Snedden v Nationwide News [2009] NSWSC 1446 | Case summary

Snedden v Nationwide News [2009] NSWSC 1446 | Case summary | Zoe

[16]

Whether Contextual Imputations 8, 9, 10, 11, 12, 13, 15, 16 and 17 were Conveyed. 8 The principles to be applied for the purpose of determining whether an imputation is conveyed are well settled. The natural and ordinary meaning of the article includes both the literal and inferential meanings that present themselves to the ordinary reasonable reader, who is a person of fair average intelligence, not perverse or morbid or suspicious or naïve, and who is capable of reading between the lines in the light of general knowledge and experience of worldly affairs. The reader of a newspaper article generally exercises less care than the reader of a book. The more sensational the newspaper article, the less likely is it that a degree of analytical care and accuracy will prevail over that applied to a book : Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165. 9 Bearing these principles in mind, imputations 8, 9, 10, 11, 12 and 13 may be dealt with together. In general terms, they assert that acts of torture were committed and condoned by the plaintiff, and were committed by others for whom he was responsible. 10 The article appeared at the top of the front page of the newspaper, immediately under the newspaper's banner and three feature headlines. Annexure A to this judgment includes numbers that were assigned to the title, the paragraphs and the photograph captions. This numbering is adopted for the purpose of the discussion of the article in this judgment. The title of the article (1) was in bold, moderately large font and stated "Serbian death squad commander alive and well and teaching golf in Perth". Two photographs of the plaintiff appeared on each side of the article, framing the text. The photo on the right side of the paper depicted the plaintiff in military-style uniform, holding a human skull in his right hand, as if posing for the camera. The caption under that photo was "Atrocities : Vasilykovic in Bosnia in 1991." (17) 11 In the first paragraph (2), it is said that the plaintiff "headed ruthless Serbian paramilitary units implicated in the wartime rape, torture and slaughter of Muslims in Bosnia". The third paragraph (4) again refers to the plaintiff's command of "several paramilitary units alleged to have murdered hundreds of civilians and participated in the organised rape of women and girls". 12 The remainder of the article refers to the plaintiff's training methods with respect to as many as 16,000 Serbian fighters (5), the plaintiff's denial that he was a war criminal (8) (9), his appearance at the War Crimes Tribunal at the Hague (11), a UN report of 1994 which "found that one of the militia units [the plaintiff] commanded, known as the Red Berets or the Draganovici, had terrorised the Muslim population in the Bosnian city of Zvornik before a mass expulsion" (22) and "the increasing terror caused by the .. unit of one Kapetan Dragan" (23). The plaintiff was described by interview subjects as "second in importance to Serb warlord Zeljko Raznatovic known as Arkan, who was indicted by the International War Crimes Tribunal" (24). 13 In the last paragraph (26), it is stated that images shown on Croation television included "the mutilated bodies of nine Croat policemen". The plaintiff was said to have justified the violence, that is the violence meted out to the policemen, in saying "when the Croat side uses hospitals or police stations in their villages as fortified positions, I'm sorry, I just have to massacre them." 14 There is no controversy about, and the article clearly conveyed that, the plaintiff was a commander of Serbian paramilitary units during the war in Bosnia. It is also clear that the article conveyed that those paramilitary units committed torture, in so far as they were implicated in such acts, and that, in the circumstances of the Bosnian conflict, such torture constituted war crimes. Paragraphs (2) and (26) together are sufficient to convey these matters, given the references to wartime torture of Muslims and the mutilation of bodies. The reasonable reader would readily infer that acts of torture were war crimes, given the references to the Muslim civilian population and to the International War Crimes Tribunal.

[18]

16 The plaintiff's submissions on this aspect of the contextual imputations sought to rely upon the rejection by the jury at the s 7A hearing of a number of imputations pleaded by the plaintiff, namely that the plaintiff authorised the torture, murder and rape of civilians. The plaintiff claims that it is not now open to the defendant to plead contextual imputations that in effect mean the same thing. In other words, the plaintiff submits that "authorise" is identical or similar in meaning to "condone" and "responsible for". 17 That submission must be rejected. One can exercise authority over others without expressly or impliedly authorising certain acts. Indeed, in the body of the article, the plaintiff expressly disavows any knowledge of, or participation in, acts constituting war crimes. It is theoretically possible that the plaintiff exercised authority over his men, while remaining ignorant of war crimes committed by them. In such circumstances, he would not have authorised such activity. Assuming that war crimes were authorised by him, it may be said that he is responsible for them, but it does not follow that "to authorise" and "to be held responsible for" are identical terms. The former implies the grant of a power or a sanction, whereas the latter attributes accountability. There is nothing inherently inconsistent in holding a person accountable for something that he/she may not have authorised. 18 Similarly, one can condone or pardon or overlook certain activity that has not been authorised. In the event that the ordinary reasonable reader thought it possible that the plaintiff may not have authorised war crimes, that same reader may nevertheless have inferred that the plaintiff "turned a blind eye" to war crimes committed by his men, that is, he condoned them by refraining from imposing discipline or censure. In short, notwithstanding that the plaintiff may not have authorised war crimes, he is capable of condoning them and being accountable for them. 19 The plaintiff's position with respect to the commission of torture is most forcefully conveyed by the last paragraph (26). Here, an incident involving the mutilation of the bodies of Croat policemen is "justified" by the plaintiff. The plaintiff is quoted as saying "I just have to massacre them." This statement comes after the ordinary reader has been effectively told that the plaintiff is regarded by a former deputy prosecutor to the International Criminal Tribunal for the Former Yugoslavia as someone who "participated in war crimes" (14), and that allegations of "wartime atrocities" have been made against him (13). These matters taken together, and in the context of the article as a whole, convey to the ordinary reasonable reader that the plaintiff committed torture, and that he condoned it. 20 I am satisfied that the contextual imputations 8, 9, 10, 11, 12 and 13 were conveyed by the article. 21 Contextual imputations 15 and 16 refer to the rape of women. The article refers at (2) to the paramilitary units under the plaintiff's command being implicated in the rape of women. A following paragraph (4) states that the plaintiff "commanded several paramilitary units alleged to have murdered hundreds of civilians and participated in the organised rape of women and girls". This reference is somewhat ambiguous. The word "participated" may be read as relating back to the plaintiff, not to the paramilitary units. In my view, the ordinary reader who did not analyse the article carefully would infer that it was the plaintiff who was participating in the organised rape of women, not just the units under his command. It is not unrealistic then to engage in further "loose thinking" and draw the conclusion that the plaintiff raped a woman in the course of his participation in such organised activity. I therefore find that contextual imputations 15 and 16 were conveyed. 22 That contextual imputation 17 has been conveyed follows from my findings above in relation to the contextual imputations that conveyed the commission by the plaintiff of both torture and rape in the course of a civil war.

