# Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA)/Part 2

​PART 2 — THE IMPUTATIONS CONVEYED OR COMMUNICATED BY THE ARTICLES
28 The principles which govern the determination of meaning are not in dispute. They are summarised in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 237 FCR 33 at [63]–[73] per White J and V'landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500 at [41]–[55] per Bromwich J.
29 Questions of meaning are determined objectively by reference to the "ordinary reasonable reader". The applicant carries the onus of satisfying the Court that the matters sued upon carry the pleaded meanings. The characteristics of the ordinary reasonable reader have been identified in a number of cases, including Lewis v Daily Telegraph Ltd [1964] AC 234 (Lewis v Daily Telegraph) at 258–260 per Lord Reid; Farquhar v Bottom [1980] 2 NSWLR 380 at 396 per Hunt J; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165; and Charleston v News Group Newspapers Ltd [1995] 2 AC 65 (HL) at 69–74. With respect, a clear statement of the attributes of the ordinary reasonable reader is set out in the decision of the High Court in Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149 (at [32]):
   … The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to "read between the lines in the light of his general knowledge and experience of worldly affairs", but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd, "[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject".
(Citations omitted.)
30 As I have said, the applicant pleads that the imputations are conveyed or communicated by the natural and ordinary meaning of the matters complained of. The nature and ordinary meaning of words is not limited to their literal meaning.
31 In Lewis v Daily Telegraph, Lord Reid said (at 258):
   What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of ​their natural and ordinary meaning.
32 In Jones v Skelton [1963] 1 WLR 1362, Lord Morris of Borth-y-Gest in delivering the judgment of the Privy Council said (at 1370–1371):
   The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v. Daily Telegraph Ltd. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words.
(Citation omitted.)
33 It is necessary to consider the publication as a whole and conspicuous headlines, headings and captions must be given due weight (John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657; (2003) 201 ALR 77 at [26] per McHugh J). The emphasis provided by the publisher, for example, by the size of the headline relative to the whole publication, is not to be ignored (Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646 per Aickin J).
34 In the context of submissions concerning meaning, the respondents referred to what has been called the "single meaning" rule and what the respondents described as gradations of seriousness.
35 The single meaning rule was discussed by Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157 (at 174):
   … The decision as to defamatory meanings which words are capable of bearing is reserved to the judge, and for this reason, and no other, is called a question of law. The decision as to the particular defamatory meaning within that category which the words do bear is reserved to the jury, and for this reason, and no other, is called a question of fact. But the recognition that there may be more than one meaning which reasonable men might understand words to bear does not absolve the jury from the duty of deciding upon one of those meanings as being the only "natural and ordinary meaning" of the words. Juries, in theory, must be unanimous upon every issue on which they have to adjudicate; and since the damages that they award must depend upon the defamatory meaning that they attribute to the words, they must all agree upon a single meaning as being the "right" meaning. And so the unexpressed major premise, that any particular combination of words can bear but a single "natural and ordinary meaning" which is "right", survived the transfer from judge to jury of the function of adjudicating upon the meaning of words in civil actions for libel.
   But where an action for libel is tried by a judge alone without a jury, it is he who has to arrive at a single "right" meaning as "the natural and ordinary meaning" of the words complained of; and with the concentration of functions in a single adjudicator, the need ​for his distinguishing between meanings which words are capable of bearing and the choice of the one "right" meaning which they bear disappears. …
(Emphasis in original.)
36 It follows, as the respondents correctly submit, that the Court's task is to determine the one sense in which the matter complained of is to be understood.
37 The respondents relied on the reference by Sedley LJ in Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2011] QB 497 at [2] to the single meaning rule and to the shifting of the preferred meaning to the middle ground. The respondents made it clear in their oral submissions that they were not suggesting that there was a rule that where various meanings are open, the non-defamatory meaning is to be preferred or that the middle meaning must be adopted as the meaning so that, in the case of criminal or other misconduct, an article could never be read as conveying the meaning of guilt.
38 It was in this context that the applicant referred to the decision of the Supreme Court of the United Kingdom in Stocker v Stocker [2020] AC 593 (Stocker) and Gatto v Australian Broadcasting Corporation [2022] VSCA 66 (Gatto).
