Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Snedden v Nationwide News Pty Ltd [2011] NSWCA 262
• Hearing dates: 18-19 November 2010
• Decision date: 02 September 2011
• Before: McColl JA at [1]; Macfarlan JA at [2]; McClellan CJ at CL at [3]

Decision

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL - Defamation Act 1974 (NSW) - conduct of appellant as commander of Serbian troops - prior criminal convictions - imputations found to have been conveyed - defences of truth and contextual truth (NSW and TAS) - defences of truth and justification (other interstate jurisdictions) - TRUTH - matters and circumstances that establish the substantial truth of the imputations - JUSTIFICATION - whether Polly Peck or Hore-Lacy defence applies to interstate publications - verdict for the respondents.
• Legislation Cited: Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth); Crimes Act; Crimes (Torture) Act (1988) (Cth); Defamation Act 1974 (NSW); Defamation Act 1957 (Tas); UK Defamation Act 1952
• Cases Cited: Advertiser - News Weekend Publishing Co. Ltd. V Manock [2005] SASC 82; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; Cross v Queensland Newspaper Pty Ltd (2008) NSWCA 80; David Syme & Co Ltd v Hore-Lacey [2000] VSCA 24; Fox v Percy (2003) 214 CLR 118; Howden v Truth & Sportsmen Ltd (1937) 58 CLR 416; John Fairfax Publications Pty Ltd & Anor v Jones [2004] NSWCA 205; John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; John Fairfax Publications v Zunter [2006] NSWCA 227; Moore v News of the World [1972] 1 QB 441; Mr Whippy Pty Ltd v Ocean Walk Pty Ltd (2008) NSWCA 8; Polly Peck v Trelford [1986] QB 1000; The Greek Herald v Nikolopoulos (2002) 54 NSWLR 165; Warren v Coombes (1978-1979) 142 CLR 531; West Australian Newspapers Ltd v Elliot [2008] WASCA 172
• Category: Principal judgment
• Parties: Daniel Snedden (Appellant); Nationwide News (Respondent)
• Representation: C A Evatt/R K Rasmussen (Appellant); T D Blackburn SC/J Hmelnitsky (Respondent); DC Legal Pty Ltd (Appellant); Blake Dawson (Respondent)
• File Number(s): CA 2005/269455

Decision under appeal

• Citation: NSWSC 1446
• Date of Decision: 2009-12-18 00:00:00
• Before: Latham J
• File Number(s): 20389/2005

Judgment

1 McCOLL JA: I agree with McClellan CJ at CL and the orders his Honour proposes.

2 MACFARLAN JA: I agree with McClellan CJ at CL.

3 McCLELLAN CJ at CL: On 8 September 2005 the Australian Newspaper published on its front page an article under the headline "Serbian death squad commander alive and well and teaching golf in Perth." A copy of that article is annexed to these reasons. The Australian is published in all the Australian States and Territories.

4 The appellant, Daniel Snedden, previously known as Dragan Vasilykovic, claimed that he was defamed by the article and he sued for damages in the Supreme Court. He failed at trial and has appealed to this Court.

5 The proceedings were brought under the Defamation Act 1974 (NSW) with the consequence that a trial with a jury was held pursuant to s 7A(3) of the Act to determine whether defamatory imputations were conveyed by the article. The jury found the following defamatory imputations were conveyed:

1. the plaintiff was a death squad commander;

2. the plaintiff had condoned the rape of women and girls;

3. the plaintiff was a mercenary;

4. the plaintiff had admitted committing a massacre;

5. the plaintiff was before 1991 a criminal;

6. the plaintiff before 1991 had underworld links.

6 The plaintiff had pleaded a further four imputations which the jury found were not conveyed by the article. They were:

the plaintiff had authorised the torture of civilians;

the plaintiff had authorised the murder of hundreds of civilians or alternatively the plaintiff had authorised the murder of civilians; and

the plaintiff had authorised the rape of women and girls.

7 In jurisdictions other than NSW, the respondent pleaded that the matter complained of was true in substance and in fact. In relation to NSW the respondent pleaded truth only to imputations 4, 5 and 6. It did not initially plead truth to imputation 2 in New South Wales but this was later amended. In this Court, the respondent also formally sought leave to amend its defence to plead truth to imputation 1. In addition, it defended the proceedings in New South Wales and Tasmania by relying on the defences of contextual truth under the relevant statutes. In the other States and Territories the defendant pleaded the common law defence of justification. The extent to which the respondent pleaded truth to all imputations in jurisdictions other than New South Wales does not seem to have been appreciated in the submissions to this Court or at trial.

8 With respect to the statutory defence of contextual truth and the common law defence of justification the respondent pleaded a further 10 contextual imputations which it contended were true. An additional contextual imputation was pleaded in relation to jurisdictions apart from New South Wales. The ten imputations were:

7. The plaintiff, an Australian citizen, went to a foreign State and engaged in hostile activity in that foreign State, which is contrary to Australian law;

8. The plaintiff, as commander of Serbian paramilitary units which committed the war crime of torture, bore responsibility for the commission of that crime;

9. The plaintiff, as commander of Serbian paramilitary units which committed torture, bore responsibility for the commission of that crime;

10. The plaintiff condoned the commission of the war crime of torture;

11. The plaintiff condoned the commission of torture;

12. The plaintiff committed the war crime of torture;

13. The plaintiff committed torture;

14. The plaintiff condoned the rape of women;

15. The plaintiff participated in the organised rape of women; and

16. The plaintiff raped a woman.

9 The additional imputation was:

17. The plaintiff committed war crimes (not pleaded in NSW).

Findings of the Trial Judge

10 At the trial the appellant confined his case in chief to evidence with respect to his reputation and hurt to feelings. He did not himself give evidence in chief but gave evidence in reply. The respondent called a significant body of evidence going to the truth of the pleaded imputations.

11 The appellant did not dispute that imputations 7 and 14 were conveyed but submitted that imputations 8 to 13 and 15 to 17 were not conveyed. The trial judge rejected that submission. Her Honour's finding is challenged in ground 2 of the appeal. The pleaded ground is that her Honour's finding was "unreasonable" although the submissions put the matter differently. I have dealt with them below.

12 The trial judge found that imputations 4, 5 and 6 were substantially true. In relation to imputation 4 her Honour accepted the evidence of journalists Anne McElvoy and Paul McGeough with respect to admissions made by the appellant in 1991. The finding in relation to imputations 5 and 6 were supported by evidence of conviction of the appellant for offences of receiving stolen goods, unlawful possession of goods and operating a brothel for prostitution.

13 The trial judge found each of the contextual imputations to be true. In so doing her Honour accepted the evidence in relation to various events given by witnesses. The trial judge rejected the appellant's evidence in which he denied those events. Her Honour said of the appellant's evidence generally:

"I formed the impression that the plaintiff was prepared to change or colour his evidence in an attempt to defuse the allegations made against him. In short, he was loose with the truth when it suited his purposes."

14 The defence of contextual truth is provided by statute in New South Wales and Tasmania.

15 Section 16 of the Defamation Act 1974 (NSW) provides:

16. Truth: contextual imputations (NSW)

(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of.

(2) It is a defence to any imputation complained of that:

(a) the imputation relates to a matter of public interest or is published under qualified privilege,

(b) one or more imputations contextual to the imputation complained of:

(i) relate to a matter of public interest or are published under qualified privilege, and

(ii) are matters of substantial truth, and

(c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff.

16 Section 18 of the Defamation Act 1957 (Tas) provides:

18. Justification (Tas)

In an action for defamation in respect of words containing two or more distinct charges against the plaintiff, a defence of justification does not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation, having regard to the truth of the remaining charges.

17 Section 16 of the NSW Act was considered in John Fairfax Publications Pty Ltd & Anor v Jones [2004] NSWCA 205 where Spigelman CJ at [15] emphasised that contextual imputations pleaded by a defendant must differ in substance from the imputations pleaded by the plaintiff. Contextual imputations must be "of a different character, rather than different levels of generality of the same allegation".

18 The trial judge determined that imputations 8, 9, 10, 11, 12 and 13 should be considered together, being gradations of seriousness of the same imputation. Contextual imputations 15 and 16 were accepted as stand alone imputations. Contextual imputation 14 was considered to be an alternative to imputations 15 and 16.

19 With respect to the NSW and Tasmanian jurisdictions, her Honour determined that each of the contextual imputations was substantially true. She held that having regard to those imputations the description of the appellant as a "death squad commander" (imputation 1) did not result in any further injury to the appellant's reputation.

20 The trial judge made a similar finding in relation to imputations 2 and 3. Her Honour determined that any damage to the appellant's reputation caused by these imputations was "completely subsumed by the damage to his reputation occasioned by the evidence underpinning the contextual imputations".

21 Her Honour considered the application of the common law contextual truth defence in jurisdictions other than NSW. However her Honour indicated that contextual truth is not available as a common law defence in Australia ( John Fairfax Publications v Zunter [2006] NSWCA 227). Accordingly, her Honour considered whether the common law defence of justification had been established.

22 Unlike the statutory defences where the contextual imputations must differ in substance from the imputations pleaded by the plaintiff, the common law defence operates with respect to imputations that do not differ from the pleaded imputations ( David Syme & Co Ltd v Hore-Lacey [2000] VSCA 24 ( 'Hore-Lacey' ), West Australian Newspapers Ltd v Elliot [2008] WASCA 172 ; Advertiser - News Weekend Publishing Co. Ltd. v Manock [2005] SASC 82).

23 Her Honour recognised the potential contradiction in the respondent's argument. To succeed in relation to the contextual truth defence in NSW and Tasmania, the contextual imputations must be substantially different. To succeed in relation to the common law defence of justification the imputations must be substantially similar.