[19]

The evidence relied upon to establish that the plaintiff had admitted committing a massacre. 23 The substantial truth of imputation 4 depends principally upon the acceptance of the evidence of Anne McElvoy and Paul McGeough. 24 Anne McElvoy commenced work as a journalist with The Times newspaper in London in 1988. Between 1991 and 1993, Ms McElvoy was in the former Yugoslavia covering the Balkan conflict for that newspaper. On 15 July 1991, an article, written by Ms McElvoy, appeared in The Times, titled "Patriotic Serb Drills Motley Gunmen". There was no issue in the proceedings that this was a reference to Captain Dragan, namely the plaintiff. The article was based on an interview between the plaintiff and Ms McElvoy in Knin on or about 14 July 1991. 25 Miss McElvoy's evidence was that she went to the fortress in Knin and asked the guard to take her to the commander of the local militia. She had not heard of Captain Dragan prior to meeting him. During the interview she asked the plaintiff whether he was a mercenary. The plaintiff denied being a mercenary and claimed to have come to Krajina out of personal attachment to the cause. 26 Ms McElvoy asked the plaintiff for his views regarding the targeting of civilian institutions such as police stations and hospitals. That practice had apparently become commonplace during the conflict. The plaintiff's reply was "Nobody needs to be armed since I got here. I am 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." Ms McElvoy's memory of this statement was reinforced, not just by the contemporaneous record of it within the body of the article of 15 July 1991, but also by the impression it made upon Ms McElvoy, namely that it gave her a great sense of foreboding about the conflict in the Balkans. 27 It was suggested in cross examination of Ms McElvoy that she had in fact meant "churches and hospitals". This suggestion accords with the plaintiff's evidence, wherein the plaintiff admitted making a statement to Ms McElvoy to the effect that "if Croats are using churches or hospitals as a fortified position they become a legitimate target." The terms of this statement were not put to Ms McElvoy. In any event, Ms McElvoy rejected the suggestion that "churches" were part of the relevant conversation. It was further suggested to Ms McElvoy that the plaintiff did not say what was attributed to him and that she was mistaken about that. Ms McElvoy's response was a definitive "I know I'm not mistaken about that." 28 Ms McElvoy was further cross-examined in order to elicit her understanding of whether the plaintiff had in fact committed a massacre. Her understanding from the plaintiff's use of the present tense, coupled with the use of "when" and not "if", was that the plaintiff had already committed a massacre. The plaintiff spoke English to Ms McElvoy "fluently and perfectly clearly". Ms McElvoy pressed the plaintiff for further details but the plaintiff refrained from providing any more answers. 29 In rejecting the proposition that the defendant had, by this evidence, established that the plaintiff had committed a massacre, counsel relied upon the fact that the attack by the Serbs on the small town of Glina occurred on 26 July 1991, that is 12 days after the statement attributed to the plaintiff. The argument was that, assuming that Ms McElvoy's evidence was accepted, the plaintiff must have been speaking conditionally, that is, that if certain circumstances existed, then the plaintiff may have to massacre persons using hospitals or police stations as fortified positions. 30 The difficulty with this proposition is that the plaintiff's assertion that the battle of Glina took place between 26 and 28 July 1991 is contradicted by Exhibit 2. According to the proceedings in June 2007 before the International Tribunal for the Prosecution of Crimes in the former Yugoslavia (the Martic Judgment), the battle of Glina occurred in mid July 1991. There was a battle in the village of Struga on 25 July 1991, led by the plaintiff (Exhibit 2, p 61). It may be that the plaintiff's memory in this regard is faulty. I prefer the dates attributed to these conflicts in Exhibit 2 to the evidence of the plaintiff. In these circumstances, the plaintiff's statement to Ms McElvoy appears to be contemporaneous with the attack upon the police station at Glina. 31 Furthermore, Ms McElvoy's evidence established that, by the time of her interview with the plaintiff, the conflict had already reached a stage where institutions such as police stations and hospitals were being targeted. The plaintiff's statement was significant for Ms McElvoy because, according to her understanding of the plaintiff's words, he was the first person to confirm that attacks on civil institutions were occurring. 32 I accept Ms McElvoy's evidence that the plaintiff used the words attributed to him in The Times article. Both the contemporaneous nature of the record of the conversation and the significance it had for Ms McElvoy render her evidence reliable in this respect. 33 Whatever Ms McElvoy's understanding, the plaintiff acknowledges that it is for the Court to determine whether the words attributed to the plaintiff support the imputation. The contention is that the statement is, at its highest, equivocal. The fact that the defendant has not called evidence to establish that there was a massacre that pre-dated the interview does not preclude a finding that the plaintiff was referring to a massacre that had already occurred, whatever took place at Glina at about that time. 34 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 that the plaintiff was referring to occasions that had already met the preconditions.

[20]

