both of a civil fraud and of a crime of some seriousness. The process of decision does not involve a "mere mechanical comparison of probabilities, independent of any belief in" the truth of the matters in issue; "the tribunal must feel an actual persuasion of its occurrence or existence": Briginshaw v Briginshaw (1938) 60 CLR 336 at 361. In matters of such gravity, the plaintiff urged, "the Briginshaw test" applies: "'reasonable satisfaction' should not be produced by inexact proof, indefinite testimony, or indirect inferences": at 361-362; (1940) 63 CLR 691.
(See also Sands v State of South Australia [2015] SASCFC 36; (2015) 122 SASR 195 at [253].)
111 The nature of the cause of action in this case is a claim for damages and injunctive relief based on the tort of defamation. The defences are substantial truth and contextual truth. Those defences include allegations of very serious criminal conduct. The nature of the subject matter of the proceedings is the widespread publication of highly defamatory imputations of and concerning the applicant which, absent established defences, have caused him substantial damage, both in terms of his reputation and in terms of his earning capacity.
112 The allegations in this case are extremely serious. They include the murder of an unarmed and defenceless Afghan civilian and machine-gunning a man with a prosthetic leg. It is alleged that the applicant has acted in breach of the Geneva Conventions. The allegations of domestic violence and assault are also serious. The consequences to the applicant of findings that he has committed murder and domestic violence are very significant. The applicant described them as life changing and as including reputational repercussions and that is not overstating the position. Reputational harm is a relevant matter to be taken into account (Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 at [68]). The applicant is a Victoria Cross recipient who is known both nationally and internationally.
113 As I understand it, the applicant also submits that I should take into account that a serious consequence of findings adverse to him is that the making of such findings will result in it being more likely that the applicant will be charged with war crimes. He submitted that that was, in fact, a submission made by the respondents themselves. In that regard, the applicant referred to submissions made by the respondents concerning the alleged involvement of some of the applicant's witnesses in the alleged murders, arrangements between the applicant and some of his witnesses concerning the payment of legal fees and the motive to lie of some of the applicant's witnesses. It is not clear to me that the respondents are making the submission or perhaps more accurately, accepting that findings adverse to the applicant make it more likely that the applicant will be charged with war crimes. Putting that particular issue to one side and dealing with the applicant's submission, it might be said that at a general level it is inherent in the finding of criminal conduct that that may increase the likelihood of the alleged actor being
