Habib v Nationwide News Pty Ltd - [2010] NSWCA 34 - NSWCA 2009 case summary — Zoe

NSWNSWCA

Habib v Nationwide News Pty Ltd

[2010] NSWCA 34

Court of Appeal (NSW)|2009-05-22|Before: Hodgson JA, Tobias JA, McColl JA, McClellan CJ, Levine J, Hunt J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2009-05-22

Before

Hodgson JA, Tobias JA, McColl JA, McClellan CJ, Levine J

Source

Original judgment source is linked above.

Judgment (116 paragraphs)

[1]

Introduction 70 It is expedient to summarise the gist of the appellant's complaints before examining their detail. 71 Mr K P Smark SC, who appeared for the appellant on appeal with Mr C E Evatt and Mr R Rasmussen raised the following objections to the admission/use of the various interviews: (a) insofar as the first claim is concerned, he submitted the Pakistan interviews ought to have been excluded on the proper application of s 84 and/or s 135 of the Evidence Act ; he also sought to argue that this Court should now exclude the statement in the Dateline interview on the basis of s 84 and because the statements in the Dateline interview were made subsequent to the publication of the matter complained of;

[2]

(b) insofar as the second claim is concerned, he submitted that the primary judge took the appellant's statement in the 60 Minutes interview out of context; (c) insofar as the third claim is concerned, he submitted the Guantanamo Bay interview ought to have been excluded on the proper application of s 84 and/or s 135 of the Evidence Act ; if that interview was excluded, he contended there was no evidence the third claim was substantially true; he submitted the appellant's statement about where he met the two Germans was not a "claim" and he raised another subsequent publication point, contending that the making of statements by the appellant in the Amnesty International interview, more than a year after the publication of the matter complained of, was irrelevant to the truth defence; (d) insofar as the fourth claim is concerned, he again contended that the statements in the Amnesty International interview were made too late to be relevant to the truth defence. 72 Insofar as the first, third and fourth claims were concerned, Mr Smark submitted the primary judge erred in finding what the appellant relevantly said in the Pakistan and Amnesty International interviews constituted the making of a "claim". He also contended that to make good its defence, the respondent had to establish the substantial truth of more than one "claim". Section 84 submissions - Pakistan and Guantanamo Bay interviews (first and third claims) 73 Mr Smark complained that the primary judge erred by effectively reversing the test posed by s 84(1). He pointed out that his Honour had accepted some of the appellant's evidence, including that he had undergone traumatic experiences, was mistreated from time to time, that the circumstances in which he was shackled and detained were degrading, that his Honour had no doubt that the appellant was kicked, and that it was possible that at times in Egypt he was subject to abusive conduct probably using water, hot and cold rooms and forms of electric shock. To the extent he had not accepted "the allegations of mistreatment in the detail which [the appellant] gave the evidence in this Court" his Honour did not conclude "these events did not happen" but only that he "cannot be satisfied that they did happen": primary judgment (at [49]). 74 Mr Smark submitted that in taking this approach, his Honour reversed the onus of proof. He contended that once an issue as to the conduct or threats to which s 84(1) applies was raised, it was not incumbent on the appellant to satisfy the primary judge that such conduct had occurred, but, rather, for the Court to reach a state of positive satisfaction that the conduct had not influenced the making of the admissions in question. In the circumstances of the present case, he argued, where his Honour accepted some degree of mistreatment had occurred, the state of satisfaction required for admissibility under s 84(1) could not be reached unless the primary judge positively concluded that conduct to which s 84(1) related did not influence the claimed admission. 75 Mr Smark next submitted that the primary judge also erred in concluding, after referring to the appellant's evidence that he had admitted having been in Afghanistan to his Pakistani interrogators because he feared being killed or incarcerated for life in Pakistan, that such a fear was irrelevant to s 84 if it amounted to a "fear of punishment for wrong doing". Mr Smark contended that his Honour's approach diverted attention from the requirements of s 84 and, further, proceeded on the assumption, not supported by the evidence, that the appellant's fear was of lawful execution or imprisonment. 76 Mr Smark submitted that if the Court found that the primary judge was in error in his approach to s 84, there was no need for a new trial of the respondent's defence because it was open for the Court to find that the respondent had not discharged its onus under s 84. He accepted that if the Pakistan and Dateline interviews were admissible, and the appellant's denial that he had been in Afghanistan was a "claim", he could not dispute that the respondent had established the denial was knowingly false. 77 In amplification of his argument that the Court could deal with the s 84(1) issue, Mr Smark handed the Court a document described as "Appellant's schedule re oppression", setting out his contentions about the evidence that the appellant was subject to oppression or the threat of oppression at the time of the Pakistan interviews. That document drew attention to the following matters:

[17]

*VD2, VD4 and VD6 were the three Pakistan interviews. 78 Mr A Leopold SC appeared for the respondent with Ms S T Chrysanthou at trial and on appeal. His primary submission about s 84 was that raised in the respondent's notice of contention: that s 84 was not enlivened because the appellant had not raised an issue about whether "the admission or its making" was influenced by relevant conduct: s 84(2). He contended that in order for that issue to be "raised", there must be an evidentiary basis for a finding that a particular admission was influenced by s 84(1) conduct, rather than merely an assertion of the existence of such conduct in an interview generally. 79 Accordingly, Mr Leopold submitted in relation to the Pakistan interviews, that the matters relied on by the appellant as oppressive conduct, including his detention without charge, prior to and during the interviews, and the refusal of his request to see Officer 1 in private could not discharge the s 84(2) onus because the appellant did not give evidence as to how those matters influenced his admission that he had not been in Afghanistan. He also contended that the evidence was not capable of giving rise to an inference of influence. 80 Mr Leopold's written submissions also argued that McClellan CJ at CL found that there was no evidence of any s 84 conduct in relation to the Pakistan interviews, save as to the evidence in re-examination which he contended the primary judge correctly rejected as not falling within s 84. In oral argument he appeared to accept that the appellant gave evidence about his treatment in Pakistan which was capable of constituting oppressive conduct for the purposes of s 84, but argued that the s 84 issue was not "raised" in relation to that conduct because there was no evidence from which the Court could conclude that that conduct influenced the appellant to make particular admissions. 81 Mr Leopold next submitted that if s 84 was enlivened, the primary judge correctly directed himself as to the requisite onus. Having found that there was "no evidence" of a threat of violence influencing any admission made in Pakistan (primary judgment at [63]) and that the appellant's claims of serious mistreatment in Pakistan "cannot be accepted" (primary judgment at [48]), his Honour was affirmatively satisfied that none of the elements of s 84 were made out. Such findings, he argued, should also be understood in the broader context of the primary judge's credibility findings which were adverse to the appellant (primary judgment at [54]). 82 Mr Leopold submitted the only evidence that the appellant gave in relation to the question of s 84 influence was a statement he made in re-examination to the effect that he believed he would be killed by the Pakistani authorities if he admitted he had been to Afghanistan. Mr Leopold argued that the primary judge's rejection of the relevance of this evidence to s 84 because it rose no higher than a "fear" was correct. He contended that s 84 required objectively manifested oppression or threat of oppression, not a subjective fear. He also contended that, in any event, it could be concluded the primary judge was not satisfied the "fear" was well-founded having regard to his finding that the appellant had not been substantially mistreated in Pakistan. 83 Insofar as the Guantanamo Bay interview was concerned, Mr Smark drew attention to the primary judge's finding (at [82]) that the physical conditions of the appellant's incarceration at Guantanamo Bay, including his state of indefinite detention and that he was shackled when moved or questioned, were "degrading" and "defied basic human rights", one of the matters to which s 84(1) is directed. In the light of those findings, Mr Smark submitted, the primary judge reversed the onus of proof in s 84(1) by concluding (at [82]) that that evidence in relation to the Guantanamo Bay interview did "not suggest that the circumstances of his incarceration influenced the plaintiff to make the admissions relied upon by the defendant in these proceedings". He submitted that his Honour failed to address the question of whether he was satisfied that the admissions were not influenced by the "degrading" circumstances. He also submitted that these circumstances were so alien to common law notions of proper treatment of accused persons that the requisite satisfaction under s 84 could not have been achieved. 84 Mr Leopold accepted that there was evidence of oppressive conduct in relation to the Guantanamo Bay interview. However he argued that absent evidence of a causal link to the appellant's admissions in that interview, the primary judge's finding (at [82]) that conditions there were "arduous and degrading" was not capable of founding an inference that the appellant was influenced by s 84 conduct to make the relevant admission within the meaning of s 84(2). He contended that this was the conclusion to which the primary judge came (at [84]) when he stated "[t]he evidence does not suggest that the circumstances of his incarceration influenced the plaintiff to make the admissions relied upon by the defendant in these proceedings". He submitted that the finding that the appellant had been in Guantanamo Bay for only a few days prior to being interviewed was important, particularly when taking into account evidence that the appellant was in hospital receiving some medical treatment for those days. 85 Accordingly, Mr Leopold contended that, to the extent that the primary judge did not so find, there was no arguable basis on the evidence for a finding of any causal link between the purported s 84 conduct and the making of any admission in the challenged interviews which would support a finding that the appellant had raised the s 84 issue.

[18]

The Dateline interview (first claim) 86 Although the Dateline interview was tendered without relevant objection at trial, Mr Smark sought leave to argue that it should also be excluded pursuant to s 84. He submitted that as the respondent sought to rely on the section of the Dateline interview in which the appellant recounted statements he had made during the Pakistan interviews to which the s 84 objection had been taken, it was open to the appellant to object on appeal to the admissibility of the appellant's statements in the Dateline interview about whether he had been in Afghanistan, because to do so did not raise any new evidentiary issue. He relied on Suttor v Gundowda [1950] HCA 35; (1950) 81 CLR 418 and O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 (at 319) per Mason J. 87 Next, Mr Smark contended that the Dateline interview could not be used as evidence of the truth of the imputation because it took place subsequent to the publication of the matter complained of. However he resiled from this submission during oral argument, no doubt because Mr Evatt conceded at trial that the Dateline interview was recorded and broadcast within a reasonable time after the matter complained of was published. 88 Mr Smark also submitted that the primary judge erred in finding (at [64]) that the appellant's statement in the Dateline interview that he had denied that he had been to Afghanistan to Pakistani interrogators was evidence of the substantial truth of the first claim. He argued that because that statement was merely an account of what the appellant said in the Pakistan interviews without any endorsement of its truth, it could not be construed as a separate "claim" that he had not been to Afghanistan. 89 Mr Leopold relied on the statements in the Dateline interview that the appellant had told Pakistani authorities he had never been to Afghanistan, firstly as an independent claim by him that he had never been to Afghanistan, and secondly as evidence of what was said in Pakistan. In relation to the latter, Mr Leopold submitted that the appellant could not rely on the subsequent publication point on appeal in respect of the Dateline interview because not only had no such objection been raised at trial, but also because Mr Evatt had expressly abandoned reliance on any such point. 90 Mr Leopold accepted that the trial would not have been conducted any differently if the appellant had objected to the admission of the Dateline interview on the basis of s 84. However he submitted that Suttor v Gundowda had no application because the appellant had waived his right to object the Dateline interview on the basis of s 84, and unlike a failure to take a point below, a right waived could not be revived: Jones v Sutherland [1979] 2 NSWLR 206 (at 219); Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 (at [46]); Metwally v University of Wollongong (No 2) [1985] HCA 28; (1985) 60 ALR 68 (at 71). 91 Finally, during oral submissions, Mr Leopold submitted that it was unnecessary to examine the admissibility of the Dateline interview under s 84 because during re-examination the appellant gave evidence afresh that when he was being questioned in Islamabad he had said he had not been to Afghanistan. Having been adduced without objection, in the substantive case, it was admissible for all purposes. 92 In reply, Mr Smark submitted that the evidence the appellant gave in re-examination about what was said in Pakistan, ought to have been treated as an oversight by the part of counsel at trial and the primary judge in that it should have been treated as having been part of the voir dire evidence. He also invoked s 56 of the Civil Procedure Act 2005 (NSW) to argue that the Court could remedy the omission on appeal in order to prevent a waste of the resources of the court below.

[19]

Errors in fact-finding (first claim) 93 Mr Smark next submitted that even if the primary judge's approach to s 84 was correct, it was open to this Court to find that, even allowing for the benefit his Honour enjoyed in seeing the witnesses, he erred in three respects in concluding that he could not accept the appellant's allegations of misconduct by the Pakistani authorities. 94 First, he complained that his Honour failed to place any real weight on the appellant's request to see Officer 1 in private during the first Pakistan interview apparently because of the importance his Honour attached to the failure to renew this request during the second and third Pakistan interviews in the following few days. Mr Smark submitted that the fact the appellant would not renew such a request was not surprising given that it was rejected, and, if made again, had to be made in the presence of his Pakistani captors. He contended the request was consistent with a history of extensive mistreatment at the hands of the appellant's captors. 95 Secondly, Mr Smark pointed to the primary judge's finding (at [105]) that the appellant "must have been mindful of the likelihood of Australian officials passing information to Pakistan authorities" in rejecting the possibility that the appellant may have disclosed his travels to Afghanistan to Officer 1 if given the opportunity to speak to him privately. He argued that there was no basis for his Honour's speculation about the appellant's thought processes, nor for the proposition the Australian officials would have passed information on to Pakistan authorities. In fact, he contended, the appellant's request was consistent with him being concerned about making disclosure in front of the Pakistani officials and this, in turn, was consistent with (and probative of) the oppression to which s 84 is directed. 96 Thirdly, Mr Smark submitted that the primary judge erred in disbelieving the appellant's account of mistreatment in Pakistan on the basis that his Honour considered that, if true, the appellant would have made such allegations in the course of the Amnesty International interview and the 60 Minutes interview. He drew attention to passages in the Amnesty International interview in which, in the context of the Pakistan interviews, the appellant referred to hearing other people being tortured, said he was kicked and badly beaten (the beating was referred to by the primary judge (at [44])) and said that he had told Officer 1 that he had been tortured. He added that during the Amnesty International interview the appellant had also referred to being drugged, given electric shocks and that he was "brain washed" and was suffering physically as a result, albeit in the context of his captivity in Egypt rather than Pakistan. He also noted that the appellant had referred to being beaten in Guantanamo Bay during the Amnesty International interview. 97 Next, Mr Smark submitted that when the comparative lengths of the appellant's imprisonment in Pakistan (one month), Egypt (seven months) and Guantanamo Bay (two and a half years) was taken into consideration, it could be understood why the appellant's focus during the Amnesty International interview was not upon mistreatment in Pakistan. In summary, he contended that the facts did not support the primary judge's conclusion that the appellant had not referred to some elements of his mistreatment in Pakistan in the course of that interview. 98 Mr Smark also contended that the portion of the 60 Minutes interview to which the primary judge referred (at [45]) had to be read in context and, when that was done, it could be seen the appellant had also referred to some elements of his mistreatment in Pakistan. 99 Mr Leopold submitted that the appellant's criticism of the primary judge's failure to place any real weight on the appellant's request to see Officer 1 in private depended on the premise the primary judge had rejected, namely that the appellant had suffered "extensive mistreatment" and this rejection was not "glaringly improbable". He also contended there was nothing in Officer 1's denial of the request capable of amounting to "oppressive conduct".

[21]

The Guantanamo Bay interview (third claim) 102 We have already dealt with the appellant's complaint that the primary judge reversed the onus of proof under s 84 in allowing the respondent to tender the Guantanamo Bay interview. 103 Mr Smark sought to challenge the finding that the third claim was substantially true on three other bases. 104 First, he argued that the Guantanamo Bay interview was the only evidence of the falsity of the appellant's statements in the Pakistan interviews as to where he had met the Germans. He pointed out that at trial the appellant's case had been that he had met the Germans in Pakistan, contrary to the primary judge's apparent belief (at [145]) that he had conceded having met them in Afghanistan. Accordingly, if the Guantanamo Bay interview was inadmissible by virtue of s 84, there was no evidence that the appellant's statements that he had met the two Germans in Pakistan were false. 105 Secondly, he argued that the primary judge ought not have admitted the Amnesty International interview as, having regard to when it was recorded, it was irrelevant to the truth defence. This raised the subsequent publication point which we consider in more detail in relation to the fourth claim which depended entirely on the admissibility of the Amnesty International interview. 106 Thirdly, Mr Smark contended that even if the Guantanamo Bay and Amnesty International interviews were admitted, a question arose as to whether what the appellant said in the Pakistan interviews about where he met the Germans was a "claim". 107 Mr Leopold effectively joined issue with the appellant insofar as the first point was concerned, relying on his submissions that the primary judge had not erred in admitting the Pakistan and Guantanamo Bay interviews. As to the second point, we have set out his submissions when dealing with the subsequent publication issue in respect of the fourth claim. As to the third point, he contended the appellant's statement in the Guantanamo Bay interview about where he met the two Germans was a claim which was not in the form of mere denial, but, rather, was a positive assertion of fact: "I meet the boys in Afghanistan".