35 The plaintiff's command of the English language was, at that time, excellent. He had been brought up in Australia from the age of 14. It is unlikely that the plaintiff did not understand the distinction between the present and the conditional tense. The plaintiff knew that Ms McElvoy was questioning him about a controversial and deplored strategy in the conflict. Had he not engaged in that practice, I see no reason why he would not have made it abundantly clear to Ms McElvoy that he was speaking conditionally. He did not do so. 36 Any doubts in this regard are removed by the evidence of Mr McGeough. In 1990, Mr McGeough was appointed the European correspondent for the Sydney Morning Herald. He covered conflicts in the former Yugoslavia and other prominent war zones in the world between 1990 and 2003. At the time of his evidence, Mr McGeough was the chief foreign correspondent for the Sydney Morning Herald. 37 Between 1991 and 1994, Mr McGeough travelled regularly between London and the former Yugoslavia. In or about July 1991, Mr McGeough became aware of the existence of a Captain Dragan, principally on the basis that he was Serbian soldier with an Australian accent. Mr McGeough wrote two articles about Captain Dragan, namely "Dragan; Hero who spits fire and speaks strine", appearing in the Sydney Morning Herald on 29 July 1991 and "Captain Mysterious; Scourge of the Croats", appearing in the Sydney Morning Herald on 4 August 1991. 38 At the time of writing the first article, Mr McGeough had not met Captain Dragan. That article was based on local interviews and other media reports. Mr McGeough believed that he initially became aware of the existence of Captain Dragan from the article written by Ms McElvoy published in The Times on 15 July 1991. The first article repeated the plaintiff's statement to Ms McElvoy that is the subject of imputation 4. 39 Mr McGeough went looking for Captain Dragan and met him at Knin in early August 1991. This meeting was the subject of the second article. The quotes attributed to Captain Dragan in the second article were reproduced from Mr McGeough's notes taken at the time of the interview. 40 Whilst having no specific recollection, Mr McGeough was sure that he would have put the massacre quote to Captain Dragan, given his reliance upon Ms McElvoy's article for the purposes of his first article. Mr McGeough was also confident that Captain Dragan did not deny the massacre quote, because had he done so, Mr McGeough would have, according to his ethical principles as a journalist, included his denial in the second article. 41 The plaintiff's evidence was that he had not met Mr McGeough at all. This was never directly put to Mr McGeough in cross-examination, rather it was suggested to Mr McGeough that the plaintiff could not remember meeting him. Mr McGeough was further cross-examined on the basis that he had not put the relevant quote to the plaintiff. His reply was that such a suggestion was not correct "because I spent a lot of time trying to find him. If you look at the dates of the two stories I was aware of his existence in the area on 29 July, it is almost a week before the next story appears. I was monitoring other media. It would have been remiss of me not to put it to him given that I was aware of it, and also given that if you just bear with me, there is a form of words here which suggests I did put it to him in the form of a question." The form of words to which Mr McGeough was referring appear in the second article, annexed to Exhibit 7 as Annexure B. They are "but asked if people had to die, bearing in mind his comment last week that he would massacre Croats when necessary, he said 'because of me, fewer have died than might have'..". 42 I accept that Mr McGeough put the quote from Ms McElvoy's article to the plaintiff and that there was no denial or clarification of the statement offered by the plaintiff. 43 Taking all of these matters into account, the defendant has established on the balance of probabilities, to a comfortable degree, that imputation 4 is substantially true.

[21]

The evidence relied upon to establish that the plaintiff was before 1991 a criminal. 44 The plaintiff's criminal convictions appear in Exhibit 10. On 14 October 1974 the plaintiff was convicted of receiving stolen goods and unlawful possession. He was fined $300 and $150 in respect of those offences, which were dealt with at a summary level. In April 1984, the plaintiff was convicted at a magistrate's court of the offence of operating a brothel for prostitution. He was fined $5000 in relation to that offence. The result sheet from Prahan Local Court indicates that the defendant was operating a number of escort agencies where sexual intercourse was offered by the women he employed and that the offence was discovered when the plaintiff interviewed a policewoman for employment within the escort agency. 45 In cross-examination, the plaintiff maintained that there was only one escort agency and that his involvement was limited to the fact that he had fallen in love with the operator of that agency and had assisted her at the premises. The plaintiff later said that he had pleaded guilty to the charge because it was easier to pay the fine than to spend a quantity of money contesting it. He denied ever operating a brothel and maintained that the various names of agencies set out in the result sheet appeared as advertisements in newspapers, but were linked to the same phone number at the same address. Furthermore, the plaintiff denied that there was ever a brothel as such, because the premises from which the escort agencies operated contained no bedrooms or other facilities. 46 In relation to the receiving stolen goods charge, the plaintiff maintained that he had bought a "hot" cassette player for $20 when he was 19 or 21 years of age. In short, the plaintiff sought to minimise the seriousness of the offences. 47 The plaintiff's counsel submitted that the Court would not take the view that these convictions qualified the plaintiff as a criminal, in effect because of the trivial circumstances surrounding the commission of the offences. That submission of course depends upon the Court's acceptance of the plaintiff's evidence as to the circumstances under which he was charged and convicted. Given the magnitude of the fines imposed upon the plaintiff, particularly in relation to the 1984 offence, I find it difficult to accept that the offences were of such a trivial nature. The plaintiff's explanation for his association with an escort agency does not explain how he came to interview a police officer on the basis that she would be providing sexual services in his employment. 48 Taking the ordinary, everyday meaning of the word "criminal" as a person who has been convicted of a criminal offence, and notwithstanding the decriminalisation of prostitution since 1991, it is nonetheless substantially true to say that before 1991 the plaintiff was a criminal. The defendant has therefore persuaded the Court to the requisite standard that the truth of this imputation has been established. The evidence relied upon to establish that the plaintiff before 1991 had underworld links. 49 This imputation is substantially dependent on the previous one. If one adopts the Macquarie Dictionary definition of "underworld", the defendant will have established the substantial truth of this imputation if the Court finds that the plaintiff had, before 1991, links to "the lower, degraded or criminal part of human society", which may be taken to include those who engaged in vice. Similarly, the Oxford English Dictionary defines underworld as "the world of criminals or of organised crime'.

[23]