24 It was for this reason, it would seem, that the respondent pleaded imputation 17. Her Honour determined that "imputation 17...on its face, is a general statement which comprehends imputations 1 and 2" and concluded that no additional prejudice would have resulted if the plaintiff had taken that imputation to the jury himself.

25 As it happened the trial judge ultimately concluded that the appellant condoned the rape of women and accordingly found that imputation 2 had been proved substantially true. Her Honour allowed an amendment to plead truth to that imputation. Her Honour also determined that imputation 4 was substantially true and went "a considerable way towards proof of imputation 1, that the plaintiff was a death squad commander".

26 Accordingly, her Honour found that the respondent had justified imputations 1 and 2 and concluded that, to the extent that imputation 3 had not been justified, the combined effect of the other imputations had "effectively rendered nugatory any damage that could have been occasioned by imputation 3 had it stood alone".

Grounds of Appeal

27 There are 43 grounds of appeal. They are muddled, repetitive and in many instances entirely without merit. The task required of this Court has been little assisted by their form. In the main they challenge the trial judge's findings of fact as being "unfair", "unreasonable" or "against the evidence." Grounds 13 and 14 were abandoned at the hearing.

28 The Notice of Appeal reads as follows:

1. Her Honour's judgment was unreasonable and against the evidence.

2. Her Honour's finding that contextual imputations 8, 9, 10, 11, 12,13, 15 and 16 were conveyed by the article complained of was unreasonable.

3. Her Honour's decision in paragraph 154 of her judgment to accede to the respondent's request in its written submissions (after the close of evidence) to amend its defence to plead justification to imputation 2 was unfair and unreasonable.

4. Her Honour's finding that the respondent had proved the substantial truth of imputation 2 (the plaintiff has condoned the rape of women and girls) was erroneous because the respondent had neither particularised nor established in evidence that the appellant had condoned the rape of girls.

5. In making her finding on imputation 4 (the plaintiff had admitted committing a massacre) her Honour acted unreasonably because she held the Battle of Glina did not take place between 26 and 28 July 1991 but in mid July 1991.

6. Her Honour erred in finding that the statement made by the appellant to Ms McElvoy and referred to in paragraph 26 of the judgment was not made conditionally but made by the appellant contemporaneously with the attack upon the police station at Glina even though the statement was made nearly two weeks before the Battle of Glina.

7. Her Honour erred in finding the respondent had established the truth of imputation 5 (the plaintiff was before 1991 a criminal) because the appellant's convictions were insufficient to warrant the description "criminal."

8. Her Honour's finding that the respondent had established the truth of imputation 6 (the plaintiff before 1991 had underworld links) was unfair and unreasonable because the respondent led no evidence to support the truth of this imputation and had not particularised facts on which it relied to establish its truth but her Honour instead relied on her own knowledge as to what she said was the criminal situation in Melbourne in 1984.

9. Her Honour's finding that the appellant could not rely on parts of exhibit 2 (the Martic judgment) was unreasonable, inconsistent and unfair.

10. Her Honour's finding in paragraph 82 of her judgment that the appellant had denied procedural fairness to the respondent concerning the appellant's reliance on exhibit 2 to establish he did not mistreat or brutalise prisoners at Knin was unreasonable.

11. Her Honour denied the appellant procedural fairness by not allowing him to rely upon exhibit 2 when she herself, without prior notice to the parties, relied on exhibit 2 for a chronology of political events and the dates of various battles which she quoted in her judgment.

12. Her Honour's finding that the defendant had established the truth of contextual imputation 7 was against the evidence and in so finding her Honour failed to refer to or take into consideration the definition of a foreign state referred to in paragraph 3(2) of the Crimes (Foreign Incursions and Recruitment) Act.

13. Abandoned.

14. Abandoned.

15. Her Honour's finding the respondent had established the truth of contextual imputation 7 was against the evidence and the weight of the evidence.

16. Her Honour's finding the respondent had established the truth of contextual imputation 7 because the Krijina autonomous district "did not conform to requirements of an independent foreign state" was a finding based on no evidence led at the trial but based on her Honour's use of exhibit 2 thereby denying the appellant procedural fairness and the opportunity to make submissions on that issue.

17. Her Honour wrongly allowed the respondent's witnesses to give evidence as to what occurred to them and what was said to them before they arrived at the prisons and to give evidence as to what occurred and what was said to them in the prisons even though the appellant was not present and there was no evidence he controlled the prisons or authorised what was said or what occurred.

18. There was no evidence to justify her Honour's findings in paragraph 124 there was commission of torture and war crimes of torture by members of the Serbian paramilitary units under the plaintiff's command.

19. In finding that the appellant condoned or permitted torture in the prisons her Honour failed to take into account or even consider evidence the appellant was neither in charge of nor controlled the prisons.

20. Her Honour acted unfairly and unreasonably in not making separate findings in respect of each of the respondent's contextual imputations 8, 9, 10, 11, 12 and 13 but instead making a collective ruling in respect of all six contextual imputations.

21. Her Honour erred in finding that the respondent had established the truth of each of imputations 8, 9, 10, 11, 12 and 13.

22. Her Honour's finding that the respondent had established the truth of imputations 8, 9, 10, 11, 12 and 13 was erroneous because there was insufficient evidence to support her findings.

23. Her Honour erred in finding the respondent had established the truth of contextual imputations 10 and 11 (the plaintiff condoned the commission of the war crime of torture and the plaintiff condoned the commission of torture) because there was no evidence to support these findings.

24. There was no evidence to justify her Honour's findings that the respondent had established the truth of contextual imputations 12 and 13 (the plaintiff committed the war crime of torture and the plaintiff committed torture).

25. Her Honour's adverse findings about the credit of the appellant in paragraphs 127-128 were unreasonable because it was never an issue that the appellant commanded military forces in the Battle of Glina.

26. Her Honour acted unfairly and unreasonably in not making separate findings in respect of each of the respondent's contextual imputations 14, 15 and 16 but instead making a collective ruling in respect of all three contextual imputations.

27. There was no evidence to support her Honour's finding that the respondent had established the truth of contextual imputations 14 and 15 (the plaintiff condoned the rape of women and the plaintiff participated in the organised rape of women) because no evidence was led by the respondent that women as distinct from a particular woman were raped.

28. Her Honour's finding that the respondent had established the truth of contextual imputation 16 (the plaintiff raped a woman) failed to take into account or even refer to evidence which contradicted the respondent's case on identification.

29. Her Honour acted unfairly and unreasonably when she refused the appellant leave to call alibi evidence in reply to the effect that the appellant was in Belgrade at or about the time Source A claimed she was allegedly being raped at Zvornik by the appellant.

30. Her Honour's finding in paragraph 144 that mistreatment and war crimes were carried out "at the behest of, or with the authority of the Plaintiff" were against the evidence and the weight of the evidence and were contrary to the finding of the Section 7A jury that imputations pleaded by the appellant to the effect the plaintiff authorised the torture, murder and rape of civilians were not conveyed by the article complained of.

31. Her Honour erred and was unfair to the appellant by allowing him to be identified in Court.

32. Her Honour's finding that the appellant had been identified by Source A was unreasonable because she did not refer to or take into account in her judgment evidence negating such identification.

33. Her Honour erred in finding that the respondent's witnesses identified the appellant.

34. Her Honour denied the appellant procedural fairness.

35. Her Honour erred in not referring to the onus of proof in support of her findings the appellant had committed serious criminal and war crimes.

36. Her Honour erred by failing to apply or by indicating she had taken into account the Briginshaw standard (Section 140(2) of the Evidence Act) when finding the respondent had established the truth of the plaintiff's imputations and the contextual imputations.

37. Her Honour erred by failing to take into account or refer to in her judgment the absence of any documentary or supporting evidence to corroborate the serious allegations made against the appellant by the respondent's witnesses.

38. Her Honour erred in finding that the respondent's defence of contextual truth had succeeded in New South Wales and Tasmania.

39. Her Honour erred in finding as she did in paragraph 155 that the respondent had succeeded in justifying imputations 1 and 2 because the respondent did not plead truth to these imputations and led no evidence or provided no particulars in support of their truth.

40. Her Honour's findings in paragraph 151 are erroneous and together with her findings in paragraph 155 amount to a finding of contextual justification in the States and Territories other than New South Wales even though there is no defence of contextual truth in those States and Territories.

41. Her Honour erred in her findings concerning contextual imputation 17.

42. Her Honour's findings in paragraph 155 that the respondent had succeeded in justifying imputations 1 and 2 and there was available to the respondent some type of contextual defence for the interstate publications were erroneous and not in accordance with law.

43. Her Honour did not as she should have done, find the appellant had succeeded on at least imputations 1, 2 and 3 in the other States and Territories of the Commonwealth and her Honour did not as she should have done award the appellant appropriate damages.

44. Her Honour erred and acted unfairly in finding imputations 1 and 2 had been justified in the other States and Territories and that imputation 3 was subject to a successful defence of contextual truth by reason of the justification of imputations 1 and 2.

29 In this Court the appellant seeks verdicts in his favour in all States and Territories and an award of damages or in the alternative a new trial on the issue of damages.

30 The form of the notice of appeal creates difficulties for an orderly discussion of the issues raised. The respondent helpfully undertook a grouping of various of the individual grounds to allow an orderly disposition of the appeal. I will follow the respondent's approach.

31 As I have indicated, in various grounds of appeal the appellant contends that the findings of the trial judge were either "unreasonable", "unfair" "against the evidence" or "against the weight of the evidence." These assertions are found in grounds 1, 2, 8, 15, 22, 25, 30 and 32. They are also within grounds 18, 19, 23, 24, 27 and 37 where the substance of the complaint is that a finding was "against the evidence." The submission in support of these grounds is effectively that the decision below should have been made differently. No error amenable to correction by this Court is identified.

32 In Mr Whippy Pty Ltd v Ocean Walk Pty Ltd (2008) NSWCA 8 this Court considered a ground of appeal which was pleaded as being "against the weight of the evidence." Giles JA emphasised that "it is not an error of law to find against the weight of the evidence." Giles JA said at [42]:

"The sub-grounds may conveniently be considered together. Ground 2(b) was not well expressed. It is not an error of law to find against the weight of the evidence (see for example Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-7 per Glass JA, Samuels JA agreeing). A ground of appeal that a finding was against the weight of the evidence has its origin in appeals against a jury's verdict, and in Bell v Thompson (1934) 34 SR 431 at 437 Jordan CJ said that it required that the evidence "so strongly preponderate in [the appellant's] favour as to lead to the conclusion that the jury, in finding for the other party, have wilfully disregarded the evidence of [sic] failed to appreciate it"; see the discussion by Spigelman CJ in Waverley Municipal Council v Swain [2003] NSWCA 61; (2003) Aust Torts Rep 81-694 at [12]-[15]. The present appeal is from the decision of a judge sitting without a jury by way of rehearing pursuant to s 75A of the Supreme Court Act 1970, not an appeal after a jury verdict pursuant to s 102, and challenge to the decision of a judge sitting without a jury is not appropriately made by a ground in those terms. The challenge to a finding or findings of fact should be more focussed than was ground 2(b)."

33 The role of an appellate court when reviewing findings of fact was authoritatively determined by the High Court in Warren v Coombes (1978-1979) 142 CLR 531 and further discussed in Fox v Percy (2003) 214 CLR 118. A judge sitting without a jury is to determine the primary facts and any relevant inferences arising from them. An appellate court, which has not seen or heard the witnesses, has a more confined role. Although, when the issue is raised, its duty is to determine the facts for itself it must pay due regard to the opportunity afforded to the trial judge to observe the witnesses and may intervene to correct error where it is satisfied that a finding of primary fact made by the trial judge was not open or where it is persuaded that an inference drawn by the primary judge is wrong.

34 It follows that ground 1 of the appeal must fail. Many of the other grounds must fail for the same reason. However, although perhaps unnecessary I have provided a short response to each ground but organised in the order adopted by the respondent.

Ground 2: Her Honour erred in finding that contextual imputations 8, 9, 10, 11, 12, 13, 15, and 16 were capable of being conveyed.

35 This ground challenges the trial judge's ruling that contextual imputations 8, 9, 10, 11, 12, 13, 15 and 16 were capable of being conveyed. As it happens her Honour found that all of the respondent's contextual imputations were capable of being conveyed.

36 The appellant submitted that her Honour erred by not applying the correct test when considering the behaviour of a reader of a newspaper.

37 The trial judge referred to the judgment of Hunt J in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165. Her Honour accepted that the decision was authority for the proposition that the "reader of a newspaper article generally exercises less care than the reader of a book." The appellant submitted that her Honour misunderstood what Hunt J had said, his actual words being that the reader of a book "is assumed to read it with more care than he or she would read a newspaper" Marsden 165E-F. The appellant emphasised that even when reading a newspaper the ordinary reasonable reader has to exercise care.

38 I am not persuaded by the appellant's submission. It is relevant when considering whether an imputation is capable of being conveyed, to consider whether it has been published in a newspaper or in a book or in some other form. It is the common experience, although it is not always the case, that when reading a newspaper a person may read more quickly and superficially than when reading a book. However, her Honour did not suggest that the reader of a newspaper article does not exercise care when reading, but correctly observed that they will generally exercise less care than when reading a book.

39 The appellant submitted that the ordinary reasonable reader would not have concluded that the article conveyed the imputation that the appellant raped a woman as pleaded in imputation 16. Consideration of paragraphs 2 and 4 of the article is sufficient to dispose of this ground of appeal. In those paragraphs the appellant was described as being in command of "ruthless Serbian paramilitary units implicated in the war time rape, torture and slaughter of Muslims in Bosnia. ..." and "several paramilitary units alleged to have murdered hundreds of civilians and participated in the organised rape of women and girls." Read with paragraphs 13 to 26 and mindful of the photograph of the appellant holding a skull the relevant imputations are clearly capable of being conveyed.

40 The appellant further submitted that contextual imputations 8, 9, 10, 11, 12, and 13 were not in fact conveyed. Although at one point the written submissions raised the same issue in relation to imputations 15 and 16 this was not pressed. Although it was not expressed with great clarity the appellant's submission, as I understand it, was that the imputation in each "pair" of these imputations are in substance the same. It was submitted that the "only" difference in each "pair" was the inclusion of the words "war crime" in imputations 8, 10 and 12 which was not in imputations 9, 11 and 13.

41 No objection was taken at the interlocutory stage of the proceedings nor was any argument advanced to this effect in final submissions. No doubt it was recognised, at least at trial, that the submission was devoid of merit.

42 Although "crimes of torture" may also be "war crimes of torture" the two expressions are not synonymous. A war crime of torture will be an occasion when torture is carried out in circumstances related to war. The physical act may be the same as one carried out in circumstances not related to war but the context in which it occurs will be a war.

Grounds 34, 39, 42, 43 and 44

Imputation 1: The plaintiff was a death squad commander

43 These grounds of appeal and imputation 17 are considered later in these reasons. For present purposes, the appellant submitted that imputation 1 ought not to have been found to be justified. It was submitted that the plaintiff was denied procedural fairness because "the respondent did not plead truth to these imputations and led no evidence or provided no particulars in support of their truth." The submission should be rejected.

44 Her Honour dealt with the relevant submission of the defendant in the section of her reasons for judgment entitled "the Defence of Justification at Common Law." Her Honour correctly identified the elements of the common law defence. She referred to the decision in John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364 and quoted, as the summary of the principle, the following extract from the headnote to the report:

"A defendant seeking to justify in the common law jurisdiction may only plead an imputation by way of defence to the plaintiff's imputation, if that imputation does not differ in substance from the pleaded imputation, and is one which the plaintiff would be permitted to put to the jury on the state of the imputations the plaintiff pleaded. David Syme & Co Ltd v Hore-Lacey [2000] VSCA 24; (2000) 1 VR 667, Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314; Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82; (2005) 91 SASR 206 applied."

45 Her Honour then at [150] correctly identified the relevant test. Her Honour said:

"The question whether a defendant's imputation differs in substance from the pleaded imputation may be answered by asking whether different evidence would have been adduced or whether the case would have been conducted on a different basis. The requirement that the imputation is one that the plaintiff would be permitted to put to the jury invariably dictates that the imputation is no more injurious than, or comprehended by, the plaintiff's imputation."

46 Her Honour continued [151]-[154]:

"The defendant relies upon imputation 17 as one that does not differ in substance from the plaintiff's imputations 1, 2 and 4. It is submitted that it was available to the plaintiff to seek a verdict on imputation 17 without relevant unfairness to the defendant. If that is the case, then it is available to the defendant to plead that imputation by way of justification to the plaintiff's imputations 1 and 2 (not the subject of a truth defence).

Further, the plaintiff submits that imputation 3 is not substantially different from imputation 7 and that imputation 2 is not substantially different from the defendant's imputations 14, 15 and 16.

It is convenient to deal with this latter submission briefly. The difficulty with the defendant's proposition with respect to imputations 7, 14, 15 and 16 is that the law in NSW requires contextual imputations to be substantially different from the plaintiff's imputations under s 16 of the Defamation Act : Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 (at [39-40]). How then can the defendant maintain that those same imputations are not substantially different from any one of the plaintiff's imputations for the purposes of the common law defence of justification?

Imputation 17 falls into a somewhat different category. It was not pleaded in NSW and, on its face, it is a general statement which comprehends imputations 1 and 2. In other words, the plaintiff would have been entitled to go to a jury with the imputation that "the plaintiff committed war crimes" and no prejudice could have resulted to the defendant. There is evidence, which has been accepted, that the plaintiff condoned the rape of women, albeit that Source A did not refer to "girls". Whilst the defendant did not plead justification in defence of imputation 2, it has nonetheless been proved substantially true and there can be no prejudice to the plaintiff in allowing the defendant to amend, as it has sought to do. The substantial truth of imputation 4, that the plaintiff admitted committing a massacre, goes a considerable way towards proof of imputation 1, that the plaintiff was a death squad commander.

The defendant has therefore succeeded in justifying imputations 1 and 2. To the extent that imputation 3 has not been justified, the combined effect of the remaining imputations has effectively rendered nugatory any damage that could have been occasioned by imputation 3 had it stood alone."

47 The appellant's submission was brief and suggested that her Honour erred by reason of the "misapplication of the so called nuance justification defence." The submission was not further explained. The holding by her Honour that imputation 1 was justified meant if it could be sustained, that the relevant defences (which were pleaded) were made good.

48 The present issue is whether, in states other than NSW, imputation 17, which is concerned with "war crimes", differs in substance from imputation 1, that the appellant was a "death squad commander" for the purpose of the common law defence of justification. I am not persuaded that it does. Imputation 17 is concerned with crimes committed in time of war. The imputation that the appellant was a "death squad commander" conveyed, in the context of the article, that the appellant commanded a "squad" of persons intent primarily upon the death of others irrespective of whether their actions were justified in the particular circumstances. The article was of course concerned, inter alia, with the actions of the appellant at Glina, it being alleged that he had been responsible for the massacre of Croatians in the town. It should be remembered that imputation 4 concerned the appellant's alleged admission that he committed a massacre. The trial judge found that this imputation was true ie that the appellant made this admission. Although that finding was challenged in this appeal, to my mind it must fail.

49 Although the situation at trial was obscure, on appeal the respondent formally applied for leave to amend its defence to plead truth to imputation 1. The respondent opposed this application and submitted that because the opportunity would not be available for the appellant to respond to the imputation the application should be refused. The evidence to support the respondent's assertion that imputation 1 was substantially true was the appellant's admission to committing a massacre, as discussed briefly above. In these circumstances I can discern no relevant prejudice to the appellant and would grant the respondent the necessary leave. It follows, in my opinion, that the defence to imputation 1 was made good.

50 There is a further possible difficulty with respect to the contextual imputations. The appellant submitted that the respondent should be bound by its particulars of truth and that he would be denied procedural fairness if the Court did not ensure that this occurred. In support of this submission the appellant emphasised that the particulars of truth with respect to Imputation 17 relate to the war crimes of torture and the rape of women rather than being a death squad commander. The appellant made reference to John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434 which was concerned with the NSW statutory contextual truth defence and emphasised the importance of precise particulars of truth.

51 I have already concluded that the respondent should be granted leave to plead the truth of imputation 1 and that that defence was made good. With respect to the common law defence of justification and imputation 17, if bound by its particulars it could not operate with respect to imputation 1. However, having regard to my conclusion that imputation 1 is substantially true it is unnecessary to consider that issue further.

Grounds of appeal 3, 4 and 34

Imputation 2: The plaintiff had condoned the rape of women and girls

52 After the close of the evidence the respondent sought leave to amend its defence to plead the defence of substantial truth to imputation 2. That imputation stated "the plaintiff has condoned the rape of women and girls." Leave to amend was granted by the trial judge, her Honour finding that there was no prejudice to the appellant if the amendment was allowed. Imputation 14 stated "the plaintiff condoned the rape of women." Her Honour found that imputation to be substantially true.

53 The appellant submitted that her Honour erred in both allowing the amendment and finding that the respondent had justified imputation 2. Central to the appellant's argument was a submission that the respondent was obliged to prove true all material parts of the contextual imputation. Reference was made to Howden v Truth & Sportsmen Ltd (1937) 58 CLR 416 per Dixon J at 420-421 and Cross v Queensland Newspaper Pty Ltd (2008) NSWCA 80. It was submitted that the evidence was confined to evidence of the rape of one woman, being a witness who gave evidence under the pseudonym Source A, and contained no reference to the rape of girls.

54 The trial judge found that the appellant both committed rape (imputation 16) and participated in pack rape (imputation 15). These findings were sufficient to prove the substantial truth of the imputation "that the plaintiff condoned the rape of women." Her Honour recognised that Source A did not refer to "girls" but concluded that this was not necessary to prove the substantial truth of imputation 2.

55 The appellant emphasised that in Howden Dixon J at [421] said of the defence of substantial truth that "every material part of the imputations upon the plaintiff contained in the words complained of must be true". Although in some circumstances a distinction between women and girls may have significance, particularly if there is relevance in the age of the relevant person or persons, I do not believe that it has significance in the present context. Perhaps the situation would be different if the imputation had referred to "young girls" although I express no conclusion to that effect. The word "girls" is commonly used to describe women of various ages. In some contexts it can be legitimately used to describe women who might otherwise be thought to be of mature years. Nothing of significance turns on the use of both words in the present context. The finding which her Honour made was to my mind both available and correct.

Grounds 1, 40, 42, 43, 44

Imputation 3: The plaintiff was a mercenary

56 The appellant submitted that imputation 3 was undefended. It was not. Contextual truth in relation to imputation 3 pursuant to the statute was pleaded with respect to New South Wales and Tasmania and truth and common law contextual truth were pleaded in all jurisdictions other than NSW.

57 Her Honour's findings with respect to the statutory defence of contextual truth in NSW were not challenged in this appeal. With respect to imputation 3 in jurisdictions outside NSW her Honour found to the extent that imputation 3 had not been justified, the combined effect of the other imputations had "effectively rendered nugatory any damage that could have been occasioned by imputation 3 had it stood alone".

58 The appellant challenged this approach submitting that in so finding her Honour upheld what purports to be a defence of contextual truth rather than a common law justification defence. I reject this submission. An assessment of injury to the appellant's reputation is undoubtedly relevant to establishing whether the common law justification defence operates in jurisdictions outside NSW: Hore-Lacey at 63.

59 In any event, her Honour found that imputation 7, which states that the plaintiff "went to a foreign state and engaged in hostile activity in that state" was substantially true. The appellant argued at the trial and did not suggest otherwise in the appeal that imputation 7 was not substantially different from imputation 3. It follows that the common law defence of justification is made good in jurisdictions outside of NSW.

Grounds of appeal 1, 5, 6, 11 and 34

Imputation 4: The plaintiff had admitted committing a massacre

60 The respondent's submission with respect to the substantial truth of this imputation was sourced from interviews of the appellant by a journalist which was published in "The Times" newspaper in London on 15 July 1991. The journalist Ms McElvoy gave evidence that she interviewed the appellant on 14 July 1991 when he said to her:

"Nobody needs to be armed since I got here. I'm not here to kill people, just to neutralise the enemy. When the Croat side uses hospitals or police stations in their villages as fortified positions, I'm sorry, I just have to massacre them."

61 The appellant denied making this statement saying that he had not been engaged in active combat by 14 July. In his evidence the appellant said that his first active combat was at the Battle of Glina which he asserted occurred between 26 and 28 July 1991. This would put it at a time after the alleged interview with Ms McElvoy. Accordingly it was submitted that if the conversation with Ms McElvoy occurred the appellant was referring only to a possible future event not one which had already happened.

62 Her Honour formed an adverse view of the appellant's truthfulness generally and rejected his denial. Her Honour found that he had made the statement.

63 To my mind that finding is sufficient to reject these grounds of appeal. Whether the appellant had in mind the prospect of carrying out a massacre at some future date, his statement was clearly capable of being understood as confirming his previous actions. He speaks of the use of hospitals or police stations in a manner which clearly includes their past use and says that in response he has an obligation to commit a massacre. His remark is not dependent on a conditional use of the relevant facility and he did not speak of a future massacre. Although the appellant submitted otherwise it would not matter that the respondent did not prove that a particular massacre had occurred when the statement was made. The imputation was concerned only with the appellant's admission. It was immaterial whether the admission was true in fact.

64 Her Honour made this point in [34] of her reasons when she said:

"It is important, in my view, in determining the meaning of the plaintiff's statement to Ms McElvoy, to place it in its proper context. Ms McElvoy was specifically seeking the plaintiff's views on a practice which was occurring in the Krajina region, where the conflict between the Serbs and the Croats was most pronounced. The plaintiff's mission was, according to him, not to kill people, but to 'neutralise the enemy.' Immediately after this assertion, the plaintiff explains under what conditions he departs from that general rule. Given the focus of the conversation on the existence of the practice of targeting police stations and hospitals, it is more likely than not the plaintiff was referring to occasions that had already met the preconditions."

65 To my mind debate about the date of the Battle of Glina introduces a false issue in the proceedings. The problems it raises are apparent in the appellant's submission that the trial judge's finding was that the imputation "that the appellant had committed a massacre" was substantially true. Rather than being concerned with whether the appellant had actually committed a massacre, as the appellant suggested, the imputation was confined to an admission allegedly made to Ms McElvoy and is cast in the following terms:

"The plaintiff had admitted committing a massacre." (emphasis added)

66 In the court below there was a discussion about a judgment of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the Territory of the Former Yugoslavia since 1991 known as the Martic judgment. When considering the present issue her Honour said that because the date of the Battle of Glina was not in issue before the International Tribunal she could rely on it in the present proceedings. Accordingly her Honour determined that the Battle of Glina took place in mid-July 1991. I do not believe that reliance on the Martic judgment for this purpose was correct. The judgment was not and could not be tendered to prove the truth of its content. On occasions during the trial the appellant sought to rely on its content but that could not justify its use to prove that events recorded in it actually occurred.

67 Although her Honour was not entitled to rely on the judgment it is of no moment to this appeal. As I have already indicated the actual date of the Battle of Glina was not relevant to understanding whether the appellant had made the alleged admission.

Ground of appeal 7

Imputation 5: The plaintiff was before 1991 a criminal

68 The appellant accepts that he had criminal convictions in 1984 for receiving stolen goods and unlawful possession of goods. He was fined modest monetary sums. In April 1984 he was convicted of operating a brothel for prostitution and was fined $5,000. Each of these offences was prosecuted in a Magistrate's court.

69 The trial judge found that, taking the every day meaning of the word "criminal" as a person who has been convicted of a criminal offence, then it was substantially true to say that before 1991 the appellant was a criminal. However, the appellant takes issue with her Honour's finding submitting that the word "criminal" may not always be a reference to a person who has been convicted of a criminal offence. It was submitted that it was necessary to consider the word in the context of the article complained of ( The Greek Herald v Nikolopoulos (2002) 54 NSWLR 165).

70 The relevant imputation was conveyed by paragraph 3 of the article which states that the appellant "was a Melbourne criminal with underworld links before he travelled to his homeland in 1991." The appellant emphasised that the balance of the article refers to crimes such as murder, atrocity, wartime rape, torture and slaughter of Muslims and the murdering of hundreds of civilians. It was submitted that taken in context the meaning of the imputation that "the appellant was before 1991 a criminal" must refer to serious or violent criminal conduct rather than the less serious crimes of which the appellant had been convicted.

