FEDERAL COURT OF AUSTRALIA

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

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

PART 1 — INTRODUCTION

1    There are three proceedings before the Court. They have been heard together.

2    The applicant in each proceeding is Mr Ben Roberts-Smith VC MG. He was a member of the Special Air Service Regiment (SASR) between 2003 and 2013. During that period, he undertook six tours of Afghanistan. He has received a number of awards and medals, including the Medal for Gallantry in 2006, the Victoria Cross in 2011 and a Commendation for Distinguished Service in 2014.

3    The respondents in the first proceeding (NSD 1485 of 2018) are Fairfax Media Publications Pty Limited (Fairfax Media), Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. The respondents in the second proceeding (NSD 1486 of 2018) are The Age Company Pty Limited (The Age), Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. The respondents in the third proceeding (NSD 1487 of 2018) are The Federal Capital Press of Australia Pty Limited (Federal Capital Press), Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. It is not in dispute in each proceeding that at the relevant time, the second, third and fourth respondents were journalists employed or engaged by the first respondent. Fairfax Media is the publisher of The Sydney Morning Herald (SMH) and Sun Herald newspapers and of articles which appear on the SMH website. The Age is the publisher of The Age and Sunday Age newspapers and of articles which appear on The Age website. The Federal Capital Press is the publisher of The Sunday Canberra Times newspaper and of articles which appear on The Canberra Times website. The three proceedings relate to articles published in both the newspapers and on the websites in June and August 2018. The proceedings against each of Fairfax Media and The Age involves six articles and the proceedings against the Federal Capital Press involves four articles.

4    Each of the respondents published articles on or about 9 June 2018. Fairfax Media and the second and third respondents published articles in the SMH newspaper on 9 June 2018 entitled “SAS’s Day of Shame” and “Troops kept ‘kill board’: SAS’s Day of Shame”. They published an article on the SMH website on 8 June 2018 entitled “Abdul’s brother went out to buy flour. He never came home”. The Age and the second and third respondents published an article in The Age newspaper on 9 June 2018 entitled “SAS’s Day of Shame” and “Did the SAS kick a cuffed man off cliff?” They published an article on The Age website on 8 June 2018 entitled “Abdul’s brother went out to buy flour. He never came home”. The Federal Capital Press and the second and third respondents published an article on The Canberra Times website on 8 June 2018 entitled “Abdul’s brother went out to buy flour. He never came home”. These articles referred to a soldier known as “Leonidas” and contained allegations that an Afghan detainee was kicked off a cliff by Leonidas and subsequently executed. The articles have different headlines and some distinct sections, but they are substantially similar. It is convenient to refer to these articles as the “Group 1 articles”.

5    On 10 June 2018, Fairfax Media and the second and third respondents published an article in The Sun Herald newspaper entitled “Special forces rookie ‘blooded’ by executing an unarmed man”. They also published an article on the SMH website on 9 June 2018 entitled “Special forces rookie ‘blooded’ by executing an unarmed man”. On 10 June 2018, The Age and the second and third respondents published an article in The Sunday Age newspaper entitled “Blood Ties”. They also published an article on The Age website on 9 June 2018 entitled “Special forces rookie ‘blooded’ by executing unarmed man”. The Federal Capital Press and the second and third respondents published two articles on 10 June 2018. They published an article in The Sunday Canberra Times newspaper on 10 June 2018 entitled “S.A.S. rookie told to shoot unarmed man”. They also published an article on The Canberra Times website on 10 June 2018 entitled “Special forces rookie ‘blooded’ by executing an unarmed man”. These articles also referred to a soldier known as “Leonidas” and contained a number of allegations, including an allegation concerning the execution of an elderly, unarmed Afghan in circumstances in which a “rookie” was “blooded”. The articles also referred to another killing involving a prisoner with a prosthetic leg and repeated the allegation that a prisoner had been kicked off a cliff. Again, the articles have different headlines and some distinct sections, but they are substantially similar. It is convenient to refer to these articles as the “Group 2 articles”.

6    On 11 August 2018, Fairfax Media and the second, third and fourth respondents published an article in the SMH newspaper entitled “War hero fires back over abuse claims” and “Beneath the bravery of our most decorated soldier”. They also published an article on the SMH website on 10 August 2018 entitled “Beneath the bravery of our most decorated soldier”. On 11 August 2018, The Age and the second, third and fourth respondents published an article in The Age newspaper entitled “The cracks in a war hero’s façade”, “Beneath the bravery” and “Beneath lauded soldier’s bravery”. They also published an article on The Age website on 10 August 2018 entitled “Beneath the bravery of our most decorated soldier”. The Federal Capital Press and the second, third and fourth respondents published an article on 10 August 2018 on The Canberra Times website entitled “Beneath the bravery of our most decorated soldier”. These articles refer to the applicant by name and contain a number of allegations concerning his conduct as a soldier in Afghanistan and an allegation of domestic violence. The articles have different headlines and some distinct sections, but they are substantially similar. It is convenient to refer to these articles as the “Group 3 articles”.

7    It is not suggested that there is any substantial difference between the articles which comprise the Group 1 articles or between the articles which comprise the Group 2 articles or between the articles which comprise the Group 3 articles. In those circumstances, the articles published by Fairfax Media and the other respondents in the first proceeding may be used as representative of the articles which are the subject of the other two proceedings. I annex to these reasons the Group 1 (Annexures A and B), Group 2 (Annexures C and D) and Group 3 (Annexures E and F) articles in the proceeding involving Fairfax Media and in each case, I include a schedule prepared by the applicant’s solicitors which enables the reader to identify by number particular passages in the articles.

8    There was no dispute about the publication of the articles. The applicant administered interrogatories addressed to the extent of publication of the articles and the answers to those interrogatories were tendered by the applicant at the trial.

9    By the end of the trial, there was no dispute about the identification of the applicant in the Group 1 and Group 2 articles. The respondents admit that the applicant has adduced evidence which establishes that at least one person read each of the articles comprising the Group 1 and Group 2 articles and, on the basis of extrinsic facts, understood those articles to refer to the applicant. The respondents do not dispute that such identification was reasonable. In addition, there is evidence adduced by the applicant of readers identifying him as being the subject of the Group 1 and Group 2 articles.

10    There is a dispute between the parties concerning some of the imputations said to be conveyed or communicated by the articles. In each case, the applicant relies on the natural and ordinary meaning of the matters complained of.

11    The applicant alleges that the following defamatory imputations of and concerning him were conveyed or communicated by the Group 1 articles:

(1)    The applicant while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1).

(2)    The applicant broke the moral and legal rules of military engagement and is therefore a criminal (Imputation 2).

(3)    The applicant disgraced his country Australia and the Australian army by his conduct as a member of the SASR in Afghanistan (Imputation 3).

The respondents do not dispute that these imputations were conveyed or communicated by the Group 1 articles.

12    The applicant alleges that the following defamatory imputations of and concerning him were conveyed or communicated by the Group 2 articles:

(1)    The applicant while a member of the SASR, committed murder by pressuring a newly deployed and inexperienced SASR soldier to execute an elderly, unarmed Afghan in order to “blood the rookie” (Imputation 4).

(2)    The applicant while a member of the SASR, committed murder by machine gunning a man with a prosthetic leg (Imputation 5).

(3)    The applicant while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1).

(4)    The applicant having committed murder by machine gunning a man in Afghanistan with a prosthetic leg, is so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel (Imputation 6).

The respondents do not dispute that Imputation 1 was conveyed or communicated by the Group 2 articles. They dispute on various grounds that Imputations 4, 5 and 6 were conveyed or communicated by the Group 2 articles.

13    The applicant alleges that the following defamatory imputations of and concerning him were conveyed or communicated by the Group 3 articles:

(1)    The applicant committed an act of domestic violence against a woman in the Hotel Realm in Canberra (Imputation 7).

(2)    The applicant is a hypocrite who publicly supported Rosie Batty, a domestic violence campaigner, when in private he abused a woman (Imputation 8).

(3)    The applicant as deputy commander of a 2009 SASR patrol, authorised the execution of an unarmed Afghan by a junior trooper in his patrol (Imputation 9).

(4)    The applicant during the course of his 2010 deployment to Afghanistan, bashed an unarmed Afghan in the face with his fists and in the stomach with his knee and in so doing alarmed two patrol commanders to the extent that they ordered him to back off (Imputation 10).

(5)    The applicant as patrol commander in 2012 authorised the assault of an unarmed Afghan, who was being held in custody and posed no threat (Imputation 11).

(6)    The applicant engaged in a campaign of bullying against a small and quiet soldier called Trooper M which included threats of violence (Imputation 12).

(7)    The applicant threatened to report Trooper J to the International Criminal Court for firing at civilians, unless he provided an account of a friendly fire incident that was consistent with the applicant’s (Imputation 13).

(8)    The applicant assaulted an unarmed Afghan in 2012 (Imputation 14).

The respondents dispute that any of these imputations were conveyed or communicated by the Group 3 articles.

14    The applicant’s case is that the imputations conveyed by the articles are of the most serious kind and that he is entitled to a substantial award of damages in each of the three proceedings. In addition, he claims aggravated damages and he claims that the circumstances of aggravation mean that the statutory cap or limit on damages for non-economic loss imposed by s 35 of the Defamation Act 2005 (NSW) does not apply. In addition, the applicant seeks a substantial award of damages for economic loss or loss of earning capacity.

15    The applicant also claims in each proceeding a permanent injunction restraining publication by the respondents of such defamatory imputations as are found by the Court, an order requiring the removal from the websites of any of the matters complained of which remain thereon, interest and costs.

16    The defences in each proceeding are similar. They are justification or substantial truth (s 25 of the Defamation Act) and contextual truth (s 26 of the Defamation Act). In the alternative, the respondents plead a number of matters said to mitigate damages. In the further alternative, the respondents sought to invoke, by reason of the circumstances they identified, the principle that the Court is entitled to have regard to all the evidence before it and that if that evidence establishes that the applicant in the proceeding has deceived the Court and has engaged in misconduct then, in those circumstances, even if the respondents’ defences fail, the applicant should be awarded only nominal damages (Joseph v Spiller [2012] EWHC 2958 (QB); Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29; Gatley C, Parkes R and Busuttil G, Gatley on Libel and Slander (13th ed, Thomson Reuters, 2022) at para 10–005). As will become clear, it is not necessary for me to address this submission.

17    Before proceeding to the next Part of these reasons, the following should be noted.

18    These proceedings were commenced in August 2018. On 31 March 2020, the Attorney-General for the Commonwealth gave a notice in writing to the parties to the proceedings, the legal representatives of the parties to the proceedings and the Court to the effect that the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (the NSI Act) applied to these proceedings. On 15 July 2020, I made orders under s 38B and s 19(3A) of the NSI Act. Section 38B is in the following terms:

(1)    At any time during a civil proceeding:

(a)    the Attorney-General, on the Commonwealth’s behalf; and

(b)    the parties to the proceeding, or their legal representatives on their behalf;

may agree to an arrangement about the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information.

(2)    The Court may make such order (if any) as it considers appropriate to give effect to the arrangements (see also s 38D).

19    Section 19(3A) of the NSI Act is in the following terms:

In addition to the powers of a court under this Act in a civil proceeding, the court may make such orders as the court considers appropriate in relation to the disclosure, protection, storage, handling or destruction, in the proceedings, of national security information if:

(a)    the court is satisfied that it is in the interest of national security to make such orders; and

(b)    the orders are not inconsistent with this Act; and

(c)    the orders are not inconsistent with regulations made under this Act.

20    A number of orders were made and those orders have been amended from time to time.

21    The sections to which I have referred contain a reference to national security information which is defined in s 7 of the NSI Act as information that relates to national security or the disclosure of which may affect national security. National security means Australia’s defence, security, international relations or law enforcement interests (see s 8).

22    The orders made by the Court are based on the following key concepts:

(1)    identifying information which means any information which identifies, or tends to identify, a special operations command member;

(2)    national security information which is defined by reference to the NSI Act;

(3)    NPO information which means information contained in an NPO document. “NPO” means a non-publication order and an NPO document is a document which is identified in the orders or the process adopted thereunder;

(4)    a Sensitive Court Document and a Sensitive Court File;

(5)    a Sensitive Document and Sensitive Information which is information contained in a Sensitive Document; and

(6)    a Sensitive IGADF Document and Sensitive IGADF Information.

23    The orders had the effect that evidence was given in both open Court and closed Court. There is open Court transcript and closed Court transcript and redacted closed Court transcript. This third category consists of closed Court transcript which the Commonwealth has had the opportunity to consider as suitable for release to the public.

24    Even in the case of hearings in open Court, Sensitive Witnesses gave evidence in a way in which they could be seen and heard by each person who is an Authorised Person, a Sensitive Witness or a Sensitive Witness Representative who represents the Sensitive Witness giving evidence who is present in the courtroom as defined in the orders, but the Sensitive Witness may be heard, but not seen by any person who is not an Authorised Person, a Sensitive Witness or a Sensitive Witness Representative who represents the Sensitive Witness giving evidence. “Sensitive Witness” is defined as a special operations command member who a party proposes to call as a witness in the proceedings, or a person who the Commonwealth notifies the parties and the Court in writing is a Sensitive Witness. There was an exclusion clause in relation to Mr Andrew Hastie MP.

25    The closed Court arrangements applied in the case of Sensitive Documents as defined in the orders. A party representative or Commonwealth representative was prohibited by the orders from tendering or otherwise asking the Court to receive a Sensitive Document unless the Court was closed. There was also a prohibition on an Authorised Person communicating or causing or inviting a Sensitive Witness or any other person to communicate identifying information unless the Court is closed and a prohibition on a party representative or Commonwealth representative tendering or otherwise asking the Court to receive a document which contains identifying information unless the Court is closed. There are other prohibitions relating to communications of other national security information and tendering of documents containing national security information.

26    The effect of these orders made under the NSI Act is that Sensitive Documents were dealt with in closed Court. The effect of that, in turn, is that certain matters have been dealt with in closed Court submissions and now in closed Court reasons. I will be publishing closed Court reasons. I can indicate that those reasons address in some detail aspects of the closed Court evidence relevant to the missions to Whiskey 108, Darwan and Chinartu. There is a fairly short reference to the mission to Fasil. There are very short references to the bullying of Person 1, the alleged unlawful assaults on PUCs (persons under control or confinement) and the intimidation of witnesses, collusion and contamination of witnesses, concealment of relevant evidence and material and lies and the alleged separation of the applicant and Ms Roberts.

27    I turn now to the dispute between the parties concerning the imputations conveyed or communicated by the articles.

PART 2 — THE IMPUTATIONS CONVEYED OR COMMUNICATED BY THE ARTICLES

28    The principles which govern the determination of meaning are not in dispute. They are summarised in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 237 FCR 33 at [63]–[73] per White J and V’landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500 at [41]–[55] per Bromwich J.

