Background
The respondent, To Hun — described in the media as a nephew of Cambodian Prime Minister Hun Sen — commenced defamation proceedings in the Federal Court against Al Jazeera and three journalists over a 2022 documentary titled Forced to Scam, Cambodia's Cyber Slaves. The film was uploaded to Al Jazeera's websites and YouTube and was accessible for download in Australia.
At the 39-minute mark, the documentary stated: "But perhaps of greater significance is another director of several Heng He companies, including a bank, Prime Minister Hun Sen's nephew, Hun To, reportedly suspected by Australian police of drug trafficking."
Among the imputations pleaded, the central one was that the respondent "is suspected on reasonable grounds by Australian police of drug trafficking". Al Jazeera denied the imputation was conveyed and, in the alternative, pleaded a defence of justification (substantial truth) under both common law and s 25 of the Defamation Act 2005 (Vic).
The Justification Particulars
To support their truth defence, the appellants relied on the existence of an alleged joint NCA/AFP task force called Operation Illipango (circa 2002–2004), telephone intercept warrants, and an arrest warrant said to have been issued for the respondent. The respondent was never arrested or charged because his Australian visa was cancelled on character grounds in approximately 2003.
Subpoenas were issued to the Australian Criminal Intelligence Commission (ACIC), the Department of Home Affairs, and the Australian Federal Police (AFP). Home Affairs produced documents revealing visa cancellations citing character concerns. The AFP produced 17 heavily redacted documents — including one titled "Nephew of Cambodian PM Emerging as Drug Suspect" — but claimed public interest immunity (PII) over their contents.
Critically, the appellants' particulars expressly stated that further particulars could not be provided until after the return of the subpoenas and resolution of the PII claims. Those claims were adjourned and never determined before the primary judge struck out the defence.
The Primary Judge's Decision
The primary judge struck out paragraphs of Al Jazeera's defence relating to justification of the suspicion imputation, finding the particulars were "vague, evasive and ambiguous". In essence, the primary judge held that the appellants had pleaded no more than the subjective beliefs of third parties — namely, that unnamed officers formed a view that the respondent had committed an offence — without identifying the objective factual basis for any such suspicion.
As a consequence, the AFP subpoena was also dismissed.
The Full Court's Analysis
Understanding the Imputation
The Full Court (Bromwich, Wheelahan and Owens JJ) first clarified the nature of the imputation. It was a passive suspicion imputation: it attributed reasonable suspicion to Australian police. The respondent had unambiguously committed to the position that "reasonable grounds" referred to an objective standard — not merely a subjective belief held by investigators. He was bound to that meaning at trial.
The Repetition Rule and Conduct Rule
The Court adopted the principles from Musa King v Telegraph Group Ltd [2004] EWCA Civ 613, which have now been explicitly endorsed in Australian defamation law. To justify a suspicion imputation, a defendant must plead and prove primary facts giving rise to objectively reasonable grounds for suspicion. It is insufficient to:
- Plead rumour, second-hand reports of suspicion, or the mere assertion that someone else believed or suspected the claimant was guilty (the repetition rule);
- Rely on the subjective beliefs, opinions, or suspicions of third parties — including law enforcement officers — as primary facts;
- Point to conduct or reactions of others without linking those to the claimant's own conduct (the conduct rule).
The Court added an important gloss: circumstantial evidence can contribute to the justification if it gives rise to an available inference about the claimant's conduct, assessed cumulatively. This echoes the approach in Bokova v Associated Newspapers Ltd [2019] QB 861, where the English Court of Appeal held that the question is whether the evidence, taken together, implicates the claimant "because of his connection to the evidence as a whole".
The Particulars Were Inadequate — But Strike-Out Was Premature
The Full Court agreed with the primary judge that the particulars as pleaded were incapable of supporting the justification defence. The reliance on an arrest warrant issued under s 3ZA(1) of the Crimes Act 1914 (Cth) spoke only to the issuing officer's subjective satisfaction, not to the existence of objectively reasonable grounds. The particulars, in substance, pleaded the "opinions and reactions of others to unpleaded facts" with no evidential link to the respondent's own conduct.
