Analysis
46 I start with a brief summary of the submissions of the parties.
47 The applicant submits that the "critical issue" is whether the respondents' claim for journalist privilege under s 126K of the Evidence Act is valid. This issue, in turn, involves three sub-issues. The first is whether a privilege exists at all in relation to those sources whose identity is no longer confidential, because the Outlines of Evidence served by the respondents as a practical matter disclose the identity of those sources. The second is whether the privilege extends to protect all documents provided by a source, even where the substance of the documents has been disclosed already and/or disclosure of the document does not disclose the identity of the source. The third is whether, even if the privilege exists, the Court should nonetheless order production under s 126K(2) on the basis that the public interest favours disclosure of relevant discovered documents to the applicant. As I have said, I do not propose to consider this third sub-issue because it is not part of the application.
48 The applicant submits that the Journalists Code of Ethics by itself would not provide any legal basis for refusing disclosure and, in those circumstances, he notes that on or about 14 November 2019, the respondents served amended Lists of Documents confirming that they rely upon s 126K of the Evidence Act. The applicant submits that the respondents' evidence discloses four categories of documents alleged to be covered by the confidential source privilege, namely:
(1) notes of discussions with confidential sources, or compilations of those notes;
(2) documents obtained from confidential sources;
(3) transcripts or recordings of interviews with confidential sources; and
(4) email exchanges between Mr Masters and a confidential source, later forwarded to Mr McKenzie.
49 The applicant accepts that the affidavits of Messrs McKenzie and Masters establish, for the purposes of the application, that each of the respondents' confidential sources was given the relevant "promise" for the purposes of s 126K(1).
50 The applicant referred to Ashby v Commonwealth of Australia (No 2) [2012] FCA 766; (2012) 203 FCR 440 (Ashby v Commonwealth) and, in particular, the following passage at [32]:
… Section 126H(1) assumes that the identity of the informant, as the source of the particular information that the journalist published, is not already known at the time that the privilege is claimed. That is, there is still a secret or confidence to protect. Thus, s 126H(1) deliberately uses the conditional "would" to indicate that the privilege is limited to a disclosure or act that changes the position of the informant from his or her then current state of being unknown as the source of the particular information. Once the informant has been revealed as the source of that information, the source's identity as such is no longer confidential. Thus, there is no point in protecting his or her identity or permitting the journalist to assert that the identity is confidential to the journalist, so that he or she is not compellable to produce a document or give evidence that merely confirms that identity.
51 Section 126H(1) was in materially similar terms to s 126K.
52 In essence, the applicant's argument on the application is that the privilege no longer subsists in the relevant documents because the identity of the various sources has been revealed. The applicant put two arguments, a broad argument and a more confined argument. The broad argument was that the privilege came to an end when the Outlines of Evidence were filed and served. I reject that argument. There is no reason to conclude that the mere filing of the Outlines of Evidence without further analysis destroyed the privilege. The more confined argument is that by reference to the publications, the respondents' Defence and the Outlines of Evidence there has been disclosure of the identity of certain persons. I consider that argument below by reference to the "Examples" advanced by the applicant.
53 The applicant submits that a relevant contextual matter is the orders made under s 37AF of the Federal Court of Australia Act. The Court and the parties are aware of the identity of the persons, the subject of the 14 Outlines of Evidence, which have been filed and served by the respondents. Another contextual matter is that the applicant is seeking documents to enable him properly to meet the evidence that has been put against him. In this respect, the applicant's submission is as follows:
It is submitted that it is obvious that the Applicant would seek documents which, for example, might comprise earlier versions or accounts from the Respondents' proposed witnesses, or documents those witnesses might have supplied to the Respondents to support their accounts, or which might otherwise impact upon the credit of the witnesses. In this process, the fact that one or more of the witnesses may also have been a source for the matters complained of (although it may give rise to a claim for privilege) is beside the point - it is irrelevant to any issue in the case.