71 I am not persuaded by the appellant's submission. The Macquarie Dictionary defines a crime as "an act committed or an omission of duty, injurious to public welfare, for which punishment is prescribed by law, imposed in a judicial proceeding usually brought in the name of the state; serious violation of human law; any offence especially one of grave character; serious wrongdoing." A criminal is relevantly defined as a "person convicted of a crime."

72 It may be accepted that the crimes of which the appellant was convicted were of a significantly lesser order of seriousness than the acts which he was alleged to have committed in the former Yugoslavia. However, he could not avoid the fact that he had previously committed criminal offences. He admitted that he had convictions for those offences.

73 The appellant emphasised the fact that prostitution has been decriminalised in Victoria since the appellant was convicted of operating a brothel. This may be so, but at the time he operated the brothel he did so in breach of the law.

74 I am not persuaded that the meaning of the imputation "that the appellant was before 1991 a criminal" must be informed by the nature of the allegations in the published article relating to his subsequent conduct. The convictions were for criminal offences making it appropriate to describe him as a criminal before 1991. True it is that his subsequent activities were on a far more serious scale but this does not have the consequence that the description of his earlier activities was inappropriate.

Grounds 1, 8 and 34

Imputation 6: the plaintiff before 1991 had underworld links

75 The appellant complained that there was no evidence that he had underworld links and that her Honour's finding was "unfair" and "unreasonable".

76 The finding which her Honour made was that "in Melbourne in 1984 the operation of a brothel was very much a part of the criminal milieu." She said that "vice and prostitution were a notorious link to organised crime." She went on to find that the clandestine operation of a brothel "necessarily involved the recruitment of those who were prepared to risk criminal convictions" and that the appellant "was linked to such people."

77 As I have previously indicated the appellant accepted that he had convictions for receiving stolen goods, unlawful possession and for the operation of a brothel. The commission of each of these offences would have involved the appellant dealing with persons who were also actively engaged in breaking the law. Such persons are commonly referred to as being part of the "underworld", being a "world" comprised of persons who both ignore and are prepared to break the law in pursuit of their own interests.

78 At the trial, counsel for the respondent submitted that the appellant's conviction for operating a brothel demonstrated his connection with the underworld justifying the imputation that he had underworld "links." The finding which her Honour made was accordingly not made without the appellant having an opportunity to deal with it. To my mind that finding was clearly open. I reject these grounds of appeal.

Grounds of appeal 12, 13, 14, 15, 16

Respondent's contextual imputation 7 - the plaintiff, an Australian citizen, went to a foreign state and engaged in hostile activity in that foreign state which is contrary to Australian law

79 The appellant complains that her Honour's findings with respect to this imputation were unreasonable and against the evidence. It was originally argued in grounds 13 and 14 that the appellant was denied procedural fairness because the trial judge did not give him an opportunity to make submissions about the Martic judgment in relation to the factual matters of the declarations of the Krajina Assembly and the establishment of the Krajina Autonomous District. These grounds of appeal have been withdrawn. However, under ground 16 the appellant complains that her Honour used the Martic judgment, there being no other evidence at trial, in her finding that the Krajina Autonomous District "did not conform to requirements of an independent foreign state." It was further submitted that the trial judge failed to take into account the definition of "foreign state" in paragraph 3(2) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth).

80 The submission in relation to the opportunity to discuss the Martic judgment may be immediately dismissed. The appellant made extensive submissions to the trial judge with reference to the content of that judgment. Furthermore any suggestion that her Honour should not have referred to the judgment at all is entirely inconsistent with the submissions made to the trial judge that the document could be relied upon to prove his innocence in other respects.

81 The appellant asserted that "SAO Krajina" (the Serbian Autonomous District of Krajina) was a "political subdivision" of a "foreign state" within the meaning of sections 6 and 3(2) of the Crimes Act. Section 3(2) of the Act extends the definition of "foreign state" to include any political subdivision of a foreign state. The evidence was that the appellant was engaged in military activity for the "Serbian Autonomous region of Krajina." However, as the evidence in particular from the appellant makes plain Krajina was not a foreign state nor a political subdivision of a foreign state. The appellant said in his evidence that:

"Well, Krajina is a region which is now sort of failed. A state, or attempted state, which intended to secede from a state of Croatia at the time when Croatia was seceding from former Yugoslavia."

82 The appellant's argument to this Court was that he was given the rank of Captain in the Krajina armed forces and commanded a small team of soldiers at the Battle of Glina which took place within the Krajina area. The appellant said that he attacked the Croatian command post at Glina with the authority of the Minister of the Interior of Krajina.

83 The appellant submitted that her Honour should have realised that the Krajina Autonomous District was "a political subdivision of a foreign state" with its own government and was therefore within the meaning of foreign state under s 3(2) of the Act. However, this submission fails because of the appellant's own evidence that Krajina was an attempted state which failed. It was neither a foreign state in its own right nor a political subdivision of Yugoslavia. The Serbian people were not engaged in military activity in the name of Yugoslavia. There is nothing to suggest that the Serbian Autonomous District of Krajina had any political affiliation with Yugoslavia. Its declared purpose was inconsistent with such an affiliation.

84 As it happens, the Martic judgment records the history of the events without a suggestion of controversy. On 29 May 1991 a body known as the Krajina Assembly purported to establish itself as a government and adopted a constitution for the Serbian Autonomous District of Krajina. The Assembly announced that Milan Babic was to be the President and Milan Martic was to be the Minister of Defence. However, the Krajina Autonomous District did not have the power or authority to govern the region to the exclusion of the central government of Yugoslavia.

Grounds of appeal 1, 9, 10, 17 - 25, 30, 31, 32, 33, 34

The respondent's torture contextual imputations (8, 9, 10,11, 12, 13)

85 The torture imputations in summary allege that the appellant as commander of Serbian paramilitary units bore responsibility for torture, condoned torture and that he himself committed torture.

86 Her Honour found that the torture imputations were established. The appellant criticised her Honour's reasons submitting that she did not adequately set out the evidence which supported each imputation. It was further submitted that her Honour failed to distinguish between the "war crime of torture" and the "crime of torture."

87 The respondent called seven witnesses to support the torture imputations. Five of them were inmates of the Old Knin Hospital prison and two were inmates of the Sremska Mitrovica prison (a Serbian prison in Bosnia). Her Honour accepted the witnesses' evidence that the appellant was present during various alleged assaults of inmates.

88 Her Honour found that the appellant "condoned the commission of torture by failing to act to prevent it" when it could be presumed that he had the power to do so. The appellant submitted that this finding was not supported by the evidence. He denied assaulting prisoners and denied that any were assaulted in his presence. He said that he was not in charge of the Knin fortress or its prison and never attended the Old Knin Hospital prison. He said that he had no connection with the Sremska Mitrovica prison other than to visit it on two occasions.

89 Her Honour did not accept the appellant's evidence. My examination of the transcript of the proceedings at trial confirms that her Honour's rejection of the evidence of the appellant was completely justified. There was a consistency in the evidence in support of the torture imputations. That evidence indicated mistreatment of prisoners including beatings, broken bones, severe bruising and inadequate nourishment leading to weight loss and starvation, electrical burns and psychological torment. It included a clear recollection by all witnesses of the appellant's name, accent, physical features and obvious position of authority. The respondent appropriately emphasised that according to his own evidence the appellant was a prominent identity in Krajina in 1991 and would have been known and recognised by local people.

90 I am satisfied that the trial judge was entitled to reject the appellant's evidence which was beset by inconsistencies. At one point in his evidence the appellant said that the beret with a new inverted symbol was issued to his troops no more than 2 weeks before the Battle of Glina. Elsewhere he said that the only thing that changed after mid July was the colour of the beret stating that his troops starting wearing red berets after the Battle of Glina in late July 1991. Notwithstanding this evidence he also denied "absolutely" that any of this troops had worn a red beret in early August 1991. The denial is not believable and further justifies her Honour's adverse finding in relation to the appellant's credit.

91 The witnesses Ackar and Perry gave evidence that they encountered the appellant at Sremska Mitrovica in mid 1992. Described by Mr Perry as "Captain Dragan" there can be no doubt that Mr Perry met the appellant. As it happens the appellant said that he recalled meeting Mr Perry in the prison but under different circumstances.

92 Mr Ackar gave a detailed description of a person consistent with that of the appellant. There is no reason to doubt his evidence that he saw the appellant and that the appellant struck him and watched other guards strike him.

93 There is no reason to doubt the identification evidence given by other witnesses. Velibor Bracic gave evidence of two occasions when he saw the appellant in June and August 1991.

94 Osman Vikic, who gave evidence by video link, described an incident in the Knin fortress in June 1991 where a man introduced himself as "Captain Dragan, the commander of the militia SAO Krajina".

95 Darko Kauric and Milan Spoljaric, who also gave evidence by video link, described an incident at the Old Hospital in Knin in August 1991 where they were visited by a man who was addressed as Captain Dragan by the guards.

96 Davor Hrnjica gave evidence in person about his encounters with the appellant at the Old Hospital between 3 July 1991 and his release on 14 August 1991. Mr Bracic, Mr Vikic, Mr Kauric, Mr Spoljaric and Mr Hrnjica each made reference to his physical characteristics and separately identified the appellant from a number of photographs. It is clear that there were consistent themes in the descriptions of the appellant.

