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Ben Roberts-Smith loses defamation case on contextual truth
The facts
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 [1982] 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.
Full story:
Graeme Page KC’s bankruptcy led to loss of practicing certificate
In October this year, we were the first to report on the demise of the career of Graeme Page KC, who was caught appearing in Court representing clients without a practicing certificate on numerous occasions.
Bankruptcy
Our investigations unit has uncovered that Page went bankrupt on 21 February 2019, after committing an act of bankruptcy on 3 April 2018 due to his unpaid tax debts.
However, on 24 May 2019, Page’s bankruptcy was set aside by Federal Court Justice Rangiah. This may explain why a bankruptcy search of Page does not yield any results.
No practicing certificate
Due to his personal solvency issues, Page was required to disclose his income tax returns and his quarterly BAS statements, but subsequently failed to do so, resulting in his practicing certificate not being renewed. Page blamed the pandemic, workload and his health issues for these failures, but the Bar Association resolved that he was not a fit and proper person, with its President Tom Sullivan concluding that Page had shown “blatant disregard for the ethical responsibilities that come with holding a practising certificate”.
A source at the QLD Bar has informed us that aware of his issues with the Bar Association, other learned Counsel offered to assist Page with his tax affairs, but Page failed to accept such offers.
Subsequently, Page engaged in legal practice without a practicing certificate, resulting in the Chief Justice ordering him to cease doing so.
We are also informed that soon after the injunction was made, Page was found again appearing in the Federal Circuit and Family Court, and that then-Bar Association President Tom Sullivan had to come in and drag Page out of Court.
Full story:
https://sterlinglawqld.com/graeme-page-kcs-bankruptcy-led-to-loss-of-practicing-certificate/
The question of reasonable foreseeability of injury
Reasonable foreseeability can be contrasted with risks that are “far-fetched or fanciful”.
The 2013 Queensland Court of Appeal cases of Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 and Suncorp Staff Pty Ltd v Larkin [2013] QCA 281 are useful reminders of the centrality of the concept of reasonable foreseeability of risk in negligence cases against employers.
THE FACTS IN HEYWOOD
Heywood, a first year apprentice, was working in the fit out of a high rise apartment building where sharp U-shaped framing made of steel had been attached to the concrete ceilings to facilitate the positioning and support of internal walls. Whilst working on the fifth floor, Heywood picked up a piece of the framing from the floor and placed in on his 110cm high toolbox. Later, when descending his ladder he swung left. The framing pierced his elbow, resulting in serious injury that required surgery.
The central issue at trial was whether the employer had breached its duty of care to Heywood by failing to provide him with instructions on how to handle the U-shaped framing.
The trial judge held that it was not his employer’s obligation to safeguard an employee from all perils, the risks associated with the framing were obvious and Heywood had caused his own injuries. The action was therefore dismissed.
HEYWOOD APPEAL
On appeal, the Court of Appeal examined the nature and extent of the duty of care employers owe to provide a safe system of work for their employees.
Full story:
Son of Kristina Keneally charged with fabricating evidence
It is alleged that Keneally jnr submitted a false report of a man named Luke Moore threatening to kill a police officer, which resulted in him being refused bail. Luckily for Moore, he had recorded that conversation. Sometimes it pays to be paranoid.
Police ‘Verballing’ is an old problem, and one which used to be more common. It can be safely assumed that this practice still continues to some extent.
Full story: https://sterlinglawqld.com/son-of-kristina-keneally-charged-with-fabricating-evidence
Chris Dawson guilty of murdering his first wife Lynette Dawson
Former high school teacher and rugby league player Chris Dawson has been found guilty of murdering his wife Lynette Dawson after a long Judge-only trial.
Lynette Dawson, 33, disappeared from their Bayview home on Sydney’s northern beaches on 9 January 1982, more than forty years ago. She left behind their two young daughters Shanelle and Sherryn, then aged four and two, and has never been found.
Her disappearance occurred in what were highly suspicious circumstances, including the following:
– Chris Dawson and Lynette Dawson had been having marital problems and attended marriage counselling the day before her disappearance.