39 In Stocker, Lord Kerr said (at [34], [37] and [38]):
   34 … [i]t is clear that the single meaning approach is well entrenched in the law of defamation and neither party in the present appeal sought to impeach it. And, whatever else may be said of it, it provides a practical, workable solution. Where a statement has more than one plausible meaning, the question of whether defamation has occurred can only be answered by deciding that one particular meaning should be ascribed to the statement.
   37 Clearly, therefore, where a range of meanings is available and where it is possible to light on one meaning which is not defamatory among a series of meanings which are, the court is not obliged to select the non-defamatory meaning. The touchstone remains what would the ordinary reasonable reader consider the words to mean. Simply because it is theoretically possible to come up with a meaning which is not defamatory, the court is not impelled to select that meaning.
   38 All of this, of course, emphasises that the primary role of the court is to focus on how the ordinary reasonable reader would construe the words. And this highlights the court's duty to step aside from a lawyerly analysis and to inhabit the world of the typical reader of a Facebook post. To fulfil that obligation, the court should be particularly conscious of the context in which the statement was made, and it is to that subject that I now turn.
​40 In Gatto, the Victorian Court of Appeal said (at [41], [44] and [45]):
   41 The question for the trier of fact, in a defamation proceeding, however, is what is the single or dominant meaning which the trier of fact believes was actually conveyed by the relevant publication—what many of the authorities in this area have referred to as the 'single meaning rule'.
   44 As we have already observed, the issue for the trier of fact is to select the single meaning which is the 'natural and ordinary meaning' of the words published. This (the single meaning), depending on the words used and the manner of publication, may or may not be 'the approximate centre point in the range of possible meanings'. There is no uniform rule that, in every case, the natural and ordinary meaning of a publication is the centre point in the range of possible meanings. The choice of a meaning at one end of the spectrum of the range of meanings that are open, however, may well invite greater scrutiny of whether that meaning was in fact conveyed.
   45 While the 'right' (single or uniform) meaning of a publication will often be 'the approximate centre point in the range of possible meanings', because a reasonable reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning, there is (as we have said) no uniform rule to that effect. In every case, the publication complained of must be read as a whole, in order to determine the single or uniform natural and ordinary meaning of the publication. Nothing said in Hardie (either at first instance or on appeal) gainsaid these propositions.
(Citations omitted.)
41 In the case of an article which links or associates a person with criminal or other misconduct, it may be that three levels of meanings are open. They are as follows: (1) that the person is guilty of criminal or other misconduct; (2) that there are reasonable grounds to suspect that the person is guilty of criminal or other misconduct; and (3) that there are grounds for investigating whether the person is guilty of criminal or other misconduct (Gatley et al (2022) at para 32-006; Collins M, Collins on Defamation, (Oxford University Press, 2014) para 6.89; George P, Defamation Law in Australia (3rd ed, LexisNexis, Butterworths, 2017), at para 11.1).
42 Before leaving the statement of relevant principles, there is one other matter which should be identified. In the case of an article which links or associates a person with criminal or other misconduct, it may be appropriate to attribute to the ordinary reasonable reader knowledge of the presumption of innocence (see Lewis v Daily Telegraph at 285 per Lord Devlin; Mirror Newspapers Limited v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 300–301 per Mason J (as his Honour then was)), although the circumstances of the matter complained of may be such that the ordinary reasonable reader should not be attributed with that knowledge at the time he or she reads the publication (see John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA ​60; (2005) 64 NSWLR 485 at [71] and [78] per McColl JA (with whom Sheller JA and McClellan AJA agreed)). The precise imputation conveyed or communicated depends upon the terms of the article.
43 As I have said, there is no dispute between the parties as to the imputations conveyed or communicated by the Group 1 articles. I turn to address the contested imputations in relation to the Group 2 and Group 3 articles.
The Group 2 Articles
Imputation 4 – The applicant while a member of the SASR, committed murder by pressuring a newly deployed and inexperienced SASR soldier to execute an elderly, unarmed Afghan in order to "blood the rookie"
44 The applicant drew the Court's attention to a number of matters in support of his submission that this imputation was conveyed or communicated by the Group 2 articles. The headline of both the newspaper article and the online article, "Special forces rookie 'blooded' by executing an unarmed man" appears to be a statement of fact. In para 5 of the newspaper article and para 6 of the online article, there is reference to an SAS trooper in his first deployment to Afghanistan being pressured to execute an elderly unarmed detainee by fellow higher ranking soldiers as part of a "blooding ritual", according to defence insiders who were witnesses at the scene. The applicant points to the reference in these statements to higher ranking soldiers and to the fact that the source of the information is said to be defence insiders who were witnesses at the scene. In para 6 of the newspaper article and para 7 of the online article, there is a reference to a man with a prosthetic leg being killed by machine-gun fire. In the case of the online article, and only that article, the caption under the photograph of the man with the prosthetic leg refers to that man having been killed in 2009 in an incident that involved an alleged war crime.