97 Source A said she was raped by the appellant. When giving evidence she identified the appellant in the courtroom. Her evidence was objected to but admitted. Her Honour indicated that there was nothing about the appellant's position in the court or his dress which made him stand out so that Source A's identification of him was unreliable. The position of an accused person in a criminal trial, who may be seated in the dock and dressed in prison clothing, may be quite different. The identification of the appellant by Source A was only a minor part of the respondent's case implicating the appellant in torture. The trial judge noted in her reasons that there was no serious dispute about whether the appellant was the "Captain Dragan" described by the prisoner witnesses. The real dispute was about his role in the torture and mistreatment of prisoners. Accordingly she did not accept the appellant's objections to the admission of Source A's identification evidence. I agree with this finding.

98 The evidence of the witnesses was that they had been separately mistreated by persons when not in the appellant's presence before they arrived at Knin. This evidence was admitted in support of the respondent's argument that the later mistreatment of the prisoners which involved the appellant was the more reprehensible because of their previous mistreatment. Although the appellant complains about the admission of this evidence I am satisfied that it was properly admitted.

99 In his submissions to this Court the appellant accepted that although he may have assaulted prisoners and been present when his troops assaulted them, they were not tortured either in his presence or with his knowledge. This was a surprising submission, particularly because it is contrary to the position which he adopted at the trial.

100 At the trial the appellant denied any suggestion that he had assaulted prisoners or that his troops had done so. However, it is significant that he also accepted that it would be "impossible ... absolutely" for people to have been beaten up at the fortress without him knowing about it. He said that "definitely if it happened, yes I would know of it."

101 The appellant submitted to this Court that the trial judge had made errors with respect to the appellant's authority over the troops responsible for the mistreatment of prisoners and that her findings were not supported by the evidence. This submission appears to have been made without recognition of this evidence from the appellant. Apart from his claim to have authority over his troops the evidence from witnesses at trial was that the appellant raped Source A, kicked the witness Bracic in the head as a demonstration to other soldiers about how to beat a prisoner and told the witness Perry that he was going to be executed, although the appellant had no intention of carrying it out.

102 Although the appellant submitted to this Court that the respondent made no submission to her Honour as to the distinction between "torture" and "the war crime torture" this is not correct. In response to the appellant's submission at trial there was discussion as to whether the Court should adopt the definition of "torture" found in the Martic judgment. This effectively adopts the definition in the Geneva Convention and Protocols. This would have the effect, so the appellant's argument went, that the appellant would not have been responsible for "torture" unless he himself committed it and it was done for a proscribed "prohibited purpose." Whatever be the position in the Martic judgment the Australian statute relating to torture was, at the time these events occurred, in the Schedule to the Crimes (Torture) Act (1988) (Cth) which provided that the term torture means:

"Any act by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

103 This definition expanded the meaning to include the acts of others inflicted by and at the instigation of or with the acquiescence of a police official or other person acting in an official capacity.

104 Given that the debate at trial was as to whether the Martic definition should be used or the definition in the Commonwealth Act, Her Honour was in my view right to decide that the latter should be adopted. If the imputation was to be understood by reference to a legal standard the standard adopted by Australian law was appropriate. However, there was a discussion during the hearing of the appeal as to whether the dictionary meaning of torture should be used rather than the statutory definition. The Macquarie Dictionary defines torture as being "the act of inflicting excruciating pain esp. from sheer cruelty or in hatred, revenge or the like" or "a method of inflicting such pain".

105 The dictionary definition does not confine the physical abuse of an individual constituting the act of torture to any particular purpose. All that is required is that the relevant act be committed.

106 To my mind the dictionary definition is the most appropriate in the present circumstances. Her Honour referred to it but did not expressly adopt it. Nevertheless I am satisfied that whatever definition is adopted the facts found by her Honour amply justified the imputations.

107 The imputations relating to torture are imputations 8-13. I have previously concluded that the factual basis for torture and the war crime of torture may be the same, the latter occurring in connection with a war. Her Honour found that the evidence tendered by the respondent was common to a number of the imputations. In the same incident the appellant may have committed, condoned or commanded others to commit torture. Her Honour was criticised because she failed to make separate findings in relation to each imputation. However, her Honour accepted the evidence of each "complainant" and rejected the appellant's denials. Her Honour said:

"124 Accepting that these witnesses were both truthful and reliable, as I do, there is overwhelming evidence of the commission of torture and the war crime of torture by members of the Serbian paramilitary units under the plaintiff's command. Much of this evidence was not seriously challenged. As I have already noted, the real challenge was directed to the evidence of the plaintiff's presence during these events and the extent to which the plaintiff can be held accountable for the actions of his men. Once the witness' evidence of the plaintiff's presence during the various assaults is accepted, it follows that the plaintiff condoned the commission of torture by failing to act to prevent it.

125 Given the tenor of the plaintiff's evidence, it is also beyond doubt that he must be held accountable for the assaults perpetrated by his men. According to that evidence, he was in command at the Knin fortress and enjoyed a legendary status among his men. He exercised absolute authority and was kept very well informed, to the extent that "nothing could have happened there without me knowing it". The plaintiff went so far as to say that it would be "impossible .. absolutely" for anyone to have been beaten at the fortress without the plaintiff knowing. If beatings occurred then "definitely if it happened, yes I would know of it." In so far as the assaults committed at the hospital prison are concerned, there is no reason to doubt that the plaintiff's authority over the guards who wore the same uniform and the same insignia as the plaintiff, was any less than the authority he exercised at the fortress. One of the most striking features of the plaintiff's evidence was the obvious pride he took in recounting the complete respect and adulation he enjoyed from his men and from Serbs generally.

126 The evidence of Mr Perry, Mr Ackar and Mr Bracic also establishes that the plaintiff committed torture and the war crime of torture, either on the basis that the plaintiff himself seriously assaulted Mr Ackar and Mr Bracic, both of whom were in a very weak physical and psychological condition, or on the basis that the plaintiff instigated or consented to the infliction of severe pain or suffering upon them and upon Mr Perry."

108 I am not persuaded that more was required.

109 The appellant further complained in the course of the oral submissions that because the jury found that imputations that the appellant authorised the torture, rape and murder of civilians were not conveyed by the article, her Honour could not find that "acts of torture were carried out at the behest of or with the authority of (the appellant)." To the extent that I understand the submission it is misconceived. Her Honour's finding is founded in the evidence of the relevant events given at the trial. It is not dependent on and is separate from any finding of the jury at the section 7A trial.

110 With respect to the appellant's credit I am satisfied that it was open to the trial judge to reject him as a witness of truth. Although there was some variation his case at trial was that there had been no mistreatment of the witnesses that the respondent called. The trial judge said of the appellant:

"127 The plaintiff's evidence was replete with contradictions. I have already noted the attempt by the plaintiff to characterise his role in the Krajina 1991 as essentially responsible for the training of police officers (see [88] above). The plaintiff maintained this assertion in the face of his answers to interrogatories (Exhibit 13) and in the face of a document filed in the Federal Court for the purposes of extradition proceedings. This latter document included a statement that "the applicant went to Knin and established a military training centre 8 km away in Golubic in Krajina. The applicant became head military instructor and commander of the special forces unit of professional soldiers that he recruited." The plaintiff's explanation for these statements was that they were his solicitor's interpretation, that he probably saw the document but that he did not believe that he had read it before it was filed. Later in the course of his cross-examination, the plaintiff asserted that his solicitor had retrieved these statements from a book written by the plaintiff. I reject this evidence entirely.

128 Despite the fact that this aspect of the plaintiff's evidence was completely abandoned as relevant to the resolution of the issues in the proceedings, it cast a very unfavourable light upon the plaintiff's credit generally. I formed the impression that the plaintiff was prepared to change or colour his evidence in an attempt to defuse the allegations made against him. In short, he was loose with the truth when it suited his purposes."

111 Apart from the view that this Court may form of the appellant's credit by reading the transcript it is plain that her Honour, by observing the appellant give evidence, enjoyed a significant advantage, as against this Court.

112 The appellant complains that he was only subjected to limited cross examination. In particular he complains that the allegations by the prisoner witnesses and Source A were not put to him.

113 It must be remembered that the plaintiff did not give evidence in his own case. This is now common in defamation cases. It is adopted as a tactical manoeuvre in the hope that the defendant's evidence will fail to be sufficiently persuasive making it unnecessary for the plaintiff to give evidence in reply. Cross examination on factual matters which may justify the pleaded imputations is accordingly avoided. In this case when the appellant's case closed the respondent had not had the opportunity to put any of its case in justification of the imputations to the appellant by way of cross examination. The respondent then called all of its justification evidence, and the appellant was able to cross examine those witnesses with the benefit of an outline of that evidence which had been served before the trial. Its substance was also disclosed in the particulars of truth.

114 After the respondent closed its case the appellant opened his case in reply. The appellant's counsel put to him each of the matters raised in the respondent's case which he proceeded to deny. In these circumstances it could not be suggested that he did not have an opportunity to refute any matter of relevance. His denials left no room for any unfairness in the respondent's subsequently submitting to the court that the evidence of Source A should be accepted as against the appellant's denials.

Grounds 1, 9, 10, 34 - Martic judgment

115 These grounds of appeal relate to the attempt by the appellant to use the Martic judgment to establish that he did not mistreat or brutalise prisoners at Knin. Apart from the fact that the judgment was not admitted for the truth of its contents the reference to the Martic judgment for this purpose was made for the first time weeks after the evidence had closed.

116 The appellant submitted that there were no findings in the Martic judgment to the effect that the appellant has mistreated or brutalised prisoners. It was submitted that to the contrary there were findings that the appellant had taken measures to address the criminal acts of others in respect of prisoners and in particular took action against Serbian soldiers who had mistreated prisoners.

117 Her Honour rejected the submission for the reason that the judgment had not been admitted to prove the truth of its content. Furthermore she determined that because the issue was not raised during the course of the trial the respondent had no opportunity to ask questions about matters in the judgment.

