Rakhimov v Jennings & Anor

SIMON AND SCHUSTER (AUSTRALIA) PTY LTD ACN 000 945 380 (Second Defendant) JUDGMENT OF : Levine J

B McClintock S.C. (Plaintiff) COUNSEL : J S Wheelhouse (Defendants) Gilbert & Tobin (Plaintiff) SOLICITORS : Minter Ellison (Defendants) CATCHWORDS : Imputations - capacity - form CASES CITED : Rakhimov v John Fairfax & Sons Limited & Anor [2001] NSWSC 11 DECISION : See paragraph 12

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20493 of 2000

SIMON AND SCHUSTER (AUSTRALIA) PTY LTD ACN 000 945 380 (Second Defendant)

JUDGMENT (Imputations - capacity - form) 1 The plaintiff sues the defendants in respect of the publication by them of the book entitled "The Great Olympic Swindle". The first defendant is the author of the book and the second defendant is the publisher in Australia. 2 Reliance is placed upon the book in its entirety but in particular upon the words appended hereto which are set out as extracts and attached to the Further Amended Statement of Claim filed on 8 December 2000 by leave. 3 The imputations pleaded by the plaintiff are as follows: "4(a) The plaintiff is a major international drug dealer; (b) The plaintiff is a leader of a syndicate of international drug dealers; (c) The plaintiff smuggles heroin and cocaine; (d) The plaintiff is so evil and destructive a criminal as to pose a grave threat to the public safety of France and the French people; (e) The plaintiff is a criminal who engages in drug dealing, fraud, prostitution, assassination, extortion, gun running and plutonium smuggling. (f) The plaintiff bribed members of the International Amateur Boxing Federation to vote for him to be a member of the executive committee of the International Amateur Boxing Federation. (g) The plaintiff is a gangster in the Soviet black economy; (h) The plaintiff is a person prepared to influence the results of Olympic events so that medals therefore would not be awarded on merit; (i) The plaintiff has subverted the Olympic ideal by trading medals for bribes". 4 As I have ruled in Rakhimov v John Fairfax & Sons Limited & Anor [2001] NSWSC 11 imputations 4(a) to (c) do not differ in substance. They will be struck out with leave to re-plead. Imputation 4(d) will not be struck out but as I said in the Fairfax judgment consideration should be given to its re-wording. In relation to 4(d) I reject the submission that the matter complained of is incapable of carrying an imputation of the plaintiff in fact being a criminal that poses a threat as opposed to being suspected of being one. 5 As to imputation 4(e) for the reasons stated in the Fairfax matter, that imputation is struck out with leave to re-plead. 6 It is submitted in relation to imputations 4(e) and 4(g) in any event that they do not differ in substance. Whilst I have formed the view that an imputation worded as in 4(g) is proper in form and capable of arising, consequentially upon the necessary amendment following from 4(e) the plaintiff may well be confronted with a SCR Pt 67 r 11(3) problem. What the publication is about is the plaintiff being said to be a criminal on a "grand scale". I do not propose however to strike out imputation 4(g). 7 I shall next deal with imputation 4(h) and 4(i). It is contended for the defendants that these imputations do not differ in substance. Frankly I do not see how it could be argued otherwise. Certainly there is material in the matter complained of and the selected extracts referred to that point to medals not being awarded on merit but by reason of other factors. That such other factors includes bribes is capable of arising but the two imputations in question on any fair reading of them are really stating the same thing. Imputations 4(h) and 4(i) will be struck out with leave to re-plead. 8 I turn now to imputation 4(f). Whatever precisely it means I am not persuaded that it does not differ in substance from 4(h) and 4(i). The real issue in relation to 4(f) is capacity and pursuant to SCR Pt 31 r 2 was strenuously argued. 9 I have read the matter complained of as extracted in the Further Amended Statement of Claim. The simple point is: the matter could only be understood by the ordinary reasonable reader as stating that the bribery was not to have the plaintiff elected but rather Mr Chowdhry. I have read the matter complained of. I have read the terms of the imputation and have concluded that the matter is incapable of giving rise to a statement to the effect that the plaintiff bribed people to have himself elected a member. There will be a verdict for the defendants in respect of imputation 4(f). 10 The plaintiff will however have leave to re-plead. 11 The defendants have succeeded in the dispute in relation to the imputations and the plaintiff must pay the defendants costs. 12 The formal orders are:

1. Imputations 4(a), (b) and (c) are struck out with leave to re-plead.

3. Imputation 4(e) is struck out with leave to re-plead.

4. Imputation 4(f): a verdict for the defendant is entered in respect of this cause of action.

6. Imputations 4(h) and (i) are struck out with leave to re-plead.

7. The plaintiff has leave to file a Second Further Amended Statement of Claim within 21 days.

9. The matter is listed in the Defamation List on 2 March 2001.

Appendix Amended SCHEDULE Extracts from "The Great Olympic Swindle" By Andrew Jennings Page 211

"At a boxing reception Chowdhry was seen with a new associate, Mr Gafur Rakhimov, a wealthy businessman from Uzbekistan. The burly men around Rakhimov were assumed to be bodyguards. The press reported on the number of ostentatiously wealthy new officials from the countries of the former Soviet Union, their female companions wearing fur coats in the stifling Georgia humidity."

"A year later Gafur Rakhimov turned up again with his phalanx of bodyguards. He's the Uzbek businessman people spotted with Chowdhry at the Atlanta Games. At the world championships in Budapest, 1997, Rakhimov was listed only as a team official but all the squad deferred to him."

"Mr Rakhimov's favourite fighter is his own Uzbek heavyweight, Ruslan Chagayev. A raw and ready upstart, Chagayev made it to the final where he faced Cuba's might Félix Savón, the stylish and hard-hitting five times world champion. Immediately, the Cuban was in trouble, not from Chagayev but from the Turkish referee. He stopped the fight twice, warning Savón for hitting with the inside of his glove. The Cuban looked baffled, as did the spectators, who saw no trace of a foul."

"There's around five hundred delegates, translators, and bodyguards at the rows of tables, with their little national flags, stretched across the hall. Half a dozen rows from the front sits Mr Gafur Rakhimov, stolid and thoughtful. He has the firm build of the light heavyweight boxer he once was, a military-style short haircut; he's quietly well-groomed and has delicate high cheekbones that hint of the steppes and the mountains of Central Asia, although he and his associates are listed as Turks at the hotel. His bar and hospitality bill over the long weekend is the highest, at just over one hundred million Turkish lira. Chowdhry comes second with forty-six million lira.

Some of the funny business happened last night, before the congress began. Wehr tells me that when Rakhimov walked into a hospitality room Chowdhry jumped up and chattered 'This is my friend Gafur. If I need $100,000 he will give it to me immediately.' It's also whispered to me that last night a Russian-speaking man approached some African and Latin delegates offering the equivalent of $1,500 each for their votes. Later, Wu and Wehr lodge an official protest that eight African and three South American delegations took bribes."

"Later I talk to Australia's elderly Arthur Tunstall, long-time on the executive committee. 'Rakhimov?' says Arthur. 'He's the one who swung the support behind Chowdhry.' How? 'Nobody actually said, "I saw the money being given." That's been one of the problems. Nobody has ever said it. And they're not likely to. You wouldn't expect anybody to come out and say, "I took a bribe."'

I look again at the list I was given last night in the bar. Should have got to a bookie. All twenty-nine are elected. Mr Rakhimov has come from nowhere to be voted a member of the executive committee. And Dr Wu has been thrown off.

We go to the bar. Over in London this Saturday night reporter Michael Gillard is completing his story about the Moscow Mafia for tomorrow's Observer . He mentions that a Mr Gafur Rakhimov is 'The Godfather of Tashkent … a major figure in Uzbekistan's booming heroin trade.'"