45 The subject matter of the article then reverts to the summary execution of the elderly detainee and, as the applicant points out, there is a reference in that context to a rogue SASR team operating in Afghanistan and information uncovered by a Fairfax Media investigation and corroborated by special forces insiders. In para 8 of the newspaper article and para 10 of the online article, there is reference to two more senior soldiers, one of whom was earlier overheard proclaiming a need to "blood the rookie". The applicant referred to paras 9 and 10 of the newspaper article and paras 11 and 12 and to the image of the prosthetic leg in the online article. In para 11 of the newspaper article and para 14 of the online article, it is said that SASR sources ​claim the man with the prosthetic leg was machine-gunned by a soldier that, for legal reasons, Fairfax Media will call "Leonidas". In para 12 of the newspaper article and para 15 of the online article, there is a statement that Leonidas "is also implicated" in the killing of a detainee three years later in September 2012 during a SASR mission in the village of Darwan. The applicant places emphasis on the words "is also implicated".
46 The applicant referred to the statement in para 14 of the newspaper article and para 17 of the online article to the effect that the allegations which have circulated among insiders for years, have now been corroborated by various sources across the globe during a six-month Fairfax Media investigation. The applicant submits that the references to the length of the investigation, multiple sources, corroboration and insiders all point to an imputation that the matters stated in the article are true. The applicant submits that his involvement in the execution of the elderly unarmed Afghan is made clear by the references to "fellow higher ranking soldiers", "two more senior soldiers", the references to "a rogue SASR team" operating in Afghanistan and the references to Leonidas machine gunning the man with the prosthetic leg and also being implicated in the killing of a detainee three years later in Darwan. The applicant submits that it is clear that it is being said that Leonidas is part of the rogue SASR rogue team and he is a senior member of that team. In all the circumstances, the ordinary reasonable reader would conclude that one of the "fellow higher ranking soldiers" who pressured the trooper on his first deployment to Afghanistan to execute the elderly, unarmed detainee was Leonidas.
47 The respondents submit that Imputation 4 is not conveyed or communicated by the Group 2 articles. Leonidas is said to have machine-gunned the man with the prosthetic leg and to be implicated in the killing of the man at Darwan. The respondents submit that, in those circumstances, the ordinary reasonable reader would assume that if it was being claimed that Leonidas was involved in the incident involving the elderly detainee, then he would have been mentioned. There is reference to "fellow higher-ranking soldiers", "a rogue SASR team" and "two more senior soldiers". The respondents submit that the ordinary reasonable reader would not conclude that "Leonidas" was one of the two unnamed "higher-ranking soldiers" involved in the blooding murder. The respondents submit that at best, the ordinary reasonable reader would consider that there were reasonable grounds to suspect that Leonidas committed murder by pressuring a newly deployed and inexperienced SASR soldier to execute an elderly, unarmed Afghan in order to "blood the rookie".
​48 I do not accept the respondents' submissions. The articles identified a small group of soldiers of which "Leonidas" is a member. He is the only man "identified" and it is said that he is given a pseudonym for legal reasons. He killed the man with the prosthetic leg and, as the respondents admit, the articles convey or communicate an imputation that he murdered an unarmed and defenceless Afghan civilian by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1). Furthermore, if as I find to be the case, Imputation 5 is made out, Leonidas is said to have committed two murders and to be part of "a rogue SASR team". One of the two murders happened on the same mission as the execution of the elderly detainee.
49 In my opinion, Imputation 4 was conveyed or communicated by the Group 2 articles. The ordinary reasonable reader would assume that the applicant was one of the "two more senior soldiers".
Imputation 5 - The applicant while a member of the SASR, committed murder by machine gunning a man with a prosthetic leg
50 It is clear that the ordinary reasonable reader would conclude from the articles that it was Leonidas who "machine-gunned" the man with the prosthetic leg and killed him. However, the respondents submit that there is no statement in the articles to the effect that the killing of the man with the prosthetic leg was unlawful or indeed, constituted murder. In that respect, it is important to bear in mind, so the respondents submit, that the context in which the killing occurred is clearly the war in Afghanistan.
51 In my opinion, the respondents' argument must fail in the case of the online article because of the caption under the photograph suggesting that the man with the prosthetic leg was killed in an incident that involved an alleged war crime. I reject the submission by the respondents that the alleged war crime is a reference to the souveniring of the prosthetic leg. It is the killing that involved the alleged war crime and that would be the understanding of the ordinary reasonable reader. In the case of the newspaper article where this caption did not appear, I consider that the same conclusion should be reached when the context is considered. Clearly, the articles convey the meaning that the summary execution of the elderly detainee (which was said to be one of several incidents) and the execution of the man in Darwan three years later were unlawful executions. As to the former, the sources are identified as "defence insiders who were witnesses at the scene". As to the latter, the claims were said to have been backed by relatives of Ali Jan and now corroborated by various sources across the globe during a six ​month Fairfax Media investigation. In that context, the clear implication is that the killing of the man with the prosthetic leg was an unlawful killing, not an accidental killing or a killing that occurred within the rules of engagement.
52 In my opinion, Imputation 5 was conveyed or communicated by the Group 2 articles.
Imputation 6 - The applicant having committed murder by machine gunning a man in Afghanistan with a prosthetic leg, is so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel
53 The applicant accepts that the article does not expressly say that he returned the prosthetic leg to Australia. Nevertheless, he is identified as the man responsible for the killing of the man with the prosthetic leg and the act of removing the prosthetic leg is not attributed to anyone else. The applicant submits that he is, in effect, the only candidate in terms of the act of souveniring the prosthetic leg.
54 The respondents submit that this imputation is not conveyed or communicated by the Group 2 articles. As to the allegation of murder, the respondents submit that that has been dealt with previously. There is no express statement that the applicant took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel. They point to the fact that others are mentioned in the article and could have been responsible, such as the rookie or the higher ranking soldiers.
55 In my opinion, this imputation is conveyed or communicated by the Group 2 articles. I have already dealt with the aspect involving murder. Although the articles are directed at "fellow higher-ranking soldiers", a "rogue SASR team operating in Afghanistan" and "two more senior soldiers" and "Leonidas" and the latter is not the only soldier mentioned, the fact is that Leonidas is the soldier identified as the soldier who killed the man with the prosthetic leg and, therefore, absent an express reference otherwise, is the obvious person in the mind of the ordinary reasonable reader to have souvenired the leg.
The Group 3 Articles
56 The dispute between the parties concerning Imputations 7 to 14 inclusive and, in particular Imputations 7 and 8, is whether the words in the Group 3 articles conveyed or communicated imputations of guilt of the criminal or other misconduct alleged or only reasonable grounds to suspect that the applicant is guilty.
​57 The applicant identified those matters in the articles which he contends convey or communicate guilt and not merely reasonable grounds to suspect. He did so by reference to the online article (Annexure F).
58 The applicant refers to the headline of the articles ("Beneath the bravery of our most decorated soldier"), the reference to Rosie Batty and himself and the statement that the photograph of the two of them fitted his public ethos, which was to value "moral courage" above physical prowess and "cherish your family every single day". He submits that the reference to "public ethos" points out to the ordinary reasonable reader the contrast between what is in the public arena and the "sordid" private reality.
59 The applicant submits that para 18 is important because it referred to interviews over almost a year of dozens of veterans, officials and people with knowledge of the applicant's personal conduct, including decorated soldiers who served alongside him (emphasis added). The applicant submits that that language suggests the meaning is one of truth, not one of reasonable grounds to suspect. The applicant highlights the reference to "disturbing rumours" and submits that that indicates to the ordinary reasonable reader the seriousness of the allegations. He refers to the statement in para 23 that the patrols under scrutiny featured him as a key player, either as a deputy or a lead patrol commander, and to the statement in para 25 that SAS veterans have also alleged to Fairfax Media that he bullied and intimidated fellow soldiers.
