The second one said that, 'You are a people smuggler, you are doing the wrong things and your life is in danger' and the third one said that, 'You [sic] going to be under the truck within couple of weeks'." (Transcript, page 77, line 21 and following.)
28 The conversations were not in English. The languages in Afghanistan are either a dialect, or a variation of Persian (Farsi). Mr Ahmadi also gave evidence that within a short space of time after the publication in question, he lost about 100 customers, because "they don't trust me anymore". He received significantly fewer invitations to social events and had noticed a change in attitude of people towards him, since the article had been published. Previously, according to Mr Ahmadi, whereas people would volunteer a greeting to him, they now, generally, did not respond when Mr Ahmadi greeted them. There was no substantial cross-examination seeking to test the evidence of Mr Ahmadi on the effect of the publication on his reputation or business. Nor was there any substantial testing of the terms (or existence) of the telephone calls to which reference has been made. At the same time, there is no claim for special damages, or economic loss, associated with the publication of the article.
29 Mr Ahmadi was cross-examined as to alleged admissions, said to have been made to Mr Haideri, in which Mr Ahmadi is alleged to have said that he was "the person who got you out of Afghanistan" and that he wanted his USD$5,000.
30 A significant aspect of the cross-examination was the issue of the content of a number of telephone calls made by Mr Ahmadi to Mr Haideri between November 2002 and February 2003. The telephone records did not disclose calls received, because of the time lapse, but they disclose that Mr Ahmadi had called Mr Haideri 22 times between November 2002 and February 2003. Particular attention was directed at four calls, which occurred late Saturday night/early Sunday morning between 1.00am and 2.15am. This occurred on 10 November 2002. Other calls were also the subject of cross-examination. Mr Ahmadi conceded that all of the calls made by him did not concern, or were not confined to, the proposition that Mr Ahmadi would not transfer money to Afghanistan at Mr Haideri's request, because of the lack of proof of identity. This evidence was inconsistent with answers given to interrogatories by Mr Ahmadi.
31 At one stage, Mr Ahmadi suggested that someone other than him was using his phone. In particular, he suggested that his brother took over the phone. However, the general thrust of the evidence was that, if this occurred, it occurred on one occasion only. It should not be thought from the foregoing that cross-examination on the telephone calls was confined to the four calls on 10 November. It is only that those calls occurred in the early hours of the morning and, for that reason, the incidence of calls, took on a particular significance. Other calls occurred late at night. Mr Ahmadi sought to explain these calls on the basis that Mr Haideri had initiated contact and, in 80% of the cases, Mr Ahmadi was simply returning the call. Mr Ahmadi gave evidence that Mr Haideri was a security guard and often worked through the night. This last aspect was not the subject of contradiction.
32 As earlier stated, there are no records for calls received, because the telephone companies do not keep such records for the length of time necessary to enable them to be available. Nevertheless, the number of calls made by Mr Ahmadi, and the frequency of the calls, seem inconsistent with the proposition that Mr Ahmadi was protesting, notwithstanding the insistence of Mr Haideri, that he would not transfer monies as Mr Haideri was requesting. One would have thought, as a matter of common experience, that in such circumstances, the telephone calls would be less regular and less often, and the return of calls, likewise, would be confined (at regular intervals) to a confirmation that no change in attitude had occurred.
33 Further, the evidence of Mr Ahmadi, in cross-examination, was that the subject matter of the telephone calls extended beyond the subject matter described in the answer to the interrogatory. Of itself, the fact that the subject matter of the telephone call extended beyond that described in the interrogatory does not mean that the interrogatory is false, untrue or inaccurate. However, the combination of issues, and independent material that is available, tends to suggest that Mr Ahmadi was not being truthful about the telephone conversations, the number of them, the content of them and the continuing relationship between Mr Ahmadi and Mr Haideri.
34 I turn then to the evidence of the altercation between Mr Ahmadi and Mr Haideri at Blacktown Police Station. Mr Ahmadi's version of events is that Mr Haideri called Mr Ahmadi and requested that he go to the Police Station (Transcript, page 50, line 47-48). Of itself, the proposition that Mr Haideri wanted Mr Ahmadi to go to the Police Station to sort out the issues between them seems consistent with the proposition that Mr Ahmadi was threatening Mr Haideri and not, as attested by Mr Ahmadi, the reverse.
35 Mr Ahmadi testified that, outside the Police Station, Mr Haideri provoked him, as a consequence of which an altercation occurred. Mr Haideri claimed that Mr Ahmadi attacked him in the Police Station and punched him seven or eight times to the face in order to prevent Mr Haideri from handing the paper and note to the police. It is not explained how Mr Ahmadi would have known of the contents of the paper (given that Mr Haideri says no words were exchanged between them). Nor does Mr Haideri accept that he did anything, in response to these unprovoked attacks by Mr Ahmadi. Mr Haideri testified, almost as unbelievably, that there was no agitation outside the Police Station and that, on arrival at the Police Station, he sought to go directly to the counter and hand a piece of paper with his version of events to the staff.
36 Two police officers were called to give evidence. While neither of them saw all of the events that occurred at the Police Station, their evidence is consistent with the proposition that a verbal disagreement occurred outside the Police Station and continued inside as the protagonist entered. Mr Ahmadi hit Mr Haideri, whose conduct was more consistent with defending himself than with instigating any violence or provoking any attack.
37 Nevertheless, I find that there was an exchange of words between Mr Ahmadi and Mr Haideri and that, as a consequence of that exchange of words, Mr Ahmadi attacked and punched Mr Haideri and Mr Haideri acted in a manner, which, predominantly, was to defend himself from that attack.
