Daniel Snedden (aka Dragan Vasiljkovic) lost his defamation case against The Australian. Snedden had been accused of war crimes in the Balkan. He sued publishers Nationwide News Ltd (ie the local newspaper arm of the Murdoch conglomerate) over a story printed in 2005.
A jury found that the story had several defamatory meanings, including that Snedden condoned the rape of women. (Ethnic cleansing in the region of course featured rape of noncombatant boys and men, but we don't like to talk about that).
The NSW Supreme Court ruled in favour of Nationwide, after the publisher argued a truth defence.
Snedden, who has dual nationality, vowed to appeal. He commented that "We think anyone who read the transcripts and reads this judgement will consider it a disgrace. This is a gross miscarriage of justice". The Federal Court, in Snedden v Republic of Croatia [2009] FCAFC 111, earlier this year allowed an appeal against his extradition to Croatia. A Commonwealth government appeal in the High Court against that decision is under consideration, with observers commenting that if the appeal is unsuccessful the nation will be harbouring a citizen who has been found by an Australian civil court to have committed war crimes.
The SMH reports that -
The Supreme Court is satisfied he committed the war crime of torture, participated in organised rape and admitted committing a massacre during the Balkans war. But Daniel Snedden is free in the community despite attempts by the Croatian Government to extradite him for prosecution.The judgement - not yet available on AustLII - notes disagreement about convictions for offences committed in Australia prior to Snedden becoming a paramilitary.
Also known as Dragan Vasiljkovic or Captain Dragan, he is accused of war crimes while commanding a Serb paramilitary unit in Croatia in the early 1990s and sued for defamation after The Australian reported in 2005 on his alleged conduct during the conflict. ... In the Supreme Court yesterday, Justice Megan Latham found a string of imputations were "substantially true" and Mr Snedden "was loose with the truth when it suited his purposes".
"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 [frontier]", Justice Latham said. The accounts of electrocution, regular beatings and mock executions, carried out at the behest of, or with the authority of, the plaintiff, were harrowing."
The Australian editorialised that -
IT was a good day for the freedom of the press yesterday when The Australian was not punished in the courts for publishing the truth. Our victory in a defamation case brought by former Serbian paramilitary commander Dragan Vasiljkovic, also known as "Captain Dragan", involved us conducting a quasi-war crimes investigation in the former Yugoslavia in order to defend ourselves in a civil court in Sydney. We incurred high costs in marshalling chilling testimony from Vasiljkovic's Croatian and Bosnian victims. To prove that he raped a woman and committed the war crime of torture during the war in the former Yugoslavia in the early 1990s meant we undertook work normally left to the criminal courts or The Hague, albeit with a less onerous burden of proof.Meanwhile the Supreme Court has found in favour of Fairfax Media (publisher of the Sydney Morning Herald) and critic Matthew Evans, whose memoir recently featured in this blog.
That we were compelled to take this course of action should concern anyone with a commitment to justice, press freedom and the public's right to know. After our 2005 publication of Vasiljkovic's actions, Croatia began pursuing him for alleged war crimes. Our report prompted a defamation case fought on Vasiljkovic's behalf by Clive Evatt QC. Common sense suggested any war crimes process should precede the defamation hearing. Instead, we were forced to defend our publication without assistance from Croatia, whose files remained closed to us.
It would have been easier -- and cheaper -- to settle but we had strong evidence to back a story that we believed was manifestly in the public interest. Our decision was vindicated by yesterday's judgment but we face further action from Vasiljkovic, who has taken another defamation case against us over similar allegations.
It is time for the Law Reform Commission to take a close look at the way defamation law is being played out since the capping of damages and consider whether this is leading to an increase in litigation. Defamation actions are expensive to defend and plaintiffs generally do not have to produce any evidence of an ability to pay costs if they lose.
Mainstream media outlets, like our own, accept the ethical responsibility to pursue issues in the public interest. It is our core business to reveal stories such as that of "Captain Dragan". But it is not clear the public interest is served when the blogosphere defames with impunity, while litigants target big media companies that continue to pursue their job of publishing the truth.
They had been sued by Aleksandra Gacic, Ljiljana Gacic and Branislav Ciric, the owners of King Street Wharf restaurant Coco Roco, over Evans' September 2003 review of that venue. He referred to Coco Roco as "a bleak spot on the culinary landscape", slammed the food ("more than half the dishes" he tried were "unpalatable"), described the restaurant's overall value as "a shocker" and gave it a score of 9/20 (ie in the "stay home" category). Coco Roco went into administration in March 2004.
In the initial case leading barrister Clive Evatt alerted the jury that he had it on good authority that "defendants are stoned to death for defamation in Serbia". The jurors found that the review did convey imputations that the restaurant sold unpalatable food and provided bad service. However, that was not seen as defamatory. The jury also found that the review did not convey imputations that prices were excessive or that the owners were incompetent restaurateurs.
The 'Coco Rico trio' then appealed, arguing that what the jury found was unreasonable. In Aleksandra Gacic & v John Fairfax Publications Pty Limited & Anor [2006] NSWCA 175 [here] the NSW Court of Appeal agreed with that argument, finding that it was defamatory to say the food was unpalatable and the service bad. The appeal court referred the question of whether the newspaper imputed the owners were incompetent back for another jury trial.
Fairfax and Evans next appealed to the High Court, arguing that the Court of Appeal exceeded its powers in rejecting the jury decision. In 2007 the High Court ruled 6-1 in favour of the trio in John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; 235 ALR 402 [here]. Justice Michael Kirby disagreed with the finding that no reasonable jury could find it wasn't defamatory to declare a restaurant sold bad food and offered poor service, perceptively commeting that on matters such as criticism of a restaurant's food and service, jurors were much more likely to reflect community standards than judges and that "astonishing as it may seem, judges may occasionally lack a sense of irony or humour".
The High Court found that the review conveyed three defamatory meanings -
that Coco Roco sold some unpalatable food, that it provided some bad service, and that the trio were incompetent restaurant owners because they employed a chef who made poor quality food.Crucially, there are defences in dealing with those meanings. They were successfully raised when the dispute returned to the Supreme Court for further trial of the undetermined imputation, for consideration of any defences available to Fairfax and Evans, and for the questions of damages. Legal costs mounted and the trio had meanwhile been the subject of bankruptcy proceedings, eg Banov v Ciric [2008] FMCA 353 [here].
Justice Ian Harrison in the Supreme Court ordered the former restaurant owners to pay the legal costs of Fairfax and Evans. He found the defence of comment had been established in relation to the three meanings. He also found the defence of truth had been established in relation to the statement regarding some bad service.