60 The domestic violence allegation is introduced in paras 27 to 30 and the applicant draws attention to para 30 and, in particular, the reference to senior defence officials later learning of allegations the woman raised with the police about what happened later that night at the Hotel Realm in Canberra, "an alleged act of domestic violence and intimidation". The applicant submits that the word "allegation" does not provide any "cover". The statement is repeated on two further occasions. With respect to para 32, the applicant submits that the statement in para 32 that he declined to respond to allegations cast him in a poor light as, in effect, a man "on the run".
61 The applicant next referred to para 39 and, in particular, the reference to multiple special forces insiders speaking to Fairfax Media and confirming that among the allegations made to the Inspector-General of Australian Defence Force Inquiry (IGADF Inquiry), was that the patrols the applicant helped lead brutally mistreated unarmed Afghans. The applicant said that the reference to the sources being "multiple" and to "insiders" suggests to the ordinary reasonable reader that what is being referred to is guilt, not reasonable grounds to suspect.
​62 There is then a reference in para 41 to four defence insiders having alleged that they observed patrols under the applicant's direct or deputy leadership severely mistreat unarmed Afghans on four occasions. There then follows reference to these four instances in paras 42 to 49. Paragraph 42 contains a statement that a member of the applicant's 2009 patrol encouraged a more junior trooper to execute a detainee who was a suspected militant and that member of the applicant's patrol was later heard boasting about. There is a further statement that Fairfax Media had obtained a photograph of the dead man and two witness accounts describing the circumstances in which the Afghan died. In paras 43 to 48, there is reference to an assault in 2010. There is then reference to two alleged assaults in 2012.
63 The statements concerning bullying by the applicant first appear in para 55 and are followed by a clear statement in para 64 that multiple sources contended that the applicant repeatedly bullied Trooper M. More than one witness claims to have heard the applicant threatening to harm Trooper M. The alleged threat by the applicant to Trooper J is the subject of paras 78 and 79. There is reference to the complaints by patrol commanders about the applicant receiving a Commendation for Distinguished Service in paras 81, 82 and 83. The article then has a heading of "Denials and accusations". The applicant drew particular attention to paras 95, 96 and 97 under that heading and the comparison made in those paragraphs between the way he has been challenged and the treatment of other recipients of the Victoria Cross. The applicant referred to the paragraphs under the heading "Pushing back".
64 The applicant then drew particular attention to para 110 and the statement that Canberra sources had said that the female lawyer was alleging that the applicant had subjected her to an act of domestic violence and intimidation in the hours after the event in the Great Hall in late March 2018. Paragraph 111 contains a statement concerning how defence officials became aware of the woman's complaint and the fact that the woman had later told police of her claims. In para 112, the circumstances of her fall as she was leaving the event and her arrival at the Hotel Realm are referred to and, for the third time according to the applicant, it is stated that the woman was subjected to an act of domestic violence. In para 116, there is a statement that on 22 April 2018, the woman received an email from "Danielle Kennedy". In para 119, there is a statement that the applicant has declined requests from Fairfax Media to be interviewed or to answer any questions about any knowledge he might have about Danielle Kennedy. In para 120, there is a statement that it was understood that after the applicant received questions, he told his public relations adviser that no affair had occurred and that that particular claim that no affair had occurred was undermined by copious evidence. In other words, the meaning ​conveyed is that the applicant had told a lie. In para 120, it is also stated that on Wednesday, 8 August 2018, and after he had been alerted that Fairfax Media knew of the allegations reported to police as well as the mysterious "Danielle Kennedy", the applicant contacted a Queensland police station claiming to be a victim of stalking by the lawyer. In other words, the meaning conveyed, according to the applicant, is that he was arguably inventing the stalking claim. The applicant then referred to para 131wherein it is stated that SAS insiders who are aware of some of the adverse allegations about the applicant or the conduct of his patrols have said that credible evidence has already been placed on record and on oath.
65 Finally, the applicant referred to the section dealing with his response (i.e., para 133 onwards). He submits that by that point, the damage to him had, in effect, already been done and could not be undone.
