Captain Dragan appeal fails: Snedden v Nationwide New Pty Ltd [2011] NSWCA 262

The plaintiff, Daniel Snedden, also known as Dragan Vasilykovic sued The Australian for an article published in September 2005: “Serbian Death squad commander alive and well teaching golf in Perth.”

There was a trial by jury held to determine whether the article contained a number of defamatory imputations. The jury found that that the article contained the following ones: that the plaintiff:

Captain Dragan
Captain Dragan

1. was a death squad commander;

2. had condoned the rape of women and girls;

3. was a mercenary;

4. had admitted committing a massacre;

5. was before 1991 a criminal;

6. before 1991 had underworld links.

The Australian pleaded that the imputations were true and also a contextual truth defence, where it alleged that the article also contained the following imputations, namely that the plaintiff:

• as an Australian citizen, went to a foreign State and engaged in hostile activity in that foreign State, which is contrary to Australian law;

• as commander of Serbian paramilitary units which committed the war crime of torture, bore responsibility for the commission of that crime;

• as commander of Serbian paramilitary units which committed torture, bore responsibility for the commission of that crime;

• condoned the commission of the war crime of torture;

• condoned the commission of torture;

• committed the war crime of torture;

• committed torture;

• condoned the rape of women;

• participated in the organized rape of women; and

• raped a woman.

Pretty serious stuff.

At trial, there was a raft of evidence that included:

– the plaintiff gave evidence that he was in command of the Knin fortress in Krajina and “enjoyed a legendary status among his men.”

The Australian called a significant amount of evidence as to the truth of the imputations.

– Source A gave evidence for The Australian, that the plaintiff had raped her on 28 June 1992 in Zvornik. The plaintiff denied this.

– A UK journalist gave evidence that during an interview with The Times in London on 15 July 1991, the plaintiff said this:

o “Nobody needs to be armed since I got here. I’m not here to kill people, just to neutralize 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.” The plaintiff denied that he said it.

– Evidence from 7 witnesses for The Australian to support the torture imputations. Five of them were inmates at the Old Knin Hospital prison and 2 were inmates at the Sremska Mitrovica prison in Bosnia. They gave evidence that the plaintiff was present during various alleged assaults of inmates. The plaintiff denied this.

– Evidence that The Australian relied upon to establish that the plaintiff was a “criminal” was that in 1984 he was convicted for receiving stolen goods, unlawful possession of goods and operating a brothel. The plaintiff admitted these convictions.

The trial judge found imputations 2, 4, 5 and 6 were substantially true and all of the contextual imputations were substantially true. The trial judge rejected the plaintiff’s evidence and stated her view that he had been loose with the truth when it suited his purposes. In conclusion, the trial judge held that all of the plaintiff’s imputations had been justified, except imputation 3 and the combined effect of all of the other justified imputations rendered imputation 3 nugatory. The plaintiff lost.

The plaintiff appealed to the NSW Court of Appeal. Taking, what is technically referred to as “the kitchen sink” approach, the plaintiff ran 43 grounds of appeal. McClellan CJ (with whom McColl JA and MacFarlan JA agreed) started with this to say: “There are 43 grounds of appeal. They are muddled, repetitive and in many instances without merit. “ Not a great start.

Essentially, the plaintiff challenged many of the trial judge’s findings as being “unfair, unreasonable or against the evidence”.

McClellan CJ systematically worked through the 43 grounds and dismissed them all.

Some of the arguments considered included:

– at the trial, The Australian initially pleaded an imputation that: “the plaintiff condoned the rape of women and girls”, and after the close of evidence, sought to amend to “the plaintiff condoned the rape of women.”, because the only evidence was from Source A. The trial judge allowed the amendment and found it was substantially true. Source A did not refer to girls. The plaintiff argued that the trial judge fell into error allowing the amendment and finding that it was justified. McClellan CJ found that in this instance, there was no difference between the word “girls” and the word “women”, no error of law.

– The evidence relied upon to establish that the plaintiff was a “criminal” was for crimes that were far less serious than the war crimes that were the subject of the case. The plaintiff argued the word “criminal”, in the context of the article conveyed serious or violent criminal conduct. McClellan CJ disagreed: a criminal is a person convicted of a crime, simple. Further, by running a brothel, McClellan CJ agreed with the trial judge that the imputation that he had “underworld links” was justified. The underworld apparently “comprised of persons who both ignore and are prepared to break the law in pursuit of their own interests.” This included people who then ran illegal brothels.

– With regards to the rape imputations, Source A claimed the plaintiff raped her in a place called Zvornik. She gave the date of the rape as 28 June 1992. The plaintiff, upon hearing the exact date, then sought to call a further witness, who would say that he was with the plaintiff the day before at a rally in Belgrade, as it was on Vidovdan, a Serbian day commemorating the battle of Kosovo and the Serbs’ win over the Turks. The trial judge refused the application to call this further witness and accepted the evidence of Source A. McClellan CJ concluded that there was no error because the witness was not going to say anything about the plaintiff’s whereabouts on the day of alleged rape and that the parties had already gone to great lengths to give each other notice of which witnesses were going to be called, what their evidence would be, and whether they would be by videolink or not. Referring to the obligations in the Civil Procedure Act to avoid protracted litigation and facilitate the just, quick and cheap resolution of the real issues in the proceeding, McClellan CJ concluded that the interests of justice were appropriately served.

While there were many other arguments put, and there was discussion of many matters, including: a judgment of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the Territory of the Former Yugoslavia, the definition of what a Foreign State was, the definition of what torture was, the standard of proof, the justification defence at common law and according to statute, all in all, the appeal was dismissed.