118 The appellant submitted to this Court that her Honour's ruling was erroneous and unfair. The appellant emphasised that five witnesses from Croatia had been cross examined about the identity of the prison guards and persons in charge of the prison referred to in the Martic judgment. Accordingly it was submitted that reliance on the judgment would not have involved a denial of procedural fairness to the respondent.

119 I have already resolved the debate in relation to the relevance of the Martic judgment to imputation 4. However, it was further submitted that the Martic judgment could be used to establish the truth of other matters in particular that the appellant had not mistreated prisoners. The submission is misconceived.

120 A reading of the Martic judgment makes plain that the issues before the Tribunal were not concerned with whether the appellant had been involved in mistreating prisoners at Knin. The judgment does not address any issue relating to the appellant's command at the Knin fortress which was in any event, as I understand the situation, a different location to the prison hospital. However, the judgment does indicate that the appellant's troops had a dormitory in the hospital at various times which is contrary to the appellant's assertion that his troops were "strictly forbidden" and "not authorised" to go there and that he himself had "never set foot in the Knin prison until 1993."

121 Although the Martic judgment has no relevance to these disputed factual issues, if it did, it would not support the appellant's position.

Grounds of appeal: 1, 26 - 29, 31, 33, 34

Contextual imputations 14 - 16 - rape imputations

122 The essence of the appellant's submission in relation to these imputations was that the trial judge acted unfairly and unreasonably in refusing to permit the appellant to call alibi evidence. It was further submitted, as I have previously indicated, that the trial judge should not have allowed Source A to identify the appellant in court. He also submitted that he was not given sufficient opportunity to respond to the evidence of Source A.

123 Lastly, the appellant submitted that her Honour should have made separate findings with respect to each rape imputation.

124 The evidence of Source A was not challenged apart from her identification of the appellant as her assailant. She gave evidence that the appellant raped her and she was raped by another in his presence and by others when the appellant had left the room. She also said that she and other women were raped on other occasions.

125 The rapes allegedly occurred at the Hotel Vidikovac in Zvornik, Bosnia. The appellant admitted that he visited that hotel on more than one occasion between May and July 1992 which was the period of time when Source A was raped. The appellant said that his purpose in visiting Zvornik at about this time was to undertake charitable work but he offered no explanation for his visits to the hotel. His brother said that the appellant visited Zvornik to set up a military training camp.

126 Source A gave evidence of the physical characteristics of her assailant. She was cross examined and challenged as to her description of her assailant's hair and the fact that she did not identify an abdominal scar which the appellant apparently has.

127 Source A gave consistent evidence about the colour of the appellant's hair and other features. She said that her assailant's hair was "a bit grey" and that he was "skinny not tall with a bit of a nose sticking out."

128 Her Honour dealt with the submission that Source A had not identified an abdominal scar on her assailant. Her Honour indicated that "a proper reading of (Source A's evidence) discloses that the plaintiff only removed his lower clothing in order to rape her. That fact, coupled with the fact that the rape occurred at night discounts any criticism levelled at her evidence on that score." Accordingly, her Honour accepted the evidence of Source A finding that imputations 14, 15 and 16 were substantially true.

129 To my mind her Honour's findings justified this conclusion. Given the nature of the imputations a finding that the appellant raped Source A and that she otherwise accepted the evidence of course was sufficient to justify these imputations.

130 The appellant suggested that he could provide alibi evidence which would exclude him from being at the hotel when the rape occurred. He sought to call this evidence in his case in reply but this application was refused by the trial judge.

131 The background to her Honour's ruling was that there had been a complex set of procedures put in place before the trial for the taking of evidence from witnesses located in Croatia or Bosnia, who did not speak English. The necessary video link facilities were made available with considerable difficulty and delay. It was necessary for a Croatian judge sitting in Zagreb to preside over the video link evidence. The facilities were only available for a limited time. As a consequence the arrangements for the taking of overseas evidence were put in place before the trial and in circumstances where each party knew well in advance the evidence it would have to meet.

132 The relevant assault was alleged to have occurred on 27 June 1992. Source A gave her evidence on 29 April 2009 in which she identified the relevant day by reference to a holy day in around July 1992. The appellant said that until this evidence was given he did not realise that Source A had been referring to the holy day of "Vidovdan" which occurs on 28 June each year. The course which the appellant wanted to take was to call evidence as to his whereabouts on 27 June 1992, the day before Vidovdan.

133 In her judgment of 12 May 2009 the trial judge considered the advantages to the appellant and the disadvantages to the respondent of permitting this evidence to be called at the late point in the trial. Her Honour accepted that the appellant learned that there would be a reference to Vidovdan on the day before Source A was cross examined. She also identified the fact that when the appellant gave evidence on 5 and 6 May he did not mention the matter. The application to lead further evidence was not to be evidence from the appellant himself but from others.

134 It was obvious that if the evidence was allowed the respondent would have had difficulty investigating the matter given the lack of notice. In her judgment of 12 May 2009, her Honour said:

"The prcis of evidence from Source A, which was served by the defendant on the plaintiff in February 2009, contained a reference to this latter occasion as 'in around July 1992.' That is significant, in view of the plaintiff's counsel's submission that it was not possible for the plaintiff to anticipate the need for the evidence that he now proposes to call, until Source A gave evidence in the trial.

The prcis of evidence of the proposed witnesses Marko Josilo and Slavisa Djordevic are Exhibit A on this application. Both men describe themselves as war correspondents in 1991 and thereafter, reporting on the conflict in the Balkans and in particular in the Krajina area. Both men claim that they first met the plaintiff in May 1991 at Knin and that their association with the plaintiff continued until August 1991. Leaving to one side the evidence in respect of the colour of the beret worn by the plaintiff and his soldiers over that period of time, and the fact that both prospective witnesses claim that they each spoke to prisoners at the Knin fortress and the old hospital prison where no complaints were made of mistreatment, the proposed witness Mr Djordevic claimed that he attended a rally in Belgrade with the plaintiff on 27 June 1992. There is apparently a newspaper article from a Serbian newspaper in existence that refers to the plaintiff's presence at the rally. Mr Djordevic then states that the day after the rally, namely 28 June, is a religious celebration day for Vidovdan that commemorates the battle of Kosovo and the Serbian victory over the Turks.

Clearly, if evidence consistent with the precis is given, it would be open to the plaintiff to suggest that Source A should not be believed, in so far as he was not in Zvornik on 27 June 1992, being the day before the celebration of Vidovdan. I was informed from the bar table that the plaintiff's brother will also give evidence of the date of the festival, although he did not give that evidence when called immediately after the plaintiff and, as far as I am aware, the precis of his evidence omitted reference to that fact.

No satisfactory explanation was provided by the plaintiff for the late service of the precis of evidence outlined above, given the terms of Justice Kirby's directions, namely that the precis of any witness' evidence from overseas was to be served on the defendant before the start of the trial. It is no answer, in my view, to assert that the plaintiff was ignorant of the relevance of the reference by Source A in the precis of her evidence to July 1992 and the celebration of a holy day. The date of the celebration of Vidovdan must have been within the plaintiff's knowledge, if not also within his brother's knowledge, and it was always within the plaintiffs means, at least since February of this year, to make enquiries of those with whom he associated in June and July 1992, in order to rebut the evidence of the defendant's witnesses. It appears that no such enquiries were made until approximately a fortnight ago.

The real prejudice to the defendant in allowing evidence to be called without appropriate notice is demonstrated by the contents of Exhibit 1 on the application. Over the weekend, the defendant has been able to discover, via internet searches, a number of published documents, including one from the US Department of State, a report compiled at the request of the Office of the Prosecutor of the International Criminal Tribunal to the former Yugoslavia and a document sourced from the Helsinki Committee on Human Rights in Serbia, providing support for the proposition that Djordevic and Marko Josilo are apologists for the Serbian regime, who had close relations to persons indicted for war crimes. No doubt, a considerable amount of time would be required to verify these sources and obtain material which could provide the basis for fruitful cross examination. However, that opportunity could not be afforded to the defendant without further delay in the completion of the trial, not to mention further expense to both parties.

This Court has impressed upon practitioners, through its decisions, the importance of adherence to the terms of s 56(2) of the Civil Procedure Act 2005. That provision requires the Court in mandatory terms to give effect to the overriding purpose, that is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings". That overriding purpose is reinforced in defamation proceedings by the terms of the Defamation Act 1974 and the terms of the Defamation Act 2005, both of which provide that one of its objects is to promote the resolution of proceedings for defamation in a timely manner and to avoid protracted litigation: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37.

Those interests are not served by allowing the plaintiff to call the proposed evidence at this stage of the proceedings. The orders made by Justice Kirby would be effectively nullified and the considerable effort expended to ensure that matter was ready for trial would have been in vain. It (sic) all of these circumstances, the plaintiff ought not be allowed to call the proposed evidence."

135 In my judgment the approach which her Honour took to this issue was entirely appropriate. In the absence of any suggestion that the appellant would give evidence as to his whereabouts and the lack of an opportunity for the respondent to investigate the assertions as to his whereabouts at the relevant time the interests of justice were appropriately served by denying the application.

136 In any event I am not persuaded that the evidence would have been of any assistance to the appellant. Although it may have proved that the appellant was in Belgrade on the day of the assault, given the proximity of Belgrade to Zvornik his presence in Belgrade would not have excluded him from being at Zvornik at the time Source A claims the rape occurred. There was no suggestion that the appellant proposed to lead evidence that he was in Belgrade on both 27 and 28 June. There may have been an explanation for his whereabouts on 27 June but neither the proffered witnesses nor the appellant himself proposed to give evidence that he was in Belgrade on 28 June 1992.