66 Before leaving the applicant's submissions, one particular point should be noted and it concerns Imputation 9 to the effect that the applicant as deputy commander of a 2009 SASR patrol, authorised the execution of an unarmed Afghan by a junior trooper in his patrol. The applicant submits that if the articles support a meaning which is a nuance of, or does not differ in substance from, the pleaded meaning, then that meaning may be considered. Further, if the Court determines that some lesser meaning is available, but that that meaning does differ in substance from the pleaded meaning, then the applicant said that he seeks leave to rely on that other meaning. The applicant submits that given the Particulars of Truth, and the fact that the Court is likely to have to make comprehensive findings on this point, there is no relevant unfairness in a departure from the pleaded meaning. He relies on the approach taken by Lee J in Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; (2021) 387 ALR 123 (Stead) at [27]–[31]. In that case, Lee J considered differences between a pleaded imputation and the imputation found by the Court to have been conveyed or communicated by the publication in question. If there is no difference in substance between the two, then the applicant may rely on the meaning as found. If there is a difference in substance, but the meaning is a lesser meaning, then the applicant may rely on the unpleaded meaning where that would not cause unfairness to the respondents.
67 In oral submissions, this particular submission by the applicant was linked to the articles comprising the Group 3 articles and this particular imputation. Counsel for the applicant submits that if the Court considers that "acquiesced in the execution" or "observed and endorsed" or something to similar effect, was more "felicitous" wording, then because that ​imputation does not differ in substance from the pleaded imputation, it was open to the Court to allow the applicant to rely on it. Counsel for the applicant submits that if the Court felt that there is a difference in substance between the two then, in any event, there is no unfairness or unjustness to the respondents in allowing the applicant to rely on the unpleaded imputation (Stead at [31] per Lee J).
68 Finally in terms of the applicant's submissions, I note that in relation to Imputation 14 (the applicant assaulted an unarmed Afghan in 2012), the applicant withdrew a written submission to the effect that there is relevantly no difference in substance between an allegation that he committed the assault or that he, for instance, encouraged or authorised the assault.
69 The respondents submit that the imputations conveyed or communicated by the article rise no higher than reasonable grounds to suspect the matters pleaded and they drew to the Court's attention to the following well-known propositions: (1) the ordinary reasonable reader reads the whole of the article and such a person reads the article once. They do not parse and analyse the publication, nor do they have lawyers assisting them to deconstruct it; (2) the ordinary reasonable reader is not naïve and they do not live in an ivory tower. They are not morbid or suspicious; and (3) it is important to recall that it is the publication which is relevant and, although the summary document is helpful, it is not a substitute for the article.
70 The respondents addressed the imputations said to be conveyed or communicated by the Group 3 articles and, in particular, Imputations 7 and 8. The respondents submit that the ordinary reasonable reader would not comprehend meanings of guilt. They accept that the ordinary reasonable reader would comprehend meanings of suspicion, "probably even strong suspicion". It is important to recall that, in the case of Imputations 7 and 8, there is only one accuser, in other words, there is only one person making the allegation. The respondents submit that the ordinary reasonable reader would not conclude that the meaning was a meaning of guilt when regard is had to the following: (1) that the ordinary reasonable reader is told that the woman had been drinking at the event (para 111); (2) that she had fallen down some stairs at Parliament House (para 112); and (3) that she had disclosed the affair to the applicant's wife (para 114). In addition, the article states that the woman had declined to comment and that the applicant had also declined requests from Fairfax Media to be interviewed. At no stage is it stated in the article that the applicant had been interviewed by the police about the purported complaint. Furthermore, the article contains a statement of a strong denial by the applicant in para 136. The respondents submit that when all of those matters are taken into account, the ​ordinary reasonable reader could not reasonably conclude that the applicant had actually engaged in the act of domestic violence. The ordinary reasonable reader may strongly suspect that he had, but the ordinary reasonable reader would not conclude that he must have committed an act of domestic violence and that he is guilty of it.
71 In relation to the imputations said to be conveyed or communicated by the Group 3 articles more generally, the respondents rely on the following matters.
72 In support of their contention that the articles give rise to an imputation of reasonable grounds to suspect rather than guilt, the respondents rely on the fact that sprinkled throughout the articles are references to "claims", "rumours" and "allegations". The respondents do not contend that those references are decisive. They acknowledge that they are not as the cases make clear. In Lewis v Daily Telegraph Ltd, Lord Devlin said (at 283–284):
   In the first place, he [counsel for the plaintiffs] relies on what I have called the 'rumour cases'. I agree, of course, that you cannot escape liability for defamation by putting the libel behind a prefix such as 'I have been told that …' or 'It is rumoured that …', and then asserting that it was true that you had been told or that it was in fact being rumoured. You have, as Horridge J. said, in a passage that was quoted with approval by Greer LJ in Cookson v Harewood, 'to prove that the subject-matter of the rumour was true'. … For the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it.