"Gafur Rakhimov returned home from the Atlanta Games to a hero's reception at Tashkent airport. 'He was welcomed back with great ceremony by officials who had come to meet him off the plane in a fleet of black limousines,' reported a source whose account quickly found its way into drugs intelligence files across Western Europe.

Rakhimov had good news for Uzbek sports officials and the government. The Marqués de Samaranch, the president of the International Olympic Committee, would visit in a month's time. This would bring glory to everybody and transform Gafur's own fortunes. Fifteen months earlier has progress up the ranks of the Russian Mob had taken a humiliating knock.

When the Russian Godfathers take time off from drugs, fraud, assassination, prostitution, extortion, gun-running and smuggling plutonium, they like to have fun. Mob bosses' birthdays are occasions for special celebration. And so it was on the night of 31 May 1995 when the crime chiefs of the new Evil Empire flew into Prague for a night of debauchery.

They gathered at the Black & White, one of a chain of strip clubs owned by the Godfather of Russian Godfathers, Ukranian-born, Israeli-naturalised Semion Mogilevic. A podgy, charmless chain-smoker, 'the most powerful mobster in the world', according to the FBI, Mogilevic controls a fortune estimated at $100 million.

It was a great night to remember, full of surprises. A cheery chap nobody recalled seeing before videoed near-naked girls cavorting around the banqueting tables. To close the night, a bunch of guys in black uniforms and balaclava helmets, packing mock sub-machine-guns, abseiled down ropes slung from the upper floor and jovially clapped the whole bunch in handcuffs. How richly comic. They looked just like a Prague SWAT team. Gafur Rakhimov laughed as much as anyone, though weren't the actors going a bit far, cuffing the girls too?

The joke was turning sour. These hooded characters didn't know when to stop. They hauled the gangsters and lap-dancers out on to the street, lined them against a wall and continued videoing them, one at a time, full face. Then the commander stepped forward and s aid something along he lines of 'Good evening gentlemen. We are the Prague organised crime squad. We've recorded your faces, but you're not seeing ours. These are real guns. You get a free one-way ride to the airport and don't ever, ever come back.'

The picture they had taken of Rakhimov smiling earlier in the evening was pasted into the file the FBI opened on him ten weeks later. It was headed 'Russian Organised Crime/Racketeering Enterprises', numbered 033, and held in their office in Miami. The Feds had his date of birth, 22 July 1951, description - black hair and black eyes - and a list of associates that put him in the premier league of the new Eastern Mafia.

Topping the list was Sergei Mikhailov, boss of the Solntsevo crime syndicate. Also named was Vyacheslav Ivankov, head of the Russian Mafia's operations in America until he was jailed in 1996. The Feds said Rakhimov worked with Ivankov's lieutenants the Kandov brothers, Mark and Boris, fronting one of their operations, a Vienna-based company called Agrotek. It was alleged that he had been involved in distributing counterfeit US dollars in Poland and might be connected with 'major cocaine smuggling operations'. Rakhimov had come a long way in the few years since the collapse of the Soviet empire. Now there was nothing to hold back his spirit of enterprise, which would link the Olympic money machine to some of the most fearsome criminal gangs the world has ever seen, with a little help from one of Juan Antonio Samaranch's closest associates."

"There's no free press in Uzbekistan, and government opponents tend to disappear or fall to their deaths from police-station windows. The luckier ones live but often end up in jail because when the cops call they inevitably find guns and tiny stashes of narcotics. Others seem above the law. Living standards in Uzbekistan have deteriorated but Tashkent has become the money-laundering centre of the region's heroin trade and small towns in the towering mountains are awash with late-model Mercedes. Customs officials acquire palatial mansions, and one intelligence report, from a French drugs agency, has it that 'the nouveaux riches revel in dream cars and girls on tap'.