– Chris Dawson had commenced a relationship with Joanne Curtis, who moved in a mere two days after Lynette Dawson’s disappearance
– according to some witnesses, Chris Dawson had expressed interest in hiring a hitman to murder his wife
– according to some witnesses, Chris Dawson had committed domestic violence against Lynette Dawson
– according to some witnesses, Chris Dawson detested Lynette Dawson and had spoken about leaving her
– Chris Dawson had claimed his wife Lynette had called him several times and she had used her bank card twice, but no-one else she knew had heard from her
– Six weeks had passed before Chris Dawson reported to Mona Vale police that his wife was missing.
Full story: https://sterlinglawqld.com/chris-dawson-guilty-of-murdering-his-first-wife-lynette-dawson
Ghislaine Maxwell gets 20 years in prison for sex trafficking crimes
Jeffrey Epstein’s long time girlfriend Ghislaine Maxwell was found guilty in December by a 12-person New York jury of five of the six counts she was facing, including sex trafficking.
Judge Alison Nathan of the United States Court of Appeals for the Second Circuit upheld Maxwell’s conviction on transporting a minor with the intent to engage in criminal sexual activity and sex trafficking of minors. However, Judge Nathan ruled that the three conspiracy counts Maxwell was convicted of were “multiplicitous,” and sentencing the convicted sex trafficker on all of them would violate the Fifth Amendment’s Double Jeopardy Clause.
Last week, Maxwell was sentenced to 20 years in prison in her New York sex-trafficking case for procuring teen girls for Jeffrey Epstein for him to abuse.
The Australian reported that:
“Before handing down the sentence, Judge Alison Nathan said Ms. Maxwell’s criminal conduct was far-reaching and a substantial prison term was necessary to deter others from exploiting underage victims.
“The damage done to these young girls was incalculable,” the judge said. She also imposed a $750,000 fine on Ms. Maxwell and ordered that she serve five years of supervised release after her prison term.”
Now, many are asking about the men who were involved in the international sex trafficking ring that went on for decades. Will they be brought to justice?
Full story:
https://sterlinglawqld.com/ghislaine-maxwell-gets-20-years-in-prison-for-sex-trafficking-crimes/
Lisa Wilkinson lawyers up after Logies speech
On Sunday, 19 June 2022, Lisa Wilkinson gave a speech about former Parliamentary staffer Brittany Higgins at The Logie Awards.
At that speech, Wilkinson suggested Higgins was a political problem for the government at the time, and praised and thanked Higgins effusively.
The issue was that Higgins was being praised for raising allegations of rape against Bruce Lehrmann, the man who is standing trial in relation to those same allegations in the ACT Supreme Court.
Furthermore, Wilkinson will be a witness at that trial.
Subsequent commentary, including remarks made on the popular morning radio program, “Jonesy and Amanda” also assumed Lehrmann’s guilt.
Compounding things, days before the Logie awards, Ms Wilkinson participated in a conference with the Director of Public Prosecutions and those appearing with him and was warned that her speech may cause the trial to be further delayed.
McCallum CJ was scathing about the effect of the speech and recent commentary on the case:
“What can be known is that, somewhere in this debate, the distinction between an untested allegation and the fact of guilt has been lost. The Crown accepted that the Logie awards acceptance speech was unfortunate for that reason. He also accepted that Ms Wilkinson’s status as a respected journalist is such as to lend credence to the representation of the complainant as a woman of courage whose story must be believed.
The prejudice of such representations so widely reported so close to the date of empanelment of the jury cannot be overstated. The trial of the allegation against the accused has occurred, not in the constitutionally established forum in which it must, as a matter of law, but in the media. The law of contempt, which has as its object the protection of the integrity of the court but which, incidentally, operates to protect freedom of speech and freedom of the press, has proved ineffective in this case. The public at large has been given to believe that guilt is established. The importance of the rule of law has been set at nil…
The irony in all of this is that the important debate as to whether there are shortcomings in the way in which the courts are able to deliver justice in sexual assault cases, to complainants and accused persons alike, has evolved into a form of discussion which, at this moment in time, is the single biggest impediment to achieving just that.
The delay of the present trial will not serve the interests of anyone. Contrary to popular assumption, it does not serve the interests of the accused, for whom the prospect of conviction and sentence must weigh heavily as an immobilising force in his life. He has said through his lawyer in the present application that he has no interest in delaying the trial but he wants it to be a fair trial, and I accept that that is the case.”
McCallum CJ
As a result, the trial date of 27 June was vacated.
Full story: https://sterlinglawqld.com/lisa-wilkinson-lawyers-up-after-logies-speech/
Iain Hall's SANDPIT 