(Citation omitted.)
73 The same point is made in Australian Defamation Law and Practice (NexisLexis Butterworths, subscription service) at [3410] (update 92) and Gatley on Libel and Slander (13th ed, Thomson Reuters, 2022) at 12-017. In the latter text, the following appears:
   This is because 'repeating someone else's libellous statement is just as bad as making the statement directly', and therefore 'for the purpose of the law of libel a hearsay statement is the same as a direct statement'.
(Footnotes omitted.)
74 The respondents submit that in assessing whether an imputation of guilt rather than an imputation of reasonable grounds to suspect is conveyed or communicated by the articles, the ordinary reasonable reader would have regard to the applicant's description of the sources of the allegations made against him. In para 88 of the article, the applicant's supporters are said to insist that the allegations stem from envy and most particularly from disgruntled veterans. I assume the point being made is that the reference to biased or potentially biased sources would ​reinforce in the mind of the ordinary reasonable reader that the statements in the article went no further than reasonable grounds to suspect the alleged matters.
75 The respondents make a related point in support of their argument as to the correct imputations conveyed or communicated by the article. They refer to the applicant's response in paras 134 to 138 of the article. They submit that it is a strong and vigorous response from the applicant and it would leave the ordinary reasonable reader with a view that the imputations conveyed were of reasonable grounds to suspect, not statements of guilt.
76 The respondents point to the fact that the article identifies a number of matters favourable to the applicant which the ordinary reasonable reader would take into account in deciding whether the articles were conveying or communicating guilt, or no more than reasonable grounds to suspect. The applicant is referred to as Australia's most decorated Afghanistan veteran (para 8) having received the Victoria Cross (para 3) and a Medal for Gallantry and a Commendation for Distinguished Service (para 9). The applicant is identified as Australian Father of the Year (paras 3 and 11), Chairman of the Australia Day Council (para 12), and as having helped select domestic violence campaigner, Rosie Batty, as an Australian of the Year (para 13). He is identified as the Deputy Chairman of the Prime Minister's Defence Mental Health Committee and Veterans Employment Committee (para 12) and the public face of the campaign against "one punch" violence and the "stay kind" campaign. He was also identified as a business leader, mental health advocate and one of Australia's most respected public figures (para 3).
77 The respondents made it clear that if the Court is to consider an alternative meaning in relation to Imputation 9 (as suggested by the applicant), then the respondents would seek to be heard on such an application.
78 I reject the respondents' submissions.
79 I start with Imputation 9 which it will be recalled is as follows:
   The applicant as deputy commander of a 2009 SASR patrol, authorised the execution of an unarmed Afghan by a junior trooper in his patrol.
80 The most directly relevant paragraph in the article in relation to that imputation is para 42 which is as follows:
   A member of Roberts-Smith's 2009 patrol allegedly encouraged a more junior trooper to execute a detainee – a suspected militant – and was later overheard boasting about it. Fairfax Media has obtained a photo of the dead man and two witness accounts describing the circumstances in which the Afghan died.
​This statement refers to a member of the applicant's patrol allegedly encouraging a more junior trooper to execute a detainee. As I read the article, this is one of the four occasions referred to in para 41 upon which four defence insiders alleged that they observed patrols under the applicant's direct or deputy leadership, severely mistreat unarmed Afghans.
81 Earlier in the article, there is reference to the applicant's involvement in small SAS teams suspected of the abuse of unarmed civilians and the use of force that goes well beyond what is acceptable in the theatre of war. In para 23, the applicant is identified as a key player in the patrols under scrutiny, either as a deputy or lead patrol commander and para 24 refers to the patrol's treatment of detainees or unarmed Afghans, including acts of brutality. In para 38, there is a reference to the fact that the applicant was deputy commander of a small SAS patrol during his deployments to Afghanistan in 2009 and 2010.
82 The applicant submits that these paragraphs in combination support the conclusion that the ordinary reasonable reader would conclude that, in view of his leadership position, the applicant must have authorised the junior trooper in his patrol to act in the manner referred to in Imputation 9. I have difficulty in accepting this submission and I do not consider that the relevant material rises to the level of "authorised". However, I do consider that it rises to the level of "acquiesced in". The question then becomes whether the applicant should be permitted to rely on Imputation 9 reformulated in this way.