The next dossier on Gafur Rakhimov was opened in the Moscow office of the Chief Directorate for Fighting Economic Crime, a division of the Russian Ministry of Internal Affairs, which has access to KGB files on the long-time gangsters of the Soviet black economy. It paints a broader and darker picture than the FBI file. Few, it seems, are richer or more powerful in Central Asia than Gafur Rakhimov. And, the Moscow crime-fighters warn, Gafur's gone international. He operates in Moscow and London and spends long periods in America. 'He is a personal adviser to the Uzbek president, Islam Karimov,' they say, 'and performs his special, delicate tasks, including the relationships with the Russian leadership.'

Rakhimov has his own Moscow office and 'enjoys unique influence in the Uzbek embassy, whose employees refer to him with fear. He has very strong influence in the economic and political leadership of Uzbekistan and is also influential in other Central Asian countries of the former Soviet Union. Without his unofficial sanction no single major economic project starts in Uzbekistan.'

The crime-fighters traced his extraordinary links to the Moscow powerbrokers. As well as having influence in the chief, Rakhimov was well connected to Yeltsin's rivals in the camp of Moscow's mayor, Yuri Luzhkov.

The front for Rakhimov's illegal operations, they say, is the Uzbek cotton trade. He's a global player, claiming to buy - and sell - the entire Uzbek cotton harvest, the world's third largest. In secret, according to his Moscow file, 'Gafur Rakhimov is one of the leaders of Uzbek organised crime and his main speciality is the organised production of drugs in the countries of Central Asia.' He is, 'a major figure in an international drug syndicate. He keeps very close connections with Afghan traders of drugs.' The dossier claims that Rakhimov exports his heroin through Turkey, Chechnya and the Balkans."

Rakhimov's reputation went global in the autumn of 1997 when researchers at the Paris-based Geopolitical Drugs Watch flushed him out in their annual report on world narcotics distribution - and posted it on the Internet. They named Rakhimov as one of Uzbekistan's top three mafia bosses, heavily involved in the drugs trade.

Rakhimov was already operating in Paris. In the year of the Atlanta Games he'd set up an import-export business in Avenue Hoche. In January 1998 Rakhimov flew into Le Bourget airport, near Paris, in a private jet owned by the charter company Air Enterprise. He arrived from Zurich with a 90-day visa for the Schengen (open border) countries of the European Union, travelling with eight companions, several of them Russian-born emigrants to Israel. They were waved through by immigration officers: maybe it helped that Rakhimov's ninth travelling companion was Georges de Charette de la Contrie, whose cousin, Herve de Charette, was France's Foreign Minister.

It was only after the party had left the airport in an "immaculate" black Rolls-Royce, a Volvo and a Renault Safrane that immigration officers looked in their files and discovered they had three different sets of records on Rakhimov, all warning that he was considered "a leading member of the Uzbek mafia and posed a grave threat to public safety" .

True fight fans may be alarmed and saddened to learn that Mr Rakhimov and other alleged Mafia from the East have become serious players inside the Olympic Games. Chowdhry shrewdly gambled that he could get away with cheating his athletes in Seoul - and Samaranch stood back and let it happen. When my disclosures forced the IOC to investigate the Jones scandal, Judge Mbaye and Francois Carrard, with the entire executive board's support, buried it again. All the signals from the IOC have been, before and during their own corruption scandal, that crooks and spivs inside and outside the organisation can get away with anything, so long as the public don't find out and make a fuss.

The Americans - Loring Baker and Gary Toney and the US Olympic Committee - could have taken Chowdhry on. They could have joined the Western European nations, and the good guys in other continents, pressured IOC members, worked to expose corruption in boxing. They could have saved their sport from Olympic oblivion. Instead Baker and Toney tolerated the company of corruption and sleaze and allied the name of American sport with alleged heroin-traffickers and sports officials who trade medals for bribes.

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