Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555

FEDERAL COURT OF AUSTRALIA

Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 File numbers: NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018

Judgment of: BESANKO J

Date of judgment: 1 June 2023

Catchwords: DEFAMATION — defamation proceedings — where the applicant is a very well-known Special Air Service Regiment (SASR) soldier and a Victoria Cross recipient — where 14 defamatory imputations alleged — where there are multiple print and online publications — where imputations are of the most serious kind — imputations involving murder, bullying, assault and domestic violence — where substantial damage caused to both reputation and earning capacity of the applicant — where defences include allegations of very serious criminal conduct — defence of justification or substantial truth s 25 Defamation Act 2005 (NSW) — defence of contextual truth s 26 of the Defamation Act 2005 (NSW) — where National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) applied to proceedings — whether the alleged imputations were conveyed by the publications — consideration of s 140 of the Evidence Act 1995 (Cth) and common law principles concerning the standard of proof where serious criminal conduct is alleged including Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 — consideration of whether the material before the Court may be so limited that it does not form an appropriate basis upon which to reach a reasonable decision — distinction between absence of proven motive and proven absence of motive — consideration of the effect of the passage of time on the reliability of oral testimony — consideration of the nature of circumstantial evidence — inferences in relation to the failure of a party to call a particular witness: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 — principles in Browne v Dunn (1893) 6 R 67 (HL) — consideration of lies as evidence of consciousness of guilt — consideration of whether the respondents have established the substantial or contextual truth of the imputations DEFAMATION — where imputations concern the applicant's involvement in two murders —— mission to Whiskey 108 on 12 April 2009 — factual disputes — were Afghan men found in the tunnel — location of the body of EKIA56 — extensive challenges to the honesty and reliability of witnesses — where respondents have established the substantial truth of the relevant imputations DEFAMATION — incidents involving the applicant during pre-deployment training at Lancelin and Bindoon — where incidents alleged are not directly relevant to any imputation in issue — factual dispute — whether the incidents alleged in the Particulars of Truth took place — whether evidence is inadmissible on the basis that it is tendency evidence — whether applicant's conduct constituted preparatory conduct DEFAMATION — where the imputations concern the applicant's involvement in the murder of an unarmed Afghan male — mission to Darwan on 11 September 2012— where evidence given by local Afghan witnesses — factual disputes — whether the interpreter was sent back before the southern set of compounds was cleared — whether the unarmed Afghan male was kicked off a cliff by the applicant — whether there was an agreement between the applicant and Person 11 that the unarmed Afghan male be killed after the cliff kick — whether a throwdown was placed on the body — whether the applicant made false report about the engagement — where respondents have established the substantial truth of the relevant imputations DEFAMATION — where the imputations concern the applicant's involvement in a murder — mission to Chinartu on 12 October 2012 — factual disputes— whether the time of engagement recorded in the OPSUM deliberately false — whether Person 12 was present on the mission — where respondents have established the substantial truth of the relevant imputations DEFAMATION — mission to Syahchow 18-20 October 2012 — where witness objects to giving evidence on the grounds of self-incrimination (s 128 of the Evidence Act 1995 (Cth)) — whether or not there are reasonable grounds for the objection — where the allegations in the Particulars of Truth are not made out DEFAMATION — where imputations concern the applicant's involvement in a murder —mission to Fasil 5 November 2012 — factual dispute — identification evidence — where the allegations in the Particulars of Truth are not made out DEFAMATION — where the imputation concerns the applicant's engagement in a campaign of bullying — factual dispute — whether the bullying acts set out in the Particulars of Truth occurred — consideration of what constitutes a campaign of bullying — where respondents have established the substantial truth of the relevant imputation DEFAMATION — where the imputations allege that the applicant unlawfully assaulted persons under control or containment — factual dispute — whether the applicant assaulted an Afghan male in Deh Rafshan on 15 March 2010 — whether the applicant assaulted an Afghan male in late August to early September 2012 — where respondents have established the substantial truth of the relevant imputations DEFAMATION — blue-on-blue during mission in the Chora Valley on 15 July 2021 — factual dispute — whether the applicant assaulted Person 10 post-mission — whether the applicant made the threat alleged — where the respondents have not made out the substantial truth of the relevant imputation — where the defence of contextual truth is made out DEFAMATION — where imputations concern an act of domestic violence — factual dispute — whether the applicant punched Person 17 — where the respondents have not made out the substantial truth of the relevant imputations — where the defence of contextual truth is made out DEFAMATION — where intimidation of witnesses is alleged — whether the applicant engaged in conduct that intimidated witnesses — whether the applicant colluded with witnesses — whether the applicant concealed relevant evidence and material