War criminal might have won defamation case under court's new rules

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War criminal might have won defamation case under court's new rules

By Michael Bachelard

One of Australia's most celebrated media victories in a defamation case would have been difficult to achieve under the rules now being imposed in Federal Court defamation actions.

In 2009, The Australian newspaper turned the NSW Supreme Court into a de facto war crimes trial of Serbian paramilitary leader Dragan Vasiljkovic, after he sued them for defamation.

Dragan Vasiljkovic, better known as Captain Dragan, at a press conference in 2005.

Dragan Vasiljkovic, better known as Captain Dragan, at a press conference in 2005.Credit: AP

The original story said that Captain Dragan had commanded a number of paramilitary units in the conflict in the 1990s in Bosnia, and was now a Perth golfing instructor going as "Daniel Snedden".

He sued, asserting that the story had painted him as having committed war crimes.

In defamation law in Australia, the plaintiff is the one who drafts the imputations, or “meanings”, that the newspaper is said to have conveyed: the picture painted by the article.

This means, according to defamation specialist Dean Levitan, of Minter Ellison, that the defendant must play on the field marked out by the plaintiff.  In its defence in the Dragan case, The Australian needed to prove the "truth" of the contention that Vasiljkovic had committed war crimes.

Dragan Vasiljkovic speaks to the media after his release from Parklea Prison in 2009.

Dragan Vasiljkovic speaks to the media after his release from Parklea Prison in 2009.Credit: Simon Alekna

Several years, and well over $1 million in costs later – most of which was never recovered – the newspaper succeeded. The NSW Supreme Court found Mr Vasiljkovic had committed the war crimes of torture and rape, and had admitted to a massacre.

The lawyer who helped run the case, Robert Todd from Ashurst, says that, to do so, the newspaper spent months searching for evidence.

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"We spoke to journalists in at least five countries, government officials in four countries, retained lawyers in Croatia and Bosnia, had dealings with the Croatian Courts, Ministry of justice, Ministry for Police and prosecutors, dealt with officials from the International Criminal Tribunal, various military and war crimes experts," Mr Todd said.

"We located numerous witnesses; one in the US, one in the UK and about a dozen in Croatia or Bosnia who were ultimately interviewed by our junior counsel. Almost all had to be door-knocked cold."

Vasiljkovic is now serving a 13 year prison sentence after being found guilty last year by a Croatian court of war crimes (among which was killing a journalist).

But according to Mr Todd, the existing procedures imposed by the courts to deal with cases expeditiously, which has been applied in a succession of defamation cases, would have made The Australian's defamation case difficult to run, or win.

Recent decisions in the Federal Court suggest defendants should have, or know, all of the facts at the time of publication.

"The reason for this principle is that a person who publishes a serious allegation that he or she seeks to defend as true, must know, at the time of publication, the facts that justify the charge that the publisher makes about the plaintiff," said Federal Court justice Stephen Rares recently in the case of Chau Chak Wing and the ABC.

"In Snedden some of the allegations that were ultimately proved to be true were based on facts that the newspaper did not know at the time of publication," Mr Todd said.

Mr Levitan said as part of this approach by the courts, they were even clamping down on the ability of journalists to subpoena witnesses or discover documents to mount a defence.

"The notion that a defendant must have and must plead, at the outset of any case, all facts to justify the publication appears to render redundant the established interlocutory court processes," Mr Levitan said.

"The mere fact that a journalist knows something to be true does not mean that the journalist possesses the documentary evidence to prove it to be true to the standard required by the court.

"For example, an extremely credible source might show a journalist evidence to support a fact but may not voluntarily hand over copies of this evidence. As such, the journalist knows it to be true but cannot, as recent Federal Court judgments seem to require, particularise the evidence in its defence.

"This is why the media ought to be able to use the ordinary court processes, such as subpoenas and discovery as tools to prove at trial what they know to be true."

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