38 As to the telephone calls, Mr Haideri testified to the existence of the calls and to the making of threats by Mr Ahmadi, which threats formed the basis of the allegations in the published article, and the extortion imputations contained therein. Those extortion imputations, as defined above, relate to the making of threats referred to in imputations (b), (e), (f), (g) and (h) outlined above. It also includes the allegation that Mr Ahmadi persecuted Mr Haideri. The jury accepted Mr Haideri's evidence in this regard.
39 The evidence in that regard is supported, or corroborated, by independent evidence. Plainly, it is far more likely, given the frequency and number of telephone calls and meetings, and the circumstances of the events at the Police Station, that Mr Ahmadi was pursuing and persecuting Mr Haideri and was making threats of a kind that were intended to render Mr Haideri fearful and to comply with the demands being made upon him.
40 It seems that the jury have accepted Mr Haideri on those issues that relate to the extortion imputations, because of the existence of some independent evidence relating to the persecution of him by telephone and the violence perpetrated against him at the Police Station. That independent evidence renders far more likely the occurrences as recounted by Mr Haideri.
41 The other imputations are in a fundamentally different class. There is no independent evidence supporting, or tending to support, the imputation that Mr Ahmadi was involved in people-smuggling. The only evidence to that effect is the alleged admission by Mr Ahmadi to Mr Haideri. The nature of that admission depends upon the veracity and accuracy of Mr Haideri's testimony as to the conversations, or those parts of the conversations.
42 Indeed, Mr Haideri, on questioning, made it clear that he was unaware, from personal knowledge, that Mr Ahmadi was a people smuggler, or was involved in his own arrival in Australia. Mr Haideri testified that he had no direct knowledge that Mr Ahmadi was a people smuggler; and he took the view only because he believed his uncle (Transcript, page 533, line 10 and following). Further, Mr Haideri was asked the following question and answered it:
"Q. Now, the person who made threats to abduct your family and your children was Mr Fazel and not Mr Ahmadi; do you remember I have asked you that before?
A. WITNESS: Yeah, by phone my son, my uncle call me but he said maybe this guy's people, the Fazel, this guy's people because same time he is warning me too here, 'You not give the money I kill your children, your family, your everything'." (Transcript, page 534-535.)
43 As a consequence of those answers, there was no evidence (other than the alleged admissions) that Mr Ahmadi was involved in people smuggling or, more particularly, in smuggling Mr Haideri into Australia. The jury did not find that Fairfax had proved the people smuggling imputations. In so doing, the jury has not accepted Mr Haideri's version of the admissions and has not accepted those imputations, because, inter alia, there was no independent evidence available that supported Mr Haideri's version of events.
44 Further, it is clear that Mr Haideri's view as to the involvement of Mr Ahmadi in people smuggling was not only dependent upon Mr Haideri's belief in the truth of what his uncle told him, but in the accuracy of his uncle's analysis of events. It seems, apart from the suggested admissions, that there was no evidence that Mr Ahmadi was involved in people smuggling.
45 The question arises, necessarily or by implication, as to whether that finding is inconsistent with the findings of truth in relation to the extortion imputations. In my view, on the evidence that I accept, and bearing in mind the findings of the jury, there is no inconsistency between the findings of truth on the extortion imputations and the failure to find truth in the people smuggling imputations.
46 However, necessarily, the question arises as to what motive or reason there was for Mr Ahmadi to threaten Mr Haideri. There are two obvious answers to that question. Firstly, money may have been owed to Mr Ahmadi for reasons other than people smuggling. Secondly, Mr Ahmadi, believing that Mr Haideri had lied to the immigration department, sought to extort money for his silence. That last-mentioned motive for the threats, on that analysis, related to money that was not owing to Mr Ahmadi.
47 The evidence before the Court is not consistent with Mr Ahmadi having any capacity, or connections with capacity, to carry out any of the threats that the jury have accepted were made by Mr Ahmadi. In other words, there is no evidence to suggest that Mr Ahmadi had the capacity to abduct Mr Haideri and send him back to Afghanistan; or that he had contacts that would enable Mr Ahmadi to kill either Mr Haideri or Mr Haideri's family in Afghanistan. Nevertheless, it is sufficient for the Court to find that Mr Haideri considered the threats serious, and the Court so finds.
48 There is significant evidence concerning Mr Haideri's name in Afghanistan. As previously stated, Mr Ahmadi claimed that Mr Haideri was known, in Afghanistan, as Abdulhay Omary. Other witnesses testified to the same effect. No witness was called by Fairfax, other than Mr Haideri, who could testify to Mr Haideri's name prior to his arrival in Australia.
49 Of course, whether or not Mr Haideri's name in Afghanistan was Abdulhay Omary is not directly relevant to any of the issues that are before the Court. It is relevant that Mr Ahmadi generally believed that Mr Haideri's name in Afghanistan was Abdulhay Omary. The Court finds that Mr Ahmadi did genuinely believe that to be the case. Further, the Court finds, on the balance of probabilities (and bearing in mind the gravity of the allegations), that Mr Ahmadi made the threats, which the jury have found to be true, in order to extort money from Mr Haideri. That extortion of money was to pay for Mr Ahmadi's silence on the issue of identity and to ensure that Mr Ahmadi placed no impediment in the way of processing Mr Haideri's visa application.
50 Fairfax had available to it witnesses that could have attested, independently of Mr Haideri, to Mr Haideri's name in Afghanistan. Obviously, his wife is in that category, although her independence may not have been complete. Other persons were also in that category and, no doubt, included persons in Afghanistan, who would have been able to give evidence, either while physically in Court, or via video link. The failure to call those witnesses makes the drawing of the inference as to issues of identity easier: see Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
51 The conclusions as to the substantive issues before the Court, consistent with the findings of the jury, are: