dunkel (1959) 101 CLR 298, 313; Chen v Chan [2008] VSCA 280, [65].

The appellant submitted that the fact that material found on the respondent’s computer hard drive matched some of the defamatory material entitled the judge to draw an inference that the respondent had published the defamatory material. The appellant further submitted that, as the respondent did not give evidence in support of his defence that he did not publish the defamatory material, the judge should have inferred not only that any evidence that the respondent would have given would not have supported his case, but also that he did publish the defamatory material.

In our opinion the appellant’s reliance on Jones v Dunkel is misconceived. The onus of proof was on the appellant and he fell well short of discharging that onus by the evidence as it stood at the time he closed his case. The question of who published the defamatory material was capable of being resolved without evidence from the respondent as the fact of publication was not peculiarly within his knowledge. The respondent’s failure to give evidence enabled the judge to infer that any evidence he would have given would not have assisted him and to draw with greater confidence any other inferences that were otherwise open on the evidence. However, consistently with the principles set out at [96] above, that failure did not enable the judge to fill any evidentiary gaps in the appellant’s case. Accordingly, as the unchallenged finding that the judge made was that there were significant gaps in the totality of the evidence before the Court, which precluded the Court from drawing an inference that the respondent published the defamatory material, the respondent’s failure to give evidence could not fill those evidentiary gaps.

It follows that the fifth particular of Ground 1 does not assist the appellant in establishing that ground.

(h) Other matters relevant to Ground 1

Lead counsel for the appellant attempted to overcome the absence of a transcript of the whole trial by referring to particular paragraphs in the judge’s reasons and seeking to extrapolate from them a conclusion that the findings or observations in those paragraphs were arrived at in breach of the judge’s duty to ensure a fair trial. Most of the findings and observations upon which counsel relied are referred to in the particulars of Ground 1 and have been discussed already in the context of those particulars. None of the other findings or observations upon which counsel relied made good the proposition that the judge breached his duty to ensure a fair trial. We will demonstrate this by focusing on three groups of paragraphs in the judge’s reasons which counsel criticised rather than discussing all such paragraphs, as our observations are equally applicable to all the paragraphs.

The first group of paragraphs in the judge’s reasons to which the appellant drew attention was paras 12 and 13. In para 12, the judge found that, although the respondent’s computer hard drive contained some photographs that formed part of the defamatory material, none of the defamatory text was found on the hard drive. In para 13, the judge stated:

I draw an inference against the [appellant] on this point. The [appellant] has had adequate time to subject the material extracted by the police to proper analysis. The police computer expert, Mr Jensen, admitted that he did not look for html files on the computer and, while the [appellant] produced a schedule of emails (Exhibit J), other than Exhibit Z, which relates to Exhibit WW, nothing else emerged. The only text corresponding to any of the alleged defamatory material found related to the first page of Exhibit WW (save the last five paragraphs), but the English text that corresponds to that first page (pages 39 and 40) is not defamatory of the [appellant].[69]

[69]Reasons [13].

Lead counsel for the appellant submitted that, rather than drawing inferences against the appellant and criticising him, the judge should have turned his mind to other inferences that were available which favoured the appellant. By way of example, counsel suggested that the judge could have inferred that some of the defamatory material may have been in the respondent’s computer hard drive and that the respondent had deleted it prior to the police seizing his computer.

In our opinion, counsel’s criticism of paras 12 and 13 of the judge’s reasons is without foundation. Although the judge’s reference to the drawing of an inference against the appellant could have been expressed differently, the substance of the judge’s findings are clear and entirely justified on the evidence. As for counsel’s suggestion that the judge could have drawn inferences that were favourable to the appellant, it is well established that inferences must be based on evidence rather than speculation and that where competing inferences are reasonably open on the evidence, in order for the court to draw an inference in favour of a party that bears the onus of proof, it must be the inference that is most probable.[70] There was simply no evidence that the respondent had deleted material from his hard drive. In any case, if counsel’s submission was that the judge should have drawn different inferences to those in his reasons, this would amount to an attack on the judge’s factual findings, which was not raised in the grounds of appeal. If, alternatively, counsel’s submission was that the judge should have raised the possibility of such an inference being drawn during the trial, such conduct would have placed the judge at risk of becoming an advocate of the appellant in breach of his duty to ensure a fair trial.[71]
[70]Holloway v McFeeters (1956) 94 CLR 470, 477, 480.
[71]See [41] above.

The second group of paragraphs in the judge’s reasons to which the appellant drew attention was paras 17 and 42. In para 17, the judge referred to the appellant’s allegation, which was said to be based on the documents provided by TPG, that the respondent was the owner of the website serbinfo.orgfree.com. In para 42, the judge concluded that ‘at its highest, the [appellant] has shown that the [respondent] had on some unknown date used the address [email protected] to register serbinfo.orgfree.com.’

Lead counsel for the appellant submitted that the fact that the respondent had registered serbinfo.orgfree.com (which was one of the Two Relevant Websites) was sufficient, in conjunction with the other evidence upon which the appellant relied, to enable the judge to draw inferences favourable to the appellant. The other evidence included the fact that some of the digitally altered images and photographs in the defamatory material were found on the respondent’s computer hard drive, that the respondent had some expertise with computers, that he had previously posted material on the internet using a proxy server and that he had previously had access to the appellant’s computer. Counsel submitted that, rather than drawing inferences favourable to the appellant from the evidence he had adduced, the judge had inappropriately criticised the appellant for failing to adduce additional evidence.

Once again, we are of the opinion that counsel’s criticism of the judge is without foundation, particularly since the grounds of appeal do not seek to impugn the judge’s conclusion that, on the evidence, the appellant had failed to prove on the balance of probabilities that the respondent had published the defamatory material. It was not in dispute at trial that the respondent’s computer hard drive did not contain any of the defamatory text but rather contained only some digitally altered images and photographs of the appellant and the non-defamatory article about Mr Ivanovic. There was no evidence that any email address or IP address that was under the control of the respondent was used to upload any defamatory material on the Two Relevant Websites. The material produced by TPG indicated that the respondent had a dynamic IP address. This meant that, even if it is assumed that a particular IP address was used to upload defamatory material on the Two Relevant Websites, the fact that the respondent had previously used that IP address to register a website was insufficient to prove that he was involved in the subsequent use of that IP address to publish the defamatory material on that website. This was particularly important as the appellant had failed to prove when the defamatory material was uploaded on the internet. In these circumstances, the judge’s reasoning cannot be faulted.

The third paragraph in the judge’s reasons to which the appellant drew attention was para 26. In that paragraph, the judge stated that one of the appellant’s submissions was effectively an allegation that the respondent had a tendency to post defamatory material about the appellant on the internet in circumstances where the appellant had not given a tendency notice. Lead counsel for the appellant submitted that the judge should have given advice to the appellant about the need for a tendency notice, rather than criticising him for not giving one. However, para 26 makes clear that the absence of a tendency notice did not prevent the judge from taking into account all the elements of the appellant’s circumstantial case that the respondent had published the defamatory material.

In the course of his oral submissions, lead counsel for the appellant appeared to question the impartiality of the judge. When the Bench pointed out that the grounds of appeal did not include an allegation of apprehended bias, counsel eschewed any suggestion of bias. This was appropriate, as there was no basis for impugning the judge’s impartiality.

Lead counsel for the appellant also suggested that the evidence adduced by the appellant strongly implicated the respondent as the publisher of the defamatory material. When the Bench reminded counsel that the grounds of appeal did not seek to impugn the judge’s finding that the evidence was insufficient to prove on the balance of probabilities that the respondent had published the defamatory material, counsel modified his submission. His revised submission was that if the judge had provided a greater level of assistance to the appellant, the judge would have found that the respondent had published the defamatory material. The fundamental difficulty with the revised submission is that, for the reasons we have already explained, the appellant has failed to demonstrate that the judge breached his duty to ensure a fair trial.

We note in passing that, if the appellant had been able to establish that the judge had breached his duty to ensure a fair trial, the appellant would not have been required to demonstrate that he would have succeeded at trial if the breach had not occurred; all that he would have been required to demonstrate was that the absence of the breach could have made a difference to the outcome of the case.[72]
[72]See [44] above.

At one point in his oral submissions, lead counsel for the appellant appeared to suggest that, at the conclusion of the appellant’s case, the judge should have warned the respondent that he faced the risk that the issue of publication would be resolved in the appellant’s favour if the respondent elected not to give oral evidence. There are two difficulties with this suggestion. First, it is not known whether the judge gave such a warning. Secondly, assuming that the judge failed to provide such a warning, that would be relevant to whether the trial was fair from the perspective of the respondent as a self-represented litigant, but could not involve any unfairness to the appellant. At the end of the appellant’s case, when the respondent elected not to call any oral evidence in addition to the documents that he had tendered, it was a matter for the judge to decide whether the appellant had discharged his onus of proving that the respondent had published the defamatory material. The judge was obliged to decide this issue on the whole of the evidence, including any inferences that were reasonably open on the evidence.

Ground 2: Denial of procedural fairness — preliminary discovery

Ground 2 was as follows:

The Honourable County Court Judge Murphy made a Jurisdictional error of a denial of procedural fairness and a denial of natural justice to the Appellant. His Honour prevented the Appellant from using the preliminary discovery documents obtained In the Supreme Court of Victoria on 18 March 2009.
(a) The Appellant's former solicitor made an application in the Supreme Court, Trkulja v State of Victoria proceeding No 4817 of 2009 for preliminary discovery to identify the name of the person responsible for creating defamatory images using the [appellant’s] head creating and publishing defamatory images and articles on the website The summons was returnable on 18 March 2009 and was heard by Her Honour Associate Justice Daly. Her Honour ordered, amongst other things as follows:
(b)‘On or before 4pm on 16 April 2009 the Defendant is to make discovery to the [appellant] of all the documents which are or have been [i]n its possession tending to assist in ascertaining the description of any person who conceived, create[d], published, or disseminated or contributed in any way to the conception, creating, publishing or disseminating of the documents set out in exhibits marked “MTl” and “MT2” to the affidavit of Milorad Trkulja sworn on 10 February 2009’. Enclosed Her Honour Associate Justice Daly Judgment dated 23 April 2009 Court Book page 320.

Ground 2 refers to a ruling that was made by the judge regarding documents that were produced by the police pursuant to an order made by Daly AsJ in March 2009 in a Supreme Court proceeding by the appellant against the State of Victoria seeking preliminary discovery (‘2009 Order’). This Court was not provided with either the judge’s ruling or the 2009 Order. The only information that we had about them was that set out in Ground 2 and the parties’ submissions. It appears that the 2009 Order required the police to make discovery to the appellant of all documents tending to show who was responsible for publishing the Pamphlet and the Website Publications, and that one of the documents that was produced by the police was a DVD containing the contents of the respondent’s computer hard drive. It appears that the appellant sought to rely on all of the material contained on the DVD and that the judge ruled that the appellant was only entitled to rely on the photographs and images of the appellant which appeared in the Pamphlet and Website Publications.

The appellant submitted that the judge erred in making this ruling because it prevented him from relying on other images that were on the DVD for the purpose of establishing that the respondent was responsible for the publication of the defamatory material. It appears that the other images included photographs of the appellant in their original form and digitally altered images of the appellant.

In our opinion, there is no substance to Ground 2. The appellant had the onus of establishing that the respondent published the defamatory material. The existence of any of the defamatory material on the respondent’s computer hard drive was relevant to this issue. However, the existence on the hard drive of other images of the appellant which did not form part of the defamatory material had no probative value in relation to the question of whether the appellant published the defamatory material. Accordingly, insofar as the judge ruled that the appellant could only rely on the contents of the respondent’s computer hard drive which appeared in the Pamphlet and Website Publications, he was correct to do so.

It is not clear from Ground 2 as to whether it contains a complaint that the judge precluded the appellant from relying on documents produced to the Court pursuant to the 2009 Order. Such a complaint would be misconceived, as the appellant was provided with a copy of the DVD containing the contents of the respondent’s computer hard drive and was able to examine its contents and to tender it. Insofar as any of the documents produced to the Court pursuant to the 2009 Order related to the possession or distribution of the defamatory material by persons other than the respondent, the appellant cannot legitimately complain about the exclusion of that material. Such material could only have assisted the respondent.

Grounds 3 and 4: Denial of procedural fairness — police brief

Grounds 3 and 4 were as follows:

The Honourable Judge Murphy made a Jurisdictional error of a denial of procedural fairness and a denial of natural justice to the Appellant. His Honour prevented the Appellant from using the Extract, Evidence of the Victorian Police Brief Informant Peter Tasiopulos who had charged the Respondent with stalking the [appellant]. The Respondent's IP Addresses 60.240.48.112 used to published the Defamatory images on the Respondent's website …
(a)The Appellant explained to His Honour that the Appellant could not proceed without evidence of the documents that were discovered by orders of Her Honour Associate Daly on 18 March 2009 … The Appellant explained to His Honour that without the Victorian Police Brief of Evidence that was subpoenaed by [the] Appellant and was produced by the Victoria Police to the County Court, the Appellant cannot proceed with the Defamation trial.

On 16th August 2013 at 10:30, on the first day of the trial the Appellant made the first application to inspect the Victorian police brief of evidence. The Respondent objected by saying that the police brief was evidence in a criminal proceeding against the Respondent for stalking the [appellant]. The Honourable [Judge] Murphy told the Appellant that he cannot use the police brief of evidence from the criminal trial as evidence against the Respondent in this civil defamation trial. (Court Transcript of Extract, Evidence of Peter Tasiopulos on page 2 line 4, ‘His Honour but I am not — we are not re-agitating the stalking case’.

The appellant did not make any separate submissions on Grounds 3 and 4, except to the extent that his submissions on Ground 2 overlapped with Ground 3, as to which see [115] to [116] above. For these reasons, Grounds 3 and 4 cannot succeed.

We would add that the judge was correct to make clear to the appellant that his defamation proceeding against the respondent was separate to the stalking charge that the police had brought against the respondent and that he was required to prove his case by admissible evidence. It is clear from the list of exhibits and the transcript of the oral evidence of officer Tasiopoulos that the appellant had some material from the police brief and that he was permitted to tender it. The exhibits include the ‘Summary of Charges’ document, the DVD containing the contents of the respondent’s computer hard drive and the statement made to the police by Mr Vladusic who first discovered the Pamphlet. The appellant has not established which other documents in the police brief were admissible and erroneously excluded by the judge. Further, insofar as Ground 4 suggests that the transcript reference there referred to sets out what occurred on the first day of the trial, it is inaccurate. That transcript relates solely to the oral evidence of officer Tasiopoulos on 19 August 2013. There is no transcript of the first day of trial.

Ground 5: Denial of procedural fairness — hacking

Ground 5 was as follows:

The Honourable County Court Judge Murphy made a Jurisdictional error of a denial of procedural fairness and a denial of natural justice to the Appellant. His Honour prevented the Appellant from using the documents in the Court Book showing proof of document that the Respondent had hacked in the Appellant's computer.
(a)the Respondent's hacked to the Appellant computer and the Respondent’s wife had used the Appellant's IP address to send the email to her Aunt. That evidence of correspondents of email is part of the Appellant Court Book the Appellant had subpoenaed the Respondent's wife to give evidence and His Honour did not allow the Appellant to use the subpoena.

As the appellant did not make any submissions in relation to Ground 5, it cannot succeed. We would add that the ground does not particularise the documents to which it refers and therefore it is impossible for this Court to assess the admissibility of those documents. As for the judge’s setting aside of the subpoena to give evidence that was served on the respondent’s wife, this Court has not been provided with any material upon which it could assess whether any error was involved.

Other matters raised in the appellant’s written submissions

In his written submissions, the appellant made submissions on two matters that were not included in any ground of appeal.

The first submission was that the judge’s statements about the absence of evidence as to when the defamatory material was published indicate that the judge misunderstood the concept of publication as it applies to defamation law. This submission is misconceived. The judge’s statements were directed to the timing of the uploading of the defamatory material on the internet and the absence of evidence that the respondent was involved in such uploading, particularly since he had a dynamic IP address.

The second submission was that the judge had erred in relying on the seriousness of the defamatory material as a basis for elevating the standard of proof cast upon the appellant in accordance with the principles in Briginshaw v Briginshaw.[73] This submission is also misconceived. The judge relied not on the seriousness of the defamatory material but of the allegations of criminality, including hacking, that the appellant had made against the respondent.
[73](1938) 60 CLR 336.

Conclusion

For the above reasons, the appeal will be dismissed.

Acknowledgment of pro bono assistance by counsel for the appellant

At the conclusion of the hearing of the appeal, the Court thanked Mr J Ribbands and Dr K Weston-Scheuber for appearing pro bono on behalf of the appellant pursuant to the Victorian Bar’s Duty Barristers’ Scheme. The Court pointed out that by doing so, they not only advanced the interests of the appellant, but they also greatly assisted this Court and facilitated the course of justice in the best traditions of the Bar. We wish to record our statement of gratitude in these reasons for judgment.

[2015] VSCA 298

13 November 2015