29    Questions of meaning are determined objectively by reference to the “ordinary reasonable reader”. The applicant carries the onus of satisfying the Court that the matters sued upon carry the pleaded meanings. The characteristics of the ordinary reasonable reader have been identified in a number of cases, including Lewis v Daily Telegraph Ltd [1964] AC 234 (Lewis v Daily Telegraph) at 258–260 per Lord Reid; Farquhar v Bottom [1980] 2 NSWLR 380 at 396 per Hunt J; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165; and Charleston v News Group Newspapers Ltd [1995] 2 AC 65 (HL) at 69–74. With respect, a clear statement of the attributes of the ordinary reasonable reader is set out in the decision of the High Court in Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149 (at [32]):

… The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to “read between the lines in the light of his general knowledge and experience of worldly affairs”, but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd, “[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject”.

(Citations omitted.)

30    As I have said, the applicant pleads that the imputations are conveyed or communicated by the natural and ordinary meaning of the matters complained of. The nature and ordinary meaning of words is not limited to their literal meaning.

31    In Lewis v Daily Telegraph, Lord Reid said (at 258):

What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning.

32    In Jones v Skelton [1963] 1 WLR 1362, Lord Morris of Borth-y-Gest in delivering the judgment of the Privy Council said (at 1370–1371):

The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v. Daily Telegraph Ltd. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words.

(Citation omitted.)

33    It is necessary to consider the publication as a whole and conspicuous headlines, headings and captions must be given due weight (John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657; (2003) 201 ALR 77 at [26] per McHugh J). The emphasis provided by the publisher, for example, by the size of the headline relative to the whole publication, is not to be ignored (Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646 per Aickin J).

34    In the context of submissions concerning meaning, the respondents referred to what has been called the “single meaning” rule and what the respondents described as gradations of seriousness.

35    The single meaning rule was discussed by Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157 (at 174):

… The decision as to defamatory meanings which words are capable of bearing is reserved to the judge, and for this reason, and no other, is called a question of law. The decision as to the particular defamatory meaning within that category which the words do bear is reserved to the jury, and for this reason, and no other, is called a question of fact. But the recognition that there may be more than one meaning which reasonable men might understand words to bear does not absolve the jury from the duty of deciding upon one of those meanings as being the only “natural and ordinary meaning” of the words. Juries, in theory, must be unanimous upon every issue on which they have to adjudicate; and since the damages that they award must depend upon the defamatory meaning that they attribute to the words, they must all agree upon a single meaning as being the “right” meaning. And so the unexpressed major premise, that any particular combination of words can bear but a single “natural and ordinary meaning” which is “right”, survived the transfer from judge to jury of the function of adjudicating upon the meaning of words in civil actions for libel.

But where an action for libel is tried by a judge alone without a jury, it is he who has to arrive at a single “right” meaning as “the natural and ordinary meaning” of the words complained of; and with the concentration of functions in a single adjudicator, the need for his distinguishing between meanings which words are capable of bearing and the choice of the one “right” meaning which they bear disappears. …

(Emphasis in original.)

36    It follows, as the respondents correctly submit, that the Court’s task is to determine the one sense in which the matter complained of is to be understood.

37    The respondents relied on the reference by Sedley LJ in Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2011] QB 497 at [2] to the single meaning rule and to the shifting of the preferred meaning to the middle ground. The respondents made it clear in their oral submissions that they were not suggesting that there was a rule that where various meanings are open, the non-defamatory meaning is to be preferred or that the middle meaning must be adopted as the meaning so that, in the case of criminal or other misconduct, an article could never be read as conveying the meaning of guilt.

38    It was in this context that the applicant referred to the decision of the Supreme Court of the United Kingdom in Stocker v Stocker [2020] AC 593 (Stocker) and Gatto v Australian Broadcasting Corporation [2022] VSCA 66 (Gatto).

39    In Stocker, Lord Kerr said (at [34], [37] and [38]):

34    … [i]t is clear that the single meaning approach is well entrenched in the law of defamation and neither party in the present appeal sought to impeach it. And, whatever else may be said of it, it provides a practical, workable solution. Where a statement has more than one plausible meaning, the question of whether defamation has occurred can only be answered by deciding that one particular meaning should be ascribed to the statement.

…

37    Clearly, therefore, where a range of meanings is available and where it is possible to light on one meaning which is not defamatory among a series of meanings which are, the court is not obliged to select the non-defamatory meaning. The touchstone remains what would the ordinary reasonable reader consider the words to mean. Simply because it is theoretically possible to come up with a meaning which is not defamatory, the court is not impelled to select that meaning.

38    All of this, of course, emphasises that the primary role of the court is to focus on how the ordinary reasonable reader would construe the words. And this highlights the court’s duty to step aside from a lawyerly analysis and to inhabit the world of the typical reader of a Facebook post. To fulfil that obligation, the court should be particularly conscious of the context in which the statement was made, and it is to that subject that I now turn.

40    In Gatto, the Victorian Court of Appeal said (at [41], [44] and [45]):

41    The question for the trier of fact, in a defamation proceeding, however, is what is the single or dominant meaning which the trier of fact believes was actually conveyed by the relevant publication — what many of the authorities in this area have referred to as the ‘single meaning rule’.

…

44    As we have already observed, the issue for the trier of fact is to select the single meaning which is the ‘natural and ordinary meaning’ of the words published. This (the single meaning), depending on the words used and the manner of publication, may or may not be ‘the approximate centre point in the range of possible meanings’. There is no uniform rule that, in every case, the natural and ordinary meaning of a publication is the centre point in the range of possible meanings. The choice of a meaning at one end of the spectrum of the range of meanings that are open, however, may well invite greater scrutiny of whether that meaning was in fact conveyed.

45    While the ‘right’ (single or uniform) meaning of a publication will often be ‘the approximate centre point in the range of possible meanings’, because a reasonable reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning, there is (as we have said) no uniform rule to that effect. In every case, the publication complained of must be read as a whole, in order to determine the single or uniform natural and ordinary meaning of the publication. Nothing said in Hardie (either at first instance or on appeal) gainsaid these propositions.

(Citations omitted.)

41    In the case of an article which links or associates a person with criminal or other misconduct, it may be that three levels of meanings are open. They are as follows: (1) that the person is guilty of criminal or other misconduct; (2) that there are reasonable grounds to suspect that the person is guilty of criminal or other misconduct; and (3) that there are grounds for investigating whether the person is guilty of criminal or other misconduct (Gatley et al (2022) at para 32-006; Collins M, Collins on Defamation, (Oxford University Press, 2014) para 6.89; George P, Defamation Law in Australia (3rd ed, LexisNexis, Butterworths, 2017), at para 11.1) .

42    Before leaving the statement of relevant principles, there is one other matter which should be identified. In the case of an article which links or associates a person with criminal or other misconduct, it may be appropriate to attribute to the ordinary reasonable reader knowledge of the presumption of innocence (see Lewis v Daily Telegraph at 285 per Lord Devlin; Mirror Newspapers Limited v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 300–301 per Mason J (as his Honour then was)), although the circumstances of the matter complained of may be such that the ordinary reasonable reader should not be attributed with that knowledge at the time he or she reads the publication (see John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60; (2005) 64 NSWLR 485 at [71] and [78] per McColl JA (with whom Sheller JA and McClellan AJA agreed)). The precise imputation conveyed or communicated depends upon the terms of the article.

43    As I have said, there is no dispute between the parties as to the imputations conveyed or communicated by the Group 1 articles. I turn to address the contested imputations in relation to the Group 2 and Group 3 articles.

The Group 2 Articles

Imputation 4 – The applicant while a member of the SASR, committed murder by pressuring a newly deployed and inexperienced SASR soldier to execute an elderly, unarmed Afghan in order to “blood the rookie”

44    The applicant drew the Court’s attention to a number of matters in support of his submission that this imputation was conveyed or communicated by the Group 2 articles. The headline of both the newspaper article and the online article, “Special forces rookie ‘blooded’ by executing an unarmed man” appears to be a statement of fact. In para 5 of the newspaper article and para 6 of the online article, there is reference to an SAS trooper in his first deployment to Afghanistan being pressured to execute an elderly unarmed detainee by fellow higher ranking soldiers as part of a “blooding ritual”, according to defence insiders who were witnesses at the scene. The applicant points to the reference in these statements to higher ranking soldiers and to the fact that the source of the information is said to be defence insiders who were witnesses at the scene. In para 6 of the newspaper article and para 7 of the online article, there is a reference to a man with a prosthetic leg being killed by machine-gun fire. In the case of the online article, and only that article, the caption under the photograph of the man with the prosthetic leg refers to that man having been killed in 2009 in an incident that involved an alleged war crime.

45    The subject matter of the article then reverts to the summary execution of the elderly detainee and, as the applicant points out, there is a reference in that context to a rogue SASR team operating in Afghanistan and information uncovered by a Fairfax Media investigation and corroborated by special forces insiders. In para 8 of the newspaper article and para 10 of the online article, there is reference to two more senior soldiers, one of whom was earlier overheard proclaiming a need to “blood the rookie”. The applicant referred to paras 9 and 10 of the newspaper article and paras 11 and 12 and to the image of the prosthetic leg in the online article. In para 11 of the newspaper article and para 14 of the online article, it is said that SASR sources claim the man with the prosthetic leg was machine-gunned by a soldier that, for legal reasons, Fairfax Media will call “Leonidas”. In para 12 of the newspaper article and para 15 of the online article, there is a statement that Leonidas “is also implicated” in the killing of a detainee three years later in September 2012 during a SASR mission in the village of Darwan. The applicant places emphasis on the words “is also implicated”.

46    The applicant referred to the statement in para 14 of the newspaper article and para 17 of the online article to the effect that the allegations which have circulated among insiders for years, have now been corroborated by various sources across the globe during a six-month Fairfax Media investigation. The applicant submits that the references to the length of the investigation, multiple sources, corroboration and insiders all point to an imputation that the matters stated in the article are true. The applicant submits that his involvement in the execution of the elderly unarmed Afghan is made clear by the references to “fellow higher ranking soldiers”, “two more senior soldiers”, the references to “a rogue SASR team” operating in Afghanistan and the references to Leonidas machine gunning the man with the prosthetic leg and also being implicated in the killing of a detainee three years later in Darwan. The applicant submits that it is clear that it is being said that Leonidas is part of the rogue SASR rogue team and he is a senior member of that team. In all the circumstances, the ordinary reasonable reader would conclude that one of the “fellow higher ranking soldiers” who pressured the trooper on his first deployment to Afghanistan to execute the elderly, unarmed detainee was Leonidas.

47    The respondents submit that Imputation 4 is not conveyed or communicated by the Group 2 articles. Leonidas is said to have machine-gunned the man with the prosthetic leg and to be implicated in the killing of the man at Darwan. The respondents submit that, in those circumstances, the ordinary reasonable reader would assume that if it was being claimed that Leonidas was involved in the incident involving the elderly detainee, then he would have been mentioned. There is reference to “fellow higher-ranking soldiers”, “a rogue SASR team” and “two more senior soldiers”. The respondents submit that the ordinary reasonable reader would not conclude that “Leonidas” was one of the two unnamed “higher-ranking soldiers” involved in the blooding murder. The respondents submit that at best, the ordinary reasonable reader would consider that there were reasonable grounds to suspect that Leonidas committed murder by pressuring a newly deployed and inexperienced SASR soldier to execute an elderly, unarmed Afghan in order to “blood the rookie”.

48    I do not accept the respondents’ submissions. The articles identified a small group of soldiers of which “Leonidas” is a member. He is the only man “identified” and it is said that he is given a pseudonym for legal reasons. He killed the man with the prosthetic leg and, as the respondents admit, the articles convey or communicate an imputation that he murdered an unarmed and defenceless Afghan civilian by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1). Furthermore, if as I find to be the case, Imputation 5 is made out, Leonidas is said to have committed two murders and to be part of “a rogue SASR team”. One of the two murders happened on the same mission as the execution of the elderly detainee.

49    In my opinion, Imputation 4 was conveyed or communicated by the Group 2 articles. The ordinary reasonable reader would assume that the applicant was one of the “two more senior soldiers”.

Imputation 5 - The applicant while a member of the SASR, committed murder by machine gunning a man with a prosthetic leg

50    It is clear that the ordinary reasonable reader would conclude from the articles that it was Leonidas who “machine-gunned” the man with the prosthetic leg and killed him. However, the respondents submit that there is no statement in the articles to the effect that the killing of the man with the prosthetic leg was unlawful or indeed, constituted murder. In that respect, it is important to bear in mind, so the respondents submit, that the context in which the killing occurred is clearly the war in Afghanistan.

51    In my opinion, the respondents’ argument must fail in the case of the online article because of the caption under the photograph suggesting that the man with the prosthetic leg was killed in an incident that involved an alleged war crime. I reject the submission by the respondents that the alleged war crime is a reference to the souveniring of the prosthetic leg. It is the killing that involved the alleged war crime and that would be the understanding of the ordinary reasonable reader. In the case of the newspaper article where this caption did not appear, I consider that the same conclusion should be reached when the context is considered. Clearly, the articles convey the meaning that the summary execution of the elderly detainee (which was said to be one of several incidents) and the execution of the man in Darwan three years later were unlawful executions. As to the former, the sources are identified as “defence insiders who were witnesses at the scene”. As to the latter, the claims were said to have been backed by relatives of Ali Jan and now corroborated by various sources across the globe during a six month Fairfax Media investigation. In that context, the clear implication is that the killing of the man with the prosthetic leg was an unlawful killing, not an accidental killing or a killing that occurred within the rules of engagement.

52    In my opinion, Imputation 5 was conveyed or communicated by the Group 2 articles.

Imputation 6 - The applicant having committed murder by machine gunning a man in Afghanistan with a prosthetic leg, is so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel

53    The applicant accepts that the article does not expressly say that he returned the prosthetic leg to Australia. Nevertheless, he is identified as the man responsible for the killing of the man with the prosthetic leg and the act of removing the prosthetic leg is not attributed to anyone else. The applicant submits that he is, in effect, the only candidate in terms of the act of souveniring the prosthetic leg.

54    The respondents submit that this imputation is not conveyed or communicated by the Group 2 articles. As to the allegation of murder, the respondents submit that that has been dealt with previously. There is no express statement that the applicant took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel. They point to the fact that others are mentioned in the article and could have been responsible, such as the rookie or the higher ranking soldiers.

55    In my opinion, this imputation is conveyed or communicated by the Group 2 articles. I have already dealt with the aspect involving murder. Although the articles are directed at “fellow higher-ranking soldiers”, a “rogue SASR team operating in Afghanistan” and “two more senior soldiers” and “Leonidas” and the latter is not the only soldier mentioned, the fact is that Leonidas is the soldier identified as the soldier who killed the man with the prosthetic leg and, therefore, absent an express reference otherwise, is the obvious person in the mind of the ordinary reasonable reader to have souvenired the leg.

The Group 3 Articles

56    The dispute between the parties concerning Imputations 7 to 14 inclusive and, in particular Imputations 7 and 8, is whether the words in the Group 3 articles conveyed or communicated imputations of guilt of the criminal or other misconduct alleged or only reasonable grounds to suspect that the applicant is guilty.

57    The applicant identified those matters in the articles which he contends convey or communicate guilt and not merely reasonable grounds to suspect. He did so by reference to the online article (Annexure F).

58    The applicant refers to the headline of the articles (“Beneath the bravery of our most decorated soldier”), the reference to Rosie Batty and himself and the statement that the photograph of the two of them fitted his public ethos, which was to value “moral courage” above physical prowess and “cherish your family every single day”. He submits that the reference to “public ethos” points out to the ordinary reasonable reader the contrast between what is in the public arena and the “sordid” private reality.

59    The applicant submits that para 18 is important because it referred to interviews over almost a year of dozens of veterans, officials and people with knowledge of the applicant’s personal conduct, including decorated soldiers who served alongside him (emphasis added). The applicant submits that that language suggests the meaning is one of truth, not one of reasonable grounds to suspect. The applicant highlights the reference to “disturbing rumours” and submits that that indicates to the ordinary reasonable reader the seriousness of the allegations. He refers to the statement in para 23 that the patrols under scrutiny featured him as a key player, either as a deputy or a lead patrol commander, and to the statement in para 25 that SAS veterans have also alleged to Fairfax Media that he bullied and intimidated fellow soldiers.

60    The domestic violence allegation is introduced in paras 27 to 30 and the applicant draws attention to para 30 and, in particular, the reference to senior defence officials later learning of allegations the woman raised with the police about what happened later that night at the Hotel Realm in Canberra, “an alleged act of domestic violence and intimidation”. The applicant submits that the word “allegation” does not provide any “cover”. The statement is repeated on two further occasions. With respect to para 32, the applicant submits that the statement in para 32 that he declined to respond to allegations cast him in a poor light as, in effect, a man “on the run”.

61    The applicant next referred to para 39 and, in particular, the reference to multiple special forces insiders speaking to Fairfax Media and confirming that among the allegations made to the Inspector-General of Australian Defence Force Inquiry (IGADF Inquiry), was that the patrols the applicant helped lead brutally mistreated unarmed Afghans. The applicant said that the reference to the sources being “multiple” and to “insiders” suggests to the ordinary reasonable reader that what is being referred to is guilt, not reasonable grounds to suspect.

62    There is then a reference in para 41 to four defence insiders having alleged that they observed patrols under the applicant’s direct or deputy leadership severely mistreat unarmed Afghans on four occasions. There then follows reference to these four instances in paras 42 to 49. Paragraph 42 contains a statement that a member of the applicant’s 2009 patrol encouraged a more junior trooper to execute a detainee who was a suspected militant and that member of the applicant’s patrol was later heard boasting about. There is a further statement that Fairfax Media had obtained a photograph of the dead man and two witness accounts describing the circumstances in which the Afghan died. In paras 43 to 48, there is reference to an assault in 2010. There is then reference to two alleged assaults in 2012.

63    The statements concerning bullying by the applicant first appear in para 55 and are followed by a clear statement in para 64 that multiple sources contended that the applicant repeatedly bullied Trooper M. More than one witness claims to have heard the applicant threatening to harm Trooper M. The alleged threat by the applicant to Trooper J is the subject of paras 78 and 79. There is reference to the complaints by patrol commanders about the applicant receiving a Commendation for Distinguished Service in paras 81, 82 and 83. The article then has a heading of “Denials and accusations”. The applicant drew particular attention to paras 95, 96 and 97 under that heading and the comparison made in those paragraphs between the way he has been challenged and the treatment of other recipients of the Victoria Cross. The applicant referred to the paragraphs under the heading “Pushing back”.

64    The applicant then drew particular attention to para 110 and the statement that Canberra sources had said that the female lawyer was alleging that the applicant had subjected her to an act of domestic violence and intimidation in the hours after the event in the Great Hall in late March 2018. Paragraph 111 contains a statement concerning how defence officials became aware of the woman’s complaint and the fact that the woman had later told police of her claims. In para 112, the circumstances of her fall as she was leaving the event and her arrival at the Hotel Realm are referred to and, for the third time according to the applicant, it is stated that the woman was subjected to an act of domestic violence. In para 116, there is a statement that on 22 April 2018, the woman received an email from “Danielle Kennedy”. In para 119, there is a statement that the applicant has declined requests from Fairfax Media to be interviewed or to answer any questions about any knowledge he might have about Danielle Kennedy. In para 120, there is a statement that it was understood that after the applicant received questions, he told his public relations adviser that no affair had occurred and that that particular claim that no affair had occurred was undermined by copious evidence. In other words, the meaning conveyed is that the applicant had told a lie. In para 120, it is also stated that on Wednesday, 8 August 2018, and after he had been alerted that Fairfax Media knew of the allegations reported to police as well as the mysterious “Danielle Kennedy”, the applicant contacted a Queensland police station claiming to be a victim of stalking by the lawyer. In other words, the meaning conveyed, according to the applicant, is that he was arguably inventing the stalking claim. The applicant then referred to para 131wherein it is stated that SAS insiders who are aware of some of the adverse allegations about the applicant or the conduct of his patrols have said that credible evidence has already been placed on record and on oath.

65    Finally, the applicant referred to the section dealing with his response (i.e., para 133 onwards). He submits that by that point, the damage to him had, in effect, already been done and could not be undone.

66    Before leaving the applicant’s submissions, one particular point should be noted and it concerns Imputation 9 to the effect that the applicant as deputy commander of a 2009 SASR patrol, authorised the execution of an unarmed Afghan by a junior trooper in his patrol. The applicant submits that if the articles support a meaning which is a nuance of, or does not differ in substance from, the pleaded meaning, then that meaning may be considered. Further, if the Court determines that some lesser meaning is available, but that that meaning does differ in substance from the pleaded meaning, then the applicant said that he seeks leave to rely on that other meaning. The applicant submits that given the Particulars of Truth, and the fact that the Court is likely to have to make comprehensive findings on this point, there is no relevant unfairness in a departure from the pleaded meaning. He relies on the approach taken by Lee J in Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; (2021) 387 ALR 123 (Stead) at [27]–[31]. In that case, Lee J considered differences between a pleaded imputation and the imputation found by the Court to have been conveyed or communicated by the publication in question. If there is no difference in substance between the two, then the applicant may rely on the meaning as found. If there is a difference in substance, but the meaning is a lesser meaning, then the applicant may rely on the unpleaded meaning where that would not cause unfairness to the respondents.

67    In oral submissions, this particular submission by the applicant was linked to the articles comprising the Group 3 articles and this particular imputation. Counsel for the applicant submits that if the Court considers that “acquiesced in the execution” or “observed and endorsed” or something to similar effect, was more “felicitous” wording, then because that imputation does not differ in substance from the pleaded imputation, it was open to the Court to allow the applicant to rely on it. Counsel for the applicant submits that if the Court felt that there is a difference in substance between the two then, in any event, there is no unfairness or unjustness to the respondents in allowing the applicant to rely on the unpleaded imputation (Stead at [31] per Lee J).

68    Finally in terms of the applicant’s submissions, I note that in relation to Imputation 14 (the applicant assaulted an unarmed Afghan in 2012), the applicant withdrew a written submission to the effect that there is relevantly no difference in substance between an allegation that he committed the assault or that he, for instance, encouraged or authorised the assault.

69    The respondents submit that the imputations conveyed or communicated by the article rise no higher than reasonable grounds to suspect the matters pleaded and they drew to the Court’s attention to the following well-known propositions: (1) the ordinary reasonable reader reads the whole of the article and such a person reads the article once. They do not parse and analyse the publication, nor do they have lawyers assisting them to deconstruct it; (2) the ordinary reasonable reader is not naïve and they do not live in an ivory tower. They are not morbid or suspicious; and (3) it is important to recall that it is the publication which is relevant and, although the summary document is helpful, it is not a substitute for the article.

70    The respondents addressed the imputations said to be conveyed or communicated by the Group 3 articles and, in particular, Imputations 7 and 8. The respondents submit that the ordinary reasonable reader would not comprehend meanings of guilt. They accept that the ordinary reasonable reader would comprehend meanings of suspicion, “probably even strong suspicion”. It is important to recall that, in the case of Imputations 7 and 8, there is only one accuser, in other words, there is only one person making the allegation. The respondents submit that the ordinary reasonable reader would not conclude that the meaning was a meaning of guilt when regard is had to the following: (1) that the ordinary reasonable reader is told that the woman had been drinking at the event (para 111); (2) that she had fallen down some stairs at Parliament House (para 112); and (3) that she had disclosed the affair to the applicant’s wife (para 114). In addition, the article states that the woman had declined to comment and that the applicant had also declined requests from Fairfax Media to be interviewed. At no stage is it stated in the article that the applicant had been interviewed by the police about the purported complaint. Furthermore, the article contains a statement of a strong denial by the applicant in para 136. The respondents submit that when all of those matters are taken into account, the ordinary reasonable reader could not reasonably conclude that the applicant had actually engaged in the act of domestic violence. The ordinary reasonable reader may strongly suspect that he had, but the ordinary reasonable reader would not conclude that he must have committed an act of domestic violence and that he is guilty of it.

71    In relation to the imputations said to be conveyed or communicated by the Group 3 articles more generally, the respondents rely on the following matters.

72    In support of their contention that the articles give rise to an imputation of reasonable grounds to suspect rather than guilt, the respondents rely on the fact that sprinkled throughout the articles are references to “claims”, “rumours” and “allegations”. The respondents do not contend that those references are decisive. They acknowledge that they are not as the cases make clear. In Lewis v Daily Telegraph Ltd, Lord Devlin said (at 283–284):

In the first place, he [counsel for the plaintiffs] relies on what I have called the ‘rumour cases’. I agree, of course, that you cannot escape liability for defamation by putting the libel behind a prefix such as ‘I have been told that …’ or ‘It is rumoured that …’, and then asserting that it was true that you had been told or that it was in fact being rumoured. You have, as Horridge J. said, in a passage that was quoted with approval by Greer LJ in Cookson v Harewood, ‘to prove that the subject-matter of the rumour was true’. … For the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it.

(Citation omitted.)

73    The same point is made in Australian Defamation Law and Practice (NexisLexis Butterworths, subscription service) at [3410] (update 92) and Gatley on Libel and Slander (13th ed, Thomson Reuters, 2022) at 12-017. In the latter text, the following appears:

This is because ‘repeating someone else’s libellous statement is just as bad as making the statement directly’, and therefore ‘for the purpose of the law of libel a hearsay statement is the same as a direct statement’.

(Footnotes omitted.)

74    The respondents submit that in assessing whether an imputation of guilt rather than an imputation of reasonable grounds to suspect is conveyed or communicated by the articles, the ordinary reasonable reader would have regard to the applicant’s description of the sources of the allegations made against him. In para 88 of the article, the applicant’s supporters are said to insist that the allegations stem from envy and most particularly from disgruntled veterans. I assume the point being made is that the reference to biased or potentially biased sources would reinforce in the mind of the ordinary reasonable reader that the statements in the article went no further than reasonable grounds to suspect the alleged matters.

75    The respondents make a related point in support of their argument as to the correct imputations conveyed or communicated by the article. They refer to the applicant’s response in paras 134 to 138 of the article. They submit that it is a strong and vigorous response from the applicant and it would leave the ordinary reasonable reader with a view that the imputations conveyed were of reasonable grounds to suspect, not statements of guilt.

76    The respondents point to the fact that the article identifies a number of matters favourable to the applicant which the ordinary reasonable reader would take into account in deciding whether the articles were conveying or communicating guilt, or no more than reasonable grounds to suspect. The applicant is referred to as Australia’s most decorated Afghanistan veteran (para 8) having received the Victoria Cross (para 3) and a Medal for Gallantry and a Commendation for Distinguished Service (para 9). The applicant is identified as Australian Father of the Year (paras 3 and 11), Chairman of the Australia Day Council (para 12), and as having helped select domestic violence campaigner, Rosie Batty, as an Australian of the Year (para 13). He is identified as the Deputy Chairman of the Prime Minister’s Defence Mental Health Committee and Veterans Employment Committee (para 12) and the public face of the campaign against “one punch” violence and the “stay kind” campaign. He was also identified as a business leader, mental health advocate and one of Australia’s most respected public figures (para 3).

77    The respondents made it clear that if the Court is to consider an alternative meaning in relation to Imputation 9 (as suggested by the applicant), then the respondents would seek to be heard on such an application.

78    I reject the respondents’ submissions.

79    I start with Imputation 9 which it will be recalled is as follows:

The applicant as deputy commander of a 2009 SASR patrol, authorised the execution of an unarmed Afghan by a junior trooper in his patrol.

80    The most directly relevant paragraph in the article in relation to that imputation is para 42 which is as follows:

A member of Roberts-Smith’s 2009 patrol allegedly encouraged a more junior trooper to execute a detainee – a suspected militant – and was later overheard boasting about it. Fairfax Media has obtained a photo of the dead man and two witness accounts describing the circumstances in which the Afghan died.

This statement refers to a member of the applicant’s patrol allegedly encouraging a more junior trooper to execute a detainee. As I read the article, this is one of the four occasions referred to in para 41 upon which four defence insiders alleged that they observed patrols under the applicant’s direct or deputy leadership, severely mistreat unarmed Afghans.

81    Earlier in the article, there is reference to the applicant’s involvement in small SAS teams suspected of the abuse of unarmed civilians and the use of force that goes well beyond what is acceptable in the theatre of war. In para 23, the applicant is identified as a key player in the patrols under scrutiny, either as a deputy or lead patrol commander and para 24 refers to the patrol’s treatment of detainees or unarmed Afghans, including acts of brutality. In para 38, there is a reference to the fact that the applicant was deputy commander of a small SAS patrol during his deployments to Afghanistan in 2009 and 2010.

82    The applicant submits that these paragraphs in combination support the conclusion that the ordinary reasonable reader would conclude that, in view of his leadership position, the applicant must have authorised the junior trooper in his patrol to act in the manner referred to in Imputation 9. I have difficulty in accepting this submission and I do not consider that the relevant material rises to the level of “authorised”. However, I do consider that it rises to the level of “acquiesced in”. The question then becomes whether the applicant should be permitted to rely on Imputation 9 reformulated in this way.

83    As I have said, the applicant relies on the decision in Stead at [27]–[31] per Lee J.

84    The imputation as reformulated is not more serious than the pleaded imputation and it is not substantially different from the pleaded imputation. To the extent fairness is relevant in these circumstances, I do not consider there to be any unfairness to the respondents in allowing the applicant to rely on the reformulated imputation. As will become clear later in these reasons, the respondents have advanced a detailed and full case as to what happened on the mission to Whiskey 108 and the other missions referred to in its Particulars of Truth.

85    Imputation 9 as reformulated is conveyed or communicated by the Group 3 articles.

86    On the face of it, there is force in the respondents’ submission with respect to Imputations 7 and 8. However, it is negated, or substantially negated, when regard is had to the following matters. First, the reference to the woman drinking at the event is linked to the applicant’s state of mind at and immediately after the event. In para 111, it is said that the applicant appeared angry at the woman’s behaviour because he was worried it would expose his affair to the military’s top brass. In para 112, it is said that the alleged victim fell down some stairs as she left the event causing further embarrassment and that the police had been told that by the time the pair arrived back at the hotel, the applicant “was allegedly furious and she was subjected to an act of domestic violence”. In other words, the woman’s behaviour is put forward, not as a reason events may not have occurred as alleged, but as an explanation for a high level of anger on the part of the applicant, that is to say, a possible reason for the assault. Further, I consider it significant that there is a compelling inference in para 120 that the applicant lied in asserting that no affair had ever occurred because it is contradicted by “copious evidence”. Furthermore, it is implied that he made a complaint of being stalked by the alleged victim only after being alerted that Fairfax Media knew of the allegations reported to the police as well as the “mysterious” Danielle Kennedy.

87    The notion that in some way the reference to the view of the applicant’s supporters as to the motivation of those making the allegations negates or qualifies the imputation of guilt in some way is not sound because the reference is then neutralised or substantially reduced in force by the reference in para 95 to the fact that the argument that critical accounts of the applicant amount to tall-poppy syndrome “sits uneasily” with the testimony of many who served in the SAS, including in Afghanistan. Furthermore, in the following paragraph, there is a reference to the fact that other Victoria Cross recipients for actions in Afghanistan have faced no such challenges and in para 97, it is said that most significantly, the allegations about the applicant and his patrols had, according to regiment sources, been made under oath before the Inspector-General and that that is a step for those witnesses that is well beyond simply “muttering darkly to colleagues and journalists” (emphasis added).

88    I accept the applicant’s submission that the reporting of the applicant’s response in the articles comes too late to remove the meaning in the mind of the ordinary reasonable reader. The defamatory imputations of guilt are not removed by the applicant’s denials at the very end of the articles.

89    The effect of the references to the applicant’s achievements and public positions might otherwise have had on the mind of the ordinary reasonable reader is negated, or substantially negated, by the fact that there are a number of statements in the article which suggest that the references to the applicant’s public profile are there so that they can be contrasted with his true character. The heading to the article is “Beneath the Bravery of our most decorated soldier” and after the reference to a number of the applicant’s achievements, the article poses the question as to why so many questions are being asked about the applicant’s past. In para 7, there is reference to the applicant in the context of the struggle some veterans face readjusting to civilian life. In para 14, there is reference to the photograph of the applicant and “a tearful Batty” and a statement that the photograph fitted the applicant’s public ethos, “which was to value ‘moral courage’ above physical prowess and ‘cherish your family every single day’”. In para 27, there is reference to further allegations that suggested that the applicant was struggling with the difficult task of living up to all that was expected of him and in para 53, there is reference to some of his SAS colleagues asking if the decorated warrior might have shirked scrutiny because less experienced soldiers were worried about challenging him.

90    I reject each of the respondents’ arguments and conclude that the Group 3 articles convey or communicate Imputations 7, 8, 9 (as reformulated), 10, 11, 12, 13 and 14.

91    In conclusion, the Group 1 articles convey or communicate Imputations 1, 2 and 3. The Group 2 articles convey or communicate Imputations 1, 4, 5 and 6. The Group 3 articles convey or communicate Imputations 7, 8, 9 (as reformulated) 10, 11, 12, 13, and 14.

PART 3 — SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH

Section 1 — Issues Relating to the Fact Finding Exercise in these Proceedings

92    There are a number of principles which I must apply and take into account in approaching the fact finding exercise involved in the consideration of the respondents’ defences. They are addressed in this Part.

The Onus of Proof

93    As I have said, the respondents have pleaded a defence of justification or substantial truth under s 25 of the Defamation Act in relation to each of the imputations. Section 4 of that Act contains a definition of the words “substantially true” and it is “true in substance or not materially different from the truth”. The respondents have also pleaded a defence of contextual truth under s 26 of the Defamation Act.

94    The respondents carry the onus of proof with respect to their defences. The respondents must establish that every material part of an imputation is true and the defence of substantial truth is concerned with meeting the sting of the defamation. In Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 (Channel Seven Sydney v Mahommed), the New South Wales Court of Appeal said the following (at [138]):

In order to establish imputation 12 was substantially true, the appellant had to establish that every material part of it was true: Howden v Truth & Sportsman Ltd [1937] HCA 74; (1937) 58 CLR 416 (at 419) per Starke J; (at 420) per Dixon J; (at 424 - 425) per Evatt J. However this does not mean the appellant had to prove the truth of every detail of the words established as defamatory (Li v The Herald & Weekly Times Pty Ltd [2007] VSC 109 (at [85]) per Gillard J), rather the defence of substantial truth is concerned with meeting the sting of the defamation: Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 (at [274]) per Gillard AJA (Winneke ACJ generally agreeing and Warren AJA agreeing). As Lord Shaw of Dunfermline explained in Sutherland v Stopes [1925] AC 47 (at 79):

“It remains to be considered what are the conditions and breadth of a plea of justification on the ground of truth. The plea must not be considered in a meticulous sense. It is that the words employed were true in substance and in fact. I view with great satisfaction the charge of the Lord Chief Justice when he made this point perfectly clear to the jury, that all that was required to affirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than one, the stings of the libel should be made out. To which I may add that there may be mistakes here and there in what has been said which would make no substantial difference to the quality of the alleged libel or in the justification pleaded for it.” (emphasis added).

(See Gatley et al (2022) at 12.003.)

The Standard of Proof

95    The Evidence Act 1995 (Cth) applies to these proceedings and s 140 of that Act is in the following terms:

(1)    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)    the nature of the cause of action or defence; and

(b)    the nature of the subject matter of the proceeding; and

(c)    the gravity of the matters alleged.

96    The matters set out in subsection (2)(a), (b) and (c) are mandatory considerations. They are not exhaustive. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 (CEPU v ACCC), the Full Court of this Court said (at [30]):

The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context informing an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.

97    It is well established that other matters may be taken into account. In Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537 (Gama) at [138], Branson J (with whom French and Jacobson JJ agreed on this issue) identified two other matters which may be taken into account. One of those matters was identified by reference to the well-known decision of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) being the inherent unlikelihood, or otherwise, of the occurrence of the matter of fact alleged. The other matter identified by Branson J in Gama is the common law rule that evidence is to be weighed according to the proof which it was in the power of one party to produce and the power of the other party to contradict. The examples given by Branson J in Gama of the “other matters” which may be taken into account are not exhaustive.

98    It has been said that as a general proposition the statute, that is, the Evidence Act, made changes to the common law and is not to be approached as involving an attempt to codify the common law. Gleeson CJ and Hayne J in Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 said the following (at [10]):

… It is the language of the statute which now determines the manner in which evidence of the kind presently in question is to be treated. …

99    Nevertheless, s 140(2) of the Evidence Act has been treated as reflecting, in part at least, the common law. In Morley v Australian Securities and Investments Commission [2010] NSWCA 331; (2010) 247 FLR 140 (Morley v ASIC) (there was an appeal to the High Court: Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 (ASIC v Hellicar), but not on this point), the New South Wales Court of Appeal said that s 140, while superimposing a mandatory statutory requirement, reflects the common law as stated in Briginshaw and as explained and applied in subsequent authority. In Musa v Alzreaiawi [2021] NSWCA 12 at [40], the New South Wales Court of Appeal referred with apparent approval to authorities which have said that s 140(2) provided for no new principle and reflected the principles stated in Briginshaw (see also the discussion in Commonwealth of Australia v Fernando [2012] FCAFC 18; (2012) 200 FCR 1 at [128] and Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 358 at [24]–[29] per Wheelahan J).

100    In a well-known passage in Briginshaw, Dixon J (as his Honour then was) said the following (at 361–362):

Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

101    The other members of the High Court also referred to the relevance of the seriousness of the allegation to whether or not the court or tribunal could be satisfied of the fact alleged (at 347 per Latham CJ; at 350 per Rich J; at 353 per Starke J; and at 372 per McTiernan J).

102    Various members of the Court identified the strength of the evidence required or, approaching the matter from the other direction, the evidence which would be insufficient in the case of serious allegations. Justice Dixon said that reasonable satisfaction would not be reached “by inexact proofs, indefinite testimony, or indirect inferences” (at 362). Justice Rich said that reasonable satisfaction could not be reached “by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion” (at 350). Justice McTiernan referred to the need for strictness of proof (at 372).

103    Another important point made in Briginshaw is that actual persuasion is required and Dixon J said that it could not be found “as a result of a mere mechanical comparison of probabilities independently of any belief in its reality” (at 361).

104    Chief Justice Latham said (at 343):

There is no mathematical scale according to which degrees of certainty of intellectual conviction can be computed or valued. But there are differences in degree of certainty, which are real, and which can be intelligibly stated, although it is impossible to draw precise lines, as upon a diagram, and to assign each case to a particular subdivision of certainty.

105    Finally, Dixon J said that where there is an issue in a civil proceeding as to whether a crime has been committed, the standard of proof is the same as upon other civil issues, but weight is to be given to the presumption of innocence and exactness of proof is required (at 363; see also McTiernan J at 372).

106    In Khan v State of Trinidad and Tobago [2004] 2 WLR 692 (PC) Lord Bingham of Cornhill described the presumption of innocence in the following terms (at [14]):

The presumption of innocence is perhaps the most fundamental principle underlying the administration of the criminal law. It places on the prosecution, fairly and squarely, the duty of proving guilt. …

107    Authorities which have followed Briginshaw have also referred to the presumption of innocence (CEPU v ACCC at [32] and Hurley v Clements [2010] 1 Qd R 215; [2009] QCA 167 at [27]).

108    Briginshaw has been followed in subsequent High Court cases. The civil standard of proof applies, but the degree of satisfaction required may vary according to the gravity of the facts to be proved (Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521–522). In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 (Neat Holdings); the plurality said (at 449–450):

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

(Citations omitted.)

109    Authorities applying Briginshaw have emphasised, among other things, the requirement that actual persuasion on the part of the fact finder is required (NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618 at [123]; Morley v ASIC at [749]–[751]; and Citadel Financial Corporation Pty Ltd (Administrator Appointed) v Action Scaffolding & Rigging Pty Limited (In Liq) [2019] FCAFC 145 at [57]).

110    With respect, a helpful statement of the application of Briginshaw to a defamation proceeding appears in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 per Mahoney JA (at 226):

In approaching this question it is, as the plaintiff urged, proper at the outset to bear in mind the gravity of that which was alleged against the plaintiff, and, correspondingly, the nature of the proofs required to establish it. No objection has been taken in this Court to the directions given by the learned trial judge to the jury in this regard, nor could it have been. But the gravity of the allegations bears peculiarly upon the defendant's defence of truth and public interest. For the defence as to truth was based upon circumstantial evidence: it depended upon the existence of the plaintiff's association with the fraudulent scheme being derived as a “reasonable inference” from the facts: Director of Public Prosecutions v Kilbourne [1973] AC 729 at 758. This, as the plaintiff has urged, is of particular significance. The allegations and their consequences are very serious. If the plaintiff was a principal in the fraud, he was guilty both of a civil fraud and of a crime of some seriousness. The process of decision does not involve a “mere mechanical comparison of probabilities, independent of any belief in” the truth of the matters in issue; “the tribunal must feel an actual persuasion of its occurrence or existence”: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361. In matters of such gravity, the plaintiff urged, “the Briginshaw test” applies: “‘reasonable satisfaction’ should not be produced by inexact proof, indefinite testimony, or indirect inferences”: at 361-362; (1940) 63 CLR 691.

(See also Sands v State of South Australia [2015] SASCFC 36; (2015) 122 SASR 195 at [253].)

111    The nature of the cause of action in this case is a claim for damages and injunctive relief based on the tort of defamation. The defences are substantial truth and contextual truth. Those defences include allegations of very serious criminal conduct. The nature of the subject matter of the proceedings is the widespread publication of highly defamatory imputations of and concerning the applicant which, absent established defences, have caused him substantial damage, both in terms of his reputation and in terms of his earning capacity.

112    The allegations in this case are extremely serious. They include the murder of an unarmed and defenceless Afghan civilian and machine-gunning a man with a prosthetic leg. It is alleged that the applicant has acted in breach of the Geneva Conventions. The allegations of domestic violence and assault are also serious. The consequences to the applicant of findings that he has committed murder and domestic violence are very significant. The applicant described them as life changing and as including reputational repercussions and that is not overstating the position. Reputational harm is a relevant matter to be taken into account (Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 at [68]). The applicant is a Victoria Cross recipient who is known both nationally and internationally.

113    As I understand it, the applicant also submits that I should take into account that a serious consequence of findings adverse to him is that the making of such findings will result in it being more likely that the applicant will be charged with war crimes. He submitted that that was, in fact, a submission made by the respondents themselves. In that regard, the applicant referred to submissions made by the respondents concerning the alleged involvement of some of the applicant’s witnesses in the alleged murders, arrangements between the applicant and some of his witnesses concerning the payment of legal fees and the motive to lie of some of the applicant’s witnesses. It is not clear to me that the respondents are making the submission or perhaps more accurately, accepting that findings adverse to the applicant make it more likely that the applicant will be charged with war crimes. Putting that particular issue to one side and dealing with the applicant’s submission, it might be said that at a general level it is inherent in the finding of criminal conduct that that may increase the likelihood of the alleged actor being charged. I take that matter into account at that general level. I do not think that it is permissible to go beyond that general level and, even if it is, it would not be permissible to go beyond that general level in the absence of evidence and there is no evidence here bearing on the extent of the increase in the likelihood in this particular case.

114    The applicant submits that the Court should also have regard to the following matters. First, he submits that the Court does not have “all the evidence available, that would ordinarily be available in a criminal trial, including a prosecutor with duties of disclosure and fairness”. I address this submission in detail below. Secondly, he points to the fact that the Court is also being asked to find that Person 4 committed murder and that Person 11 committed murder. I take those matters into account. He also asks the Court to take into account that it is being asked to find that Person 12 gave an order that an Afghan male be shot. I take that matter into account. The applicant asks the Court to take into account the inherent unlikelihood of him committing murder and that that inherent unlikelihood increases when regard is had to the fact that the respondents’ case is that he committed six murders. I take that matter into account. Finally, the applicant reminds the Court of the strength of evidence required and the presumption of innocence (Morley v ASIC at [752]; Neat Holdings at 450).

115    In the sections which follow, I have made a number of findings against the applicant which are extremely adverse. I am satisfied that the proof is clear and cogent and I have applied the above principles.

116    I address next two matters which are related to the applicant’s submissions concerning the onus of proof with respect to the respondents’ defences and the standard of proof. Those matters are that the Court is not bound to make findings one way or the other and that (so the applicant contends) there is such limited material before the Court that there is no appropriate basis upon which to reach a reasonable decision.

The Court is not bound to make findings one way or the other

117    There is no doubt that a court is not bound to accept the case of one or other of the parties. It may reject the case of both parties. In Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, the High Court said (at [60]):

In general, disbelief in a witness’s evidence does not establish the contrary. Similarly, disbelief in the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. In particular cases it may not be possible to reach a conclusion either way:

[T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden.

[Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948 at 955; [1985] 2 All ER 712 (Rhesa Shipping v Edmunds) at 718.]

A failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. …

(Citations omitted; see also Hobbs v Tinling (CT) & Company, Limited [1929] 2 KB 1 at [21] per Scrutton LJ.)

118    With respect, Lord Brandon of Oakbrook (with whom the other members of the House of Lords agreed) in Rhesa Shipping v Edmunds stated the point with great clarity when he said the following (at 718):

My Lords, the late Sir Arthur Conan Doyle in his book The Sign of Four, describes his hero, Mr Sherlock Holmes, as saying to the latter's friend, Dr. Watson: “How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?” It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J decided to accept the shipowners’ submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable.

In my view there are three reasons why it is inappropriate to apply the dictum of Mr Sherlock Holmes, to which I have just referred, to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned.

The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.

…

In my opinion Bingham J adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship’s hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them.

(See also Jackson v Lithgow City Council [2008] NSWCA 312 at [9]–[10] per Allsop P with whom Basten JA and Grove J agreed.)

The material before the Court may be so limited that it does not form an appropriate basis upon which to reach a reasonable decision

119    In the course of their respective submissions, both parties refer on a number of occasions to the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (Jones v Dunkel) in connection with evidence not called or adduced by the other party. That is one point. The other is that in the applicant’s written submissions, he submits that both he and the Court were precluded from having access to the transcript of the interviews of some of the respondents’ witnesses because of the operation of, among other things, s 21 of the Inspector-General of the Australian Defence Force Regulation 2016 (Cth) (IGADF Regulation). He made the submission that the Court did not have before it the entirety of evidentiary material upon which it could otherwise assess the reliability of the oral testimony of these witnesses. This gave rise to what the applicant said was a vacuum in the evidence before the Court.

120    By the time he came to make his oral submissions, the applicant broadened his submission about the vacuum in the evidence before the Court. I have already referred to the applicant’s submission that this Court does not have all the evidence available that would ordinarily be available in a criminal trial, including that provided by a prosecutor with duties of disclosure and fairness. The applicant also submitted in the course of his submissions that the Court had to approach the respondents’ allegations with caution because they are not war crimes investigators and they are not the police and they do not have access to all the evidence. They do not have powers of law enforcement and they do not have access to all the Defence Force material “to present a case such as this”. The applicant submitted that the Court had none of the evidence that one would expect in a war crimes trial. He submitted that the respondents were not assisted by war crimes investigators. He submitted that there was no forensics and ballistics evidence, no access to prior versions of events given by witnesses and no access to footage “which one would expect would ordinarily be available when missions are being conducted”.

121    These submissions by the applicant seem to give rise to an overarching or general submission that even if the Court was persuaded by the respondents’ case, the Court would not be satisfied to the relevant standard by reason of the known vacuum in the evidence before the Court.

122    In Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 (Ho v Powell), Hodgson JA (with whom Beazley JA agreed) made the following two points. First, Lord Mansfield’s maxim in Blatch v Archer (1774) 1 Cowp 63 at 65; (1774) 98 ER 969 at 970 that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted, may affect the assessment of matters which are relevant to whether the limited material before the Court is an appropriate basis on which to reach a reasonable decision. Secondly, the principle in Jones v Dunkel is a particular application of Lord Mansfield’s maxim. Hodgson JA said the following (at [14]–[16]):

14    There is a long-standing controversy whether the civil standard of proof requires a numerical probability in excess of 50 per cent (see Davies v Taylor [1974] AC 207 at 219), or belief amounting to reasonable satisfaction (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–362). My own opinion is that the resolution of the controversy involves recognition that, in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision. I discussed this in some detail in an article published at (1995) 69 ALJ 731 (D H Hodgson, “The Scales of Justice: Probability and Proof in Legal Fact-finding”).

15    In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so: cf 69 ALJ at 732–733, 736, 740. As stated by Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970: “… [A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”. See also Azzopardi v The Queen (2000) 75 ALJR 931 at 935 [10]; 179 ALR 349 at 353 [10].

16    The case of Jones v Dunkel (1959) 101 CLR 298 is a particular application of this principle. That case itself related to a situation where there was evidence supporting an inference against a party, and that party did not give or call evidence, which that party was plainly in a position to have given or called, in order to explain or contradict the material presented. In my opinion, a similar principle applies where a person bearing the onus of proof does not give or call evidence which that person is plainly in a position to give or call; and unless some explanation is given of this failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person’s case: cf Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389.

123    In Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 (Coshott v Prentice), the Full Court of this Court referred with approval to Lord Mansfield’s maxim and the observations of Hodgson JA in Ho v Powell (at [80]) and went on to say the following (at [81]–[82]):

81    Thus, where the evidence relied upon by a party bearing the onus of proof does not itself clearly discharge the onus, the failure by that party to call or give evidence that could cast light on a matter in dispute is relevant to determining whether the onus is being discharged: Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371 (Dixon CJ); Shalhoub v Buchanan [2004] NSWSC 99 at [71] (Campbell J). This principle is therefore wider than that in Jones v Dunkel (1959) 101 CLR 298. As Austin J in Australian Securities and Investments Commission v Rich (2009) 236 FLR 1 explained at 93 [440], “[w]hereas Jones v Dunkel reinforces an inference drawn against the party who has not called evidence, to the effect that the evidence would not have assisted that party’s case, Blatch v Archer leads either to the drawing of such an inference, or to some other assessment of the weight of evidence, unfavourable to the party against whom the principle is applied.” (emphasis added).

82    In short, the Coshott parties bore the onus of proving the trust over Robert’s interest but failed to call or give evidence explaining the documents and transactions on which they rely. Yet Robert, in particular, was in the best position to explain them. This cannot be ignored when weighing the limited evidence they relied upon to support their case with all the other evidence which tended to undermine it.

124    In Heydon JD, Cross on Evidence (13th ed, LexisNexis Australia, 2021), the learned author states (at [1215]):

Lord Mansfield CJ’s maxim is wider than the rule in Jones v Dunkel because the rule is available against a party not bearing the onus of proof. But the maxim is also available against a party bearing that onus — in permitting a conclusion that uncalled evidence would not have helped the case of a party not calling it, or permitting inferences against the party to be more strongly drawn, or assisting in deciding whether the party bearing the onus has discharged it.

125    The applicant seemed to rely on eight matters in the course of his closing submissions in support of a submission that the material is so limited that there is no appropriate basis on which to reach a reasonable decision. As I will explain, I reject each of these matters, either on the ground that the matter does not indicate that the material is limited, or because the respondents did not have it within their power to adduce the material or the material is not so limited that it is insufficient to make a reasonable decision.

126    I make two matters clear. First, the conclusion I have just expressed does not mean a particular matter is not relevant in assessing the findings to be made. I deal with that when I address the particular allegations later in these reasons. Secondly, I am not at this point dealing with the particular Jones v Dunkel submissions made by one or other of the parties. They are dealt with in the particular context in which they were made.

1. The transcripts of the evidence given to the IGADF Inquiry

127    The applicant submits that the Court is being asked to make assessments of the honesty and reliability of a number of witnesses without access to their previous version of events or information as to how their evidence may have been shaped by their contact with the IGADF Inquiry. He submits that the parties have not been permitted to look at the material because of the operation of the IGADF Regulation. This means that the parties and the Court do not know what previous versions of the events they gave, what they were shown, what was suggested to them and what might have triggered a particular recollection. The applicant submits that that is “a missing piece” and this is relevant to the standard of proof and the presumption of innocence. The applicant submits that what the respondents were urging upon the Court without all of the material was “a pretty big call”.

128    It is necessary to say something about the Inquiry conducted by the IGADF. In 2020, Colvin J described the background to the IGADF Inquiry in his reasons in Roberts-Smith v Fairfax Media Publications Pty Ltd (No 6) [2020] FCA 1285 (at [3]–[10]):

3    Before those events, in May 2016, at the request of the Chief of Army, the Inspector-General of the Australian Defence Force (IGADF) had commenced an inquiry to ascertain whether there is any substance to rumours and allegations of breaches of the Laws of Armed Conflict by elements of the Special Forces in Afghanistan (Inquiry). The Inquiry is ongoing and is being conducted by the Honourable Paul Brereton AM RFD, a Justice of the Court of Appeal of the Supreme Court of New South Wales who has been appointed to the statutory position of Assistant IGADF. It is being conducted under the provisions of the Inspector-General of the Australian Defence Force Regulation 2016 (Cth) (Regulation), having been established under a previous regulation.

4    When established, the Inquiry was required to be conducted in private. In the manner described below, the Inquiry has continued to be conducted in private. It has now reached a point where notices are being issued to persons who might be adversely affected by the Inquiry's findings and recommendations (described by the Inquiry as Potentially Affected Persons). A number of notices have been issued to Potentially Affected Persons that contain the details of potential findings or recommendations that the Inquiry is considering whether to make that may affect the individual person to whom the notice is addressed. In addition, each notice sets out relevant factual background and a summary of relevant evidence (PAP Notices).

5    On 3 July 2020, the respondents served a notice to produce in the defamation proceedings requiring production by Mr Roberts-Smith of the following documents:

1.    Any notice received from the Inspector General of the Australian Defence Force (IGADF) indicating that the Applicant is a potentially affected person (PAP notice);

2.    All documents accompanying the PAP notice; and

3.    Any response by the Applicant to the PAP notice.

6    In addition, after being pressed by the respondents to discover documents concerning the Inquiry, Mr Roberts-Smith filed an amended list of discovered documents dated 13 July 2020. In the part of the list setting out the documents in respect of which privilege is claimed, the following description was stated at paragraph 67:

Documents to which the Inspector General of the Australian Defence Force Regulation 2016 applies.

7    The dates of the documents described at paragraph 67 were said to be ‘various’ and the grounds of the privilege claim were expressed in the following terms:

Production of the documents would constitute an offence under s21 of the Regulation.

8    Section 21(3) of the Regulation provides that it is an offence to contravene a direction given under s 21(1) which in turn provides:

If the Inspector-General ADF is satisfied that it is necessary to do so in the interests of the defence of the Commonwealth, or of fairness to a person who the Inspector-General ADF considers may be affected by an inquiry, the Inspector-General ADF may give a direction restricting the disclosure of the following:

(a)    information contained in oral evidence given during the inquiry, whether in public or in private;

(b)    all or part of any document received during the course of the inquiry;

(c)    information contained in a report about the inquiry that is given to a person under section 27.

9    Section 28E of the Regulations provides that an Assistant IGADF who is a judicial officer with the conduct of an inquiry may exercise the power under s 21(1) without being authorised to do so by the IGADF. Directions of the kind described in s 21(1) have been made in the Inquiry.

10    Relevantly for present purposes, s 27 provides that the IGADF must give to the Chief of the Defence Force a report about the Inquiry if an Assistant IGADF has given the IGADF a report as required by the Regulation. So, when concluded, the Inquiry will result in the delivery of a report to the Chief of the Defence Force.

129    The IGADF claimed public interest immunity over the documents sought in the respondents’ Notice to produce and described in para 67 of the applicant’s amended list of documents. The applicant supported the position of the IGADF. Justice Colvin ruled that the PAP documents sought by the respondents should be produced, subject to restrictions under s 38B of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).

130    As the respondents correctly point out, if their application had been unsuccessful the trial would nevertheless have proceeded without the respondents having access to the material in the PAP Notice and that would not have made the trial unfair (see Church of Scientology Inc v Woodward [1982] HCA 78; (1983) 154 CLR 25 at [61]).

131    As the respondents also point out, the applicant was supporting the public interest immunity claim and had that been successful, he would have had information that the respondents did not have. Furthermore, the PAP Notice produced had redactions which meant that the respondents did not have information that the applicant had.

132    The parties were not given access to the transcripts of the witnesses at that point. However, there were applications for access to the transcripts of witnesses during the course of the trial and that access was granted upon proper grounds being shown. Access to the transcripts of the Afghan witnesses who were in Darwan in 2012 and Persons 24 and 27 was granted and, in part, to the transcripts of Persons 5, 11, 29 and 35.

133    The applicant has had access to an unredacted copy of the PAP Notice and he has had a summary of the evidence of the witnesses. Both parties have been able, if so advised, to make an application for access to the transcripts of the witnesses who have been interviewed by the IGADF Inquiry.

134    The applicant refers, in particular, to the lack of access to the transcript of the evidence of Person 41. The applicant made a submission that Person 41’s evidence about lending his suppressor is incredible. They refer to the fact that he did not say anything about witnessing two executions at W108 until 2019. The applicant submits that he did not know what triggered Person 41’s recollection, or whether it was something he raised, or whether it was something suggested to him, or whether he was shown something. The applicant also submits that neither he nor the Court has the material concerning Person 41’s first interview by the IGADF.

135    The respondents made two submissions in response, both of which, in my view, are correct. First, if the applicant was concerned to find out what had triggered Person 41’s recollection and that related to something outside the IGADF process, then the applicant could have asked Person 41. Secondly, the respondents point to the fact that at no time did the applicant make an application for access to the transcript of evidence of Person 41. He could have done that.

2. The notes of the journalists

136    The applicant submitted that the individual respondents may have a “treasure trove of documents” which indicate that some of the witnesses have said something different before their evidence in Court. In that context, he referred to the fact that there was no prosecutorial duty of disclosure. He pointed to what had occurred with respect to Person 14 who he described in his closing oral submissions as a perjurer and a straight out liar and perjurer. In Roberts-Smith v Fairfax Media Publications Pty Limited (No 3) [2020] FCA 2, I upheld the respondents’ claim for journalist privilege under s 126K of the Evidence Act with respect to notes of the individual respondents. In the course of my reasons, I said the following (at [55]):

Before leaving this summary of the applicant’s submissions, I should mention a matter counsel for the applicant raised at the outset of his submissions. It is a matter which had occurred to me on reading the written submissions. It is whether the privilege, whatever its present status, would be destroyed at trial upon a source being called as a witness at trial and identified by a few simple questions as a source. The argument would be that the documents are relevant (they have been discovered) and should be produced. The potential for the disruption to the orderly progress of the trial should this occur is obvious. As I understood the respondents’ reply to that submission, it was that no assumptions should be made as to what might occur at trial and, as far as the period before trial is concerned, if this potential for disruption is relevant, it can only be relevant as a public interest consideration on application under s 126K(2) of the Evidence Act. It seems to me that the fact that there may be disclosure of identity as an informant at trial cannot affect the determination of the privilege issue at this stage. The fact that as at the present time that may happen, or is likely to happen, at trial may be relevant to an application under s 126K(2), but, as I have said, thus far no such application has been made.

137    Person 14 gave evidence at the trial. He was asked about conversations with journalists. I ruled that the questions were not rendered impermissible by s 126K of the Evidence Act (see Roberts-Smith v Fairfax Media Publications Pty Limited (No 28) [2022] FCA 115). In the result, the notes of Mr Masters, the third respondent, were produced and Person 14 was asked about what was contained in the notes. Certain matters from the notes were put to him which the applicant contends show that Person 14 is a liar and a perjurer. The applicant gives this as an example of the possibility of important material existing which neither he nor the Court was aware until Person 14 was in the witness box and I made the rulings which I did.

138    The fact is I upheld the claim for privilege on the basis of s 126K of the Evidence Act. However, it did not apply to the source when the source was asked questions in the witness box. Person 14 was asked such questions as was Person 7. The journalists’ notes were also produced in the case of Person 7.

139    The applicant’s submission that there is potentially a treasure trove of undisclosed material is not made out. The evidence establishes that as far as the journalists are concerned, Persons 18 and 1 were not sources. Persons 24, 40, 41, 42 and 43 were not sources because, as the respondents submitted, those witnesses only came to their attention as part of the circumstances connected with the PAP Notice. The applicant does not suggest that Persons 4 and 56 were a source and the applicant himself has made the point that the respondents have had no relevant contact with Persons 4 and 56.

3. Person 12

140    Person 12 features in the alleged murder at Chinartu. He is also the subject of what the respondents call the Person 12 lie which they contend is part of the circumstantial evidence in the case and evidence which constitutes an admission against interest by the applicant. The respondents did not call Person 12 as a witness at the trial. The applicant makes a submission by reference to Jones v Dunkel in relation to the absence of Person 12 from the witness box. That submission is dealt with later in these reasons. The issue at this stage is whether the fact that the respondents did not call Person 12 means that there is such limited material as to lead to the conclusion that there is not an appropriate basis upon which to reach a reasonable decision.

141    The applicant referred to the absence of Person 12 from the witness box on a number of occasions during the course of his closing submissions. He submitted that his absence from the witness box indicated an apprehension that Person 12 would not support the respondents’ case and that it is no answer to that submission to say that Person 12 is being accused of being part of a war crime. He submitted that there was no evidence from the respondents that they have tried to contact Person 12 and he has refused to speak to them. There is no evidence that they have tried to deal with him. There is, in counsel for the applicant’s words, “just a vacuum there”.

142    I reject the applicant’s submission that Person 12’s absence from the witness box goes further than a Jones v Dunkel submission. The respondents’ submission is correct that there is both testimonial and documentary evidence and the Person 12 lie itself as circumstantial evidence that bears or may bear upon his presence on the mission. There is direct evidence from Person 14 of what occurred on the mission. There are also other witnesses, including the applicant and Persons 11 and 32.

4. The absence of forensic evidence

143    I referred above to a submission by the applicant concerning the absence of various forms of forensic evidence. The short answer to this submission is that Lord Mansfield’s maxim is relevant to the assessment of whether the material before the Court is an appropriate basis upon which to reach a reasonable decision. One aspect of Lord Mansfield’s maxim is the power of one side to produce evidence. I agree with the respondents’ submission that it cannot be seriously suggested that it was within the respondents’ power to exhume bodies from Afghanistan, conduct post mortems of persons who died more than 10 years ago, conduct botanical analysis of grass, obtain high quality photographs etc., and that it is by no means clear what light such forensic evidence would shed on the issues as they have developed.

5. Contact with the Afghan witnesses

144    In addressing a submission made by the respondents that there is a consistency between the evidence of the three Afghan witnesses from Afghanistan and the evidence of the two Australian soldiers in relation to events at Darwan that supported the respondents’ case that those events had occurred, the applicant submitted that it was relevant that by the time the Afghan witnesses gave evidence “they had already been the subject of contact with the middle man of the respondents, who allegedly tracked them down”.

145    The precise point the applicant says follows from that submission is not clear to me. Later, the applicant’s counsel observed that the three Afghan witnesses “apparently were found fortuitously by a middle man or agent for the respondents”. Again, the precise point the applicant says follows from that submission is not clear to me.

146    The applicant also submitted in relation to the Afghan witnesses that it was clear that they had spoken to agents and lawyers of the respondents many times before they came to give their evidence. The applicant’s counsel then submitted that it was sufficient to say that the Afghan witnesses did not come to the Court to give evidence in such circumstances that it could be suggested that their evidence is “pristine and clear of any suggestibility”. He said he would deal with the matter in closed Court. In similar vein, the applicant’s counsel also said that it would be misleading to suggest that the evidence of the Afghan witnesses was reliable and unprompted and uncontaminated by third party contact or discussion between themselves. Again, counsel said he would deal with the matter further in closed Court. The matter was not further developed in either open or closed Court.

147    None of these matters suggest to me a lacuna or vacuum in the evidence such that the material is so limited that it does not form an appropriate basis to reach a reasonable decision. I am able to determine whether there was any difficulty with the way they were questioned by the IGADF Inquiry and there was no evidence to suggest that there was third party contact which resulted in their accounts being consistent with the accounts of Persons 4 and 56.

148    The respondents submit, correctly in my view, that it was open to the applicant to question the Afghan witnesses in such manner as he saw fit.

6. Evidence concerning the preparation of contemporaneous documents

149    The applicant’s counsel submitted that, in relation to a number of contemporaneous documents, there is a gap in the evidence in relation to who it is, it is said, prepared the documents and where, it is said, information came from that is unreliable or wrong. The applicant submitted that it is not entirely clear who prepared, on the respondents’ case, documents which are false, wrong or, in some instances, deliberately fabricated and when that was done.

150    I will need to consider carefully the contemporaneous documents and the effect they have on the findings of fact to be made. At this point, I reject the submission that there is a fatal lacuna or vacuum in the evidence about their preparation. For example, evidence was given, including by the applicant himself, concerning the preparation of After Action Reports, SITREPs, OPSUMs, story-boards and INTREPs.

7. The arrangements with Persons 4 and 56

151    The applicant submitted that had the Court not asked a question, the arrangement between Person 4 and the respondents would not have been disclosed. The applicant would not have known of the arrangement and the arrangement was, on the applicant’s submission, plainly relevant to the potential honesty and reliability of Person 4. The applicant went on to submit that a prosecutor would have been in breach of his or her duty had they not disclosed that arrangement when alleging a serious criminal offence such as that alleged against the applicant. The applicant referred to the respondents’ submission that they were not a prosecutor and they had no duty to disclose the arrangement. The applicant submitted that that may or may not be correct, but the significant matter is that the respondents, at the same time, ask the Court to make a finding that the applicant committed a criminal offence on a mission (Darwan) based on the evidence of a person (Person 4) who they had struck an arrangement with in relation to not asking him questions, but they wanted to allege in respect of another mission (W108) that he (Person 4) was a murderer. The applicant made a similar, although not identical, submission in relation to Person 56. He submitted that a prosecutor would not conduct themselves in that manner because it would raise a real question as to the integrity of the evidence from the witness that they were leading. It is not entirely clear whether this submission was directed to the absence of the disclosure of the arrangements or the fact of the arrangements.

152    Insofar as the submissions were directed to the absence of the disclosure of the arrangements, the fact is that the arrangements were disclosed and there is no lacuna or vacuum in the evidence in this respect. The fact of the arrangements is a matter I will consider in the context of the particular mission.

8. The absence of other witnesses who were present at Darwan

153    With respect to the mission to Darwan, the applicant submitted that if the cliff kick had happened, half the troop would have seen the cliff kick. He submitted that the problem with this is that it is conjecture and speculation based on evidence of one group which is not corroborated by other evidence. The applicant submitted that there are hypotheticals, but no evidence and certainly nothing put to people to explain the behaviour.

154    This is not a lacuna or vacuum in the evidence such that the material is so limited that it does not form an appropriate basis to reach a reasonable decision. It is a matter to be considered in relation to events during the mission to Darwan.

Conclusion

155    None of these matters, individually or collectively, lead to the conclusion that the material is so limited that it does not form an appropriate basis on which to reach a reasonable decision. A number of them or associated matters will need to be considered in determining the facts which should be found. The Jones v Dunkel submissions will also need to be considered.

Motive

156    In Hyam v Director of Public Prosecutions [1974] 2 WLR 607, Lord Hailsham of St Marylebone LC addressed the meaning of the word “motive”. His Lordship said (at [73]):

It has been pointed out more than once that “motive” has two distinct but related meanings. I do not claim to say which sense is correct. Both are used, but it is important to realise that they are not the same. In the first sense “motive” means an emotion prompting an act. This is the sense in which I used the term when I said that the admitted motive of the appellant was jealousy of Mrs. Booth. The motive for murder in this sense may be jealousy, fear, hatred, desire for money, perverted lust, or even, as in so-called “mercy killings”, compassion or love. In this sense motive is entirely distinct from intention or purpose. It is the emotion which gives rise to the intention and it is the latter and not the former which converts an actus reus into a criminal act. … On the other hand “motive” can mean a “kind of intention” (see Glanville Williams, Criminal Law (The General Part), 2nd ed., p. 48). In this sense, in his direction to the jury, the judge (quoted above, and in the judgment of the Court of Appeal) has said: “It matters not if her motive was to frighten Mrs. Booth.” …

It is, however, important to realise that in the second sense too motive, which in that sense is to be equated with the ultimate “end” of a course of action, often described as its “purpose” or “object,” although “a kind of intention,” is not co-extensive with intention, which embraces, in addition to the end, all the necessary consequences of an action including the means to the end and any consequences intended along with the end.

(See the discussion of the relevance of motive as used in the first sense in R v Cummins [2004] VSCA 164; (2004) 10 VR 15 at [24] per Ormiston JA, with whom Warren CJ and Winneke P agreed.)

157    The High Court considered the relevance of motive in De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85. Justices Gaudron, McHugh and Hayne said the following (at [28]–[30]):

28    Motive, if proven, is a matter from which a jury might properly infer intention, if that is in issue, and, in every case is relevant to the question whether the accused committed the offence charged. As was observed by Lord Atkinson in R v Ball

Evidence of motive necessarily goes to prove the fact of the homicide by the accused … inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not.

So, too, absence of motive is equally relevant to the question whether the accused committed the offence charged and, as observed by Menzies J in Plomp v R, “is commonly relied upon as a circumstance tending in favour of … a person accused of a crime.”

29    Although absence of motive is relevant, the appellant’s argument overlooks a critical distinction between absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other. In the present case, there was no evidence of motive, which is not the same thing as proven absence of motive. And although the character evidence called on behalf of the appellant tended to negate possible motive, it by no means established the absence of motive.

30    The absence of evidence of possible motive is clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of “positive significance”, either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive.

158    The applicant, proceeding on the basis that the respondents rely on the applicant’s statement to Person 10 during pre-deployment training to the effect that “this is how it’s going to be when we get there”, submitted that this evidence is not evidence of motive on any view of it. At best, it is evidence of intention, not motive.

159    The respondents submitted that they do not have to prove motive. In addition, they relied on the distinction between the absence of proven motive and proven absence of motive and submitted that at best, from the applicant’s point of view, the evidence supports the former, but not the latter conclusion.

160    The respondents submitted that it is important to distinguish between a submission that a murder is inherently unlikely and a submission that there is an absence of evidence of motive. In relation to the former, that is a matter built into the factor in s 140(2)(c). The respondents submitted that, in any event, they have proved a motive on the part of the applicant. They have done that based on the applicant’s statements during pre-deployment training to the effect that that is how it is going to be on the day and anyone suspected of being an enemy combatant would be taken into a room and shot. They submitted that none of this is a tendency use of the evidence. They submitted that the motive that they identify is obvious if one has regard to the circumstances of each of the murders at W108, Darwan, Chinartu and Fasil. The murders at W108 involved two men hiding in a tunnel in a compound that had been engaged in serious fighting with the Mentoring and Reconstruction Task Force (MRTF) all day. In relation to Darwan, Ali Jan was revealed by questioning to be someone who was not from the village of Darwan and the village was thought to be harbouring the Taliban. Chinartu provides perhaps the best example. Person 14 said that there was an instantaneous change in the mood in the room when the cache was discovered in the compound of the man who was being questioned. The respondents submit that the discovery of the cache was the thing that turned the man who was subsequently shot from an innocent compound owner into a suspected insurgent. Finally, the youth at Fasil was taken from a motor vehicle which was found to contain improvised explosive device (IED) componentry.

161    This is not a case where there is a proven absence of motive. Furthermore, the motive identified by the respondents is one that is open on the evidence.

The Effect of the Passage of Time on the Reliability of Oral Testimony

162    As will be seen, the respondents’ case is, in large measure, based on the oral testimony of witnesses who, in some cases, gave evidence of events in 2009 which was approximately 12 years before they gave their evidence and, in other cases, of events in 2012 which was approximately nine years before they gave their evidence.

163    In assessing that evidence, I must take into account the effect of the passage of time on human memory and the processes of memory being overlaid by perceptions or self-interest as well as conscious considerations of what should have been or could have been said. I must also bear in mind the possible effect of rumours and discussions and the capacity of the human mind for ex-post facto rationalisation of events and the phenomenon of false memories.

164    In Watson v Foxman (1995) 49 NSWLR 315 (Watson v Foxman) by McLelland CJ in Eq said (at 319):

Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

(See also Moubarak by his tutor Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218, at [77] per Bell P; and Gautam v Health Care Complaints Commission [2021] NSWCA 85 (Gautam v Health Care Complaints Commission) at [21] per Leeming JA.)

165    The effect of the passage of time and intervening matters, including rumours was addressed by McHugh JA in the well-known case of Herron v McGregor [1986] 6 NSWLR 246 said (at 254–255):

Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively. As the United States Supreme Court said in Barker v Wingo (at 532) “what has been forgotten can rarely be shown”. In some cases delay makes it simply impossible for justice to be done: Birkett v James (at 317-318, 327). In R v Lawrence [1982] AC 510 at 517, Lord Hailsham LC pointed out that: “Where there is delay the whole quality of justice deteriorates.” The difficulties in ascertaining the truth about a matter after time has done its work are vividly portrayed by Street CJ in the Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against K E Humphreys (July 1983). His Honour said (at 9-10):

“In the intervening five or six years, rumours waxed and waned. In some cases suspicion underwent subtle change to belief, which itself progressed to reconstruction, which in turn escalated to recollection. No presently stated recollection could be safely assumed not to have progressed upwards and not to be the product of one of these earlier stages. The sheer frailty of human memory of necessity required a most anxious and critical appraisal of the evidence of the witnesses, no matter how credit-worthy they might be.