The identification of the plaintiff 54 As noted above, the honesty and reliability of the defendant's various witnesses in their identification of the plaintiff is one of the critical factors in the determination of this aspect of the defence. Notwithstanding cross examination of all of the defendant's witnesses, who gave evidence of encountering the plaintiff at Knin or elsewhere in Krajina, to the effect that they were wrong in their identification of the plaintiff, ultimately the plaintiff, in the course of his evidence, did not dispute that he had met Colin Perry in somewhat different circumstances at Sremska Mitrovika prison, although the plaintiff maintained his denial of any mistreatment of him. This was a troubling feature of the plaintiff's case, in that, there were conversations that the plaintiff attributed to Mr Perry and himself that were never put to this witness in cross-examination. 55 In addition, the basis of Ilija Ackar's cross examination was confusing. At first, it was suggested that when he was beaten by the guards at Sremska Mitrovika prison, Captain Dragan was merely standing by, watching. A short time later, it was put that the witness was never beaten in the presence of Captain Dragan. In the course of the plaintiff's evidence, he denied that Mr Ackar had ever seen him at the prison, largely because Mr Ackar's description of the Captain's shoes was inconsistent with the plaintiff's uniform. This denial is compromised by the fact that Mr Ackar saw a photograph of the plaintiff and Mr Perry in a newspaper, which was captioned "Captain Dragan is explaining to Colton Perry that his life depends only on the goodwill of the Serbian people". Mr Ackar saw this article while he was at the prison, a few days after he received a severe beating by and in the presence of the plaintiff. 56 To the extent that these two witnesses, one of whom the plaintiff admitted meeting and the other who identified the plaintiff from a contemporaneous photograph, described the person they knew as "Captain Dragan" in terms that were consistent with the description provided by the remainder of the defendant's witnesses, the credit of these latter witnesses was correspondingly strengthened. The following summary of the evidence on the issue of identification has led me to the conclusion that the defendant's witnesses were not dishonest or mistaken when they nominated the plaintiff as the perpetrator of the various acts they each described. 57 Mr Perry described the plaintiff, who he met in mid 1992, wearing a military camouflage uniform, thin face, greying hair and slight of build. He was obviously fluent in English and appeared to speak with an Australian accent. Mr Perry was shown three photographs and identified the plaintiff in each of them (Ex 3). 58 Mr Ackar, who gave evidence by video link, said the man he met at the prison in early 1992, who he knew as Captain Dragan, was "not very tall, quite skinny, had longer blonde-grey hair, a red cap in the shape of a beret on his head, a camouflage uniform, white trainers, a pointed chin and a long, thin face". The red beret had a badge on it with four Cyrillic letters (Cs) facing each other. He also described that person's "very distinct voice". Mr Ackar identified the plaintiff in a number of photographs annexed to his statement, Exhibit 9. He had seen the plaintiff's picture on television when the extradition proceedings were instituted (about January 2006). 59 Source A, who gave evidence in person, described the man she knew as Captain Dragan in mid 1992 in the following terms. He had "hair which was a bit grey, skinny, not tall with a bit of a nose sticking out [and later] a slim face, longer nose and red beret and camouflage uniform and insignia with letters". Source A also acknowledged that Captain Dragan's hair in 1992 was darker than it appeared now and that she had at some stage indicated that his hair was brown and greying. This description generally conforms to the colour of the plaintiff's hair in photographs taken in about 1991, that became Exs 14 and 15. 60 Velibor Bracic, who gave evidence in person, described a man he knew as Captain Dragan at the Knin Fortress in the days after 17 June 1991 wearing a camouflage uniform with three stars on the shoulder, and a camouflage beret with four inverted Cs (Exhibit 4). Mr Bracic also saw Captain Dragan in the prison hospital approximately one week before his release on or about 14 August 1991. This witness also identified the plaintiff from a number of photographs that became Exhibit 5. 61 Osman Vikic, who gave evidence by video link, was taken to a room in the Knin Fortress in June 1991 where a man introduced himself as Captain Dragan. Captain Dragan said that he was "the commander of the militia of SAO Krajina". Captain Dragan was described as 175 to 180 cm tall, with white hair, wearing a combat uniform and officer uniform. He had a black beret under his epaulette. Captain Dragan had "a deep voice ; it was comfortable for the ear." Mr Vikic identified the plaintiff as Captain Dragan from a number of photographs that were shown to him. Mr Vikic saw the inverted Cyrillic letters on Captain Dragan's sleeve whilst at the fortress and at the prison hospital between 27 June and 26 July 1991, when he was released. 62 Darko Kauric, who gave evidence by video link, was imprisoned at Golubic in early July 1991 and at the old hospital in Knin until 14 August 1991. He was visited at the old hospital by a man on three or four occasions who was addressed as Captain Dragan by the guards. His description of Captain Dragan was a short, very thin man with a very thin face and a big nose. He also described the four Cs facing inwards on his insignia, a variation on the usual insignia that was designed and worn by Captain Dragan to indicate a unified Serbia. Mr Kauric also identified the plaintiff as Captain Dragan from a number of photographs. 63 Milan Spoljaric was arrested and imprisoned with Mr Kauric and released on 14 August 1991. He gave evidence by video link of seeing a man to whom he was introduced by the guards as Captain Dragan at the Knin hospital prison approximately 3 times in July 1991. He described Captain Dragan as "170 to 175 cm, thinner person, big nose" and partially grey. Captain Dragan wore a combat uniform with a red beret bearing four Cs.

[25]

67 Exhibits 3, 5 and 8 (three sets of the same three photographs) depict the plaintiff in camouflage military uniform, wearing a beret with the distinctive Cyrillic inverted Cs. These photographs were sourced from the plaintiff, pursuant to the discovery process. According to the plaintiff, the photographs were taken in November 1992. The plaintiff's evidence was that he did not wear a red beret until a press conference in early August 1991 and that he did not wear a beret with the inverted Cyrillic insignia until mid July 1991. It was submitted that, to the extent that the witnesses who were imprisoned at Knin referred to a red beret and the inverted Cyrillic insignia on Captain Dragan's beret, their evidence could not be accepted. 68 A closer examination of the plaintiff's evidence reveals that the red beret was issued to his men after the battle of Glina, that is, after mid July 1991, and that the plaintiff himself had samples of the beret with his design of the inverted Cyrillic letters when he returned from Belgrade on 30 June 1991 (T 525.5, 527.2). It is quite possible that the plaintiff was wearing the sample berets in early July 1991 and that he and his men began wearing the red berets from mid July. 69 Mr Vikic, who only referred to a black beret, was imprisoned at Knin until late July 1991 and the remainder of the Knin witnesses were there until mid August 1991. They were all in a position to observe Captain Dragan's uniform at some stage during their imprisonment. It is unsurprising, given the conditions under which they were held and the treatment they received, that each of them may have failed to differentiate between the colour and insignia of Captain Dragan's beret in June 1991 and in July/August 1991, even accepting the plaintiff's evidence on this issue. I am not persuaded that these witnesses should be rejected on this basis. 70 A separate attack was mounted on the evidence of Source A. Much attention was given to this witness' reference, in the course of a television interview (Ex K) to the person who raped her as "Dragan Vasiljevic", not the plaintiff's surname Vasiljkovic. Source A always maintained that she never knew Captain Dragan's surname, but accepting that she used the surname Vasiljevic, it is clear that she was referring to the plaintiff because she also spoke during the same interview of his pending extradition from Australia. 71 It was never suggested to Source A that Dragan Vasiljevic was a different person from the plaintiff. The plaintiff's counsel only submitted at the end of the proceedings that this issue, together with alleged misdescriptions of hair colour and the failure to detect a scar on the plaintiff's torso, went to Source A's reliability in her identification of the plaintiff (T 643.6). In his written submissions, the plaintiff's counsel stated that "the alleged persons who introduced the man who raped her used the wrong name or Source A obtained the wrong name in the course of her inventing her allegations against the plaintiff or confusing the plaintiff with someone else." The first scenario is highly unlikely given the plaintiff's notoriety and rank at the time. The second scenario is theoretically possible but would, in my view, be inconsistent with a concerted effort to falsely accuse the plaintiff. The third scenario has no basis in the evidence. 72 The failure of Source A to see a scar on the plaintiff's front torso was said to be another indicator of her reliability and dishonesty. A proper reading of her 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.

