Ben Robert-Smith : How was Justice Anthony Besanko of the Federal Court able to find that the crime of murder has a civil twin, which can be determined on a balance of probabilities

 by Ganesh Sahathevam 

                                                                   

                                           The Hon Justice Anthony Besanko

Media reports about the Ben Robert-Smith defamation matter  have at least given the impression, if not asserted, that Justice Anthony Besanko of the Federal Court found  that Robert-Smith had committed murder. Most if not all reports have been at pains to stress that the finding was based on a balance of probabilities, and not beyond a reasonable doubt, for the matter was a civil and not criminal matter. 

However, reading his summary one can immediately see that Justice Besanko found not that Roberts-Smith had committed murder but that the "respondents had, (on  a balance of probabilities) established the substantial truth"  that  Roberts-Smith had committed murder. 

However, murder is a  crime and a finding of murder in a criminal court (which is the court in which crimes like murder can be determined!) involves establishing beyond a reasonable doubt that all the elements of murder including the intent to  kill. 

Might  not Justice Besanko  have been more precise if he simply found that Robert-Smith had killed, but not committed murdder? 

Instead, as a result of his decision, the media and other commentators, including Australia's politicians, and at least one well known legal academic  find themselves able to assert that there are different levels of murder. 

To Be Read With  

Defamation : Federal Crt Australia that has drawn a distinction between "foreign interference" and "spying" now finds that Australia's most highly decorated soldier committed murder when serving  in Afghanistan 

 by Ganesh Sahathevan 

Diggers confirmed dead in 'green on blue' attack

The Guardian has reported: 

Justice Anthony Besanko (of the Federal Court , Australia)  found that, on the balance of probabilities, Roberts-Smith, Australia’s most decorated living soldier, kicked a handcuffed prisoner off a cliff in Darwan (Afghanistan)  in 2012 before ordering a subordinate Australian soldier to shoot the injured man dead.

The finding was part of a decision in  a defamation matter. However, it should be noted Australian courts have applied something closer to  the higher criminal standard in white collar crimel cases. 

Additionally, the same Federal Court has held in a previous defamation matter that the plaintiff had been defamed because the publisher concerned had failed to draw a distinction between  "foreign interference" and "spying".

To Be Read With 

In a China related matter Federal Court Australia  makes distinction between "foreign interference" and "spying" :Distinction has chilling effect on China OSINT researchers, including journalists, academics ,think tank

January 06, 2020

by Ganesh Sahathevan

While each decision in each case is determined on its particular facts comments made by judges in the course of hearings can and do influence their decisions and those decisions can have consequences.

 In a recent hearing before the Federal Court in a defamation matter brought by Chau Chak Wing against the ABC the judge hearing the matter, Steven Rares J, commented:

"If you (the ABC)  had said foreign interference you'd not have a problem ... you've said he's a spy," 

As a result of the comments the ABC appealed to the Full Court of the Federal Court, who decided against the ABC.  The matter re-commenced in the Federal Court before Rares J who then handed down a judgement which included these paragraphs: 



RARES J:On 31 August 2018, I struck out the particulars of justification in the defence of The Australian Broadcasting Corporation, Fairfax Media Publications Pty Limited and their journalist, Nick McKenzie (the publishers). The publishers appealed to the Full Court, which granted leave to appeal, but dismissed the appeal on 2 August 2019: Australian Broadcasting Corporation v Wing (2019) 371 ALR 545. As a result of remarks I made during the course of argument of the strike out application on 27 June 2018, the publishers began to gather more information to supplement what they had alleged against, the applicant, Dr  Chau  Chak Wing, whom I erroneously named as Dr Wing in my previous reasons.

The publishers’ assertion is that, on its face, the mere payment of the USD200,000 to secure Mr Ashe’s appearance at the 2013 conference in his role as President (or to consider future use of the Resort) is enough to constitute it as (or as capable of being found to be) a bribe to him. In my opinion, that inference does not arise. The payment to the operating account of the USD200,000 may simply have been an appearance fee paid to him, in his official capacity, to be used for United Nations purposes, or, as Dr  Chau  is said to have told the FBI, for the alleviation of poverty. While it is clear that Ms Yan and Ms Park, whose guilty pleas are, in my opinion, irrelevant for the purposes of evaluating the strength of the particulars, were involved in securing the payment of bribes to Mr Ashe, there is no material to establish that they admitted that they had procured the USD200,000 as a bribe. Mr Ashe’s 29 October letter, in the final form that Ms Yan had suggested when he accepted the invitation, made clear that Ms Yan, as Mr Ashe’s (not Dr  Chau ’s) agent in his official capacity, would be “finaliz[ing] the logistical arrangements for the complete trip”.


As as result of the judgement and the decision it appears now that when publishing anything on intelligence and national security matters one must have evidence of actual "spying"(which remains undefined for the court did not describe what it meant by spying, or by foreign interference) before any allegation of "spying" might be safely mentioned.

The decisions exposes open source intelligence (OSINT) practitioners, including members of  thinks tanks, academics and journalists who are not part of any government to actions in defamation which can be brought by anyone who is subject of research and publication. 


This can have a chilling effect on Australian or Australian based researchers who work on the growing volume of open source intelligence. Of concern also is the dismissive attitude that Rares J seems to have taken towards statements made in Parliament by Andrew Hastie (see also story below.

It is in the interest of the Commonwealth and State governments who rely on the private sector for intelligence reports to address the problem via legislation. 

END






JUNE 27 2018 - 6:10PM

ABC 'abused' privilege in Chau lawsuit

• Lucy Hughes Jones

National

The ABC and Fairfax Media showed "extraordinary" abuse of parliamentary privilege to justify stories which a Chinese-Australian billionaire says defamed him, a federal court judge has said.

Political donor Chau Chak Wing is suing the national broadcaster, the newspaper group and journalist Nick McKenzie for defamation over a joint investigation published last June.

The Four Corners program and the accompanying online article painted Dr Chau as a spy who "betrayed his country" to serve the interests of the Chinese Communist Party, barrister Bruce McClintock SC said.

The stories also allege Dr Chau funded a $200,000 bribe for a senior United Nations official, which the ABC and Fairfax claim is true, drawing partly on a federal parliament speech given by Liberal MP Andrew Hastie in May.

Justice Steven Rares labelled it "extraordinary" that the media outlets were using the speech as a defence in the lawsuit, stressing it's not admissible as evidence.

"It's an absolute abuse of parliamentary privilege and a contempt of this parliament," Justice Rares said during an interlocutory hearing on Wednesday.

"The fact that Mr Hastie wants to say something doesn't prove anything."

The court heard a company owned by Dr Chau allegedly paid for UN General Assembly president John Ashe to speak at a conference.

But the judge said it was a long bow to draw to allege such a powerful man even knew the payment was made let alone that he co-conspired in bribery.

"It's a fantasy ... it's totally embarrassing," Justice Rares said.

"Where's the evidence he signed the cheque?"

Barrister Peter Gray SC, for the respondents, said the case concerns warnings from ASIO to the major political parties about Dr Chau.

"The federal parliament is currently considering amending Australia's national security laws in part because of this applicant," Mr Gray said.

Dr Chau says the stories made him out to be an espionage agent infiltrating the Australian government, but Mr Gray argued the work of subverting foreign powers has become more complex and subtle.

He added soft power has surpassed old-fashioned tactics of eavesdropping, peeping through key holes, or stealing microfilm like James Bond.

"If you had said foreign interference you'd not have a problem ... you've said he's a spy," Justice Rares said.

Mr Gray said the intelligence world is "notoriously opaque" and secretive, and as such his truth defence will rely on inference and the cumulative effect of the circumstantial case.

"We rely on the whole tapestry," he said.

The judge suggested there were "a few holes in it."

Justice Rares reserved his decision on whether to accept the respondent's amended defence, but warned he wouldn't give the media companies the court's processes of discovery to try to prove their claims.

Dr Chau has launched another lawsuit against Fairfax Media and journalist John Garnaut over a 2015 story that the philanthropist says also insinuates he bribed the former UN president.

Australian Associated Press