Matters of credit
22 In the course of my reasons in relation to liability I made a number of findings in relation to the plaintiff's credit. One of the issues in the trial related to an interview of the plaintiff by Australian officials at Guantanamo Bay on 15 May 2002. The interview was recorded and transcribed. Notwithstanding these facts, the plaintiff denied all knowledge that he had been interviewed. Although I was urged to find that there was an innocent explanation for his evidence - it was suggested that he was so overwhelmed by the events that he could not remember being interviewed - I did not accept this explanation.
23 As I said in my first judgment, the plaintiff's denial that he was interviewed on 15 May 2002 at Guantanamo Bay is simply incredible.
24 I made other findings which were critical of the plaintiff's credit. Having observed the plaintiff giving evidence I concluded that:
"[E]]ven allowing for some difficulties with the English language, he sought to evade answering questions which may have presented difficulties with his case in these proceedings. Although on occasions he gave a lucid account of matters which were of no particular relevance, when pressed he would either avoid answering the questions or provide lengthy, rambling and confused explanations" (at [52]).
25 I said further:
"I formed the impression that the plaintiff was prone to exaggerate and was cautious with questions which he perceived to be a challenge to his integrity. This caused him on occasions to give oblique answers or failed (sic) at all to answer the question. At times the impression he gave was of seeking to avoid the truth although on some occasions this may not have been the case" (at [55]).
26 The plaintiff was cross-examined about a conversation which occurred with an ASIO officer on 29 June 2000. I found that the interview occurred. It was during that interview that he claimed that he only supported the Sheikh for his sickness and his illness. This claim was knowingly false. His support was more general and he was of the view that the Sheikh was innocent of the crime of which he had been convicted.
27 With respect to the interview with Miss Katie Wood of Amnesty International I found that there were many inconsistencies between the answers which the plaintiff gave to Miss Wood and his evidence in these proceedings. I concluded that "the evidence in these proceedings was consistent with his interest in the litigation."
28 I remain of the opinion that the plaintiff's evidence could not be accepted in many respects. His evidence was given in order to enhance his forensic position in the present litigation and was at times evasive and at other times incredible.
29 The question is what part if any should my findings with respect to the plaintiff's credit play in the assessment of damages. His reputation has undoubtedly been damaged by them. There is a related issue being the consequence, if any, of the finding which I made that the plaintiff did make a false claim in respect of Sheikh Omar Abdul Rahman which of itself must be damaging to his reputation, at least within the Australian community.
30 The issue of the relevance of adverse credit findings in the proceedings was considered but not finally determined by the Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. The Court (Beazley, Giles and Santow JJA) were inclined to the view that adverse findings made in respect of a plaintiff in the course of the trial were not relevant to any award of damages. The reasoning appeared to turn on the proposition that because courts act on evidence and the judge's findings were not evidence in the proceedings but findings made once the trial was concluded, they could not be considered when determining the question of damages necessary to restore the plaintiff's reputation. The court seems to have accepted that the plaintiff may accordingly have "restored" a reputation which, at least by the time of the judgment, he or she may not have deserved [1407].
31 An obvious but probably irrelevant observation is to consider the approach which a jury applying common sense would have taken to the problem. I am not sure the Court of Appeal's reasoning would prove attractive to the ordinary person so that, for example, an imputation that a plaintiff was a liar (which the defendant could not justify in the particularised case), would justify an award of damages when the jury was satisfied that the plaintiff told one or many lies when giving his or her evidence. The defendant may prove the plaintiff to be a liar at the trial, but not the damaging lie, and until that finding is made, the plaintiff's reputation may be that he is an honest person. What is really happening is proof that the plaintiff may have enjoyed a reputation which he did not deserve.
32 The Court of Appeal acknowledged that the issue is not without difficulty and accepted that there is a contrary argument. It was articulated by Ipp JA, Beazley JA agreeing in McBride. Their Honours accepted the reasoning of Gillard J in Middendorp Electric Co Pty Ltd v Somevald [2001] VSC 312 who held that a plaintiff's post-publication convictions on criminal charges could be taken into account in mitigation of damages.
33 The specific question raised in this case has not previously been authoritatively answered. However given the strength of the view expressed by the Court of Appeal in Marsden I believe I should follow it. McBride was concerned with findings other than by the trial court. Given that the controversy in the present case is concerned with the proposition that it is the plaintiff's reputation at the date of publication which is to be restored, and for which compensation is to be awarded, I believe I should ignore my findings with respect to the plaintiff's credit.