83 As I have said, the applicant relies on the decision in Stead at [27]–[31] per Lee J.
84 The imputation as reformulated is not more serious than the pleaded imputation and it is not substantially different from the pleaded imputation. To the extent fairness is relevant in these circumstances, I do not consider there to be any unfairness to the respondents in allowing the applicant to rely on the reformulated imputation. As will become clear later in these reasons, the respondents have advanced a detailed and full case as to what happened on the mission to Whiskey 108 and the other missions referred to in its Particulars of Truth.
85 Imputation 9 as reformulated is conveyed or communicated by the Group 3 articles.
86 On the face of it, there is force in the respondents' submission with respect to Imputations 7 and 8. However, it is negated, or substantially negated, when regard is had to the following matters. First, the reference to the woman drinking at the event is linked to the applicant's state of mind at and immediately after the event. In para 111, it is said that the applicant appeared angry at the woman's behaviour because he was worried it would expose his affair to the ​military's top brass. In para 112, it is said that the alleged victim fell down some stairs as she left the event causing further embarrassment and that the police had been told that by the time the pair arrived back at the hotel, the applicant "was allegedly furious and she was subjected to an act of domestic violence". In other words, the woman's behaviour is put forward, not as a reason events may not have occurred as alleged, but as an explanation for a high level of anger on the part of the applicant, that is to say, a possible reason for the assault. Further, I consider it significant that there is a compelling inference in para 120 that the applicant lied in asserting that no affair had ever occurred because it is contradicted by "copious evidence". Furthermore, it is implied that he made a complaint of being stalked by the alleged victim only after being alerted that Fairfax Media knew of the allegations reported to the police as well as the "mysterious" Danielle Kennedy.
87 The notion that in some way the reference to the view of the applicant's supporters as to the motivation of those making the allegations negates or qualifies the imputation of guilt in some way is not sound because the reference is then neutralised or substantially reduced in force by the reference in para 95 to the fact that the argument that critical accounts of the applicant amount to tall-poppy syndrome "sits uneasily" with the testimony of many who served in the SAS, including in Afghanistan. Furthermore, in the following paragraph, there is a reference to the fact that other Victoria Cross recipients for actions in Afghanistan have faced no such challenges and in para 97, it is said that most significantly, the allegations about the applicant and his patrols had, according to regiment sources, been made under oath before the Inspector-General and that that is a step for those witnesses that is well beyond simply "muttering darkly to colleagues and journalists" (emphasis added).
88 I accept the applicant's submission that the reporting of the applicant's response in the articles comes too late to remove the meaning in the mind of the ordinary reasonable reader. The defamatory imputations of guilt are not removed by the applicant's denials at the very end of the articles.
89 The effect of the references to the applicant's achievements and public positions might otherwise have had on the mind of the ordinary reasonable reader is negated, or substantially negated, by the fact that there are a number of statements in the article which suggest that the references to the applicant's public profile are there so that they can be contrasted with his true character. The heading to the article is "Beneath the Bravery of our most decorated soldier" and after the reference to a number of the applicant's achievements, the article poses the ​question as to why so many questions are being asked about the applicant's past. In para 7, there is reference to the applicant in the context of the struggle some veterans face readjusting to civilian life. In para 14, there is reference to the photograph of the applicant and "a tearful Batty" and a statement that the photograph fitted the applicant's public ethos, "which was to value 'moral courage' above physical prowess and 'cherish your family every single day'". In para 27, there is reference to further allegations that suggested that the applicant was struggling with the difficult task of living up to all that was expected of him and in para 53, there is reference to some of his SAS colleagues asking if the decorated warrior might have shirked scrutiny because less experienced soldiers were worried about challenging him.
90 I reject each of the respondents' arguments and conclude that the Group 3 articles convey or communicate Imputations 7, 8, 9 (as reformulated), 10, 11, 12, 13 and 14.
91 In conclusion, the Group 1 articles convey or communicate Imputations 1, 2 and 3. The Group 2 articles convey or communicate Imputations 1, 4, 5 and 6. The Group 3 articles convey or communicate Imputations 7, 8, 9 (as reformulated) 10, 11, 12, 13, and 14.