[22]

The Amnesty International interview (fourth claim) 108 Mr Smark advanced two propositions in support of the complaint that the primary judge erred in using the Amnesty International interview as evidence of the substantial truth of the fourth claim. The first was that the imputation was an allegation of past specific conduct, rather than a general charge against the character of the plaintiff such as would attract the principle in Maisel v Financial Times Ltd [1915] 3 KB 336. 109 The second was that the Amnesty International interview was irrelevant to the truth defence because, even assuming the imputation was one of general bad character, it took place more than a year after the publication of the matter complained of. 110 Mr Smark next submitted that read in context and against the background of the appellant's limited language skills, the statement the appellant made in the Amnesty International interview could not be clearly construed as a claim that he had not visited Egypt since he came to Australia. He argued that as the appellant's statement that he had "never been in Egypt since I come in Australia" was made in response to a line of questioning about citizenship, his statement should be construed as meaning that he had not been an Egyptian resident or citizen since moving to Australia, rather than referring to visits to that country. 111 Finally, Mr Smark submitted that the material relied on by the primary judge in the Amnesty International interview was simply the appellant recounting to Ms Wood what he had said in the course of the Pakistan interview, not a distinct claim of the underlying truth of those matters. 112 Mr Leopold submitted that the imputation was a hybrid one which was as much an allegation about the appellant's character as his conduct such that Maisel did apply. 113 He also submitted that Mr Evatt had conceded at trial in relation to the Dateline interview that the respondent was, on Maisel principles, entitled to adduce evidence of facts occurring within a reasonable time after publication and should not be permitted to resile from this concession. We understand that argument to have been addressed to the issue of whether, assuming the imputation was of a Maisel character, Mr Evatt had conceded that reasonably contemporaneous post-publication material was admissible. 114 Next, Mr Leopold argued that the appellant's repetition in the Amnesty International interview of his earlier claim in the Pakistan interview, having been asserted without qualification as to its truth, was an independent claim that the appellant had never been to Egypt. 115 Finally, Mr Leopold submitted that there was no reason not to take literally the appellant's statement in the Amnesty International interview that he had never been to Egypt since he came to Australia. He contended that the primary judge had not erred in rejecting (at [150]) a submission by the appellant's counsel at trial that the answer given to the interviewer was unclear.

[26]

"7. …I explained to Habib that if he gave his consent DFAT would contact his wife….at first Habib insisted on calling his wife himself. I reminded him he was in Pakistani custody and access to a telephone and other such matters was at the discretion of the Pakistani authorities Habib's plea for release 10. Habib asked me if I could get him out of 'gaol'. I explained again (this was reinforced several times during our discussion) that he was in Pakistan, subject to Pakistan law and that the Australian government had no power to have him released… Brief discussion of his travel and activity 11. … Where did you go - all over - I have been to Pakistan four times, I have been everywhere. What about this visit, you were in Quelta [sic, as in original, should be Quetta] - yes, I stayed there for a while. Did you go to Afghanistan - no . What was the reason for your trip to Pakistan - he provided confusing evasive answers - long silences etc. … It was during this conversation that Habib made the first of many demands that I help him. 12. A couple of times Habib said he wanted to talk to me in private. I said this was not possible, that the Pakistani authorities have control of his situation …I then told Habib there are a number of issues concerning his travel, activities and the reason for his trip to Pakistan which are of interest to various people… 14….I stressed to him … that when we next meet…he should answer my questions honestly and fully. At this point he asked whether he could have a lawyer present. I reminded him that among the papers I had given him was a list of local lawyers. I did not directly answer his question….For the first and only time I told him I was interested in the 'security aspects of this matter'… 15. At this point I wound up the interview. Habib asked whether he was going back to gaol. Yes - his custody is a matter for the Pakistan authorities… " (emphasis added) Second Pakistan interview (26 October 2001) "5…In response to his question 'what's going to happen to me?' I reminded Habib that the Australian High Commission is aware of his situation but avoided any other discussion relating to consular matters. Physical condition and demeanour 6. As far as I could tell Habib … appeared to be in reasonably physical condition [sic, as in original]. I could see no evidence nor have any reasons to believe, that he had suffered physical injury or been mistreated … However later in the interview, when Habib returned to the room after a short break, he needed some assistance to walk back into the room. As far as his emotional state is concerned, he appeared subdued, worried , etc. At one point he was given … what I understand may be an anti-depressant. Interview 8. I commenced by telling Habib I wanted to go over his travel from Australia … in considerable detail… [Habib] did not understand why he was being held… Diab and Ademi 26. Habib claims he met the two Germans for the first time in Quetta …They told him they were also travelling to Karachi…they boarded the bus to Quetta [sic, should be Karachi] late in the afternoon … the bus was stopped by police and the two Germans were asked to leave the bus. Habib asked why they were in trouble and then the police asked Habib if he was travelling with Diab and Ademi. He said he had just met them ..he was then also detained by the police … Travel to Afghanistan 29. Before asking Habib about travel to Afghanistan, he was asked to think carefully about this next question before answering, to be sure of his reply - 'do you understand' [sic as in original]. These [sic as in original] was then asked specifically - ' have you been to Afghanistan during this current trip away from Australia?' No. Question restated - so you didn't go over to Afghanistan from Pakistan - perhaps from Quetta? No. Habib then launched into a series of questions and statements about why would this be a problem. Many people go to Afghanistan - why am I in trouble [portion blacked out] responded that the actions of other people are not the issue, what matters is your travel, activities and contacts. Habib was then asked whether he had ever been to Afghanistan, perhaps during one a previous visits to Pakistan [sic, as in original]. Same answer - No. … Conclusion of interview 32…'Why am I in gaol?' Then he was directed again to the question - how do you explain the gap in your timeline?…… 35. Habib asked if he was going back to gaol. I said I understood he would remain in custody and I reminded him that he was under the control of the Pakistan authorities … ." (emphasis added)

[27]

Third Pakistan interview (29 October 2001) "Habib's Appearance and Demeanour 4. Habib … was subdued and a little untidy but again showed no evidence of physical mistreatment… Interview - gaps in his story 5. I told Habib that following our last meeting, we had gone over the information he had provided and done some checking … there are a number of gaps and inconsistencies in his answers which we would like to clarify… Habib's claims to contacts in the Sydney community about travel to Afghanistan 10. I then raised with Habib comments that he had reportedly made to members of the Sydney community, that he had been to Afghanistan and attended military training camps. I said to Habib that 'I have a problem.' 'You have told me several times that you have never been to Afghanistan, and yet you have told people in Sydney that you have been to Afghanistan and undertaken military training in Afghanistan'. 'How can that be?' 'Did you lie to me or were you lying to those people in Sydney- which is it?' Habib's immediate response was to ask aggressively, who had said this about him. I told him that that information was confidential but I wanted him to explain. At first he denied having ever told anyone that he had been to Afghanistan. He then went on about people in the community making up stories about him working for the CIA etc. I asked him why people made up these stories about him - 'why you?' 'What is it about you that people say these things?' No direct answer - more tangents and claims that people in the community hate him and want to discredit him. But no logical reason provided why those people did that. 11. We then switched tactic. Briskey asked Habib whether it was possible that he could have said something to someone in the community - told someone that he had been to Afghanistan -perhaps he had exaggerated a story to impress someone. [portion blacked out] … After a lengthy discussion, Habib agreed it was possible he may have said that, but he couldn't remember doing so, or think of any circumstances in which he would have done so.

[31]

Habib then responded. 'I made several calls to my wife'. 'Whenever I can, I talk to my wife.' 'I ring her on the mobile phone from all over Pakistan.' 'I try to talk to her whenever I can.' 'Yes', I said, 'its good to keep in contact with your family, but we aren't talking about that'. 'I want to know about Kabul, 11 September - you were there, I want to know why you were there, what you were doing, who you were with'. Habib responded - 'I don't understand'. 'I was not in Kabul, I rang my wife several times, I don't understand'. Habib then turned the conversation away. 'You say I have been to a training camp - you keep trying to get me to say I went to a training camp'. I cut him off and responded- 'I asked you about training camps-I said that people in the community have said that you have told them you have been to Afghanistan and attended training camps'. 'I want you to tell me the truth'. 'I just want you to be honest, to tell me in detail about where you have been, what you have done and who you were with; without all the other stories'. 'A very simple question which you can answer very easily'. ' 11 September, Kabul - why were you there, what were you doing, who were you with?' Again a long silence, then as the question was repeated he denied he was in Kabul. 'I can't remember where I was when I called my wife'. Then he equivocated. 'Maybe I was in Kabul, maybe not. The point was put to him again, by me and then by [portion blacked out]. 'We know you were in Kabul on 11 September'. 'This is fact-you know it and so do we!' 'What we want to know is why you were there, what you were doing and who you were with'. Another long pause. …. 21 …Habib was brought back into the room … ([portion blacked out] It was at this point he required some assistance to walk , although as soon as he sat, he stood and walked across the room to retrieve an ashtray.) 22… I then restated the point. '11 September, Kabul - why were you there, what were you doing, who were you with?' …[portion blacked out] interjected …[portion blacked out] with a shout - STOP! 'We have heard all this before - what we want is for you to answer the question put before you - it's very simple ….etc'. Habib responded- raised voice - 'all you care about is what you want to know ... You don't care about my rights - you should look after me, help me'. 'You have the power to get me out of here…' … 24. We stood and prepared to leave . Habib asked 'does this mean I have to stay here?' I respond that he is in Pakistan custody …" (emphasis added)

[44]

22 May 2002." 127 The Australian officials who interviewed the appellant in Guantanamo Bay, "underlined" to him that he was "in the custody of the US Military authorities and had been captured in a wartime situation." They "outlined possible options for future steps (prosecution in Australia if charges could be found, US military commission or criminal trial or indefinite detention) [and] … emphasised that, as the detainee was in US custody, final decisions would be taken by the US Government, in consultation with the Australian Government". 128 Prior to the interview, the appellant had been kept in an isolation cell. He was aware he was being held by US authorities, but not that he was in Cuba. 129 The appellant eschewed any suggestion that whatever had happened to the appellant in Pakistan and Egypt was relevant to the s 84 issue in relation to Guantanamo Bay. 130 It should be noted that in the transcript of the Guantanamo Bay interview, the following appears: "Q1664 Okay. All right, have the answers you've been giving during the interview been of your own free will?… A1664 Yes. Q1665 H'mm. Has any threat been held out to you to provide the answers you gave today. A665 No threat. Q1666 Sorry? A1666 I'm already in threat. I'm already in a cage, I'm already in my handcuffs. Q1667 But have I threatened you to give those answers that you gave today? A1667 You not afraid me but the place I am. I'm afraid of it. … Q1670 Did I induce you, did I encourage you to give those answers today? A1670 Well I have to, I have to improve myself, I have to defend myself. I have to be here. I have to answer ." (emphasis added) 131 The passage from the Guantanamo Bay interview upon which the respondent relied as evidence of the third claim was: "Q274 And whereabouts did you say you made that booking? A274 In Quetta. Q275 H'mm. A274 And I catch the bus. Q276 From? A276 Quetta to go to Karachi. Then the bus went. I meet two boys - Germany. … Q279 Where did you meet the boys? A279 I meet the boys in Afghanistan. Q280 And which city in Afghanistan? A280 Kandahar. [FEDERAL AGENT] LANCASTER: Q281 All right, when did you meet them - the German boys? A281 Well I meet them in Kandahar in same day we left to - depart from Afghanistan

[78]

The Dateline interview 134 One aspect of the Dateline interview which should be noted is that the appellant's then solicitor appears to have been present throughout the interview and, as the narrator commented, kept the appellant "on a tight chain" apparently because of legal proceedings which were in contemplation and a concern that evidence may be tampered with if too much information was divulged. 135 In the course of the interview the following was said: "NARRATOR: … after around a month's detention in Pakistan, Habib ended up here, in Cairo … for six months Habib says he was subjected to brutal torture - including regular beatings, electric shocks and the threat of being raped by dogs. MAMDOUH HABIB: Actually I been tortured the first day. I don't know - every question they been torturing me from the beginning to the end. I don't know why. It's not torturing about questions. I just say they enjoy to torture - that's it". 136 The relevant part of the Dateline interview on which the respondent relied was as follows: "NARRATOR: Mamdouh Habib's version of events goes way beyond the question of information sharing. He alleges on one occasion in Pakistan he was interrogated by American officials with an Australian present. MAMDOUH HABIB: They call me again for another interview …the Australian consul ** and about two Pakistani people. REPORTER: And was this an interrogation? MAMDOUH HABIB: It was like interrogation and they ask me questions but wasn't really as serious. And they ask me if I know anybody in Afghanistan, if I know anybody terrorists - if I know anything, I say: 'why you ask me this question - have nothing to do with me. I don't know. I haven't been to Afghanistan. And I don't want to answer your questions and if you want to question me, take me back to Australia'." ** The primary judge found (at [99]) that the appellant "genuinely believes that the Australian official who interviewed him in Pakistan was Mr Alistair Adams", a consular official then apparently stationed at the Australian Consulate of the High Commission in Islamabad: see [91]. His Honour concluded the appellant was "confused about the events, [which was] perfectly understandable [because] [h]e was given Mr Adams' card" by Officer 1 during the first Pakistan interview.

[79]

The Amnesty International interview 137 In the course of the Amnesty International interview, the appellant said that when he was taken off the bus by men who it can reasonably be inferred were Pakistani authorities, he was handcuffed, tied up and blindfolded. He was put in a cell two by three metres in dimension. When he was transported anywhere he was blindfolded. He was kept handcuffed and shackled. A few days later he was taken to a smaller cell apparently in a different location with military guarding his cell. He said he could hear people being tortured but he was not "really torture[d], just kicking, no blanket … no food". He said he was not asked questions. 138 It appears that the appellant was then taken to Islamabad. It was there, he said, "they start beating us badly, that's the first beating". The following exchange took place: "Mamdouh Habib: They say to admit we've been dealing with Lashkar-e-Toiba training. We've been beaten and tortured for this to sign … Question: But they had beaten you? Mamdouh Habib: Yeah, badly …". 139 At a later stage when he appears to have been referring to being taken to be interviewed for the first of the Pakistan interviews, he said he was "shackled … handcuffed and blindfolded until we got in the building …". 140 He said he told the person he believed to be Alastair Adams: "Listen why am I here? You told me you come to help me, what's this paper, what are you talking about? I haven't been arrested, I've been kidnapped, I've been tortured. How come you come to tell me you come in to help me. You should take my hand and take me out of here. These people are criminal, they kidnap me. I'm Australian citizen, I shouldn't be here. He said 'Listen, Mr Habib, I have nothing to do with you, completely nothing to do with you. American, since September 11, they decide to take any one citizen whatever they like and you not Australian anymore …". 141 At the end of the interview the appellant said he was blindfolded again and taken back to gaol. 142 The respondent relied on a passage in the Amnesty International interview in which the appellant explained where he had met the two Germans with whom he was detained as evidence of the falsity of his statement in the Guantanamo Bay interview that he had met them in Afghanistan. It is sufficient to set out the passage to which the primary judge referred (at [142]) in upholding that submission: "Question: Tell us what happened, ah, when you were first detained, so talking about the arrest, who arrested you, exactly what happened that first moment that you were picked up? Mamdouh Habib: I'm not calling arrest, first I call that I was kidnapped. I was in Pakistan in the travel agent to book in for the way back home. I met with two German guys….". . 143 The respondent relied on the following exchange place during the Amnesty International interview as evidence of the substantial truth of the fourth claim. The appellant was being asked about what happened during the second Pakistan interview. "Question: So this is for your second interview? Mamdouh Habib: Yes. Alistair Adam he was sitting like Maha and the female was on my left side. I remember, like now, the two American, the guy - old man he was right in front of me. He doesn't talk much. They always talk the Egyptian woman. She was very rude, very, very rude. Question: The American woman who spoke Egyptian? Mamdouh Habib: Yes, the Egyptian one. And I was rude too and what Alistair Adam told me, he told me 'Listen Habib, you want to go back to Australia you can decide or maybe we send you to Egypt.' Question: So they told you then? Mamdouh Habib: Yeah. 'If you cooperate with American because now you're not citizen. Maybe if American you deal with American maybe they give you citizen, they send you back to Australia. If you deal with American, I have nothing to do with this, you will be maybe, maybe American decide to send you Australia. If American is not happy with you that's it and I just tell you just help yourself with American.' I said 'Listen, I'm Australian, I am from Australia. I never been in Egypt since I come in Australia. I have not hold any citizen Egyptian anymore since I've been in Australia. I have nothing to do with Egypt and if you don't want to help me, that's it, but I'm not going to talk with any American….'".

[89]

No lawyer was present for the Plaintiff." 149 No objection was taken to the admission of the 60 Minutes programme. The transcript of the Dateline interview was objected to but only on the basis that the appellant's "first language is Arabic and his understanding of English is deficient" and that "the interview has been edited with parts left out". 150 No objection was taken to the transcript of the Amnesty International interview, but objection was taken to the audio-visual record of that interview on the basis that it had been "edited with parts left out". 151 At the outset of the trial, when the primary judge was seeking to ascertain how the hearing would be managed, he raised with Mr Evatt the issue of the defendant's proposed tender of various documents. It was clear that his Honour understood at that stage that the appellant sought to challenge the admissibility of those documents on the basis that "some of it was obtained in breach of relevant rights", to which Mr Evatt responded, "under duress laws even while drugged" [sic, as in original]. His Honour then enquired whether Mr Evatt would call the appellant to which the response was "on the voir dire only". 152 In response to the primary judge's question as to whether there would have to be eight separate voir dires (presumably in relation to each document/audio-visual record the respondent sought to tender), Mr Evatt responded, in substance, that there were only "three relevant cases". He continued, relevantly, to identify documents 13, 14, and 16 as going to the three interviews in Islamabad and Pakistan and document 20 as going to the interviews in Guantanamo Bay. 153 Mr Evatt also referred to documents 3 and 4 which appear to relate to interviews in 1999, but we do not understand to relate to any issue on the appeal. He then said: "So it is proposed that the plaintiff will give evidence he was tortured and drugged during the interview in Guantanamo Bay and your Honour might not have much trouble in finding that because right throughout that interview there are references to being tortured and drugged. So the plaintiff would have to give evidence on the voir dire. The three Islamabad, he would just give the one piece of evidence on the voir dire, that he was tortured during the three interviews ….". 154 Mr Evatt repeated the assertion in relation to the Guantanamo Bay interview, that the appellant alleged he was "tortured and drugged before that interview and possibly during that interview" and asserted that those matters emerged from reading the transcript as well as on the voir dire. Mr Evatt asserted that it was apparent from the transcript of the interview where, apparently, the interviewers said "you're under the influence of drugs" or "you are sick". 155 Mr Leopold raised the issue in relation to s 84 that there was "a question of causation or influence built into the section which makes it necessary to look at the particular parts and the particular conduct and see if there is any substantial connection between the two". 156 During the debate which preceded the commencement of the voir dire, Mr Leopold complained about what he described as the "vagueness of the objections" to the various interviews. 157 Two DVDs and a transcript of the Amnesty International interview were admitted without objection in the respondent's case. The Dateline interview was also tendered without objection. 158 When the respondent sought to tender the Guantanamo Bay interview (the audio tapes and transcript), Mr Evatt complained on the basis that the interview fell foul of s 84, s 135 and s 138 of the Evidence Act and their admissibility was an issue to be determined on the voir dire: in particular he said: "But the plaintiff was shackled by chains to the floor, was drugged, was tortured before and during the interview." 159 When the respondent sought to tender the three Pakistan interviews, Mr Leopold made it clear that he apprehended the objection to those was based on s 84 and s 135 and that would have to be dealt with on the voir dire. At this stage he again alluded to his complaint about the vagueness of the objections, and the approach that he was apparently going to learn of the particulars of the objections during the voir dire. Mr Evatt said: "It's 'torture' and 'degradation'", while the primary judge said: "I've got three words: 'shackled', 'degraded' and 'tortured'. I think we know the territory. I'm not troubled by it". 160 The appellant's voir dire evidence concluded on the fifth day of the trial, 4 December 2007. On the eighth day, 7 December 2007, Mr Leopold started cross-examining the appellant in respect of matters not the subject of the voir dire objections. However in the course of that cross-examination he sought to play the audiotape of the Guantanamo Bay interview to the appellant. Mr Evatt objected on the basis the primary judge had not ruled on whether the interview was admissible. Mr Leopold then proposed that any questions he asked in respect of the Pakistan and Guantanamo Bay interviews should be treated as having been objected to by Mr Evatt "on that basis" - that being presumably any basis on which Mr Evatt had objected to the admissibility of those interviews - so that if the primary judge ultimately ruled the interviews were inadmissible, the question he had asked would be inadmissible. Mr Evatt then clarified that, having regard to Mr Leopold's submission, he did not need to take that objection again, a proposition the primary judge accepted. 161 In the course of the cross-examination, Mr Leopold asked the appellant questions about the Dateline interview and, in particular, his statement during that interview about what he had told his interrogators in Pakistan. The cross-examination then moved directly to what he had said to those interrogators about having been in Afghanistan: "Q. You knew when you said to the people in Islamabad in October 2001 "I haven't been to Afghanistan" that you were making a false claim to them about that, didn't you? A. No, no. Q. What, you believed you hadn't been in Afghanistan, did you? A. I told them I haven't been in Afghanistan because what I been through was I haven't been in Afghanistan, what I been through, what they going to do to me, what are they going to do to me if I told them I been in Afghanistan. … Q. When you said those words to those people in Islamabad, namely that 'I haven't been in Afghanistan' you knew that to be false, didn't you? A. No. Q. Are you saying you thought it was true, that you haven't been to Afghanistan? A. I have been in Afghanistan. Q. You knew it to be false to say to them 'I haven't been in Afghanistan', didn't you? A. No. Q. How can you say that Mr Habib? A. Because I am not saying, everything I seen it is not real, this people try to kill me, people trying to anything against me, I can't say legal people front of me to tell them truth or not truth, you know are these people after. Q. They didn't lay a hand on you, did they? A. No, they torture me, they torture me badly, okay, thank you very much, they torture me badly…I been tortured by Pakistani." 162 In re-examination, the following exchange took place: "Q. When you were being questioned in Islamabad you said you had not been to Afghanistan, that's correct? A. That's right. Q. Why did you say that? A. Because what I been through was the Pakistani, I believe definitely these people two way, you are going to kill me or they are going to put me away all my life, I going to be in really serious trouble in my life. Q. Is what you are saying this, that if you said you had been to Afghanistan you would have got into trouble? OBJECTION. LEADING LEOPOLD: It is not in re-examination at all, it is on the voir dire. I should have objected to the first question. It is a question on the voir dire. Leave would have been granted to do that because I was granted leave. HIS HONOUR: Why ask it just on the voir dire? LEOPOLD: It doesn't go to the facts of whether the statement was made. HIS HONOUR: It goes to credit. LEOPOLD: The question is leading and I object to it. EVATT: I agree with leading, I must admit, I don't dispute that. Q. Could you answer this question: what was your belief as to what would have happened if you had said you had been to Afghanistan? A. As I said, two way, they kill me or they going to harm me badly." 163 It is this exchange which Mr Smark submits should be treated as if it had been subject to the s 84 objection, and hence as if given on the voir dire. 164 On the twelfth day of the trial, Mr Evatt informed the primary judge that the only part of the Pakistan interviews he asked be ruled inadmissible was the appellant's statement that he had not been to Afghanistan. 165 In his written submissions at trial on the admissibility of the Pakistan interviews, Mr Evatt made the following points: "4. Admissibility of the Islamabad Interviews The Pakistani Government (Security Official) was present at each interview. This would have had the effect of intimidating the Plaintiff or putting pressure on him. Although the Plaintiff was given a business card from Alastar [sic] Adams and a list of lawyers, no arrangements were made for him to contact Mr Adams or contact any lawyers. The Plaintiff was therefore deprived of legal advice during the interviews. It is obvious from the evidence of Officer 3 that the Plaintiff wanted to be repatriated and to be put in touch with his wife and family. No cautions or warnings were given to the Plaintiff as to the use of what he said at the interviews. At the second and third interviews after the break the Plaintiff was seen having difficulty in walking. The Plaintiff said he was tortured and drugged in Islamabad and Officer 3 admitted that Pakistani officials had a reputation for harsh treatment of at least political prisoners. At the time (after 11 September 2001) persons leaving Afghanistan for Pakistan were arrested or interrogated. The Plaintiff felt he was constrained from speaking openly and did not admit going to Afghanistan because of fear of retribution. The interviews should not be allowed in evidence pursuant to Sections 84 and 138. This is because at the least any admissions made by the Plaintiff were influenced by oppressive conduct." 166 Insofar as the Guantanamo Bay interview was concerned, the written submissions stated:

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"5. 15 May 2002 Interview at Guantanamo Bay This interview is critical for the Defendant as virtually all the surviving particulars of truth depend on the admissibility of the Plaintiffs statements at that interview. The Plaintiff says he had been beaten, tortured and drugged certainly prior to the interview. No caution or warning was given by the Australian Federal Police Officer and the Plaintiff was shackled in chains which could be heard frequently in the audio recording. All the Plaintiff wanted to do was to be released and put in touch with his wife and family. It could be inferred he would say anything he thought would please the interrogators to achieve this purpose. Mr Jabbour says the interview lasted just over 4 hours. However VD2 and VD4 would indicate there was an interview lasting 13-15 hours. VD4 comprising the ASIO notes of the interview seems to refer to the same material and allegations made by the Plaintiff in the transcript of Mr Jabbour's affidavit. In any event whether 4 hours or 15 hours the interviews were too long. VD2 corroborates the torture and physical maltreatment of the Plaintiff right up to and including the 15 May 2002 interview. He had been tortured for 7 months in Egypt and suffered injury at Guantanamo Bay when he 'fell out of his bed'. There is a report that David Hicks saw the Plaintiff lying on his bunk bruised. The interview should not be admitted in evidence." 167 Mr Evatt expanded on those written submissions in oral address. It is sufficient to set out the key points of what he said in response to the primary judge's query as to why the Pakistan interviews were not admissible. Mr Evatt complained that, in the first place, none of the interviews was an actual record but, rather, Officer 1's recollection of what was said. Next, he pointed out the interview was conducted in the presence of the appellant's gaoler, the Pakistani Government official and, too, that American CIA agents were present at at least one or two of the interviews. 168 Mr Evatt submitted that the evidence supported the proposition that the appellant's evidence was that he was "treated badly by the Pakistanis, he was beaten and tortured." He pointed out that: "… even Officer 1 admitted that the Pakistanis had a reputation of hard treatment of prisoners and all the plaintiff wanted was to get out, to be released, to get in touch with his wife and children … . Contrary to the provisions of s 84 we submit that the interview was oppressive, or the three interrogations were oppressive." 169 Pressed again by the primary judge as to the reason for this submission Mr Evatt again referred to the presence of the Pakistani official. He then said: "He is asked questions as to whether he had been in Afghanistan, Officer 1 gave evidence that persons who had been in Afghanistan and were crossing the border into Pakistan were arrested and interrogated after September 11. There was this atmosphere of arresting and interrogating persons who came from Afghanistan into Pakistan and yet they asked the plaintiff whether he had been in Afghanistan and he said he wanted to speak to the officer alone and the officer wouldn't even make any attempt to let him speak to him alone …". 170 There was then a debate between Mr Evatt and his Honour about how the s 84 issue was to be approached. 171 In the course of his address, Mr Evatt pointed out that the appellant's statement during the Dateline interview amounted to him recounting to the interviewer what had happened when he was interrogated by Officer 1, not making an independent assertion that "he had not been in Afghanistan", as the particulars of truth in the second further amended defence asserted (par 21.2(dm)). Mr Evatt made substantially the same submission concerning the Amnesty International interview, namely, again, that the appellant was recounting what he told those in Pakistan rather than making a fresh assertion. He submitted that merely recounting an earlier statement could not be a false claim. 172 Mr Evatt also submitted during final addresses that it was because the appellant's request to speak to Officer 1 alone was refused that he said he had not been in Afghanistan. He argued that that statement was made because of an implied threat that if he admitted to having travelled to Afghanistan, the Pakistan authorities would deal him with harshly. He contended that that implied threat invoked s 84(1)(b). He reiterated that the appellant was in "fear of retribution if he admits going to Afghanistan". He added "mind you we say it [sic, he] was drugged and everything" then pointed to the contrasting situation in Guantanamo Bay where, when there were no Pakistan officials present, the appellant admitted he had been in Afghanistan. 173 In the course of his submissions about Guantanamo Bay, Mr Evatt drew the primary judge's attention to the physical restraint on the appellant in the form of shackles and chains, the dimensions of the cell in which he was detained ("one metre by one and a half metres"), and the fact that the appellant was restrained while he was questioned. He made those submissions by reference to the report apparently prepared by the Australian officials who visited Guantanamo Bay and intended for distribution in Australia to among others, the Prime Minister, the Foreign Minister, the Defence Minister, the Attorney-General and sundry other Commonwealth authorities which the primary judge substantially reproduced (at [76] - [81]) insofar as it concerned the appellant. However, we note that while the primary judge recorded the officers as having reported that each detainee was held in a cell about two and a half metres by three metres in size, those officers also reported that, as Mr Evatt submitted, there was only about one metre by one and a half metres of walking space in each cell. The Guantanamo Bay detainees were kept in the cells for all but two 15-minute periods a week when they were permitted to exercise. 174 Mr Evatt's oral summary at trial of the case in relation to Guantanamo Bay was somewhat disjointed. He referred to the shackles the appellant was required to wear, to the fact that a Mr Jabbour, apparently one of those who interviewed the appellant in Guantanamo Bay, said he suspected him of committing offences under Australian law and that he was going to send the record of interview to the Director of Public Prosecutions for possible prosecution. He pointed out that there was no caution, no warning and no lawyer while the appellant was "saying throughout that he wanted to get out and go home". He reminded the primary judge that the respondent bore the onus of showing that the interview was not oppressive. He pointed out that by failing to give the appellant a caution or access to a lawyer the Australian officials were conveying the impression that he should "cooperate or else". He also drew attention to the fact that the appellant had been tortured severely for seven months prior to his arrival in Guantanamo Bay eight days earlier and that he "would be a wreck". LEGAL PRINCIPLES

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Section 84 - admissions 175 We have set out the definition of "admission" at [23] above. The respondent did not dispute that the statements in the Pakistan and Guantanamo Bay interviews fell within that definition. We note that it might be argued that the statements in the Pakistan interviews at least were exculpatory. There is a debate as to whether, without a definition such as that found in the Dictionary to the Evidence Act, an exculpatory statement can constitute an admission: see Kelly v R [2004] HCA 12; (2004) 218 CLR 216 (at [21]). However, in R v Horton (1998) 45 NSWLR 426 (at 437 - 438) Wood CJ at CL (Sully and Ireland JJ agreeing) held that the Dictionary definition of "admission" was wide enough to include "any form of representation, whether by conduct or by oral or written statement, so long as it is 'adverse to the (maker's) interest in the outcome of the proceedings'" and thus sufficiently wide to encompass both inculpatory and exculpatory statements. The same conclusion was reached in R v Duff (unreported, New South Wales Court of Criminal Appeal, 17 September 1998) per Sully and Greg James JJ, Sperling J contra; R v Esposito (1998) 45 NSWLR 442 (at 458) per Wood CJ at CL (Bruce James J agreeing); R v Fernando [1999] NSWCCA 66 (at [93]). In any event neither party challenges Horton and it is unnecessary further to consider the point: Kelly (at [21]). Section 84 - relevance of the common law 176 The Evidence Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which it applies, except so far as the Act provides otherwise expressly or by necessary intendment: s 9. 177 Despite s 9, views differ about the extent to which recourse can be had to common law concepts of evidence in areas now dealt with by the Evidence Act. In Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 (at [10], [39] - [40]) Gleeson CJ and Hayne J (Gaudron and Kirby JJ agreeing) observed that it was "clear from the language of the [Evidence] Act, and from its legislative history, that it was intended to make, and that it has made, substantial changes to the law of evidence in New South Wales". Having regard to s 9 and the fact that the provisions of the Act with which Papakosmas was concerned had made express provision different from the common law, in their Honours' view it was the language of the Act which determined how the challenged evidence was to be treated. Their Honours rejected an argument that the meaning and effect of that language, properly understood, was to be determined in the light of, and in a manner that conformed to, the pre-existing common law. Nevertheless they thought it was necessary, in order to deal with that argument to refer to the position at common law. Gaudron and Kirby JJ, in addition to agreeing with Gleeson CJ and Hayne J, said (at [51]): "that is not to say that the common law cannot provide guidance on the issue". McHugh J observed (at [88]) that the Act had "made substantial changes to the law of evidence" and "[n]otwithstanding s 9, reference to pre-existing common law concepts will often be unhelpful". 178 The Evidence Act replaced the common law on confessions with "a wholly restructured system": Tofilau v R; Marks v R; Hill v R; Clarke v R [2007] HCA 39; (2007) 231 CLR 396 (at [322(d)]) per Callinan, Heydon and Crennan JJ. The effect of s 56, which appears in Chapter 3 dealing with admissibility of evidence (in which s 84 appears) and which states that "[e]xcept as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding", is that relevant provisions of the Act apply to the exclusion of inconsistent principles of the common law concerning admissibility: see Telstra Corp Ltd v Australis Media Holdings (No 2) (1997) 41 NSWLR 346 (at 349) per McLelland CJ in Eq; Gattellaro v Westpac Banking Corporation [2004] HCA 6; (2004) 78 ALJR 394 (at [17]); McNeill v The Queen [2008] FCAFC 80; (2008) 168 FCR 198 (at [60] - [62]) (special leave refused: McNeil v R [2008] HCATrans 383). 179 Nevertheless "the modern approach to statutory interpretation (a) insists that the context be considered in the first instance… and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy": CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 (at 408) per Brennan CJ, Dawson, Toohey and Gummow JJ; see also Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 (at 341) per Mason A-CJ, Wilson and Dawson JJ; Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290 (at [30]) per McHugh J. In Telstra (at 350), for example, McLelland CJ in Eq had regard to the reports of the Australian Law Reform Commission ("ALRC") which preceded the enactment of the Evidence Act, although he concluded that they provided little assistance. 180 In our view it is appropriate to make some reference to the common law position concerning the admissibility of confessions to set the enactment of s 84 in context.

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Admissibility of confessions at common law 181 At common law, evidence of a confession could not be received against an accused person unless it was shown to be voluntary. A statement was made voluntarily when "it has been made in the exercise of [a person's] free choice". However, if a person confessed to a crime because his will was overborne his confession could not be admitted into evidence. It did not matter by what means he was overborne: "[i]f his statement was the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it [could not] be voluntary": McDermott v R [1948] HCA 23; (1948) 76 CLR 501 (at 511) per Dixon J; Tofilau (at [6]) per Gleeson CJ. 182 Voluntariness was not an issue to be determined by reference to some hypothetical standard, but required a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused: Collins v R (1980) 31 ALR 257 (at 307) per Brennan J. 183 The rule that a confession must be made voluntarily before evidence may be given of it is described as "basal voluntariness". It is derived from common law principles under which "voluntariness was used as the touchstone of reliability": Tofilau (at [47]) per Gummow and Hayne JJ; (at [122]) per Kirby J; (at [325] ff) per Callinan, Heydon and Crennan JJ. As Callinan, Heydon and Crennan JJ explained (at [275], footnotes omitted): "The ground initially given for rejecting induced confessions in R v Warickshall was unreliability. But the inquiry did not turn on whether in the particular circumstances of a given case a confession was unreliable. Once an inducement was made out - and the decisions on that question were lenient to the accused - the confession was automatically excluded without further inquiry into the likelihood of its being untrue. Thus in 1783 Hotham B said: 'It is almost impossible to be too careful ... Too great a chastity cannot be preserved on this subject' ". (emphasis added) Their Honours were using the concept of "inducement" in the context of what they described as the inducement rule: "an admission by an accused person 'is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed' " (at [245]). 184 Thus it is said that involuntary statements are "inadmissible not because the law presumes them to be untrue, but because of the danger that they might be unreliable [a] rationale [which] trenches on considerations of fairness to the accused": R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159 (at [74]) per Toohey, Gaudron and Gummow JJ. 185 In Tofilau, Gummow and Hayne JJ pointed out (footnotes omitted): "[53] When one turns to the common law respecting the inadmissibility of some confessional statements, it must first be said that the common law tests of voluntariness have never required a subjective inquiry into the mind of the confessionalist to determine why it was that he or she made the statement of which evidence is to be given. Rather, subject to what later is said about the discretion to reject confessional evidence, the common law rules have sought to operate by excluding evidence from consideration of the tribunal of fact that is deemed so unreliable as a class that it should not be available for consideration. The exclusionary effect of the rules is important . Although it is for the prosecution to demonstrate that a confession was made voluntarily before it becomes admissible, the rules are essentially exclusionary in character . The rules deal only with the admissibility of evidence of out-of-court confessional statements. If the evidence is admitted, it remains open for the confessionalist to argue, and for the tribunal of fact to accept, that, even if the statement was made, it is not reliable. [54] To the extent to which questions of fairness are distinct from reliability, and to the extent to which questions of controlling police conduct and methods are relevant, they are best dealt with under the discretion. Questions of basal voluntariness are to be understood as informed only by considerations of reliability of the evidence concerned. Do the circumstances in which the evidence was obtained fall into the category of cases which the law classifies as so likely to produce unreliable evidence that the evidence should be excluded from consideration by the tribunal of fact?" (emphasis added) 186 Their Honours (at [55]) described Dixon J's reasons in McDermott v The King, as "the authoritative statement of the common law of Australia on the admissibility of confessions". Dixon J explained in McDermott (at 511) the requirement that a confession be voluntary in the following terms: "This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary…" 187 Gummow and Hayne JJ remarked (Tofilau, at [56]) on the evident similarities between Dixon J's statement of the applicable rules and the following passage from the first edition of Best on Evidence (Best, A Treatise on the Principles of Evidence and Practice as to Proofs in Courts of Common Law (1849), 418 - 419) (see Tofilau, (at [37])): "Self-disserving evidence is not always receivable in criminal cases, as it is in civil. There is this condition precedent to its admissibility, that the party against whom it is adduced must be shown to have supplied it voluntarily, or at least freely ... [T]he law on the subject as it stands at present is merely that every confession or criminative statement of any kind, which either has been extracted by any species of physical torture, coercion, or duress of imprisonment; or been made in consequence of inducements held out to the accused, by any person in whose custody he is, or who has any lawful authority, judicial or otherwise, over his person or the charge against him, ought to be rejected." (emphasis added)

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As their Honours explained ( Tofilau , at [58]) the "criteria that … found the legal conclusion that a confession was not made 'voluntarily'… [a]ll are species of compulsion". 188 Gummow and Hayne JJ (Tofilau, at [59]) distinguished cases of statements preceded by an inducement held out by a person in authority from confessions in which a person in authority has so acted as to engage the principle of basal voluntariness. In the latter case, they pointed out "if a person in authority subjects a suspect to coercion, whether by threats of violence or other intimidatory acts, the rule excluding a confession made to a person in authority in response to an inducement is readily applied". In cases of confessions made under compulsion their Honours said (at [60], footnotes omitted): " The key inquiry is about the quality of the compulsion that is said to have overborne the free choice of whether to speak or to remain silent. In this context, 'overborne' should be understood in the sense described by Dixon J as 'the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure'. It is necessary to focus upon the sufficiency of the compulsion ." (emphasis added) 189 Callinan, Heydon and Crennan JJ also pointed out (Tofilau, at [287]) that the traditional English approach to excluding confessions eschewed "an inquiry into the accused's mental processes … in order to examine whether the inducement did stimulate the flattery of hope or the torture of fear, and whether it was the flattery or the torture, as distinct from some other cause, which forced the confession from the accused's mind". The consequence was (footnotes omitted): "…that very small inducements were fatal… A small selection from a huge field of examples would include: 'It will be the right thing ... to make a clean breast of it'; 'I think it might be better if you made a statement and told me exactly what happened'; 'Put your cards on the table. Tell them the lot'; 'You had better tell the truth' ". 190 Callinan, Heydon and Crennan JJ examined (at [329] ff) what constituted oppression under English common law. In R v Priestley (1965) 51 Cr App R 1, Sachs J described it as "something which tends to sap, and has sapped, that free will which must exist before a confession is voluntary", a description which accords with Dixon J's statement in McDermott of confessions made by a person whose will was overborne of which he gave non-exhaustive illustrations: Tofilau (at [330] - [331], [364]). 191 At common law it is not necessary, before a statement is held to be inadmissible because it is not shown to have been voluntary, that the relevant impropriety be found in the conduct of the person to whom the statement was made. Rather, what has to be considered, is whether the statement is shown to have been voluntary: DPP v Ping Lin [1976] AC 574 (at 594) per Lord Morris of Borth-y-Gest (Lord Wilberforce agreeing) and (at 602) Lord Hailsham. As was explained in R v Bertrand [2008] VSCA 182; (2008) 20 VR 222 (at [50]), Lin emphasised that the question of the admissibility of a confession turned on the application of common sense, and the recognition "that the main reason for receiving a confession was that if made freely, it was very probably true." Thus it would be sufficient, in accordance with Lin, to reject a confession if it was elicited after the accused had been subjected to relevant oppressive conduct, even if those to whom the confession was made were not complicit in that conduct, as long as the court could conclude the conduct was a cause of the confession being made. 192 Burut v Public Prosecutor [1995] 2 AC 579 (Privy Council) is a decision to like effect. The accused were suspected of a firearms offence (which was a capital offence) and in accordance with a "special procedure" for such cases, were manacled and hooded during some of their interviews. However, they made their confessions, not during those interviews, but in interviews during which they had not been manacled or hooded. At their trial the accused contended that their statements were inadmissible under s 117 of the Criminal Procedure Code of the Laws of Brunei (Cap 7) because in the circumstances in which they were obtained the prosecution would not be able to satisfy the court, as it was required to do under s 117(2), that "the statement was voluntary, that is to say that it was not obtained by violence, inducement, threat or oppression by a person in authority". The accused did not give evidence on the voir dire conducted to determine the admissibility of the confessions. Lord Steyn, who delivered the advice of their Lordships, held (at 593): "For the police to interview an arrested person while he is manacled and hooded is plainly oppressive conduct calculated to sap the will of the person being interviewed." 193 Lord Steyn then turned to the question whether the confessions were "obtained by … oppression". He emphasised that an inference could be drawn from the circumstances of the oppressive conduct, that the confessions may have been obtained by oppression, saying (at 593): "In the gaps between the application of the 'special procedure' and the signing of the written statements the appellants were questioned by police officers. As their Lordships have observed virtually nothing is known about those interviews. Moreover, during those gaps the appellants remained deprived of visits of relatives. Nothing had happened to remove the implied threat of further sessions subject to the 'special procedure.' The trial court misdirected itself by finding that in the absence of oral evidence from the appellants on the voir dire there was no evidence that the statements were obtained by oppression. Even without evidence from the appellants the very nature of the 'special procedure,' and the relatively short gaps between the application of the 'special procedure' and the taking of the statements, inferentially suggested that the statements were, or may have been, obtained by oppression. In these circumstances their Lordships are free to depart from the findings of fact of the trial court. The correct conclusion is that, against the background of the 'special procedure,' the prosecution upon whom the burden rested failed to prove to the requisite standard that the statements were not obtained by oppression. It follows that the trial court should have ruled all the written statements inadmissible." (emphasis added) 194 In R v Thomas [2006] VSCA 165; (2006) 14 VR 475 (at [83]), the Court of Appeal (Maxwell P, Buchanan and Vincent JJA) also took the view that the question of voluntariness was to be determined by assessing whether any relevant impropriety was likely to have been operating upon the mind of the accused at the time he was interviewed. In Thomas, the accused was arrested in Pakistan, held by Pakistani authorities for two months in solitary confinement and interviewed by Pakistani authorities and on six occasions by members of a joint team of Australian Federal Police and ASIO officers. In holding statements he made should have been ruled to be inadmissible at trial, the Court said: "91 What is important is whether the applicant could, in any real sense, be said to have had a free choice to speak or remain silent. In our view, the Judge fell into error by divorcing the interview from the context in which it occurred, a context which his Honour found operated on the will of the applicant. It is necessary, when considering the admissibility of an inculpatory statement made by a person in the course of a police interview, to bear in mind that evidence of this kind differs from most other forms of evidence. The most obvious difference, which has long been identified and to a large extent underlies the principles governing the admissibility of such evidence, is that the evidence comes into existence at the time of the interview and is a product not only of the interview itself but of many factors, both external and personal to the maker. Whether or not an individual decides to speak or remain silent, and the content and form of any statement made, will inevitably be influenced by his perception of the situation in which he is placed at that time ." (emphasis added) 195 The Court concluded (at [92]), that "[w]hile nothing occurred in the interview itself that could be seen to overbear the will of the applicant, there can be little doubt he was, at that time, subject to externally-imposed pressure of a kind calculated to overbear his will and thereby restrict, in a practical sense, his available choices and the manner of their exercise" and (at [94]) that "[a]dmissions made in the circumstances we have described could not, in our view, be held to be voluntary". Section 84 - legislative history 196 The Evidence Act derives from an extensive inquiry into the laws of evidence conducted by the ALRC. The ALRC's Interim Report on Evidence (ALRC, Interim Report on Evidence (1985) No 26, Vol 1, at pars 752-766) noted many criticisms of the voluntariness rule, one of which was that it attempted to address both reliability and public interest concerns but failed adequately to distinguish between them (at par 965). 197 Clause 71 in the draft Evidence Bill attached to the Interim Report (Vol 2, at 40), included the presumption against admissibility contained in the present s 84: "71. Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by violent, oppressive, inhuman or degrading conduct, whether toward the person who made the admission or toward some other person, or by a threat of conduct of that kind" 198 The ALRC explained the philosophy behind the proposal as follows (Vol 1, at par 765): "Techniques which are perceived as particularly likely to substantially impair the mental freedom of a suspect may be prohibited, and any evidence produced as a result of them excluded. If interrogators engage in acts of violence, threats of violence, torture or inhuman, degrading or oppressive conduct, then an admission made subsequent to such conduct may be untrue, regardless of the characteristics of the suspect being interrogated." 199 The Evidence Act was based on the draft Evidence Bill attached to the ALRC's Final Report on Evidence (1987) No 38, Vol 1. Section 84(1) was cl 72 of the draft bill. The ALRC observed in relation to that clause (Summary of Recommendations, at par 34): "34. Violence and admissions . Evidence of an admission should be excluded where it was influenced by violence to any person. It should not be necessary to establish a causal link between the violence and the admission (para 154(a); Bill, cl72)." 200 Paragraph 154(a) stated: "154. Interim Report proposals. Some exclusionary rules were proposed. Two of these proposals were to apply in both civil and criminal proceedings. (a) Violence and admissions. Evidence of an admission should be excluded unless the court is satisfied that the admission was not influenced by violent, aggressive, inhuman or degrading conduct to any person…." 201 The Final Report on Evidence dealt with deficiencies of the common law voluntariness rule. It observed (at [156], footnotes omitted): "● There is also a vast body of technical and unclear law dealing with the admissibility of a confession induced by threats or promises by a person in authority. Fine distinctions have been drawn. For example, 'Be sure to tell the truth', is not a threat or promise that should exclude a confession but 'It would be better for you to tell the truth' is. It is unclear whether the inducement must actually cause the confession or whether it is sufficient that the inducement preceded the confession and was not removed . The result in practice has been that attention tends to focus on whether the accused was overborne in some way or whether threats or promises were made. In practice, unless the accused can demonstrate that he or she was overborne, or that inducements were offered by a person in authority, the accused will fail to have a court rule a confession involuntary. Thus, while the onus of proving voluntariness is formally on the prosecution, in practice there is a subtle reversal of the onus - it is placed on the accused. This means that, in particular where psychological pressure is relied upon, it is extremely difficult for an attack on a confession on the grounds of involuntariness to be successful. The tendency is to admit rather than the exclude." (emphasis added) 202 The Final Report (at [157]) noted that an attempt was made to address a number of these criticisms, but in the end found that not to be possible and the decision was made to adopt the Interim Report approach. 203 In June 1988, the New South Wales Law Reform Commission released its Report on Evidence (June 1988) No 56, in which it adopted without amendment most of the ALRC's proposed Evidence Bill including cl 72. 204 In 1991, the New South Wales Attorney General introduced the Evidence Bill 1991 into the Legislative Council for the purpose of exposing it for public consideration and comment, based "substantially upon the recommendations of the Australian Law Reform Commission and the New South Wales Law Reform Commission": New South Wales Legislative Council, Parliamentary Debates (Hansard), 20 March 1991 (at 1436). 205 The Commonwealth followed suit, introducing its own exposure draft into the Federal Parliament in October 1991: Evidence Bill 1991 (Cth). In August 1993 a further exposure draft bill was introduced in New South Wales to obtain further comments. These exposure drafts made no significant alterations to cl 72 in the ALRC draft Evidence Bill. 206 The final Commonwealth Evidence Bill was introduced in the House of Representatives in December 1993. It represented a text which was agreed between New South Wales and the Commonwealth, taking into account comments made on the New South Wales exposure draft. Relevantly, it added a new subsection to cl 72 of the ALRC draft Evidence Bill, in the terms of s 84(2). Nothing in the Explanatory Memorandum to the Evidence Bill 1993 (Cth), or the Second Reading Speech, explains the genesis of this development. 207 In the Second Reading Speech for the Evidence Bill, the Minister for Justice, the Hon J W Shaw MLC noted that one of the aims of the Bill was to combine the "primary objectives of the volunteering rule - maximising the probability of the truth of the admission and the preservation of the rights of the individual suspect": New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 May 1995, at 116.

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Section 84 - raising the issue 208 At common law once an objection was taken to the admissibility of a confession on the basis that it was not voluntarily made, the proper course was for the judge to hear evidence on the voir dire in the absence of the jury as to the circumstances in which the confession was made: MacPherson v R [1981] HCA 46; (1981) 147 CLR 512 (at 520) per Gibbs CJ and Wilson J; (at 532) per Mason J. 209 MacPherson involved an unrepresented accused who cross-examined the police to suggest they had threatened him to induce him to confess. No voir dire was conducted to determine the admissibility of his confession. Gibbs CJ and Wilson J held (at 523) that a primary judge had to hold a voir dire once it appeared "there [was] a real question as to the voluntariness of a confession", even if the accused had not sought one. They did not elaborate on the standard for determining whether there was "a real question". They emphasised that it was "the duty of the judge … to ensure that the confession is not admitted until the fact that it was voluntary has been established". 210 In considering the question whether the trial judge had a discretion to grant or refuse a voir dire examination in order to determine the voluntariness of a confession, Mason J referred with approval to Ex parte Hamilton; re Fagan [1966] 2 NSWR 732. In that case Collins J held (at 734) that if an accused raised the issue of the voluntariness of an admission of guilt by objecting to the prosecution tendering the evidence, the court was required "to proceed to an inquiry of the issue thus raised". 211 Brennan J was also clearly of the view that once the accused objected to the admissibility of the confession, it was incumbent on the trial judge to hold a voir dire to determine the issue of voluntariness: MacPherson (at 545). He referred (at 547) with approval to Ajodha v The State; Chandree v The State [1982] AC 204 in which the Privy Council held that it was sufficient to raise the issue of involuntariness and to require the safeguard of a judicial ruling, that the accused did not give evidence but raised the issue of voluntariness for judicial decision only in cross-examination of prosecution witnesses and later in an unsworn statement from the dock. 212 The respondent cited three authorities in support of its submission that in order to enliven s 84, the appellant had to adduce evidence that the relevant admission was "influenced by" s 84(1) conduct. In his oral submissions Mr Leopold argued that the appellant had to establish a causal nexus between the making of the admission and the conduct. He argued the appellant gave no such evidence, with the exception of his evidence in re-examination which he contended the primary judge properly held (at [63]) did not fall within s 84(2) because it was evidence of a fear of lawful punishment. 213 The first authority was R v Douglas [2000] NSWCCA 275 (at [61]). In that case, the trial judge rejected the only ground on which the accused sought to have two ERISP interviews excluded, namely statements by the police that they would look after his wife if he participated. On appeal counsel sought to argue the trial judge erred in not excluding the ERISPs on the basis that the police had refused to permit the accused to have access to a lawyer (the "incommunicado conversation"): Douglas (at [43]). Mason P (Sully and Sperling JJ agreeing) said (at [59]) that "s 84(1) did not require the rejection of the Penrith ERISPs [because] [t]he incommunicado conversation was not relied upon below as 'violent, oppressive, inhuman or degrading conduct' let alone conduct that led to the confessions." He said, in the passage upon which the respondent relied: "[61] Had there been any suggestion at trial that the incommunicado conversation had been the cause of the appellant breaking down I would have been concerned about the absence of findings about precisely what was said, the appellant's perception of what … [the detective] said and its causative impact. Non sequitur that I would have found that the trial miscarried. But the critical points are that there was nothing to support the submission that the discussion 'influenced' the appellant to confess; and that the case was not run this way at trial ." (emphasis added) 214 In our view, Mason P's statements about the causative impact of any statements by the detective were not intended to identify a test the accused had to satisfy for the purposes of s 84(2). They were made in the context of explaining the accused's failure to put at trial the case he sought to argue on appeal. It was clear a s 84 issue had been "raised", but on a different basis to that advanced on appeal. Moreover, even if Mason P's statement could be read as directed to s 84(2), the expression he used was "any suggestion … the incommunicado conversation had been the cause of the appellant breaking down". It is not clear whether his Honour was directing attention to an evidentiary onus, or the fact counsel had not conducted the trial in the manner relied upon on appeal. In any event, when his Honour identified what he said were the critical points, as to the first, he merely repeated the verb "influenced" which appears in both limbs of s 84. 215 The second case the respondent relied upon was R v GH [2000] FCA 1618; (2000) 105 FCR 419. The facts and issues appear from the headnote. GH was tried for conspiring to pervert the course of justice. The trial judge found, for the purpose of ruling under s 84(1) of the Evidence Act 1995 (Cth) (which is in identical terms to s 84 of the New South Wales Evidence Act) that GH was threatened by persons named as co-conspirators that unless he submitted to punishment by gunshot wound he would be killed. GH submitted. He twice stated to police that he had accidentally shot himself. The Crown case was that GH agreed with the other persons to make the statements to prevent the others from being brought to justice. The Crown sought to have evidence of the statements admitted as overt acts going to prove the conspiracy. On the voir dire, the Crown gave evidence of the statements. There was no evidence from or for GH. The trial judge ruled evidence of the statements inadmissible by virtue of s 84(1) and ordered a verdict of acquittal be recorded. The Director of Public Prosecutions sought a determination of questions submitted under s 30A of the Federal Court of Australia Act 1976 (Cth), including whether the statements were admissions within the meaning of the Act. 216 Miles J (Spender and Madgwick JJ agreeing) held (at [55]) that the statement on which the Director sought to rely was not a representation adverse to his interests in the outcome of the trial but, rather, was a representation in his own interests, that there was no criminality in the events surrounding his being shot. Accordingly it was not an admission for the purposes of s 84(1). 217 In the course of argument, the Director of Public Prosecutions submitted the trial judge should not have ruled that the statement by the accused was inadmissible under s 84 because that was not an issue that had been raised in the trial by the accused giving or calling evidence that he was influenced by the threats. Miles J held (at [58]) that: "[58] The absence of evidence for the accused that he was influenced by threats to make the statement to the police did not preclude his Honour from arriving at the conclusion on the evidence in the prosecution case given in the trial and on the voir dire that he was not satisfied as a matter of fact that the threats did not influence the accused to make the statement. The accused was entitled to raise the issue, as he did, on that evidence and his Honour was then bound to determine the issue accordingly." 218 Miles J then said, in passage on which the respondent relied: "[59] There is some difficulty in relating this submission to the two questions of law to which the appeal by the Director seeks answers. However, assuming that the submission is relevant, or alternatively that it raises a separate question of law required to be answered for the purposes of the appeal, it is clear that an accused person may rely on evidence in the prosecution case to raise the issue under s 84(1) without the need to give or call evidence on a voir dire. In some circumstances a voir dire may be convenient as a matter of procedure. In other cases, where there is nothing in the prosecution evidence in the trial to raise the issue, a voir dire hearing in which the accused gives or calls evidence would appear to be necessary if the issue is to be properly raised. There is no need in all cases for the accused to give or adduce evidence on a voir dire. If the evidence in the prosecution case is capable of leading to a finding that the making of an admission was influenced by the sort of conduct provided for by s 84(1), then the accused is entitled to raise the issue of non-admissibility of an admission under s 84(1). Once the issue is raised, the court is bound to give effect to the provisions of the section and not to admit the evidence of the admission unless the prosecution has discharged the onus. In the present case, the evidence was clearly capable of leading to the finding made by his Honour." (emphasis added) 219 It is not, with respect, clear what aspect of s 84 Miles J was addressing. As is apparent, he was doubtful whether the Director's submissions related to the question whether the accused's statements were admissions for the purposes of s 84 - which they clearly were not. His Honour's consideration of those submissions was, accordingly, not essential for the disposition of the case. Moreover his Honour did not expressly refer to s 84(2) and appears to have been directing his attention only to s 84(1). Finally, if Miles J's statement (at [59]) was to be viewed as part of the reasons for disposing of the case and to be read in the manner for which the respondent contends, we would, with respect, for the reasons which follow, be of the view that his Honour was in error and GH should not be followed: Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 (at 492). 220 Spender J (at [1]) expressly endorsed Miles J's finding that an accused person may rely on evidence in the prosecution case to raise an issue under s 84(1) without the need to give or call evidence on a voir dire. However his agreement with Miles J's conclusion that the accused's statement was not an admission was based on his view (see [14] - [22]) that the accused's exculpatory statements, even if shown to be false, were not previous representations adverse to the interests of an accused at his trial. 221 Finally Mr Leopold submitted, relying on Eastman v R (1997) 76 FCR 9 (at 110) that to raise a s 84 issue the appellant had to demonstrate a "cogent" connection between the conduct in s 84(1) and the admission or its making. In the passage on which he relied, the Court (von Doussa, O'Loughlin and Cooper JJ) said: "On the information placed before the Court on the voir dire the trial judge was not satisfied by the evidence of alleged harassment that the making of the admissions which the Crown alleged were recorded on the tapes was influenced by oppressive conduct. Section 84 of the Evidence Act relevantly provides that evidence of an admission is not admissible unless the Court is satisfied that the admission and the making of the admission were not influenced by violent, oppressive, inhuman or degrading conduct towards the person who made the admission. Although s 84 of the Evidence Act was not referred to by counsel in argument, or by the trial judge when delivering his ruling, it is clear, in our view, that the issue of voluntariness raised by s 84 was the issue which his Honour considered and decided against the appellant. The conclusion of the trial judge has not been shown to be wrong. On the contrary, in our view the evidence failed to suggest any cogent link between the acts of harassment alleged by the appellant and the making of the utterances by him when alone within the four walls of his flat. " (emphasis added) 222 In our view Eastman does not assist the respondent. It is clear the Court was addressing the correct test under s 84(1), the only part of the provision they quoted. Their Honours were not addressing s 84(2). 223 Two other authorities should be referred to. 224 In R v Heffernan; R v Peters (NSW Court of Criminal Appeal, Smart, Bruce James and Sperling JJ, 16 June 1998, unreported, BC9802596 at 22), the Court said: "There are sound reasons for not giving an expansive interpretation to 'oppression' in s 84 of the Evidence Act. The section applies to both civil and criminal proceedings. The section does not confer a discretion; if evidence of an admission falls within the terms of the section, then the evidence is not to be admitted. The section places the onus on the issue of admissibility on the proponent of the evidence (assuming that the evidentiary onus under subs 2 has been satisfied). It is sufficient to require the exclusion of evidence of an admission under s 84, that the court is not satisfied that the making of the admission was not 'influenced by' any conduct of the prescribed kinds." (emphasis added) 225 Their Honours' remarks were dicta - they had already determined the admissibility issue according to common law principles. They did not explain the basis for their observation as to there being an "evidentiary onus" under s 84(2) or how that onus might be discharged. To the extent their Honours' observations appear to connote a party seeking to invoke s 84 must adduce evidence to satisfy s 84(2), they are inconsistent with GH from which it is clear that much will depend on the circumstances of the case. 226 In R v JF [2009] ACTSC 104 (at [22]), Refshauge J accepted that the effect of GH was that the accused seeking to have admissions excluded by virtue of s 84 was not obliged to give evidence. He held (at [44]) that even though the accused had not given evidence about the effect of the violent and oppressive conduct which he had concluded preceded the making of an admission, he could not be satisfied that the confession was not influenced by that conduct. 227 Returning to the respondent's submission the critical issue is whether, before s 84(1) could apply, the appellant had to adduce evidence positively establishing a causal nexus between the proscribed conduct and the alleged admission. 228 In our view, the language of s 84(2) does not support that proposition. The expression "has raised" does not import any notion that the s 84(2) party has to prove the issue being "raised", namely whether "the admission or its making" were influenced by the s 84(1) conduct. 229 The concept of a party raising the issue in s 84(2) is juxtaposed with the proposition in the same sub-section that another party is seeking to "adduce" "evidence of the admission" - a strong internal indication that the party seeking to raise the issue may do so without having to establish the fact of conduct actually having influenced the admission. Otherwise the effect of s 84(2) would be to reverse the negative test required by s 84(1) to be satisfied before the relevant admission becomes admissible. 230 Further, in contrast to s 84(2), other provisions of the Evidence Act in which the concept of a matter being "raised" appears do refer to the necessity to adduce evidence: see for example s 146(2) (evidence produced by processes, machines and other devices); s 147(2) (documents produced by processes, machines and other devices in the course of business); s 155(2) (evidence of official records); s 160(1) (postal articles); s 161(1) (electronic communications) and s 162(1) (lettergrams and telegrams) all of which provide: "It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced)….". These are contextual contradictions of the respondent's construction argument. 231 A requirement that the s 84(2) party give evidence that the relevant conduct caused the admission would also be inconsistent with the common law at the time s 84 was enacted. As is apparent from Tofilau (at [53], [60]) the issue of voluntariness did not turn on a subjective inquiry into the mind of the confessionalist, but rather on "the sufficiency of the compulsion". It is clear from the historical materials to which we have referred that s 84 was not intended to make it harder to exclude admissions obtained in proscribed circumstances. 232 As already observed, the respondent's suggested construction of s 84(2) would invert the test s 84 clearly intended a court to apply, namely to be satisfied the relevant conduct did not influence the admission or its making. On the respondent's argument, the party raising the s 84 issue would have to discharge a causal burden (it did not suggest at what level of proof) before the Court could consider whether the party tendering the document had established the converse! This would be a remarkable outcome particularly in light of the ALRC's concern that the one aspect of the common law rules of voluntariness was their tendency to cast the burden of proof on the issue of voluntariness on the accused rather than the prosecution. It would not, in our view, be consistent with the purpose of the section. 233 It should be borne in mind in construing s 84 that it applies in both civil and criminal proceedings. The Court should not import into s 84 requirements which may be thought to be comparatively harmless to satisfy in civil proceedings, but which could have significant adverse consequences for the wide range of accused in criminal proceedings seeking to challenge the admissibility of admissions. 234 We would conclude from the language of s 84, the statutory context and legislative history and the common law position when s 84 was enacted that in order to raise a s 84 issue, that there must be some evidence that indicates through legitimate reasoning that there is a reasonable possibility an admission or its making were influenced by proscribed conduct (cf Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 (at 19 per Hodgson JA, Handley and Ipp JJA agreeing). However it is not necessary that that evidence prove as a fact that an admission or its making were so influenced. 235 Here, in our view, there was plainly evidence of oppressive conduct of the nature s 84 contemplates (as the discussion under the heading "Section 84 - conclusion on admissibility of the interviews" (at [253] ff) makes apparent) from which it was open to the primary judge to conclude as a reasonable possibility that the admissions the respondent sought to tender were so influenced. 236 In our view the primary judge did not err in concluding the appellant had raised the s 84 issue. We would reject the first ground in the notice of contention.

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Section 84 - the meaning of "influence" 237 As we have said, under the common law voluntariness rule, the question was whether the will of the confessionalist was overborne by the allegedly improper conduct. This language is still used in some judgments. In Higgins v R [2007] NSWCCA 56 (at [28]) Hoeben J (Sully and Bell JJ agreeing) referred to the lack of evidence that "[the maker's] will was overborne in any way". However, as Adams J observed in R v Ul-Haque [2007] NSWSC 1251; (2007) 177 A Crim R 348 (at [120]), that is not the relevant test under s 84. 238 The Macquarie Dictionary Online defines "influence", relevantly, to mean "modify, affect, or sway", while the Oxford English Dictionary Online refers to "influence" as to "affect the mind or action or; to move or induce by influence" and also "to affect the condition of, to have an effect on". Neither of these definitions evokes a particularly high test of causation. 239 In R v Zhang [2000] NSWSC 1099 (at [44]), Simpson J held that: "…s 84 does not require the isolation of a single reason, or a single event or incident or instance of conduct provoking the confession; there may be a number of factors working together that, combined, cause the admission to be made. If oppressive conduct on the part of police is one of those factors (or, more accurately, if the Crown has failed to negative such conduct as one of those factors) then the evidence is inadmissible." (emphasis added) 240 Hoeben J cited Simpson J's statement with approval in Higgins (at [26]). Refshauge J cited Simpson J's comments in R v JF (at [32]), as establishing that "the test to determine the causal relationship between the conduct and the admission is not a stringent test". 241 In R v JF (at [37]), Refshauge J commented that because the effect of s 84 was "…automatic exclusion of the confession, with no discretion, and a relatively low threshold of causation, it does seem that the conduct involved should be of a relatively significant level of impropriety". With respect, that imposes a gloss on the section which, in our view, is not warranted by its language. The only question s 84(1) poses is whether the "admission and [its] making" were "not influenced by" conduct of the nature identified. At best, as was said in Heffernan (at 22), the wide scope of the section in its application in both civil and criminal proceedings is a reason for not giving "an expansive meaning to 'oppression' in s 84".

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The nature of s 84(1) conduct 242 It appears to have been common ground at trial that if the appellant's evidence of how he was treated in Pakistan, Egypt and Guantanamo Bay was accepted, it fell within the description of the conduct proscribed by s 84(1). The primary judge also appears to have taken that approach and did not explore the nature of s 84(1) conduct. 243 However it is necessary in this Court to explore the nature of that conduct, particularly in light of Mr Smark's submission that if the Court was of the view that the primary judge had reversed the s 84(1) onus of proof, this Court could determine the admissibility of the interviews despite the primary judge's credit findings. 244 Although Mr Smark handed the Court a schedule relating to what he identified as "oppressive" conduct, we did not understand the appellant to eschew reliance on the other conduct in s 84(1) conduct, in particular that involving violence and degradation. There is no definition of any of the s 84(1) conduct in the Evidence Act. The concept of violence needs no definition. 245 The Macquarie Dictionary defines "oppressive", relevantly as "burdensome, unjustly harsh… causing discomfort because uncomfortably great, intense" and "oppression" as "the exercise of authority or power in a burdensome, cruel or unjust manner". The Macquarie Dictionary also defines "degrade" relevantly as "to lower in dignity or estimation; bring into contempt". 246 In Higgins (at [26]) Hoeben J held "that the concept [of 'oppressive' in s 84(1)] should not be limited to physical or threatened physical conduct but can encompass mental and psychological pressure". 247 In Zhang (at [40]), Simpson J concluded there had been oppressive conduct within the meaning of s 84 in circumstances where the accused: "…was offered witness protection in exchange for co-operation in the context of being confronted with two alternatives only: to co-operate with police or be charged with murder. He was offered those alternatives at the same time as being told that he could expect a reduced (or no) sentence in return for his co-operation. There was a threat of some kind, of physical violence (when Detective Goodwin told him he would like to hit his face); and, finally and importantly, he was told that once Detective Goodwin had left the room he would have no further opportunity to co-operate with police. This last was calculated to apply pressure to the accused." 248 In Ul-Haque (at [95]), Adams J observed that the precise boundaries of the term "oppressive…conduct" in s 84 were uncertain. While he commented that some assistance was afforded by the other conduct mentioned in s 84(1)(a), it was unnecessary to elaborate as he had concluded the impugned conduct (assumption of unlawful powers of direction, control and detention) "was well within the meaning of the phrase". 249 In Tofilau (at [322(d)] Callinan, Heydon and Crennan JJ described s 76 of the Police and Criminal Evidence Act 1984 (UK) (the "PACE Act") as the English equivalent to s 84 and s 85 of the Evidence Act. There are, with respect, some significant differences between the provisions. First, s 76 only applies in criminal proceedings. Secondly, unlike s 84, "oppression" is defined in s 76(8) of the PACE Act to "include torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)". In R v Fulling [1987] QB 426 (at 431 - 432) the Court of Appeal (Lord Lane CJ, Taylor and Henry JJ) held that because the PACE Act was a codifying Act, it should be construed by reference to the natural meaning of its language uninfluenced by considerations derived from the previous state of the law. On that basis the Court concluded that "oppression" in s 76(2)(a) should be given its Oxford English Dictionary meaning which, relevantly, was: "Exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc.; the imposition of unreasonable or unjust burdens." 250 The primary judge concluded (at [49]) without criticism from the respondent in this Court that "the circumstances in which [the appellant] was shackled, and detained [in Guantanamo Bay] were degrading". 251 In Habib v Commonwealth of Australia [2008] FCA 1494 (at [14]), in what might be described as a mastery of understatement, Perram J remarked of the circumstance that the appellant was chained to the floor during his interrogation in Guantanamo Bay that "[t]he chaining of a person to a floor is quite capable of generating that sort of distress" referring to the appellant's claim that as a result of being so chained, he suffered, inter alia, "great pain of body and mind". Section 84 - conclusion on admissibility of the interviews 252 The primary judge's factual findings relating to the s 84 issue have to be analysed carefully having regard to the respondent's submission that, properly understood, the primary judge (at [49]) was affirmatively satisfied in relation to the Pakistan interviews that the appellant had not established any s 84(1) conduct which might have influenced any relevant admission. 253 In our view, that submission must be rejected. 254 There is no doubt that the primary judge rejected some of what might be called the more lurid aspects of the appellant's evidence at trial (which he set out in some detail (at [16] - [38]). He did that, it appears, substantially insofar as he perceived conflicts between that evidence and statements the appellant made in the Dateline and Amnesty International interviews. Insofar as the Guantanamo Bay interview is concerned, his Honour also took into account the record the Australian officials who met the appellant in Guantanamo Bay made of his account of his captivity in Pakistan and Egypt (set out by his Honour (at [47])). 255 The primary judge's findings about whether or not s 84(1) conduct had taken place were substantially grouped under the heading "Matters of credit and factual findings" and proceeded in a series of steps. 256 First, his Honour concluded that he could not accept the appellant's claim that he was "seriously mistreated in the place of detention in Islamabad". The rationale for this conclusion was his Honour's expectation that if those claims were true some elements would have been revealed in his interviews with Amnesty International or 60 Minutes. 257 Nevertheless, the primary judge did accept (at [49]) with respect to his detention in Pakistan that:

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(e) at times in Egypt he was subject to abusive conduct probably using water, hot and cold rooms and forms of electric shock. 258 His Honour then said (at [49]), in what appears to have been an elaboration of the first sentence of this section of his judgment: "However the evidence he gave was disjointed and on many occasions he failed to respond to a question. I have reflected at length on his evidence and have ultimately concluded that I cannot accept the allegations of mistreatment in the detail which he gave the evidence in this Court. That does not mean that I have concluded that these events did not happen but merely that I cannot be satisfied that they did happen. " (emphasis added) 259 The primary judge rejected (at [51]) the appellant's account that he was abused, beaten and tortured in Guantanamo Bay before he was interviewed by the Australian team on two bases: first, because it was inconsistent with the reports of those interviews to which we have earlier referred and secondly, because as the appellant had only recently arrived in Guantanamo Bay, and also because of his illness, he had not yet been interrogated there by the Americans. 260 Accordingly, his Honour concluded, (at [54]) that where the appellant gave answers in evidence which were in conflict with what he had said on other occasions, the answers in these proceedings must be rejected. 261 It is significant to note that his Honour next made it plain that while he had reached conclusions that the appellant had made four of the false claims relied on by the respondent, he had not entirely rejected the appellant as a witness of truth. Rather, (at [55]) his Honour gave the appellant the benefit of the doubt in terms of the cautious manner in which he answered questions and his tendency to exaggerate, concluding that in light of his detention without trial and without being charged with any offence, his suspicion of authority and guarded responses (apparently reflected in his evidence) may have a rational foundation. 262 When his Honour came to the admissibility of the Islamabad interview he noted that the focus had to be on the connection between the conduct and the relevant admission. He recorded the submission which had been put to him that the appellant's denial that he had been to Afghanistan was made in circumstances where his request to speak privately to Officer 1 had been denied. The primary judge rejected that submission apparently because the appellant did not repeat the request during the second and third interviews when he made the same denial. 263 His Honour then interpolated (at [61]) an observation to the effect that one of the Australian officials who interviewed the appellant in Guantanamo Bay had confirmed that the appellant had made no complaint about mistreatment in Pakistan. It is not clear what the purpose of that sentence was in this section of the judgment, particularly having regard to his Honour's finding (at [48] - [49]) that he accepted that at least some mistreatment of the appellant had taken place in Pakistan. 264 Next, his Honour referred to the respondent's evidence in re-examination that his denial that he had been in Afghanistan was made " … definitely these people two way, you are going to kill me or they going to put me away all my life, I going to be in really serious trouble all my life". 265 The primary judge interpreted that re-examination (at [63]) as being "a fear of punishment for wrongdoing", or "a fear of continuing incarceration for wrongdoing" and accordingly, not being "a matter relevant to s 84." 266 With respect, it is difficult to understand how the primary judge could have reached that conclusion. At the time the appellant made his statements during the Pakistan interviews, he had been in Pakistani detention for approximately three weeks. He had not been charged with any offence. No Australian official suggested he was guilty of any offence. He had, even on the primary judge's findings, been mistreated by the Pakistanis. The Australian officials made it clear that they had no power to intervene to alleviate the appellant's situation even though they noted that he, in substance, was pleading for release. 267 There was, in our view, no basis for an inference that the appellant had any apprehension that he was in lawful custody, about to be subjected to the legal processes, whatever they might have been, of Pakistan. Rather, he made it plain to the Australian officials that he was desperate to get out of Pakistan, that he did not feel comfortable talking in the presence of the Pakistani officials and wanted to talk to Officer 1 in private. In our view it was not possible to interpret the appellant's evidence in re-examination as anything but evidence of the fact that he felt compelled to deny he had been in Afghanistan because of the fear he derived from the circumstances in which he found himself, including that he felt threatened by violent ("they are going to kill me") and oppressive ("they are going to put me away all my life") conduct. 268 The primary judge's conclusion (at [63]) was that while he could not exclude the possibility that the appellant was mistreated, particularly in Egypt (a remark which clearly included his mistreatment in Pakistan) "there is no evidence which associates any admission during the interview with the threat of the relevant kind." 269 We will return to the significance of that finding. 270 We should also note that his Honour then referred (at [64]) to the appellant's repetition in the Dateline interview of his statement that he had never been to Afghanistan in connection with an observation that no s 84 conduct influenced the making of this "false statement". However, with respect to his Honour, he does not appear to have taken into consideration that in the Dateline interview the appellant was not making an independent assertion that he had not been in Afghanistan; rather, he was repeating the part of the Pakistan interviews which touched on this topic. 271 When his Honour came to the Guantanamo Bay interview he made the following relevant findings (at [82]):

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(d) the physical conditions of his incarceration, lack of access to exercise and more particularly uncertainties associated with there being no charge laid or expectation of release, properly described as indefinite detention, defied basic human rights. 272 Notwithstanding those findings the primary judge concluded (at [82]) that as the appellant had only been in Guantanamo Bay for a few days when interviewed, "[t]he evidence does not suggest that the circumstances of his incarceration influenced [him] to make the admissions relied upon by [the respondent] in these proceedings." 273 In our view this conclusion and that which the primary judge had earlier reached in relation to Pakistan (at [63]) with regard to the influence of the mistreatment he had identified on the making by the appellant of the admissions the respondent relied upon did, as the appellant submits, reverse the onus of proof under s 84(1). Rather than directing his attention to the s 84(1) test namely, that he had to be satisfied that both the admission and its making were not influenced by the relevant conduct, his Honour posed a test which placed the onus on the appellant to establish that there was s 84(1) conduct which did influence the making of the admissions relied upon. But s 84(1) placed the relevant onus squarely upon the respondent once the primary judge concluded, as in our view he did, that there was s 84(1) conduct in relation to the appellant's situation in both Pakistan and Guantanamo Bay. It was required to satisfy the Court that that conduct had not influenced the making of the relevant admissions. The primary judge made no finding that he was so satisfied. 274 The respondent seeks to resist the conclusion that the primary judge erred in reaching his s 84(1) findings on the basis that they were founded on credibility findings which attracted Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 inscrutability. That submission should be rejected for a number of reasons. 275 First, it is apparent that the primary judge did make findings that the appellant had been subjected to some of the mistreatment of which he complained in Pakistan, including being beaten and, to describe it as neutrally as possible, was subject to degrading conduct in Guantanamo Bay. 276 Secondly, as we have said, his Honour made it plain that he did not reject the appellant in all respects. 277 Thirdly, insofar as the primary judge relied upon what he perceived to be inconsistencies between the appellant's evidence and his statements in various media interviews the following might be noted. The appellant was responding in those interviews to the interviewers' questions. He was not given a free range as to what he could say. Insofar as the Dateline interview was concerned, as we have earlier observed, his solicitor was clearly severely restraining the answers he gave. Nevertheless in each of the interviews insofar as it was relevant to the question, the appellant gave some account of his detention in Pakistan, including that he had been beaten there, and also to having communicated those circumstances in various levels of detail to Officer 1. The account the Australian officials recorded in Guantanamo Bay described the appellant wanting to relate his mistreatment and torture in Pakistan and Egypt. It is clear that the account as recorded is inadequate because it barely describes events the primary judge appears otherwise to have accepted, for example, concerning the appellant having been beaten in Pakistan before being interviewed by Officer 1, being blindfolded there and so on, all of which were matters the appellant recounted, inter alia, in some of the media interviews. 278 Fourthly, insofar as the Pakistan interviews were concerned, in our view the primary judge erred in concluding that there was no relevant oppression in the second or third Pakistan interviews because the appellant did not repeat his request that he be able to speak to Officer 1 in private. Having regard to the circumstances in which he found himself, it is clear, in our view, that having once been unsuccessful in that attempt, the appellant would not repeat it. That does not mean, however, that it was open to the primary judge to conclude that his denials in the second and third Pakistan interviews that he had been in Afghanistan were not influenced by s 84(1) conduct. Once he had denied having been there in the first interview (in circumstances where he clearly perceived it to be in his interests to do so) it was entirely to be expected that he would adhere to his story. 279 The question nevertheless arises, whether the respondent had discharged the burden which fell upon it to demonstrate that the appellant's admission was not influenced by s 84(1) conduct. It should be borne in mind that the respondent had to discharge that burden on the balance of probabilities: s 142(1), Evidence Act. 280 In our view the respondent did not discharge that onus. The first point to note in this respect is that the primary judge approached this issue on too narrow a basis. As we have observed, the question whether an admission was "not influenced by" relevant s 84(1) conduct is not a stringent test. We have set out the s 84(1) conduct the primary judge did find the appellant had established. In our view one could not be satisfied that that conduct did not influence the appellant making admissions in both Pakistan and Guantanamo Bay. It will be recalled that Mr Evatt had identified a number of circumstances as constituting oppressive conduct. That conduct properly, in our view, extended beyond the particular circumstances of the interviews. As the earlier discussion demonstrates, it is not necessary that the s 84(1) conduct actually take place at the time the admission is made. Rather, the relevant inquiry to which s 84(1) directs the Court is as to whether any admission was not influenced by s 84(1) conduct. It is clear that that conduct may have occurred prior to any relevant interview and need not have been the conduct of those interviewing the relevant party. The question is whether such conduct did not have any influence at the time of the interview. 281 In our view, the circumstances which preceded the appellant being interviewed in Pakistan could not be excluded in the inquiry as to the making of the admission during the interviews. This is particularly so in light of his re-examination in which he identified his fear of either being killed or put away all his life. It is plain that that fear was generated by the circumstances of his detention by the Pakistani authorities although, we would add, his mental state would not have been assisted by Officer 1's constant repetition of the proposition that, in substance, there was nothing Australian officials could do to assist him. 282 It is pertinent to state, at this stage, that we would reject the respondent's submission that the appellant's statement in re-examination that "when he was being questioned in Islamabad he had said he had not been to Afghanistan" was a false claim, independent of either the Dateline interview or the Pakistan interviews. The re-examination clearly arose from the cross-examination about what he had told his Pakistani interrogators about whether he had been to Afghanistan. As such it was, as Mr Leopold himself said to the primary judge, on the voir dire. This was correct. The arrangement made at Mr Leopold's suggestion early in the cross-examination to which we have referred at [160] above, made it apparent that questions which went to what the appellant said, inter alia, to the Pakistani interrogators were to be treated as subject to the s 84 objection. That arrangement clearly extended to re-examination on such topics. 283 Equally, insofar as Guantanamo Bay was concerned, we are not prepared to draw the conclusion that the conduct the primary judge found the appellant had established had not influenced his making of admissions in the Guantanamo Bay interviews. It is not to point that the appellant did not appear reluctant to participate or concerned that if he did not there would be any recriminations (primary judgment at [72]), an attitude which might be understandable in the light of the primary judge's finding (at [74]) that he was "hopeful and indeed anxious to be released from Guantanamo Bay and to return to Australia". 284 In our view, the primary judge erred in concluding that the Pakistan and Guantanamo Bay admissions were admissible. Rather, his Honour ought to have concluded that he could not be satisfied that the admissions were not influenced by s 84(1) conduct. 285 In our view the appellant should be permitted to raise the s 84 objection to the Dateline interview. The relevant passage from that interview set out at [136] above was an account of what the appellant had told his Pakistani interrogators during the Pakistani interviews, all of which were the subject of the s 84 objection. Mr Evatt pointed out in submissions at trial that the Dateline interview was only an account of what was said in the challenged Pakistan interviews. The primary judge did not rely upon the Dateline interview to find in the respondent's favour on the first claim. The respondent would not have conducted the case any differently if a formal s 84 objection had been taken. While the appellant is bound by the manner in which counsel conducted his case (Smits v Roach (at [46]) per Gleeson CJ, Heydon and Crennan JJ), it is plain, in our view, that counsel conducted the trial on the basis that any statement the appellant made about what he told his Pakistani interrogators to the effect that he had not been to Afghanistan was the subject of that objection. As we have concluded that the admission in the Pakistan interviews is inadmissible by virtue of s 84, so, too, is its repetition in the Dateline interview. The third paragraph of the notice of contention should be rejected. 286 The conclusion that the Pakistan, Guantanamo Bay and Dateline interviews were inadmissible means the respondent had not established the substantial truth of the first or third claims. 287 We would therefore uphold the first to fifth, twelfth and fifteenth grounds of appeal. 288 Having regard to these conclusions, it is unnecessary to consider grounds six, nine, sixteen and seventeen. 289 The conclusion that the Pakistan, Guantanamo Bay and Dateline interviews were inadmissible, and that the appellant's re-examination should have been treated as part of the voir dire evidence means there was no evidence before the primary judge which would support the defence of truth of the first and third claims. Although the respondent submitted that if the Court came to the conclusion that the interviews were inadmissible it should remit the issue for a further trial, it did not support that submission by any cogent argument. This Court is required to make on appeal any finding or order the primary judge ought to have made: s 75A(10), Supreme Court Act 1970 (NSW). The primary judge found relevant s 84 conduct had occurred, but misdirected himself in applying the statutory test. Once this Court has concluded, on the correct application of that test, that the statements the respondent relied upon to make good the first and third claims were inadmissible, it is open to it to find that the respondent did not establish the substantial truth of those claims. Characterising the imputation 290 The issues which appear to arise under this heading are:

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(e) should the appellant be permitted to argue on appeal that the imputation connotes only positive assertions and not denials, and only statements to a public audience (the notice of contention issue)? 291 The primary judge said (at [5]) and referring to Singleton v Ffrench (1986) 5 NSWLR 425 that the meaning of a pleaded imputation was a matter to be determined by the court and that when determining the meaning it is important to consider the imputation in the context of the material by which the imputation was conveyed: Greek Herald v Nikolopoulos [2002] NSWCA 41; (2002) 54 NSWLR 165 (at [19] - [23]); John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164. Neither party disputes the correctness of these statements. 292 In Singleton (at 428), Mahoney JA described the imputation as "the statement which, as the plaintiff alleges, the publication gives the reader or viewer to understand". 293 In Greek Herald v Nikolopoulos, Mason P (Wood CJ at CL agreeing) rejected as contrary to the general rules of pleading and basic principle, a submission that, on a s 7A trial, the jury should be directed that when assessing whether an imputation was defamatory, they were to do so from its terms alone without importing any significance to the words of the imputation from the knowledge the reader had from the article or the affair generally. After referring with approval (at [18]) to Mahoney JA's statement in Singleton, he added, "[i]t is not a straitjacket, although the rules of procedural fairness place limits upon judge and jury's capacity to enlarge the issues". He then said: "19 A plaintiff's pleaded imputations set the scene for the contest which follows. The defendant's pleadings will respond to the asserted causes of action. The jury will have to decide whether the matter complained of carries the imputation and, if so, whether it is defamatory of the plaintiff. Defences as to truth, contextual truth and comment are also responsive to the pleaded imputations ( Defamation Act , ss15(2), 16(2), New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340). But even here, the plaintiff will be bound by the substance, as distinct from the precise words of the pleaded imputation (see Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771). 20 The pleaded imputation is itself a statement extrapolating something from the matter complained of. The statement will seldom be found in the very words used (sometimes the matter complained of is only a picture). The imputation will often be implicit in the text (see generally Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 195-6). 21 These considerations point to the broader issue of principle. Words, a fortiori words not found in the text, are necessarily to be read in context. This is a basic tenet of literary and legal construction (Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1925) 35 CLR 449 at 455; Minister for Immigration v Eshetu (1999) 197 CLR 611 at 634). Holmes J, in Towne v Eisner 254 US 418 (1918) at 425, reminds us that: 'A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.' 22 Context may clarify or intensify the sting of a facially benign (pleaded) imputation. The converse is also true (see JG Fleming, The Law of Torts 7th ed p588). 23 The defendants wish to have the imputation removed from the context of the article as a whole so that the jury can be invited to debate the moral issue whether lying is always wrong, and whether (if it is not) it is defamatory of a person to say that he or she lied. Such matters may befit a philosophy seminar. But they are so divorced from the reality of the true dispute between the litigants as to be a wasteful perversion of justice. After all, it was pleaded that the imputed lie was to the members of the Club of which the plaintiff were the directors. 24 This pleading may well have been ambiguous and embarrassing. If so it should have been objected to on that basis. Had the objection been taken and upheld, the plaintiffs would have been forced to greater specificity, with possible consequences as regards the defences open to the defendants and the jury's determination on the matters reserved for them. But these points were not taken at trial and they are not issues before this Court." 294 In our view there is force in the appellant's submission which was, in substance, that a statement cannot be a "claim" if it is extracted in the circumstances in which the appellant found himself in Pakistan and Guantanamo Bay. The matter complained of was addressing the "claims" it asserted the appellant made during the 60 Minutes interview. There was no assertion that the appellant was under any compulsion when he participated in that interview. It was an interview it was reasonable for the reader to infer the appellant would have expected would have been broadcast to the public in whole or in part. Accordingly, set in the context of the matter complained of, it was reasonable to conclude that the imputation, "the plaintiff knowingly made some false claims", conveyed that he made such claims in a situation where he was capable of exercising a free will as to whether or not, and how, he made public statements and/or responded to questions. 295 There is also force in the appellant's submission that the appellant's denial in the second Pakistan interview that he had been to Afghanistan was not a claim. In criminal proceedings, an accused's denials are not capable of being regarded by the jury as admissions: Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 (at 107); Straker v The Queen (1977) 51 ALJR 690 (at 694); 15 ALR 103 (at 109); Graham v R [1998] HCA 61; (1998) 195 CLR 606 (at [40]) per Callinan J; Gleeson CJ agreeing. 296 In Straker, evidence was given that the appellant, in the course of his interrogation by the police, was asked questions, which he denied, as to whether he had had anal intercourse with the deceased. Gibbs J (ALR, at 109) said "this evidence should have been excluded in accordance with the rule of practice that has been followed ever since the decision in R v Norton [1910] 2 KB 496 at 500". 297 In R v Norton [1910] 2 KB 496 (at 499 - 500) the Court of Criminal Appeal (Lord Alverstone CJ, Pickford and Lord Coleridge JJ) held that the appellant's statement in response to a sexual assault victim's accusation that it was he "who had done it", "No, Madge, you are mistaken" was inadmissible as evidence of an admission on his part of the accusation: "unless … there [was] evidence fit to be submitted to the jury that the prisoner by his answer to them, whether given by word or conduct, acknowledged the truth of the whole or part of them. If there be no such evidence, then the contents of the statement should be excluded; if there be such evidence, then they should be admitted, and the question whether the prisoner's answer, by words or conduct, did or did not in fact amount to an acknowledgment of them left to the jury."

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The Court formulated a direction to be given to a jury in like circumstances: Norton (at 500 - 501). 298 The course proposed in Norton was approved by the House of Lords in R v Christie [1914] AC 545 "as a prudent rule of practice for the protection of accused persons": Woon v R [1964] HCA 23; (1964) 109 CLR 529 (at 538 - 539) per Taylor J. It was no doubt that rule to which Gibbs J was referring in Straker. 299 In Woon, Windeyer J explained (at 541): "A question asked of a person accused or suspected of a crime, or a statement made in his presence, is admissible if he is invited to, or might reasonably be expected to, respond in some way indicative of denial or of acceptance. It is not that what is said to the accused can of itself be evidence against him. But his response or reaction may be; and that is why what is said to him is admitted. His words, silence or conduct may amount to an admission of the truth of what was said." (emphasis added) 300 These cases demonstrate the necessity to exercise care in drawing conclusions from negative answers to questioning. Of course the respondent does not assert that the appellant's denials that he had been to Afghanistan were admissions he had been there. Nevertheless it invites the Court to conclude that his denials were positive assertions which amounted to "claims". 301 When one returns to the Pakistan interviews, it can be seen that the relevant "claims" are said to be found in the following statements: "Did you go to Afghanistan - no." (First Pakistan interview) "'[H]ave you been to Afghanistan during this current trip away from Australia?' No. Question restated - so you didn't go over to Afghanistan from Pakistan - perhaps from Quetta? No. Habib then launched into a series of questions and statements about why would this be a problem. Many people go to Afghanistan - why am I in trouble [portion blacked out] responded that the actions of other people are not the issue, what matters is your travel, activities and contacts. Habib was then asked whether he had ever been to Afghanistan, perhaps during one a previous visits to Pakistan [sic, as in original]. Same answer - No." (Second Pakistan interview) "16. After expressing my dissatisfaction with his answers, I said I would like to move back to talk about events before his 26 September call to his wife. I then said to Habib in a calm, matter of fact manner - 'I know you made a call to his wife from Kabul in Afghanistan on 11 September' - 'you called your wife on 11 September for Kabul in Afghanistan'. 'Do you remember?'…

[112]