It became apparent that in the years since August 1977 the recollections even of those with undoubted first-hand knowledge have in some instances faded, in some instances fermented, and in some instances expanded. Moreover, in many cases the realisation of the significance — indeed, the enormity — of what had occurred has tended to transmute into a more or less cynical acceptance of what had, or was believed or rumoured to have, taken place.”

166    Justice McHugh addressed the matter again in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. This was a criminal case, but his Honour’s observations about the effects of delay apply with equal force to civil proceedings. His Honour said (at 107–108):

The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to “remember” is well documented. The longer the period between an “event” and its recall, the greater the margin for error. Interference with a person’s ability to “remember” may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling. …

Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be.

Circumstantial Evidence

167    The applicant referred to the authorities dealing with circumstantial evidence. He submitted that the respondents’ case in relation to some of the allegations of war crimes is circumstantial in nature. The respondents did not dispute the statements contained in the authorities to which the applicant referred. They did make the point that there were eyewitnesses to all the alleged murders other than the alleged murder during the mission to Fasil. They submit that it is only in relation to that murder that it can be said that their case is wholly circumstantial.

168    In Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, Dixon, Williams, Webb, Fullagar and Kitto JJ said (at 5):

The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.

169    In a circumstantial case, all of the circumstances that are established by the evidence are to be considered and weighed in deciding whether the circumstances raise a more probable inference in favour of what is alleged (Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632 at [134]). Spigelman CJ considered the difference between permissible inference and conjecture and the difficulties on occasion in detecting the difference between the two in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 referring to Jones v Great Western Railway Co (1930) 144 LT 194 at 202 per Lord Macmillan; Carr v Baker (1936) 36 SR (NSW) 301 (Carr v Baker); and Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169 per Lord Wright. Sir Frederick Jordan in Carr v Baker said (at 306):

The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible.

170    I must bear in mind, of course, that in deciding what, if any, inferences should be drawn, proper regard must be had to the effect of s 140 of the Evidence Act as described above and other evidentiary principles that may be relevant in the particular circumstances such as those in Jones v Dunkel.

Demeanour of Witnesses

171    In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (Fox v Percy), Gleeson CJ, Gummow and Kirby JJ said the following (at [30]– [31]):

30    It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”):

“… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”

31    Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

(Footnotes omitted; see also Gautam v Health Care Complaints Commission at [25] per Leeming JA.)

172    In a handful of cases on each side, the party made an express submission that a witness was impressive. Otherwise, in addressing the evidence of a witness, the parties proceeded by reference to contemporary materials, objectively established facts, the apparent logic of events, the presence or otherwise of corroboration and the effect of the evidence as a whole.

173    I mention at this point that the applicant submitted that in terms of appearance, he remained polite and courteous and composed during a long and challenging cross-examination. It is certainly true that the cross-examination was detailed and challenging. Both the witness and cross-examining counsel remained composed during that process. For reasons I will give, I find that the applicant was not an honest and reliable witness in the many areas I will identify. In addition, I have found a number of other witnesses were not honest and reliable witnesses in the areas I will identify.

Jones v Dunkel

174    Each party advanced an argument in support of a Jones v Dunkel inference in relation to the failure of the other party to call a particular witness or to seek to adduce evidence on a particular topic from a witness that that party did call. The details will be discussed in due course.

175    In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 (Kuhl v Zurich Financial Services), Heydon, Crennan and Bell JJ described the rule in Jones v Dunkel in the following terms (at [63]–[64]):

63    The rule in Jones v Dunkel 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. That is particularly so where it is the party which is the uncalled witness. The failure to call the witness may also 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. …

64    The rule in Jones v Dunkel permits an inference not that evidence, not called by a party, would have been adverse to the party but that it would not have assisted the case. …

176    In ASIC v Hellicar, Heydon J described the scope of the rule in Jones v Dunkel as follows (at [232]):

Secondly, the Court of Appeal accepted that its reasoning went “beyond Jones v Dunkel”. Indeed, it agreed with the trial judge’s conclusion that the rule in Jones did not apply. As the Court of Appeal said, two consequences can flow from the unexplained failure of a party to call a witness whom that party would be expected to call. One is that the trier of fact may infer that the evidence of the absent witness would not assist the case of that party. The other is that the trier of fact may draw an inference unfavourable to that party with greater confidence. But Jones does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party.

177    The rule in Jones v Dunkel operates in circumstances in which a party is required to explain or contradict something and so will almost always have an operation where a party bears the burden of proof on a matter: Ho v Powell at [16] and Coshott v Prentice at [80]–[81]. A Jones v Dunkel inference will not always be drawn and whether it is drawn depends on weighing all of the evidence: Flack v Chairperson, National Crime Authority (1997) 80 FCR 137 at 148–149; (1997)150 ALR 153 at 164.

178    The conditions for the operation of the rule in Jones v Dunkel are as follows: (1) the absent witness would be expected to be called by one party rather than the other; (2) the witness’ evidence would elucidate a particular matter; and (3) the witness’ absence is unexplained (Payne v Parker [1976] 1 NSWLR 191 (Payne v Parker) at 201–202 per Glass J (with whom Hutley J agreed)).

179    A witness may be expected to be called by one party rather than the other in circumstances where he or she might be regarded as being in the camp of one party, so as to make it unrealistic for the other party to call him: O'Donnell v Reichard [1975] VR 916 at 920 per Gillard J.

180    In Claremont Petroleum NL v Cummings (1992) 110 ALR 239 at 259, Wilcox J rejected an argument that a former director of the applicant should be regarded as being within the applicant’s camp. There was no reason to believe that the uncalled witness “feels any allegiance or goodwill towards the company … the evidence shows he has had no contact with members of the present board”, and it was found the witness was equally available to both parties (the respondent being a previous director of the company).

181    The second condition is made out when the uncalled witness is “a person presumably able to put the true complexion on the facts relied on [by a party] as the ground” for any inference favourable to the plaintiff: RHG Mortgage Ltd v Ianni [2015] NSWCA 56 at [75], per McColl AJA. The condition is not satisfied if there is no demonstrated reason to think the evidence of the uncalled witness would elucidate any particular matter: ASIC v Hellicar at [266].

182    In respect of the third condition, the significance to be attributed to the fact that a person did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the person was not called was because the party expected to call him or her feared to do so.  The reason why the witness is not called may have no relevant relationship to the fact in issue: it may be related to, for example, the fact that the party simply does not know what the witness will say, the party is aware a witness has a reason for not telling the truth or refusing to assist or a party doubts the witness will cooperate given prior consultation, proof of evidence or the like. A party is not obliged to call a witness “blind” in order to avoid the inference being drawn against them: Fabre v Arenales (1992) 27 NSWLR 437 at 449–450, per Mahoney JA, Priestley and Sheller JJA agreeing.

183    Any “explanation”, such as unavailability or the absence of recollection, for the failure to call the witness must be established by evidence and is not to be merely presumed from the passage of time: West v Government Insurance Office (NSW) [1981] HCA 38; (1981) 148 CLR 62 (at 70) per Murphy J; Rowell v Larter (1986) 6 NSWLR 21 (at 24–25) per Young J (as his Honour then was).

Character Evidence

184    The applicant relies on evidence of his good character in relation to his credibility and in relation to the probability or improbability of guilt (Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421; [2005] 2 Cr App R 378 (PC); Attwood v The Queen (1960) 102 CLR 353 at 359). The character evidence relates to his military service and record, and his treatment of women.

185    These are defamation proceedings and the applicant adduced a substantial body of evidence relevant to his reputation prior to the publication of the matters complained of. That evidence included statements of Mr Adam Veale, Ms Susan Wood, Ms Sarah Kelly, Mr Anthony Tremlett, Ms Deborah Rolfe AM and oral evidence from Dr Parbodh Gogna (who served with the applicant) and Dr Brendan Nelson AO (who had a close association with the applicant by reason in part of his position as Director of the Australian War Memorial). There was also an outline of evidence of Person 30 who was a captain of the SASR and who was involved in writing a citation for the applicant in relation to his actions at the Battle of Tizak and it was in respect of that citation that the applicant was awarded the Victoria Cross. The Battle of Tizak took place on 11 June 2010 and Person 30 wrote citations for other SASR soldiers who took part in the battle. The evidence establishes without contradiction by the respondents that the applicant had a very good reputation in the community as an Australian soldier.

186    The applicant put at the forefront of what he said was his exemplary military service record and distinguished military service to Australia the following. In cross-examination, Person 4 said that as far as he knew, the applicant was a good man and a brave soldier. In examination-in-chief, Person 32 said that during his deployments to Afghanistan with the applicant in 2010 and 2012, he did not observe any breach of the rules of engagement by the applicant and nor was he directed by the applicant to breach any of the rules of engagement. Had he observed a breach of the rules of engagement either by the applicant or by the Wakunish Partner Force in Afghanistan, he would have reported that breach up the chain of command. As I will make clear in Section 5 dealing with the mission to Chinartu, I do not accept the evidence of Person 32. I have already referred to the evidence of Person 30.

187    The applicant was awarded the Medal for Gallantry on 22 November 2006. That award related to his bravery on 2 June 2006. The award states that the applicant’s actions on 2 June 2006 were carried out under heavy Anti-Coalition Militia fire and in a precarious position, threatened by a numerically superior force. The award states that the applicant’s actions are a testament to his courage, tenacity and sense of duty to his patrol. The award states that his display of gallantry in disregarding his own personal safety in maintaining an exposed sniper position under sustained fire with a risk of being surrounded by the Anti-Coalition Militia was outstanding.

188    The applicant was awarded the Victoria Cross on 23 January 2011. The citation states that the Victoria Cross was awarded for the most conspicuous gallantry in action in circumstances of extreme peril as a Patrol Second-in-Command with the Special Operations Task Group on Operation SLIPPER.

189    The award states that on 11 June 2010, a troop of the Special Operations Task Group conducted a helicopter assault into Tizak, Kandahar province, in order to capture or kill a senior Taliban commander. Upon insertion, the troop was engaged by machine-gun and rocket propelled grenade fire from multiple dominating positions. Two soldiers were wounded in action and the troop was pinned down by fire from three machine-guns in an elevated fortified position to the south of the village. The award states that under the cover of close air support, suppressive small arms and machine-gun fire, the applicant and his patrol manoeuvred to within 70 metres of the enemy position in order to neutralise the machine-gun positions and regain the initiative. The award states that upon the commencement of the assault, the patrol drew very heavy, intensive effective and sustained fire from the enemy position. The applicant and his patrol members moved towards the enemy position until at a range of 40 metres they could move no further. The applicant identified an opportunity to exploit some cover provided by a small structure. The applicant approached the structure and, in the course of doing so, identified and engaged an insurgent grenadier in the throes of engaging his patrol. The applicant exposed his own position in order to draw fire away from his patrol. His patrol was pinned down by three enemy machine-gun positions. This conduct enabled his patrol commander to throw a grenade and silence one of the machine-guns. The applicant seized the advantage and stormed the enemy position killing the two remaining machine-gunners. After seizing the fortified gun position, the applicant took the initiative again and continued to assault enemy positions in depth during which he and another patrol member engaged and killed further enemy. The citation states that the applicant’s acts of selfless valour directly enabled his troop to go on and clear the village of Tizak of Taliban. The decisive engagement subsequently caused the remainder of the Taliban in Sha Wali Kot district to retreat from the area.

190    On 26 January 2014, the applicant was awarded the Commendation for Distinguished Service. This award was for the distinguished performance of duty in warlike operations as a patrol commander with the Special Operations Task Group on Operation SLIPPER from June to November 2012. The citation states that the applicant distinguished himself as an outstanding junior leader on more than 50 high risk counter-leadership operations against a determined enemy. It states that the applicant invested heavily in training and mentoring the members of his patrol and less experienced members in the wider Task Group. In planning operations, he drew on a detailed understanding of enemy networks and the human and physical terrain in which they operate to develop lateral tactical concepts. In execution he consistently demonstrated great courage, resourcefulness and endurance.

191    The citation states that the applicant took responsibility for mentoring and developing both his own patrol and the personnel of the wider Special Operations Task Group. He readily offered advice on planning, equipment and tactical techniques, contributing directly to individual and collective capability. The award states that the applicant’s efforts ensured the effective transfer of his professional knowledge and experience to a new generation of special forces soldiers. The applicant led from the front in even the most difficult and dangerous of circumstances, maintaining the highest levels of motivation and readiness in his patrol. His performance in leading five special reconnaissance missions exemplified his professional approach and technical skill. These high-threat missions required a superior situational awareness, patience, and preparedness. The applicant planned meticulously and executed skilfully, ensuring the security of his patrol and enabling mission success. The citation refers to the success of a mission on 21 October 2012 when the applicant led a lone special reconnaissance patrol deep into the insurgent stronghold of Char-Chineh, Afghanistan, to gain intelligence for future operations.

192    Except where I reject the evidence (i.e., Person 32), I take these matters into account in considering the allegations made by the respondents concerning the applicant’s conduct as a member of the SASR.

193    With respect to the applicant’s good character concerning his treatment of women, the applicant relies on the following evidence:

(1)    Mr Adam Veale is an accountant and a registered tax agent and a director of Alleviate Group which is an accounting firm based in Perth. He went to school with the applicant and has been his friend since 1993. He has been his personal accountant since about 2005 and he was his manager between 2012 and 2014 when the applicant was carrying on a business as a public speaker. Mr Veale said that the applicant had a reputation for behaving in a gentlemanly and respectful manner towards women;

(2)    Ms Sarah Kelly is an associate professor of law and marketing at the University of Queensland and occupies a number of community positions. She first met the applicant in 2013 when he commenced a course at the university. They are good friends. Ms Kelly said that she had never seen the applicant being aggressive with women and, to her observation, the applicant has at all times treated his wife with respect. She finds it hard to believe the allegation of domestic violence against the applicant;

(3)    Mr Anthony James Tremlett is an investment director at Argyle Capital Partners which he described as a manager of private investments by institutional investors and other investors in the Australian agricultural sector. He joined the Australian Army in 1996 and was a member of the SASR from 2003 to 2018. He first met the applicant in 1996 and is good friends with him. Mr Tremlett said that the applicant was not the kind of person who would hurt a woman. He treated his wife and daughters with respect and had the ability to control his emotions in very challenging circumstances;

(4)    Ms Deborah Rolfe AM is a partner of a Canberra law firm and holds community positions. She met the applicant in 2011 and has become a close friend of Ms Roberts. Mr Rolfe described the allegation of domestic violence against the applicant as outrageous and that he is not the kind of person to hit a woman. He has never lost control of his emotions and always treated women with absolute respect.

194    I take this evidence into account when assessing the allegations concerning Person 17.

The Principles in Browne v Dunn

195    The principles in Browne v Dunn (1893) 6 R 67 (HL) (Browne v Dunn) are discussed in my reasons in Roberts-Smith v Fairfax Media Publications Pty Limited (No 36) [2022] FCA 578 (Roberts-Smith (No 36)) in connection with certain evidence given by Person 5. I will not repeat that discussion. It is sufficient to note that the most significant example of a failure to comply with the principles in Browne v Dunn occurred in the case of Person 38 and his evidence in relation to events on the mission to W108. That failure is discussed in Section 2 of this Part which deals with the mission to W108.

Lies as Evidence of a Consciousness of Guilt

196    Lies are clearly relevant to credit, but in some circumstances may also be evidence of a consciousness of guilt. The respondents identified a number of lies by the applicant which they contend are not only relevant to credit, but also are evidence of a consciousness of guilt. Those lies mainly related to the missions to W108, Darwan and Chinartu respectively. At this point, I will simply identify the relevant principles.

197    The circumstances in which lies by a party give rise to a finding of a consciousness of guilt or the making of an implied admission can be complex and highly contentious. The principles applied in a civil case are similar to those applied in a criminal case (FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1 at [92] per Crennan and Bell JJ).

198    The circumstances in which a lie may be capable of providing corroboration or independent proof of guilt were considered in Reg v Lucas (Ruth) [1981] QB 720 (Reg v Lucas (Ruth)) at 724 per Lord Lane CJ and Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 (Edwards).

199    The matters that must be satisfied before a lie can be considered to constitute corroboration in accordance with Reg v Lucas (Ruth) are that the lie must: (1) be deliberate; (2) relate to a material issue; (3) spring from “a realisation of guilt and a fear of the truth”; and (4) be clearly shown to be lies by evidence other than that to be corroborated.

200    In the context of a discussion which includes references to corroboration, it should be noted that s 164 of the Evidence Act abolishes all pre-existing corroboration requirements. In other words, it is not necessary as a matter of law that evidence on which a party relies be corroborated.

201    In Edwards, Deane, Dawson and Gaudron JJ, in addressing a submission that the second and third elements of the test in Reg v Lucas (Ruth) involved reasoning which is circular, said the following (at 210):

There is, however, a difficulty with the bare requirements in R v Lucas (Ruth) that a lie must be material and that it must be told from a consciousness of guilt. Again it is convenient to confine ourselves to that last requirement. A bare direction that consciousness of guilt is required does not provide sufficient guidance as to what matters indicate its presence. Unexplained, such a direction allows the jury to decide, in the light of all the evidence, that a lie was told with a consciousness of guilt and then to use that finding to corroborate some part of the evidence that led to the finding of a consciousness of guilt.

The plurality went on to say that in court, as well as out of court, lies may amount to an admission against interest so as to constitute corroborative evidence or independent evidence tending to establish guilt (at 208–209; see also R v Watt (1905) 20 Cox CC 852 at 853; R v Liddy [2002] SASC 19; (2002) 81 SASR 22 at [243] per Mulligan J).

202    The decision of the Court of Appeal of New South Wales in Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 is instructive in terms of the use of lies as evidence of a consciousness of guilt in civil cases. After reviewing a number of authorities, the Court said (at [87]–[88]):

87    The authorities to which we have just referred are criminal ones. In R v Liddy, Mullighan J said at para 242-243:

It is unnecessary to set out the circumstances in which a deliberate lie told by an accused person may amount to positive evidence of guilt as opposed to adversely reflecting upon the accused’s credibility. The telling of relevant lies is a piece of circumstantial evidence from which an adverse inference of guilt may be drawn if the lie is told out of a consciousness of guilt and no other rational inference may be drawn.

88    The concept that “no other rational inference may be drawn” is a concept of the criminal law, necessitated by the standard of proof beyond reasonable doubt. In a civil case, it is sufficient in our view for a lie to be accepted as an admission of guilt, if that is the more probable inference to be drawn. In this regard we adopt the like approach taken by the trial judge to the adoption of the knowledge test in Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 (to which we come later in these reasons) to the civil sphere. That adoption is not only appropriate but necessary to accommodate the differing standard of proof.

203    In R v Boscaino [2020] QCA 275, Sofronoff P (with whom Morrison JA and Brown J agreed) addressed the way in which lies may be used beyond credit and said (at [30]):

The circumstantial evidence in this case was constituted by so-called “post-offence conduct” from which the jury was invited to draw an inference of guilt of murder. Sometimes this evidence is called evidence of “consciousness of guilt” and sometimes it is called evidence of an implied admission. As long ago as 1796, in R v Crossfield the expression “consciousness of guilt” was used to describe evidence of this kind. In the trial of an alleged conspirator in a plot to assassinate King George III the trial judge directed the jury to the significance of the accused’s “flight” from England as “circumstances which do at least infer a consciousness of very great guilt, and if there be no other reason assigned for the conduct of the party, very much corroborating and supporting the charge of the particular guilt that is imputed to him” (emphasis added). In an 1896 American textbook, the learned author wrote that the behaviour of a person who fabricates evidence or lies to conceal facts “necessarily implies an admission of their truth, and a consciousness of their inculpatory effect, if uncontradicted or unexplained” (emphasis added). Both expressions are useful, in the way that jargon is often useful, as a handy tag to refer to this kind of evidence as long as the underlying concept itself is understood and applied correctly. Evidence that a person accused of a crime told a lie about a material fact concerning the crime is a piece of circumstantial evidence. Circumstantial evidence is evidence which proves a fact from which another fact may be inferred. The prosecution leads evidence about the accused’s telling of a lie because that fact raises an inference that the accused is guilty of the charged crime. The reason why one might infer guilt is that, people being largely rational, there must have been a reason why the accused told the lie. As was said in Crossfield, “if there be no other reason assigned for the conduct of the party” one might conclude that the circumstantial fact raises an inference of the accused’s guilt. This is because a jury can infer that the accused’s reason for telling the lie was to hide something that pointed to the accused’s guilt and wanting to hide something that points to one’s guilt of an offence is the motivation of a guilty person. In that sense, the lie constitutes evidence of “consciousness of guilt” because the lie proves a motivation based on guilt. It can also be regarded as an implied admission of guilt in the sense that it is voluntary conduct by an accused that evinces guilt.

(Footnotes omitted.)

204    His Honour went on to say that there may be competing inferences and there might be a number of non-inculpatory explanations for lies. Furthermore, his Honour made the following observations with respect to the cumulative effect of lies with other lies or with other conduct from which an inference of a consciousness of guilt may be drawn (at [33]):

However, the prosecution’s circumstantial case was not confined to post-offence lies. It included all of the other acts of the appellant to hide Thompson’s killing. Each individual inference of guilt in a circumstantial case need not itself be established beyond a reasonable doubt before a jury is entitled to draw an inference that the appellant was guilty of murder. A jury is entitled to have regard to the whole combination of facts, none of which viewed alone could support that ultimate inference, but which taken together can do so, provided that they reach that conclusion upon the criminal standard of proof. When the lies, which on their own might be equivocal as to guilt, are considered along with all of the other post-offence conduct, as part of an assembly of facts each of which raises its own incriminating inference, then it becomes open to the jury to accept, beyond a reasonable doubt, the ultimate inference that the appellant was guilty of murder.

(Citation omitted; see also Leung v State of Western Australia [2020] WASCA 81 at [38]–[50] per Buss J; R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [46]–[48] per Gummow, Hayne and Crennan JJ.)

205    In summary and without wishing to be exhaustive, a court must be cautious before treating a lie as an implied admission or evidence of a consciousness of guilt and, in particular, bear in mind the following: (1) a witness cannot corroborate himself or herself so that a lie of an accused or party proved to be a lie by reason of the witness’ evidence cannot be used to corroborate the witness’ evidence (Edwards per Deane, Dawson and Gaudron JJ at 210); (2) it is difficult to take a false denial of guilt and conclude that it amounts to an implied admission of guilt and that is so self-evidently, but also because it would involve circular reasoning or the prosecution pulling itself up by its own bootstraps (Gionfriddo & Faure v R (1989) 50 A Crim R 327 at 332–333 per Crockett and O’Bryan JJ) or it gives rise to the prospect of the Court not recognising both the Crown’s onus and standard of proof (Mercer v R (1993) 67 A Crim R 91 at 98 per Hunt CJ at CL); and (3) the fact-finder must bear in mind and consider that there may be reasons for the telling of a lie apart from a realisation of guilt (Edwards at 211 per Deane, Dawson and Gaudron JJ).

Other Matters

206    I have addressed other matters such as the principles relevant to consciousness of guilt by reason of conduct other than lies and the principles relevant to collusion between witnesses and contamination of a witness’ evidence in Section 12 of this Part. I have also referred to authorities concerning identification evidence (see, for example, [700] and [1361]).

Section 2 — Whiskey 108

Introduction and Background

207    The respondents contend that the applicant’s involvement in two murders at Whiskey 108 establishes the substantial truth of Imputations 2, 3, 4, 5, 6 and 9.

208    The Particulars of Truth with respect to the mission to Whiskey 108 on 12 April 2009 are as follows:

Incident on Easter Sunday 2009

(40)    On or about 12 April 2009 the Applicant and the troop of which he was a member conducted a mission providing commentary and sniper support to the infantry who were trying to get across a river.

(41)    In or about the late afternoon the Applicant and the troop of which he was a member were instructed to assault a compound code-named Whiskey 108. The Applicant’s patrol was one of the patrols responsible for conducting the assault.

“Blooding the rookie”

(42)    Rotation 9 was Person 4’s first deployment. Person 4 was a member of the Applicant’s patrol.

(43)    At various times throughout rotation 9 the Applicant and his patrol commander, Person 5, made statements, in substance that they needed to “blood the rookie” (referring to Person 4).

(44)    “Blooding” refers to initiating a person in the practice of killing, or giving them the taste for killing.

(45)    During the mission in relation to Whiskey 108 an Afghan male (Afghan Male 1) was detained.

(46)    In the presence of the Applicant Person 5 ordered Person 4 to execute Afghan Male 1. Pursuant to that order Person 4 placed Afghan Male 1 on his knees and shot him in the back of the head. Person 4 was ordered to execute Afghan Male 1 so that he could be “blooded”. The Applicant did not say or do anything to encourage Person 5 to withdraw the order or to stop Person 4 following the order. In these circumstances, and in the circumstances set out in particular 43 above, it may be inferred that the Applicant was complicit in and approved of the order.

(47)    In the circumstances, by his conduct with respect to Afghan Male 1, the Applicant breached Common Article 3 in that he was complicit in and responsible for murder.

(a)    [Deleted]

(b)    [Deleted]

(48)    In the circumstances, by his conduct with respect to Afghan Male 1, the Applicant was complicit in and responsible for murder.

Murder of Afghan Male 2

(49)    After the assault was complete and the patrols were conducting SSE (sensitive site exploitation, being a process post-assault where a detailed and thorough search of the site is performed in order to gather intelligence) the Applicant carried an Afghan male with a prosthetic leg (Afghan Male 2) outside the compound and threw him on the ground. The Applicant then shot Afghan Male 2 approximately 10-15 times with a F89 LSW. A F89 LSW is a light machine gun.

(50)    Afghan Male 2 was a “PUC” (person under control) who posed no imminent threat, particularly given that Afghan Male 2 was physically impaired and the Applicant was able to carry him outside of the compound and throw him to the ground.

(51)    In the circumstances, by his conduct with respect to Afghan Male 2, the Applicant breached Common Article 3 in that his conduct constituted murder.

(a)    [Deleted]

(b)    [Deleted]

(52)    In the circumstances, the Applicant’s conduct with respect to Afghan Male 2 constituted murder.

Prosthetic leg

(53)    After Afghan Male 2 had been killed by the Applicant, Person 6 retrieved the prosthetic leg and brought it back to base. To the Applicant’s knowledge the prosthetic leg was subsequently:

(a)    brought back to the SASR base in Australia;

(b)    mounted and framed;

(c)    used as a prop in photographs; and

(d)    used as a beer drinking vessel by members of the troop, including the Applicant.

(54)    By drinking from the prosthetic leg the Applicant, as a senior member of the troop, encouraged and contributed to a culture within the troop in which it was acceptable to drink from the prosthetic leg.

(55)    The Applicant’s conduct in drinking from the prosthetic leg and in encouraging and contributing to the culture referred to in the preceding paragraph was callous and inhumane.

209    The allegation with respect to Afghan Male 1 is one of a breach of Common Article 3 of the Geneva Convention and complicity in and responsibility for murder (Particulars (47) and (48)), and the allegation with respect to Afghan 2 is one of a breach of Common Article 3 and murder (Particulars (51) and (52)).

210    I begin by identifying some background matters. Whiskey 108 was the codename for an Afghan compound. The question of whether it was one compound or two adjoining compounds was alluded to in the course of the trial, but not answered. It is not necessary to resolve that issue. I will refer to the compound as W108. W108 is located in Deh Rafshan in the village of Kakarak in the West Dorafshan district of Uruzgan Province in Afghanistan. Although I refer from time to time to the mission to W108, it should be noted that after clearing W108, at least part of the troop went on to clear Whiskey 109 (W109) which was nearby.

211    A 500-pound bomb was dropped on the compound by Coalition Forces shortly before it was cleared. An unmanned aerial vehicle (ScanEagle) took photographs of W108 before, during and after the bomb was dropped. The photographs were produced at the trial. Almost every witness who gave evidence of events at W108 was asked to mark one or more of the photographs showing that witness’ evidence concerning his position and the position of other soldiers at various points in time, the location of structures and areas, the direction of movements through the compound and the location of bodies and a number of other matters. I attach to these reasons for the assistance of the reader an unmarked aerial photograph of W108 before the bomb had struck the compound and an unmarked aerial photograph of W108 after the bomb had struck the compound (Annexure G). The evidence is that the bomb did considerable damage to W108.

212    There was a misunderstanding on the day of the mission by those recording events concerning the cardinal points and that led to the location of areas, bodies and objects not being correctly described. The location of north is correctly shown on the attached photographs and the courtyard which was the focus of a great deal of evidence is at the north-eastern end of W108. On the day, north was thought to be more towards the bottom right hand corner of the photograph placing the courtyard at the north-western end of W108. This misunderstanding did not cause any confusion in the evidence. There was only ever one courtyard referred to in the evidence and it was agreed on all sides that a tunnel was found in that courtyard. Except where otherwise indicated, I will refer to locations by reference to the cardinal points as they were understood on the day.

213    It will be necessary to refer to the time at which various events occurred. A number of Australian Defence Force (ADF) records were tendered in evidence and in those records, DE (Delta Echo) refers to the local time in Afghanistan. Local time is four and-a-half hours ahead of Zulu (Z) time which is also referred to in some of the records. Zulu time is Greenwich Mean Time.