However, the Court held that it was premature to strike out the defence for three reasons:
- The appellants had expressly foreshadowed that their particulars would be augmented once they obtained access to the AFP documents still subject to unresolved PII claims;
- There was a reasonable basis to believe the AFP documents might reveal information identifying the factual grounds on which police suspected the respondent, enabling the defence to be properly particularised;
- The subpoenas were targeted and informed, not speculative or a fishing exercise.
In a passage of broader significance, the Court stated that the primary judge had applied the requirements from Zierenberg v Labouchere [1893] 2 QB 183 "in a way that was too rigid". The proposition that a defendant who pleads justification must do so entirely on the basis of information in their possession when the defence is filed was held to be "too absolute".
Defamation Cases Are Not a Special Class
Perhaps the most significant statement of principle was the Court's emphatic rejection of any special procedural treatment for defamation cases:
"It is important to recognise that defamation cases should not be treated as a special class of case which attracts exceptions to the ordinary principles of practice and procedure relating to discovery or subpoena of documents."
This principle has substantial implications for defendants who rely on document production processes to build their truth defence — particularly in cases involving government agencies, corporate respondents, or institutional plaintiffs who control the relevant documentary evidence.
Orders
The Full Court granted leave to appeal, allowed the appeal, and set aside the orders striking out the justification defence and dismissing the AFP subpoena. The respondent's strike-out application was dismissed. The matter was remitted for the PII claims to be heard and determined, after which the adequacy of the appellants' particulars can be revisited.
Practical Implications
This decision has significant practical consequences for both plaintiffs and defendants in Australian defamation litigation:
- For defendants pleading truth: A justification defence need not be fully particularised at the time of filing if the defendant has identified a targeted forensic process (such as subpoenas or discovery) that is reasonably likely to yield the material needed to augment the particulars. Courts should not strike out truth defences until those processes have been exhausted.
- For plaintiffs seeking strike-out: Applications to strike out justification defences will face a higher threshold where the defendant has foreshadowed augmentation and identified a concrete, non-speculative pathway to obtaining the necessary evidence. Premature applications risk being overturned on appeal.
- For suspicion imputations: The Musa King principles are now authoritatively endorsed in Australian law. Defendants must plead primary facts establishing objectively reasonable grounds — not merely the fact that an investigation existed or that officers held subjective beliefs. However, circumstantial evidence assessed cumulatively may suffice.
- For public interest immunity: Where PII claims block access to documents that may support a truth defence, courts must resolve those claims before testing the adequacy of the defence. Striking out a defence while the defendant is still locked out of key evidence is an error of principle.
- For media defendants: The decision provides welcome procedural protection for journalists and publishers who may not have access to the underlying evidence at the time of publication but can identify targeted forensic steps to obtain it. This is particularly relevant to investigative journalism involving government agencies or law enforcement operations.
The Court also observed that a report of the fact of police suspicion — as distinct from the truth of the underlying conduct — might in appropriate cases be defensible under the public interest defence in s 29A of the Defamation Act, although that question did not arise on this appeal.
How Matrix Legal Can Help
The interplay between justification, procedural fairness, and document production in defamation proceedings is complex and increasingly significant. Whether you are a publisher considering how to structure a truth defence, or a plaintiff evaluating the strength of a strike-out application, the tactical decisions made at the pleading stage can determine the outcome of the entire proceeding.
Mark Stanarevic and the Matrix Legal team advise on all aspects of defamation claims and defences, including the formulation of justification particulars, subpoena and discovery strategy, and interlocutory applications. If you need advice on a defamation matter, request a free assessment or call 1800 950 627.
This article is general information and not legal advice. Defamation risk turns on the precise words used, the publication context, the audience, and available evidence.