Ben Roberts-Smith loses defamation case on contextual truth
Highly decorated former soldier Ben Roberts-Smith VC MG was the subject of 16 media stories that collectively alleged among other things that he had murdered civilians in Afghanistan and committed an act of domestic violence against a woman.
Roberts-Smith brought three actions in the Federal Court of Australia for defamation. The first action was brought against Fairfax Media Publications Pty Limited, Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. The second action was against The Age Company Pty Limited, Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. The third action was brought against The Federal Capital Press of Australia Pty Limited, Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. The three proceedings have been heard together.
The stakes on both sides were enormous in this incredibility costly case relating to the reputation of a highly decorated former soldier who was awarded the Victoria Cross (VC) for bravery. On the one hand, Australia’s most celebrated soldier’s reputation was on the line because he had been accused of war crimes and other awful acts. On the other, a very costly loss for the defendants may well have had a chilling effect on public interest reporting.
Relevant Defamation Law
A plaintiff is said to have been defamed if a publication causes the reasonable person to think less of them: Reader’s Digest Services Pty Ltd v Lamb  HCA 4.
To be defamatory, the matter must injure the plaintiff’s reputation by lowering them in the estimation of others, exposing them to hatred, contempt or ridicule or causing them to be shunned or avoided.
Defamatory meaning can arise from the natural and ordinary meaning or true innuendo of the matter. True innuendo refers to matter which is defamatory as a result of an audience’s knowledge of certain extrinsic facts.
Section 25 of the Defamation Act 2005 provides that:
“It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”
Section 26 of the Defamation Act 2005 provides that:
“26 Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (“contextual imputations”) that are substantially true, and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.”
Federal Court of Australia decision
The following imputations were admitted by the defendants to have been conveyed from the articles sued on or found by Justice Anthony Besanko to have been conveyed:
(1) Roberts-Smith while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1).
(2) Roberts-Smith broke the moral and legal rules of military engagement and is therefore a criminal (Imputation 2).
(3) Roberts-Smith disgraced his country Australia and the Australian army by his conduct as a member of the SASR in Afghanistan (Imputation 3).
The second group of articles were published on 10 and 9 June 2018. Roberts-Smith claimed that the following imputations were conveyed or communicated by the Group 2 articles:
(1) Roberts-Smith while a member of the SASR, committed murder by pressuring a newly deployed and inexperienced SASR soldier to execute an elderly, unarmed Afghan in order to “blood the rookie” (Imputation 4).
(2) Roberts-Smith while a member of the SASR, committed murder by machine gunning a man with a prosthetic leg (Imputation 5).
(3) Roberts-Smith while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1).
(4) Roberts-Smith having committed murder by machine gunning a man in Afghanistan with a prosthetic leg, is so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel (Imputation 6).
Roberts-Smith was not named in the Group 1 articles or the Group 2 articles. A soldier called “Leonidas” was referred to. By the end of the trial, there was no dispute about the identification of Roberts-Smith in the Group 1 and Group 2 articles.
The third group of articles were published on 11 and 10 August 2018. Roberts-Smith was named in these articles and there was never any identification issue. Roberts-Smith claimed that the following imputations were conveyed or communicated by the Group 3 articles:
(1) Roberts-Smith committed an act of domestic violence against a woman in the Hotel Realm in Canberra (Imputation 7).
(2) Roberts-Smith is a hypocrite who publicly supported Rosie Batty, a domestic violence campaigner, when in private he abused a woman (Imputation 8).
(3) The applicant as deputy commander of a 2009 SASR patrol, acquiesced in the execution of an unarmed Afghan by a junior trooper in his patrol. (Imputation 9).
(4) Roberts-Smith during the course of his 2010 deployment to Afghanistan, bashed an unarmed Afghan in the face with his fists and in the stomach with his knee and in so doing alarmed two patrol commanders to the extent that they ordered him to back off (Imputation 10).
(5) Roberts-Smith as patrol commander in 2012 authorised the assault of an unarmed Afghan, who was being held in custody and posed no threat (Imputation 11).
(6) Roberts-Smith engaged in a campaign of bullying against a small and quiet soldier called Trooper M which included threats of violence (Imputation 12).
(7) Roberts-Smith threatened to report Trooper J to the International Criminal Court for firing at civilians, unless he provided an account of a friendly fire incident that was consistent with the applicant’s (Imputation 13).
(8) Roberts-Smith assaulted an unarmed Afghan in 2012 (Imputation 14).
However, despite finding in Robert Smith’s favour on the defamatory imputations that had been conveyed, Justice Besanko determined that the defendants had established on the balance of probabilities that many of those imputations were substantially true, particularly the most serious ones.
This decision is a disaster for Roberts-Smith because it amounts to a declaration that he is a war criminal.
Full story: https://sterlinglawqld.com/ben-roberts-smith-loses-defamation-case-on-contextual-truth
Lying lab boss Cathie Allen belatedly sacked
Cathie Allen lied about her the probity of her role in the 2018 change in DNA samples testing, lied about deliberately providing false information, lied about covering her tracks and lied about whether she was lying.
Sofronoff KC found that Allen had tried to cover up her “grave maladministration involving dishonesty” using a “deliberately crafted series of lies and misleading dodges”.
It has since been revealed that Allen was sacked in a formal letter sent to her legal team.
Jarryd Hayne sentenced to four years and nine months imprisonment
Former rugby league star Jarryd Hayne has been sentenced to four years and nine months imprisonment for sexually assaulting a woman in Newcastle.
Last month, Hayne was again convicted by a jury for these offences. He was subsequently remanded in custody.
This sentence was lighter than his previous sentence of five years and nine months.
Criminal solicitor Adam Raydon Magill struck off for bail breaches
In 2018, criminal lawyer Adam Raydon Magill was one of a few lawyers charged with defrauding Legal Aid Queensland and laundering money for “serious and organised crime”.
Subsequently, he was granted bail on strict conditions on his own undertakings.
The following year, Magill was charged with numerous breaches of bail, which he was subsequently convicted of.
On 21 November 2019, the Queensland Law Society Incorporated determined that Magill was not a fit and proper person to continue to hold a practicing certificate and exercised its power under s 61(2) of the Legal Profession Act 2007 to cancel his practicing certificate.
On 18 February 2020, Magill’s appeal against the decision to record convictions with respect to five breaches of bail was dismissed by the District Court.
On 8 July 2020, the Queensland Civil and Administrative Tribunal (QCAT) dismissed Magill’s application for a review of this decision, with Justice Daubney making the following ominous observations:
“the repeated breaches of bail undertaking are illuminative of shortfalls in [Magill’s] character of attributes which are absolutely fundamental for practising legal practitioners…
[Magill’s] conduct in repeatedly breaching his bail undertakings, and particularly his conduct in doing so shortly after having been dealt with by the Chief Magistrate, is indicative of a cavalier attitude to one of the most basic and essential attributes of a practising legal practitioner. A person who repeatedly breaches promises which have been solemnly given is not a person in whom the judiciary, the profession, and the public can have confidence as a legal practitioner…
For these reasons, this Tribunal has concluded on all the evidence now before it that it is not satisfied that [Magill] has the intrinsic personal character and professional capacity needed to command the confidence, respect and trust of the judiciary, the profession, clients, and the public at large, nor is it satisfied that [Magill] can be relied on in the predictable future to obey and uphold the law.”
On 10 June 2022, the DPP presented an indictment in the District Court charging Magill with a number of serious charges, including money laundering and defrauding Legal Aid Queensland.
Legal Services Commissioner submitted to QCAT that Magill’s conduct in the breaches of bail showed he was no longer fit to remain a lawyer, irrespective of the future outcome of the District Court charges.
Somewhat unusually, QCAT was asked to rule on Magill’s permanent fitness to practice despite the serious charges he faced, including money laundering and defrauding Legal Aid Queensland, not having yet been resolved. This was one of the grounds raised for Magill in resisting his removal from the roll of lawyers.
Queensland’s Minister for Women Shannon Fentiman denies biological reality
Queensland Attorney-General and Minister for Women Shannon Fentiman recently took to social media to decry a sticker placed on a sign outside her office that included the word woman, and its definition: adult human female. Fentiman reckons that:
“For some people in our community, these stickers represent much more – they represent a movement which discriminates against [transgender people] and denies their existence.’
‘I want to be very clear – I don’t stand for these sort of views, our community doesn’t stand for these views, and Queenslanders don’t stand for these views”
What movement is she referring to? Biological science? Believers in actuality?
She doesn’t speak for the majority of Queenslanders that appreciate that there are innate differences between men and women.
This Government is out of touch with the majority of Queenslanders as well as biological reality. Time to vote them out.
Mr Lefty still a leftard
A loyal reader has asked us the following question:
“On the subject of Lawyers, how is Mr Lefty going”
Our old learned friend Jeremy Sear is working as a solicitor these days.
He has a new podcast:
Episode 159 – Insufficiently Shamed (feat Nick Carr) — Well May We Say
We recommend that you skip the first 3 minutes of Indigenous platitudes and introductions, if you are minded to listen at all.
The good news is that we had a listen so that you don’t have to. In a nutshell:
Our learned friend talks to his mate Nick Carr about how he has discovered that the essence of conservativism is selfishness, and how conservatives are awful people who make money at the expense of others and then boast at social gatherings about ripping old ladies off. Our learned friend modestly opines that the reason why conservatives dislike leftists such as himself is because they are the voice of conscience who make conservative feel bad for their selfish ways.
We strongly recommend that rather than listen to our learned friend’s new podcast, you enjoy Mother’s day tomorrow with your family and friends, and feel free to talk there about how you recently ripped off an elderly person with pride and delight.
Just don’t invite our learned friend to your gathering to ensure that your conscience remains untroubled by his nagging.
Jarryd Hayne imprisoned after sexual assault convictions
Last week, Jarryd Hayne was again found guilty by a jury of sexual assault in Newcastle on the evening of the 2018 grand final.
This followed two previous trials, in which the first ended in a hung jury, and the jury in his second trial found him guilty of performing oral and digital sex on the complainant without her consent. That conviction was set aside on appeal with a re-trial ordered.
Jarryd Hayne’s bail has today been revoked, before he is due to be sentenced.
Full story: https://sterlinglawqld.com/jarryd-hayne-imprisoned-after-sexual-assault-conviction/
Jarryd Hayne again found guilty of sexual assault
Former rugby league superstar Jarryd Hayne has been found guilty of sexually assaulting a woman in Newcastle for the second time.
This follows two previous trials, in which the first ended in a hung jury, and the jury in his second trial found him guilty of performing oral and digital sex on the complainant without her consent. That conviction was set aside on appeal with a re-trial ordered.
In the third trial, Hayne again pleaded not guilty to sexually assaulting the Newcastle woman on the evening of the 2018 grand final.
Full story: https://sterlinglawqld.com/jarryd-hayne-again-found-guilty-of-sexual-assault/