[27]

76 There is no adequate explanation for why the defendant's witnesses would seize upon the plaintiff as the perpetrator of war crimes against them from among the many Serbian soldiers who were, no doubt, the subject of television and newspaper reports after the conflict ended. Despite the plaintiff's attempts, through cross examination of these witnesses by his counsel, to establish that their evidence was contaminated either by media coverage, and/or by contact with the Croat prosecuting authorities, and/or by familiarity with others who had made statements to similar effect, nothing of substance emerged to damage their credit. The Martic Judgment 77 On the second day of the proceedings, the defendant tendered a judgment of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 (ICTY), dated 12 June 2007 (Exhibit 2, the Martic judgment). The tender followed cross examination by the defendant of the plaintiff's witnesses going to the issue of damages. In particular, the plaintiff's witnesses on damages asserted that there had been no adverse findings made against the plaintiff by the ICTY and/or that they were not aware of any such findings. They went further by confirming that, even if they knew of such a finding, it would not change their view of the plaintiff's good reputation. 78 It was anticipated (correctly) that one plank of the plaintiff's case was that he had in effect been given "a clean bill of health" by the ICTY and that the Tribunal had in fact made favourable findings in relation to his role in the Krajina. The judgment was therefore tendered on the basis that the Tribunal had made adverse findings in relation to the plaintiff's part in the displacement of the Croat population during 1991 and 1992, and in order to meet any submission from the plaintiff to the effect that he had been investigated and effectively exonerated of any war crimes. It was not sought to be tendered as to the truth of those findings. 79 It is relevant to note that the judgment determined the liability of Milan Martic for various crimes committed against the Statute of the Tribunal. Mr Martic held various positions, including Chief of Police at Knin, Secretary for Internal Affairs of the SAO Krajina, Minister of Defence and Deputy Commander of the Territorial Defence of Krajina between 4 January 1991 and August 1995. It was his role in the forced displacement of Croat and non-Serb populations during the conflict that was in issue in the proceedings before the Tribunal and which was the subject of the judgment. 80 Following a discussion about the ambit of s 91 of the Evidence Act 1995, the judgment was admitted into evidence on the limited basis outlined above. As explained in Ainsworth v Burden [2005] NSWCA 174 at [109] :- s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts. If they are admissible for some other purpose ……. they may not then be used to prove the existence of those facts, a consequence which would otherwise have flowed from s 60 of the Evidence Act . 81 The plaintiff's role and participation in the common criminal purpose to forcibly remove non-Serbians from the Krajina was not at issue in the Martic proceedings. However, the existence of that common criminal purpose was in issue, so that the truth of the allegations relating to the mistreatment of the Croat and non-Serb population to that end, cannot be established by Exhibit 2. There are other aspects of the judgment that were not controversial in the proceedings before the Tribunal, such as the chronology of political events and the time and place of various battles. There is accordingly no barrier to the use of Exhibit 2 for the purposes of establishing such matters (see [30] above and [86] below). 82 At the very end of the proceedings, five weeks after the defendant's witnesses had returned to Croatia, and to the USA, and five weeks after the video-link facilities had been terminated, the plaintiff's counsel filed written submissions, part of which sought to rely upon aspects of the Martic judgment in order to establish that the plaintiff did not mistreat or brutalise prisoners at Knin. This is, in my view, an impermissible use of Exhibit 2 and, more importantly, were it permitted at this late stage, it constitutes a denial of procedural fairness to the defendant. I have accordingly disregarded the plaintiff's reliance upon Exhibit 2.

[30]

(ii) holds, or performs any of the duties of, a public office of the foreign State or of a part of the foreign State or (d) unlawfully destroying or damaging any real or personal property belonging to the government of the foreign State or of a part of the foreign State. (4) Nothing in this section applies to an act done by a person in the course of, and as part of, the person's service in any capacity in or with: (a) the armed forces of the government of a foreign State ………………………………………………………………….. 84 A foreign State is defined (s 3) as an independent sovereign state or an area of land (whether or not it is self-governing) that is not part of an independent sovereign state. Government is defined as the authority exercising effective governmental control in that foreign State or that part of that foreign State. Armed force is not defined otherwise than to exclude the Defence Force of Australia. 85 The evidence established that, at the relevant time, the plaintiff held dual Australian and Serbian citizenship. Between 1976 and 1981, the plaintiff served with the Australian army reserve. In about 1986 the plaintiff left Australia and arrived in the former Yugoslavia. Shortly thereafter, the plaintiff went to Texas in the USA and spent three years enrolled in an aviation academy. In about 1990 he returned to Yugoslavia and went to Krajina. 86 Since late 1990, Krajina was considered by the Serb population as a Serbian Autonomous District, although it was part of the Republic of Croatia. It included the towns of Glina and Knin. On 16 May 1991, the Krajina Assembly declared Krajina part of the Republic of Serbia, at about the same time that Croatia was attempting to secede from the former Yugoslavia. (Croatia did not become independent of Yugoslavia until October 1991.) However, this declaration was not recognised by Serbia at the time. On 29 May 1991, the Krajina Assembly established its own government. It passed the Consitutional Law of the Serbian Autonomous District of Krajina, which defined the District as part of the federated Yugoslavia. On 19 December 1991, the Krajina Autonomous District became the Republic of Serbian Krajina. A Consitution was passed, defining the Republic of Serbian Krajina as a national state of the Serbian people and of all citizens residing therein. (Exhibit 2, pp 44 - 54) 87 The plaintiff's evidence was that he initially enlisted as a reservist in the Krajina police force and received a commission as Captain on 4 April 1991. He remained in that position until 1 August 1991. The plaintiff then served in the Krajina army between 20 January 1993 and early 1994. 88 It was a pervasive theme of the plaintiff's evidence that he was serving as a police officer in the first half of the war and only became a member of the armed forces during the second half of the war. However, it became clear in the course of cross-examination that, in answer to interrogatories issued by the defendant, the plaintiff had responded that he was a member of the Krajina Armed Forces between April 1991 and 2 August 1991, holding the rank of Captain, and was the "commander of approximately 21 soldiers, all wearing uniform insignia and carrying arms, openly engaged in reconnaissance and search and destroy and instructor of basic military training." (Exhibit 13) Ultimately, the plaintiff's counsel disavowed any reliance upon the distinction sought to be maintained by his client.