Grounds of appeal 35, 36

The standard and onus of proof

137 The appellant submitted that the trial judge erred by failing to refer to the standard and onus of proof in "support of her findings that the appellant had committed serious criminal and war crimes." It was further submitted that her Honour failed to apply the Briginshaw standard ((1938) 60 CLR 336) when finding that the respondent had established the truth of the relevant imputations. These grounds are without merit. A variety of her Honour's findings were couched in terms of "ample justification" and she expressed herself to be "mindful of the serious nature of these allegations." On other occasions her Honour said that she was "more than satisfied of a particular fact." It is abundantly clear that her Honour understood that the respondent was required to prove its case and was mindful that she must have regard to the serious nature of the allegations when determining whether they had been proved.

Ground of appeal 38

The defence of contextual truth in NSW and Tasmania

138 As I understand the situation, the appellant did not challenge her Honour's finding of a defence of contextual truth in NSW in accordance with section 16 Defamation Act 1974 (NSW). The focus of this ground of appeal was on her Honour's application of the defence of justification as found in section 18 Defamation Act 1957 (Tas).

139 Section 18 of the Defamation Act 1957 (Tas) is in the following terms:

"In an action for defamation in respect of words containing two or more distinct charges against the plaintiff, a defence of justification does not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation, having regard to the truth of the remaining charges."

140 The appellant submitted that this section applies only where there are two or more charges (imputations) pleaded by a plaintiff and where a defence of justification fails against one or more but succeeds on one or more. It was submitted that the section operates so that in relation to imputations pleaded by the plaintiff those imputations established by a defendant to be true can be weighed against those the defendant has failed to prove to be true.

141 In the present case the appellant emphasised that the respondent did not plead truth to imputations 1, 2 and 3, said to be the most serious imputations, but only to the comparatively less serious 4, 5 and 6. It was submitted that the harm caused to the appellant by the false imputations 1, 2 and 3 would obviously outweigh any harm caused by the true imputations or a combination thereof of 4, 5 and 6.

142 To my mind the submission must be rejected. Section 18 provides that in an action for defamation "in respect of words containing two or more distinct charges against the plaintiff", a defence of justification will not fail if the charges that remain unproved do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges. The section does not exclude from consideration defamatory charges brought to the attention of the court by a defendant. Furthermore, to my mind, the section does not suggest that parliament intended the section to apply only to distinct defamatory charges raised by a plaintiff. The opening words of the section refer to "words containing two or more distinct charges against the plaintiff" a description of a publication without reference to the manner in which any proceedings in relation to it are pleaded.

143 There is a similarly worded section in s 5 of the UK Defamation Act 1952. Decisions on that section do not assist the appellant: see Moore v News of the World [1972] 1 QB 441; Polly Peck (Holdings) v Trelford [1986] QB 1000. The reasons why the defence failed in Polly Peck was that the plaintiff had sued on only part of the article and the distinct charge relied upon by the defendant was not contained in that part. The present case is of course otherwise. The plaintiff sued on the entire article.

With respect to the position in New South Wales and Tasmania her Honour found that the damage to the appellant's reputation caused by the contextual imputations which she found to be true, subsumed the damage to the appellant's reputation occasioned by imputations 1, 2 and 3.

Ground 37: Documentary Evidence

144 Ground 37 was expressed in the following terms:

"Her Honour erred by failing to take into account or refer to in her judgment the absence of any documentary or supporting evidence to corroborate the serious allegations made against the appellant by the respondent's witnesses."

145 This ground of appeal is entirely without merit.

146 The appellant suggested that because there were no documents to support the allegation of the mistreatment of others or the role of the appellant in the relevant events, her Honour's findings as to relevant facts were erroneous. Whether any documents exist which may have supported the appellant's position is unknown. If documents did exist it is unknown whether they would have supported the respondent's position or the appellant's. Given the circumstances this would seem unlikely.

147 Given that no documents were tendered to her Honour it is not surprising that she makes no reference to any written materials. However, this does not mean that given her Honour's factual findings as to the credit of witnesses and the lack of credit of the appellant were not justified.

Grounds 34, 39-44

The defence of justification at common law - in relation to States and Territories outside NSW

148 The argument in relation to this defence at trial and in this Court created a great deal of confusion because of the use of outdated terminology and unnecessary complexity in the drafting of the pleadings. In large part the appellant's complaints have been addressed in [43] - [59] above.

149 The respondent pleaded a defence described as "Contextual Truth (Common Law)" in respect of all jurisdictions apart from NSW. At trial, her Honour correctly noted that a defence of common law contextual truth is not available in Australia ( John Fairfax Publications v Zunter [2006] NSWCA 227). Her Honour suggested that "justification" was the appropriate defence and referred to the decision in Hitchcock.

150 The defence of justification involves a defendant pleading and justifying an alternative meaning to the defamatory imputation pleaded by the plaintiff. In Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 O'Conner LJ said (at 1032).

In cases where the plaintiff selects words from a publication, pleads that in their natural and ordinary meaning the words are defamatory of him, and pleads the meanings which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiff. The defendant is entitled to plead that in that meaning the words are true and to give particulars of the facts and matters upon which he relies in support of his plea, as he is required to do by RSC, O 82. It is fortuitous that some or all of those facts and matters are culled from parts of the publication of which the plaintiff has not chosen to complain.

Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification.

Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting, and once again it is fortuitous that what is in fact similar fact evidence is found in the publication.

151 This approach was criticised in the High Court in Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37 (' Chakravarti') where, in dicta, Brennan CJ and McHugh J stated at [8],

With great respect to his Lordship, such an approach is contrary to the basic rules of common law pleadings and in many contexts will raise issues which can only embarrass the fair trial of the action. Leaving aside technical pleas such as pleas in abatement, defences are either by way of denial or confession and avoidance. A defence which alleges a meaning different from that of the plaintiff is in the old pleading terminology an argumentative plea of not guilty. Under the principles of pleading at common law, it could tender no issue and would be struck out as embarrassing. Under the modern system, articulating an alternative meaning could conceivably make explicit the ground for denying a pleaded imputation. But it would be only in such a case that a defendant's plea of a new defamatory meaning might be supportable as a plea which prevents the plaintiff being taken by surprise....In our view, the Polly Peck defence or practice contravenes the fundamental principles of common law pleadings.

152 It is now accepted that the "Polly Peck" defence is not available in any Australian jurisdiction. The dicta in Chakravarti has been followed in subsequent decisions of intermediate appellate courts (see the authorities in [22] above).

153 In Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139 ('Fawcett'), Simpson J considered the availability of a variant of the Polly Peck defence, termed the "Hore-Lacey" defence after the Victorian decision David Syme & Co Ltd v Hore-Lacey (2000) 1 VR 667 and concluded that this defence was available in all jurisdictions outside NSW. Her Honour relied upon the decision of the NSW Court of Appeal in Zunter to exclude the defence's operation in NSW (see [149] above).

154 Simpson J distinguished the Polly Peck defence from the Hore-Lacey defence. Where there are several defamatory allegations, the Polly Peck defence allows a defendant to plead and justify a "common sting" which links or relates one defamatory allegation to another. It was this "high level of abstraction" that was criticised by Brennan CJ and McHugh J in Chakravarti .

155 The Hore-Lacey defence allows a defendant to plead and justify an alternative imputation that is "comprehended by or simply a variant of" the plaintiff's imputation. However, the defendant's imputation must be one which the plaintiff could have put to the jury and would be no more injurious than the plaintiff's imputations already pleaded.

156 In John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at [233] this Court said that the defendant may plead an imputation by way of defence if it is not substantially different from the pleaded imputation and is one which the plaintiff would have been permitted to put to the jury without unfairness to the defendant. In order to answer the first question it is necessary to consider whether different evidence would be adduced or whether the case would be conducted on a different basis.

157 In the present case, the defence as pleaded, provided 11 contextual imputations (including imputation 17) which were said to be "not separate and distinct from the plaintiff's imputations". This language, on its face, suggests a Polly Peck defence but it is clear from the respondent's later submissions that it relies upon the Hore-Lacey defence. Although pleaded in the manner that I have indicated, it appears that the respondent relied on imputation 17 as the foundation for the Hore-Lacey defence. The parties have proceeded on this basis.

158 When applying the Hore-Lacey defence to the present facts, it is clear from Latham J's remarks at trial that her Honour appreciated that imputation 17 "comprehends imputations 1 and 2."

159 Her Honour then, so it would seem, held correctly in my view, that imputation 17 was substantially true. Her Honour's findings in relation to rape, torture and the massacre of persons during a time of war more than justified that imputation. Accordingly as I understand her position, her Honour accepted the Hore-Lacey defence in relation to imputations 1 and 2. As it happens her Honour granted leave to the respondent to amend its defence to plead truth to imputation 2.

160 The appellant criticised her Honour's approach to these issues. It was submitted that if her Honour found that imputation 17 did not differ in substance from imputations 1, 2 and 4 (the appellant obviously meant imputation 3 and not 4) it would not be permitted to rely on an imputation which did not differ in substance from another imputation. That submission is appropriate with respect to the statutory defence in New South Wales but not the common law position in the other jurisdictions. It was no doubt for this reason that the respondent pleaded imputation 17.

161 The appellant criticised her Honour's findings with respect to imputation 17. It was submitted that since the respondent had not defined "war crimes" or distinguished "war crimes" from "crimes" it can be assumed that contextual imputation is identical to "the plaintiff committed crimes". I reject this submission. The definition of war crimes is discussed at [42] above.

Orders

162 In my judgment the appellant fails in relation to each ground of appeal.

163 I would dismiss the appeal with costs.

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Decision last updated: 02 September 2011