The fourth claim: the subsequent publication issue 311 The fourth claim turned on what the appellant said during the Amnesty International interview in March 2006. 312 The appellant's first complaint about the fourth claim is that the Amnesty International interview did not take place within a reasonable time after publication and could not, therefore, be taken into account on the issue of substantial truth. 313 The general rule is that an imputation must be justified by reference to the facts in existence at the time of publication. However the general rule may be departed from in circumstances where an imputation amounts to a general charge against the character of the plaintiff: P Milmo and W V H Rogers, Gatley on Libel and Slander, 11th ed (2008) Sweet & Maxwell ("Gatley") (at [11.8]); see also Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735 (at 737) per Hunt J; John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 (at [9]) per Spigelman CJ; (at [79]) per Hodgson JA. 314 The permissible grounds for departure from the general rule to which Gatley refers were established in two cases involving Mr Maisel. He sued the Financial Times for defamation, alleging that an article it published setting out the circumstances of his arrest on a charge of fraud conveyed the imputation that "he was a man of dishonest character and unfit to be a director". The newspaper sought to justify the imputation by relying on dishonest acts other than those referred to in the article. The plaintiff moved to strike out those particulars of the justification defence arguing that the defendant could not justify the defamation by matters not referred to in the article. The House of Lords rejected that argument, saying that where a plaintiff pleaded that the defendant published an imputation alleging "general dishonesty", the defendant was entitled to give particulars demonstrating why that was true and were not confined to the facts in the article: Maisel v Financial Times Ltd (No 1) (1915) 112 LT 953 (at 955). That case established the entitlement of the respondent in this case (which the appellant did not dispute) to plead substantial truth in respect of a wide variety of matters, none of which, as earlier observed, sought directly to justify the principal sting of the matter complained of. 315 After the House of Lords' decision, further pleadings were then exchanged in Mr Maisel's action. The plaintiff amended his imputations to include one asserting that "his character and reputation were such that he was likely to have misappropriated funds of companies with which he was connected". The defendant filed an amended defence pleading justification and relied in its particulars on events which had taken place after the date of publication of the matter complained of. The plaintiff sought to strike out the particulars of post-publication facts. He was unsuccessful: Maisel v Financial Times Ltd [1915] 3 KB 336. Lord Cozens-Hardy MR said (at 339 - 340): "In a general allegation by way of justification of general character and general tendency, which are the only words I can think of at the moment as the meaning of the word 'likely', I do not see how you can exclude events which happen, I will not say years later, but within a reasonable time from the date of the publications. I instance a case which seems to me to be rather analogous; an allegation that the plaintiff was addicted to drink and would get drunk if he could. Could you exclude evidence that the day after publication of that libel he had been found suffering from delirium tremens? It seems to me you could not in answer to a general allegation of what the man was likely to have done if he could." (emphasis added) 316 Pickford LJ said (at 340) that there could be no direct answer to the question whether particulars of justification alleging facts which occurred after the libel could be allowed. In his view, it depended on the nature of the libel and on the nature of the acts. Dealing with the case in hand, he said (at 341): "…the innuendo of the plaintiff … alleges that this libel has three meanings …: that he was of a character and reputation such that he was likely to have misappropriated; that he would have misappropriated if he had had the opportunity and that he was an unfit person to be a director - the third one I have left out. That being the meaning as alleged and the defence of justification which is set up, it seems to me that it is impossible to exclude, by one general proposition, any particulars of acts that took place after the libel. The allegation is that he was of a character to misappropriate funds and that he would misappropriate funds if he got the chance. It seems to me that it cannot be irrelevant to show that very shortly after the libel, as soon as he did get the chance, he did misappropriate ." (emphasis added) 317 Pickford LJ eschewed (at 342) the proposition that the defendant could pray in aid "a series of acts extending over the plaintiff's life", confining his reasons to conduct which occurred "a short time after the libel". In his view, issues of remoteness (and therefore inadmissibility) might occur in relation to acts done "so long after the libel that it would have no relevance at all having regard to the time of the libel". He concluded that the acts the defendant pleaded were not in that category because they commenced a month after publication and continued systematically for another three months. 318 In Hansen v The Border Morning Mail Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 July 1988, unreported) Hunt J described Pickford LJ's statement in Maisel (at 340) as "eminently good sound common sense." His Honour also disapproved of the Full Court of South Australia decision in Winterbottom v Vardon & Sons [1920] SALR 357, that Maisel was only applicable where the imputation to be justified related to the plaintiff's likely future conduct. 319 In Assaf v Skalkos (Supreme Court of New South Wales, Levine J, 15 December 1997, unreported) Levine J referred with approval to Hunt J's decision in Hansen. His Honour also said that "[t]here must be a qualitative proximity [between the defendant's particulars of truth and] … the charge laid in the imputation and the particulars must be of matters that have a temporal proximity". He added that, "[t]he post publication act, if not qualitatively proximate to the charge in the imputation, will not be relevant to justification either as a substantive defence …[and a] post publication act, qualitatively proximate, but distant in time may be more problematical." 320 In State of New South Wales v Deren [1999] NSWCA 22; (1999) Aust Torts Reports ¶81-502 (at [95]), dealing with the use of post-publication material for the purposes of a truth defence, Priestley JA observed (at [94]) that little authority existed on the requisite element of temporal proximity because that issue inevitably involved factual assessments. He described (at [95]) Pickford LJ's statement in Maisel (at 342) set out above as the "best statement of the 'rule' ", but reformulated it in "terms more familiar in regard to jury questions in New South Wales" as follows (at [96]): "[I]t is open to a judge to rule that evidence of an act or acts by a plaintiff could not rationally enable a conclusion of fact to be drawn and therefore should not as a matter of law be allowed to go before a jury considering that issue of fact when the time between the act or acts the defendant wished to rely on and the defamation was such that there was no relation between that act or acts and the imputation the defendant was seeking to justify." 321 Raul Amon International Pty Ltd v Telstra Corp Ltd [1998] 4 VR 798 is an illustration of a case where the post-publication facts were said, in substance, to be too remote to be relied upon in a justification defence. The plaintiff alleged that Telstra had held out his company in late 1993 as selling or willing to sell products or services of a sexually explicit nature. Telstra sought to justify that imputation by establishing that the company had been selling such material in early 1995. Charles JA (with whom Ormiston JA agreed) said (at 810) "that, upon the principle stated in Maisel, it would be neither relevant nor admissible to prove … that the company's Northcote premises were offering R-rated videos in March to May 1995". 322 The question whether an imputation amounts to a general charge against the character of a plaintiff is one to be approached with care. Many, if not all, defamatory imputations will cast some adverse light on a plaintiff's character. If too ready a conclusion was drawn that an imputation fell into the Maisel category, then the court might unduly open up avenues for defences of justification and contextual truth which would otherwise be barred to a defendant - and prolong the hearing of defamation cases. 323 We have already set out the two imputations which were held in Maisel to constitute a general charge against the character of the plaintiff. It is helpful to examine other cases in which a similar conclusion has been reached to assess the competing submissions on the subsequent publication issue. 324 In Hansen Hunt J described a contextual imputation that "[t]he plaintiff is a person who is likely to use threats and violence in the course of his business as a drug dealer" as one which related to the plaintiff's general character and general tendency as at the date of publication. Accordingly the defendant could seek to justify it by proving actions of the plaintiff which took place within a reasonable period thereafter because such actions would "normally be logically probative of that general character and tendency". 325 In Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) A Def R 50-080 Hunt J held (at 40,593) that imputations that Mr Deren "engaged in the sexual abuse of young children" and that he "sexually abused young children" were expressed in very general terms and (at 40,598), that in accordance with Maisel, the defendant in a defamation action would be entitled to lead evidence of sexual abuse by Mr Deren upon occasions other than those referred to in the matter complained of. It is consistent with that ruling that the defendant would have been entitled to justify those imputations by proving actions of the plaintiff which took place within a reasonable period after the broadcast. 326 In Deren, dealing with the question whether the defendant's contextual imputation was a "charge ... of general bad conduct", Priestley JA approved (at [92]) a statement in P Milmo and W V H Rogers, Gatley on Libel and Slander, 9th ed, (1998) Sweet & Maxwell (at [11.9]) that "... each case depends very much on its own facts because the question whether a particular charge of wrongdoing carries a general charge may depend on the context in which the words are used...". The 9th edition of Gatley cited Bookbinder v Tebbit [1989] 1 WLR 640 (at 647) per Ralph Gibson LJ as authority for this proposition. The 11th edition (at 11.11, footnote 103) now cites Deren. 327 The 11th edition of Gatley (at 11.11) also now adds to the proposition Priestley JA approved, that the question may also turn on "the gravity of the misconduct imputed in the particular charge", referring to Nationwide News Pty Ltd v Warton [2002] NSWCA 377. In that case, in the course of dealing with the defendant's submission that "as a general proposition a publication which talks about a specific incident is incapable of supporting an imputation of general application" (and rejecting the defendant's submission that a jury verdict that the matter complained of conveyed the imputation that "[t]he plaintiff is dishonest" was perverse), Heydon JA (with whom Handley and Hodgson JJA agreed) said (at [61]): "61 The article does not suggest that the plaintiff's act is other than an isolated act of dishonesty, but it does suggest that it is a most serious act of dishonesty. It involved gambling with one man's health (that of Chavez), exploiting another man's reputation (that of Tszyu), doing it only for money, doing it in a way which was attracting great criticism in America, both among the public and the authorities which regulate boxing, and doing it in a manner justifying the arrest of the plaintiff. While a person can do a dishonest thing without being thought a dishonest person, some things are so dishonest that one can infer that only a dishonest person would do them. The activities attributed to the plaintiff in the article are so extensive, serious and risky that it is open to ordinary reasonable readers to infer that only a dishonest person would have done them." 328 Finally we would note that in John Fairfax Publications Pty Limited v Jones, both Hodgson JA (at [59]) and Ipp JA (at [107]) were of the view that an imputation, in substance that the plaintiff was a dishonest broadcaster in that he did a particular act, "carrie[d] with it the meaning that the act was indicative of his character as being that of a dishonest broadcaster, and could not be considered as merely an isolated dishonest act proceeding 'out of character' from someone who was otherwise an honest broadcaster." 329 The imputation was conveyed in the context of a most serious article: one which imputed that the plaintiff had knowingly made false claims to the Australian public when appearing on a well-known current affairs programme, 60 Minutes. It sought to denigrate his "claims" of torture by asserting the making of such claims was a tactic suggested to "students of terrorism…should they ever be captured". It attributed to a Liberal Member of Parliament, Mr Warren Entsch, the statement that "…the torture allegations had had not been proven and some of Mr Habib's claims had already been shown to be false" and quoted him as saying: "I really have a lot of issue [sic, as in original] in relation to Habib's credibility. In my view he has not displayed what I consider to be the signs of a reasonable or good Australian citizen…I think Mr Habib's got a hell of a lot more that he's got to be able to reveal before … he's going to have any level of credibility." 330 The matter complained of also quoted then Premier of New South Wales, the Hon Bob Carr MP, as being unimpressed with the appellant's "case", and his statement that "[a]nyone who is off running with terrorists in Afghanistan has a lot of explaining to do." It then stated: "Nine and the ABC don't have any such doubts, however, and rather than the word of Australian government officials prefer to accept unsubstantiated claims made by a fundraiser for international terrorists, a would-be recruiter of fighters for the jihad and a man who refuses to answer questions about his presence on the Afghanistan-Pakistan border." 331 Thus the matter complained of imputed that the appellant was prepared to make false claims in the context of very serious allegations asserting that he was, at the very least, a reader of a student manual on terrorism, as well as a person who had undertaken the acts referred to in the last-quoted paragraphs. [We appreciate that the jury appears to have found imputations closely modelled on the penultimate proposition in the quoted paragraph were not conveyed, but that does not preclude the Court from sensibly considering the context in which the imputation was found.] 332 In our view, in the context of the matter complained of, the imputation conveyed that the appellant was a person who was given to making "some false claims" knowingly - thus imputing a propensity to him, indicative of his character generally - rather than being confined to any specific incident. 333 In those circumstances Maisel applied and it was open to the respondent to seek to justify the imputation by reference to post-publication conduct as long as there was a sufficient temporal proximity between publication and the post- publication act sought to be relied on. 334 The Amnesty International interview was not, in our view, too remote from the publication of the imputation. The part of that interview on which the respondent relied was not, in fact, a new "claim" (assuming for present purposes it was a "claim"). Rather, it was a statement in which the appellant repeated to the interviewer what he asserted he had said when interviewed in Pakistan concerning whether or not he had been in Egypt since being in Australia. Thus the statement had been made on a previous occasion, and was a fact which existed at the time of publication of the matter complained of. Further, it clearly had a qualitative proximity to the sting of the imputation and, if it matters, was rationally connected to the matter complained of as it concerned what the appellant asserted had taken place while he was in detention. 335 Accordingly we would reject the seventh ground of appeal and that part of the fourteenth ground which raises the subsequent publication complaint.

[113]

The fourth claim: characterising the statement in the Amnesty International interview 336 The next question is whether the statement in the Amnesty International interview was a "claim" that the appellant had not been in Egypt since he came to Australia. 337 It is appropriate at this stage to refer to the standard of proof the respondent had to attain to make good its assertion that the appellant had made false claims. 338 Section 140(1) of the Evidence Act requires the Court to find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. However s 140(2) preserves the doctrine in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (at 361-362): Westpac Banking Corporation v Ollis [2007] NSWSC 956 (at [15]) per Einstein J (appeal dismissed: Shields v Westpac Banking Corporation [2008] NSWCA 268 (at [6]) per Hodgson JA, Spigelman CJ and Macfarlan JA agreeing)). 339 In Watson v Foxman (1995) 49 NSWLR 315 (at 318 - 319), McLelland CJ in Eq said: "Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as 'misleading') within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act ), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances . In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. (emphasis added) 340 The necessity that there be "clear or cogent or strict proof…where so serious a matter as fraud is to be found" was also referred to in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170. The joint judgment (Mason CJ, Brennan, Deane and Gaudron JJ at 449-450) explained that while the ordinary standard of proof in civil litigation of proof on the balance of probabilities remained even where the matter to be proved involved criminal conduct or fraud, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. 341 The appellant gave the following evidence when cross-examined about the fourth claim: "Q. Do you accept that when you were at the interview with Katie Wood you were telling her the truth, that is, that back in Islamabad in that room, the one with the Americans there and the man you call Alistair Adams, you had said those words; that was the truth, wasn't it? A. What words? Q. 'I have never been in Egypt since I come in Australia'? A. I mean I never been in Egypt with - without visa. Q. There is a word 'in' at the end which is either 'in' or 'to'. You said earlier 'I have never been in Egypt since I come in Australia'. The transcript says 'in'? A. In Egypt without visa, that's what I might mean. … Q. So that the statement you made to Katie Wood that you have never been in Egypt since you came to Australia was simply false, wasn't it? A. No. Q. You knew it was false, didn't you? A. No. … Q. Then when you were talking to Katie Wood, two sentences later, you said, 'I have nothing to do with Egypt'? A. It is true. I am saying now I have nothing to do with Egypt. I hate it. Q. And you said, one sentence after the words in question, you said 'I have not hold any citizen Egyptian anymore since I been in Australia'? A. Definitely true. Q. And the third concept was the first one, 'I have never been in Egypt since I come in Australia'? A. Yeah, as Egyptian citizen or with Egyptian passport, but I never be renewed as citizen. I never been applied to citizen as Egyptian. I never applied. I never renew my Egyptian passport, nothing to do with Egypt. Q. You said to Katie Wood that you said it, correct? A. Yes. Q. And it was true, that's what you said back in Islamabad back in 01? A. I mean, I never been in Egypt with visa, without visa, Australian visa. I have never been in Egypt without Australian passport. I never been in Egypt with Egyptian passport. Q. The words you told her were 'I have never been in Egypt since I come in Australia'? A. That's what I just explained to you. That is what I mean. … Q. You agree you were in effect making a claim to her that you had never been in Egypt since you came to Australia? A. With no Australian visa." 342 While the strength of the fourth claim should be finally determined on the basis of what was said during the interview, in our view this passage of cross-examination lends support to the proposition that the appellant was not saying in that interview that he had never been to Egypt since emigrating. 343 In our view the appellant's statement in the Amnesty International interview could not be construed as an unequivocal statement that he had not physically been in Egypt since he migrated to Australia. In context it is equally capable of the meaning for which Mr Smark contended, namely, that the appellant was seeking to disassociate himself from being an Egyptian citizen and emphasising that he was an Australian citizen who should not, as the man he believed was Mr Adams had threatened, be sent to Egypt. 344 Accordingly the respondent did not establish the substantial truth of the fourth claim. 345 The thirteenth and fourteenth grounds of appeal should be upheld.

Parties

Applicant/Plaintiff:

Habib

Respondent/Defendant:

Nationwide News Pty Ltd

Legislation Cited (15)

Civil Wrongs Act 2002(ACT)

Compilation Act 1913(WA)

Laws of Brunei (Cap 7) Defamation Act 1889(Qld)

Defamation Act 1957(Tas)

Defamation Act 1974(NSW)

(UK) Supreme Court Act 1970(NSW)

Defamation Act 1889(Qld)

Trade Practices Act 1974(Cth)

Evidence Act 1995(NSW)

Civil Procedure Act 2005(NSW)

Crimes Act 1914(Cth)

Evidence Act 1995(Cth)

Federal Court of Australia Act 1976(Cth)

Uniform Civil Procedure Rules 2005(NSW)

Supreme Court Act 1970(NSW)

Cases Cited (81)

CITATION: Habib v Nationwide News Pty Ltd [2010] NSWCA 34

Ajodha v The State; Chandree v The State [1982] AC 204 Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735 Assaf v Skalkos (Supreme Court of New South Wales, Levine J, 15 December 1997, unreported) Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) A Def R 50-080 Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 Bookbinder v Tebbit [1989] 1 WLR 640 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Burut v Public Prosecutor [1995] 2 AC 579 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 Collins v R (1980) 31 ALR 257 Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 DPP v Ping Lin [1976] AC 574 Eastman v R (1997) 76 FCR 9 Ex parte Hamilton; re Fagan [1966] 2 NSWR 732 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gattellaro v Westpac Banking Corporation [2004] HCA 6; (2004) 78 ALJR 394 Graham v R [1998] HCA 61; (1998) 195 CLR 606 Greek Herald v Nikolopoulos [2002] NSWCA 41; (2002) 54 NSWLR 165 Habib v Commonwealth of Australia [2008] FCA 1494 Habib v Nationwide News Pty Ltd [2008] NSWSC 181 Hansen v The Border Morning Mail Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 July 1988, unreported) Higgins v R [2007] NSWCCA 56 John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 Jones v Sutherland [1979] 2 NSWLR 206 Kelly v R [2004] HCA 12; (2004) 218 CLR 216 MacPherson v R [1981] HCA 46; (1981) 147 CLR 512 Maisel v Financial Times Ltd (No 1) (1915) 112 LT 953 Maisel v Financial Times Ltd [1915] 3 KB 336 Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290 McDermott v R [1948] HCA 23; (1948) 76 CLR 501 McNeil v R [2008] HCATrans 383 McNeill v The Queen [2008] FCAFC 80; (2008) 168 FCR 198 CASES CITED: Metwally v University of Wollongong (No 2) [1985] HCA 28; (1985) 60 ALR 68 Nationwide News Pty Ltd v Warton [2002] NSWCA 377 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 R v Bertrand [2008] VSCA 182; (2008) 20 VR 222 R v Christie [1914] AC 545 R v Douglas [2000] NSWCCA 275 R v Duff (unreported, New South Wales Court of Criminal Appeal, 17 September 1998) R v Esposito (1998) 45 NSWLR 442 R v Fernando [1999] NSWCCA 66 R v Fulling [1987] QB 426 R v GH [2000] FCA 1618; (2000) 105 FCR 419 R v Heffernan; R v Peters (NSW Court of Criminal Appeal, Smart, Bruce James and Sperling JJ, 16 June 1998, unreported, BC9802596) R v Horton (1998) 45 NSWLR 426 R v JF [2009] ACTSC 104 R v Norton [1910] 2 KB 496 R v Priestley (1965) 51 Cr App R 1 R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159 R v Thomas [2006] VSCA 165; (2006) 14 VR 475 R v Ul-Haque [2007] NSWSC 1251; (2007) 177 A Crim R 348 R v Zhang [2000] NSWSC 1099 Raul Amon International Pty Ltd v Telstra Corp Ltd [1998] 4 VR 798 Shields v Westpac Banking Corporation [2008] NSWCA 268 Singleton v Ffrench (1986) 5 NSWLR 425 Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 State of New South Wales v Deren [1999] NSWCA 22; (1999) Aust Torts Reports 81-502 Straker v The Queen (1977) 51 ALJR 690; 15 ALR 103 Suttor v Gundowda [1950] HCA 35; (1950) 81 CLR 418 Telstra Corp Ltd v Australis Media Holdings (No 2) (1997) 41 NSWLR 346 Tofilau v R; Marks v R; Hill v R; Clarke v R [2007] HCA 39; (2007) 231 CLR 396 Watson v Foxman (1995) 49 NSWLR 315 Westpac Banking Corporation v Ollis [2007] NSWSC 956 Winterbottom v Vardon & Sons [1920] SALR 357 Woon v R [1964] HCA 23; (1964) 109 CLR 529