[31]

89 On 1 May 1991, the plaintiff was transferred to the fortress at Knin. He wore camouflage uniform with a camouflage beret and bore three stars on his lapels. He was one of six captains. There were also six lieutenants and 54 second lieutenants at the fortress, all 66 of whom were under the plaintiff's command. 90 The plaintiff gave extensive evidence of his role in the battle of Glina in July 1991. According to the plaintiff, he was in command of 22 members of the Krajina police force and was authorised by the Minister of the Interior, stationed in Knin, to attack the Croat forces. This was, according to the plaintiff, the first time he engaged in armed conflict as opposed to training those under his command in the use of weapons. This battle, together with other attacks on predominantly Croat towns and villages in 1991, was aimed at uniting Serbian territories. 91 Thus, there does not appear to be any dispute that the plaintiff, an Australian citizen (s 6(2)(a)(i)), in July 1991, engaged in hostile activity (s 6(3)(aa) and (b)) in a foreign State, namely the former Yugoslavia. The salient question is ; was the plaintiff serving in any capacity with the armed forces of the government of a foreign State (s 6(4)). The answer to that question depends in turn upon the status of the Krajina Autonomous District in July 1991. In order to qualify as a foreign State, it must have been either an independent sovereign state, or an area of land that was not part of an independent sovereign state. 92 In NSW v Commonwealth [1975] HCA 58 ; (1975) 135 CLR 337, McTiernan J noted that :- As regards "sovereignty" Wheaton (Elements of International Law, English ed. (1878), pp. 28-29) said: "Sovereignty is the supreme power by which any State is governed. This supreme power may be exercised either internally or externally. Internal sovereignty is that which is inherent in the people of any State, or vested in its ruler, by its municipal constitution or fundamental laws. This is the object of what has been called internal public laws, droit public interne, but which may more properly be termed constitutional law. External sovereignty consists in the independence of one political society, in respect to all other political societies. It is by the exercise of this branch of sovereignty that the international relations of one political society are maintained, in peace and in war, with all other political societies. The law by which it is regulated has, therefore, been called external public law, droit public externe, but may more properly be termed international law." (at p376) (original not in italics) 93 Jacobs J in the same case said of the term "sovereignty" :- The word expresses a concept notoriously difficult of definition but I would essay that sovereignty under the law of nations is a power and right, recognized or effectively asserted in respect of a defined part of the globe, to govern in respect of that part to the exclusion of nations or states or peoples occupying other parts of the globe . (italics not in original) 94 The only evidence on this issue is that, in July 1991, the plaintiff was serving with the armed forces of a provisional government, being the government of the Krajina Autonomous District. Whatever the status of that government, Krajina was, in July 1991, part of the federation that was Yugoslavia, according to the terms of its own laws. According to the attributes of sovereignty referred to above, the Krajina Autonomous District did not conform to the requirements of an independent sovereign state. It did not have power or authority to govern in respect of the region, to the exclusion of the central government of Yugoslavia. It was not an area of land that was not part of an independent state. 95 The plaintiff was not within the exception to s 6 of the Foreign Incursions Act. For the above reasons, the defendant has established the substantial truth of imputation 7.

[33]

(i) The intentional infliction by act or omission of severe pain or suffering, whether physical or mental. (ii) The act or omission must have occurred in order to obtain information or a confession, or to punish, intimidate or coerce the victim or a third person or to discriminate, on any ground, against a victim or a third person (the prohibited purpose). 100 This definition appears in the Statute of the International Tribunal for the Former Yugoslavia and is based upon the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. That Convention was adopted by the Schedule to the Crimes (Torture) Act 1988 (Cth) wherein :- 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. 101 It is apparent that torture within the meaning of the Crimes (Torture) Act goes beyond the infliction of severe pain or suffering by a person acting in an official capacity. It extends to the infliction of severe pain or suffering at the instigation of, or with the consent or acquiescence of such a person. It is appropriate, in my view, that this construction of the term "torture" is applied for the purposes of these proceedings, in preference to that relied upon by a foreign tribunal in an unrelated matter. It does not include an omission, but the relevant inclusive prohibited purposes are substantially the same. 102 The plaintiff's submissions distinguish torture from acts of cruelty, assaults and beatings. That much is accepted. However, the distinction is fundamental to the plaintiff's contention that, even if certain witnesses who gave evidence of receiving beatings at the hands of, or in the presence of, the plaintiff are accepted, that treatment fell short of torture. The assumption underlying this proposition is that the acts of violence and the mistreatment (if any) meted out by the plaintiff and/or the men under his command are to be considered in isolation, that is, without regard to the physical and mental condition of the victims of these assaults when they arrived at Knin (Bracic, Vikic, Kauric, Spoljaric and Hrnjica) and at the Sremska Mitrovika prison (Perry, Ackar). 103 The defendant's witnesses on this topic were permitted, over objection, to give evidence of what had happened to them before they arrived at Knin and at the prison, on the basis that their resulting poor state of mental and physical health would have been obvious to anyone who had dealings with them. More importantly, the defendant's allegation was that the further infliction of pain and suffering on prisoners in this weakened condition constituted torture, not that the assaults alone necessarily did so in every case. That is the basis upon which the evidence of these witnesses falls to be assessed. 104 Mr Perry, who had joined the French Foreign Legion at the age of 18, went with some of those colleagues to Croatia in late 1991 and volunteered for military service. In about May 1992 he was captured by Bosnian Serb forces. He was beaten and flown by helicopter to Belgrade where he was detained for two months. Whilst there, he was physically beaten on a daily basis on the bottoms of his feet, legs, calves, groin, stomach, chest, shoulders and face. He was beaten around the head and face whilst a pillowcase was placed over his head. He was subjected to water torture, sleep deprivation and mock executions, which consisted of being bound, handcuffed, thrown into the trunk of a car, repeatedly removed from the trunk, having a gun placed to the back of his head and the trigger pulled whilst there were no rounds in the chamber. 105 After several months of this treatment, he was transferred to the Sremska Mitrovika prison. He described the conditions at the prison as poor. They consisted of a bucket for toileting purposes and a blanket on the ground in a bare room. Mr Perry was not permitted to wash. Later Mr Perry was moved to a dormitory style room with approximately 150 Croat prisoners. There were thin mattresses and blankets on the floor and conditions were crowded. The toileting facilities consisted of a sink in the back of the room. Very little food was provided. Mr Perry sustained further beatings, both at the hands of the guards and other civilian criminals who were given access to the prisoners in the cells so that they could abuse and assault them. 106 On one occasion that Mr Perry was removed from his cell by the guards at the prison, he was taken to a room or office where he saw the plaintiff. Mr Perry had a fresh wound over his eye, bruising all over his body and parts of his face, and was quite emaciated. The plaintiff appeared to Mr Perry to be the authority figure in the room. The two or three soldiers who were also present were clearly deferring to the plaintiff. The plaintiff asked Mr Perry "Do you know who I am?" Mr Perry replied "No, I don't know who you are." At this, one of the men, who was wearing a maroon beret, struck Mr Perry in the head a number of times. 107 The plaintiff identified himself as "Captain Dragan" and called Mr Perry a mercenary. The plaintiff said "if he had gotten his hands on me, I would already be dead." The plaintiff informed Mr Perry that he was to be shot. 108 The plaintiff's account of his meeting with Mr Perry diverged considerably from Mr Perry's evidence. The plaintiff's account was that they had a chat and a cup of coffee and that the plaintiff gave Mr Perry some "fatherly advice" in the presence of some journalists. None of this was ever put to Mr Perry in cross-examination. This was despite the fact that the plaintiff's counsel was granted a 10 minute adjournment in order to obtain instructions before he cross-examined Mr Perry. The cross-examination of Mr Perry simply disputed that any meeting had occurred (T 192.1). In these circumstances, I do not accept the plaintiff's evidence of his encounter with Mr Perry. 109 Mr Ackar joined the Croatian National Guard in 1991. The Guard became the Croatian Army in November 1991. On 20 November 1991, Mr Ackar was captured and taken to a detention camp in Serbia. He was detained in several detention camps before being taken to the Sremska Mitrovika prison in early 1992. At the detention camps and at the prison he was beaten frequently, up to six times a day, by guards using their hands, feet, shoes, and implements such as rubber sticks and bats. On occasions he had to be carried back to his cell in a blanket. At the prison, his teeth were pulled out with pincers without any anaesthetic. He sustained severe injuries including broken ribs, a broken vertebrae and lower jaw. He was not provided with medical assistance for any of his wounds or injuries. He was also subject to mock executions and to solitary confinement. He was given no or inadequate food and drink. There were no toilet facilities. He lost about 40kgs in weight. In July 1992, he was taken to Belgrade where he was placed before a military court, tried, convicted and sentenced to death. He was taken back to the prison where the beatings continued. 110 About three months after his arrival at the prison, the guards brought the plaintiff to Mr Ackar's cell, where he was in solitary confinement. The guards, who stood at attention, introduced the plaintiff as a commander, whereupon Mr Ackar turned to face the wall with his hands above his head. Mr Ackar had been told that this was the posture to adopt when guards came into the room, or the prisoner would be beaten. The plaintiff asked Mr Ackar a number of questions and then struck him. The guards who were with the plaintiff also struck him. At one stage, Mr Ackar was being kicked whilst he lay on the floor, semi conscious. The plaintiff said "You'll sing, man". It was on this occasion that Mr Ackar's rib was broken and separated from his spine. 111 Mr Bracic joined the police force at Sibenik in October 1990. On 14 June 1991 he was arrested, handcuffed and taken to Golubic where he was placed in a garage. There, he was beaten with rifles and batons and kicked by soldiers wearing military boots. He was beaten on his head and body and threatened with a knife on a daily basis. After three days he was taken to Knin Fortress where he saw two people in camouflage military uniform wearing berets. The berets bore the insignia of the inverted four Cyrillic letters.

[34]

112 Mr Bracic was taken to a stone round room higher in the fortress. Five other people were imprisoned there. The room had a very high small window and a single iron door. There were no pillows or blankets, no access to water or a toilet. The prisoners urinated on the floor. The beatings, including kicking and mock executions continued during the day and night. 113 After a few days, Mr Bracic was taken to an office where there were three men, one of whom was the plaintiff, and one woman. Mr Bracic was asked a number of questions, accused of lying and then beaten. He was kicked all over the body by two of the men wearing military boots while the plaintiff stood by. At one point, the plaintiff said to the two men "If you are beating someone then this is how it is done", whereupon the plaintiff kicked Mr Bracic to the left side of the face. After that, the other men continued to assault Mr Bracic. On a later occasion when the plaintiff came in to Mr Bracic's cell, the prisoners complained to the plaintiff about the beatings. Following that meeting, the assaults increased in frequency and severity. 114 Towards the end of his period of detention, Mr Bracic was transferred from the fortress to the old hospital in Knin, about half a kilometre away. The assaults continued and in addition, some of the prisoners, including Mr Bracic, were subjected to electric shock treatment by the attachment of live wires to their genitals. Mr Bracic saw the plaintiff on one occasion at the hospital. The soldiers at the hospital deferred to the plaintiff as someone in command. By the time of Mr Bracic's release in mid August 1991, he had lost approximately 30 kg. 115 Mr Vikic was an off duty police officer in Udbina, Croatia on the night of 6 June 1991, when he was taken from his home by members of the militia of SAO Krajina. Early the following morning he was taken to the Knin fortress. On arrival at the fortress, he was taken to a room where he saw the plaintiff. He was interrogated by the plaintiff, slapped by him, then taken to a cell approximately 6m by 6 m. The room contained a wooden bed, absent a mattress. There were no toilet or washing facilities. Every day, Mr Vikic was interrogated and beaten. 116 From time to time the guards came into the cell occupied by Mr Vikic. The guards struck Mr Vikic with their fists, their feet, with police batons, and with guns. Mr Vikic sustained broken teeth and bruising for which he received no medical treatment. He remained a prisoner in that cell for a period of 21 days. 117 After 27 June, Mr Vikic was moved to the old Knin hospital, where he occupied a room approximately 5m by 8m together with nine other prisoners. Mr Vikic there saw the plaintiff. The plaintiff was in the courtyard of the hospital while Mr Vikic was digging a canal. The handle of the shovel broke, causing one of the guards to beat Mr Vikic with his baton and then with the broken handle of the shovel. The plaintiff stood by and said nothing. 118 During Mr Vikic's time at the old hospital he described daily physical abuse and mistreatment. The guards at the hospital referred to the plaintiff as their commander. Mr Vikic also described being taken to a corridor where he was beaten, and subjected to electric shock by the placement of live wires on his hands, while standing on a wet surface. Any failure to follow instructions would result in a gun or rifle being placed into a prisoner's mouth or to the prisoner's forehead. The prisoners were routinely threatened with knives. Mr Vikic lost approximately 30 kg in weight. 119 The evidence of Mr Kauric, Mr Spoljaric and Mr Hrnjica was consistent with that given by Mr Bracic and Mr Vikic in respect of their treatment at the hospital prison. 120 Mr Kauric was working as a police officer in Glina on 26 June 1991, when he and 15 other police officers were arrested by members of the SAO Krajina militia. They were beaten and kept overnight in a room where their personal belongings were taken from them. The following day they were taken to Golubic, near Knin. He described this place as a training camp. He remained there for about six days, during which he was regularly beaten. He saw the plaintiff, whom he took to be the commander, because of his position of authority. He was then taken to the hospital prison at Knin and held in a room with about seven other prisoners. After several days, he saw the plaintiff in the company of guards wearing the same uniform as the plaintiff. The prison hospital guards, who wore a different uniform, appeared to be afraid of the plaintiff and his escorts. 121 Over this period of time, Mr Kauric was beaten every day by the guards in the presence of the plaintiff. When asked how they were being treated, the prisoners replied that they were treated very badly, whereupon they were beaten more severely and more frequently. Mr Kauric sustained a broken jaw and was subjected to electric shock treatment. 122 Mr Spoljaric was also arrested on 26 June 1991 and taken to Golubic. He was beaten regularly, so that by the time he arrived at Knin his back was obviously bruised. The guards at the old hospital assaulted the prisoners "day and night". Mr Spoljaric had four ribs broken and four vertebrae broken during the course of these assaults. 123 Mr Hrnjica described being assaulted on his arrival at Knin, sustaining a broken shoulder blade and broken ribs. He was beaten every day and saw other prisoners being assaulted. Mr Hrnjica also described electric shock treatment in identical terms to that described by Mr Vikic. 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. 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. 129 I am more than satisfied on the balance of probabilities that the imputations numbered 8, 9, 10, 11, 12 and 13 are substantially true.

[35]

The evidence relied upon to establish that the plaintiff condoned the rape of women, participated in the organised rape of women and that the plaintiff raped a woman (14, 15 and 16). 130 Source A was taken prisoner by Serb paramilitary forces on 1 May 1992. After about a month of detention in a place called Liplje, Source A was taken to a brick factory in Zvornik. She was imprisoned in a room about 3m by 4m, which held up to about 15 women. The guards at this prison wore military camouflage uniforms with red berets. 131 One evening, two guards took Source A and other women in a jeep to the Hotel Vidikovac in Zvornik. The men took Source A to one of the rooms and told her to wait for "the prince". The plaintiff entered the room and asked her why she had not removed her clothing. She was ordered to do so and she obeyed. The plaintiff removed his trousers and raped her. Source A was taken to the same hotel on five or six occasions after that night. On at least four of those occasions the plaintiff raped her. 132 On the last occasion that Source A was taken to the hotel, the plaintiff entered the room and told her that he would do nothing that night but that "his friends will do it". The plaintiff remained in the room while Source A was raped by a soldier wearing a camouflage uniform with a green beret, but the plaintiff left before another two or three man raped her. These soldiers were described by Source A as "Kninjas", acknowledged by the plaintiff to be the Serbian paramilitary soldiers from the fortress at Knin. 133 The plaintiff's evidence was that he visited Zvornik on two occasions, first in late May 1992 and secondly on 7 June 1992. He claimed to have been wearing civilian clothes on both occasions. These assertions are suspect in view of the findings I have made concerning the plaintiff's credit generally. 134 The plaintiff's claim that his first trip to Zvornik was to set up a branch of the Captain Dragan fund was not entirely supported by the evidence of his brother, who said that the plaintiff's trip to Zvornik at this time was in furtherance of the establishment of a paramilitary training camp. The plaintiff further acknowledged that he had visited the Hotel Viidikovac in Zvornik on one or more occasions in the period from May to July 1992 (see Exhibit 11). 135 The plaintiff's presence at Zvornik and at the hotel in the time frame nominated by Source A tends to confirm her evidence, notwithstanding the plaintiff's denial of these allegations. I am mindful of the serious nature of these allegations, but once it is accepted that Source A has correctly identified the plaintiff as the person who raped her, there is little, if any scope to doubt the substantial truth of imputations 14, 15 and 16. The Defence of Contextual Truth in NSW and Justification in Tasmania. 136 Section 18 of the Defamation Act 1957 (Tas) provides :- 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. 137 This provision is, in all material respects, to the same effect as the contextual truth defence under the applicable NSW legislation.

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139 In the circumstances of this case, the plaintiff and the defendant accept that contextual imputation 7 stands alone. The defendant acknowledges that a number of its contextual imputations are gradations of seriousness of the same basic assertion so that they should effectively be treated together for the purposes of s 16. The defendant submits that contextual imputations 8, 10 and 12 are to be considered together as alternatives to each other, while contextual imputations 9, 11 and 13 constitute another related group. The distinguishing feature between these two groups is the reliance upon "the war crime of torture" as opposed to the commission of torture simpliciter. 140 The defendant next submits that contextual imputations 15 and 16 are each stand alone imputations, the former relating to what is commonly called "pack rape", whilst the latter alleges the rape of a woman. Contextual imputation 14 is to be regarded, according to the defendant, as an alternative of 15 and 16, being a lesser gradation of each of those imputations. 141 The plaintiff's contention is that contextual imputations 8, 9, 10, 11, 12 and 13 form one group, a position which the defendant faintly acknowledged in its written submissions. I accept this submission. Further, the plaintiff submits that contextual imputations 14, 15 and 16 should also be considered as one group. I reject that submission. I agree with the defendant that the rape of a woman is substantially different from, and less grave than, pack rape. 142 When one has regard to the combined effect of the evidence supporting the substantial truth of imputation 7, the evidence supporting imputations 8 to 13 inclusive as a group, the evidence supporting imputations 14 and 15 together, and the evidence supporting imputations 14 and 16 together, the description of the plaintiff as "a death squad commander" cannot, in my view, result in any further damage to the reputation of the plaintiff. 143 I acknowledge that labelling the plaintiff a "death squad commander" is a grossly injurious imputation. However, it does not provoke a greater sense of abhorrence than would inevitably arise from an understanding of the evidence summarised above, with respect to the commission of a massacre, the torture of prisoners, whether by the plaintiff himself or by the men he commanded, and the commission of rape and pack rape on civilian women. 144 The systematic abuse, humiliation and deprivation visited upon those whom the plaintiff sought to punish and subdue at the Knin fortress, the old hospital prison and the Sremska Mitrovika prison, was consistent with the plaintiff's stated aim to drive out non-Serbs from the Krajina. The accounts of electrocution, regular beatings and mock executions, carried out at the behest of, or with the authority of, the plaintiff, were harrowing. 145 A full appreciation of the utterly cruel and callous treatment of Source A does not really emerge from a reading of the transcript. Source A occasionally lost her composure during her evidence, at one point becoming ill and requiring an adjournment. It was obvious to anyone in the courtroom that the memory of her experience was still painful and distressing.

[40]

152 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. 153 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 ? 154 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. 155 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. 156 I make the following orders : (i) Verdict and judgment entered for the defendant. (ii) The plaintiff to pay the defendant's costs. **********

Snedden v Nationwide News

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Judgment (42 paragraphs)

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Legislation Cited (5)

Cases Cited (12)

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