54 The applicant submits that the inference is obvious that some of the respondents' proposed witnesses were the sources for the matters complained. The applicant submits that, having regard to the pseudonym orders and the implied undertaking, he and his legal advisers have no right publicly to divulge the identity of the witnesses nor, for that matter, their status as sources for the matters complained of. The applicant further submits that neither of those matters is a matter which would be expected to emerge as part of the proceedings, including the trial, having regard to the pseudonym orders. The applicant states that he did not object to the proper redaction of the documents sought if that can protect the identity of any particular person as a confidential source for the articles so long as the redaction does not prevent the applicant linking the documents to particular witnesses the respondents anticipate calling (where that would otherwise be apparent from the discovery).
55 Before leaving this summary of the applicant's submissions, I should mention a matter counsel for the applicant raised at the outset of his submissions. It is a matter which had occurred to me on reading the written submissions. It is whether the privilege, whatever its present status, would be destroyed at trial upon a source being called as a witness at trial and identified by a few simple questions as a source. The argument would be that the documents are relevant (they have been discovered) and should be produced. The potential for the disruption to the orderly progress of the trial should this occur is obvious. As I understood the respondents' reply to that submission, it was that no assumptions should be made as to what might occur at trial and, as far as the period before trial is concerned, if this potential for disruption is relevant, it can only be relevant as a public interest consideration on application under s 126K(2) of the Evidence Act. It seems to me that the fact that there may be disclosure of identity as an informant at trial cannot affect the determination of the privilege issue at this stage. The fact that as at the present time that may happen, or is likely to happen, at trial may be relevant to an application under s 126K(2), but, as I have said, thus far no such application has been made.
56 The respondents accept that the issue of whether there had been disclosure of information that identifies the informants or information from which those identities could be ascertained is to be determined on the balance of probabilities. They submit that the onus is on the applicant to establish that fact and that the Court should reject the argument that it is somehow incumbent on them to adduce evidence that none of the persons who are the subject of Outlines of Evidence were confidential sources as referred to in the respondents' List of Documents.
57 The respondents submit that the applicant's argument that one can infer the identity of a source by simply comparing the contents of the publications with the Outlines of Evidence is fundamentally flawed because it overlooks "the possibility of some other way the journalist was given that information, either by a hearsay informant or by a document or by other people who had been told by that person what occurred and had been able to pass it on, where that has been able to be corroborated". The respondents submit that the applicant's argument conflates the identity of a witness with the identity of an informant. Furthermore, the respondents submit that it is important to distinguish between eyewitnesses, informants and trial witnesses. They submit that there are a number of ways in which the account of an eyewitness may find its way to a journalist. The respondents submit that it "maybe" reasonable speculation that persons who are the subject of Outlines of Evidence are informants, but it is not a reasonable inference to be drawn over other inferences.
58 The respondents sought to bolster their argument by reference to the following matters. First, they submit that there are a large number of references in the publications that support the conclusion that there are a number of possible sources for the information. Secondly, they submit that because of the solemn promises the journalists gave to their sources, the Court should be slow to infer that they have disclosed their sources. In fact, the respondents submit that it is clear that the journalists have chosen their words carefully so as to avoid disclosing their sources. Thirdly, the respondents submit that the approach of Rares J in Ashby v Commonwealth provides appropriate guidance in terms of the evidence required to satisfy the Court that the identity of an informant had been disclosed. That case was, the respondents submit, a much stronger case for a conclusion of disclosure than the present and yet his Honour found that there had not been disclosure (see, for example [11]). His Honour said (at [28]):
There is evidence that Mr Lewis and Mr Ashby communicated about articles that Mr Lewis published shortly before these proceedings commenced, and that those articles may have had some relation to the document that is the subject of the current claim. However, I am not persuaded that the evidence establishes that Mr Ashby was the source or that the information, whatever it is, in the document is information that is now in the public domain or associates him as having provided it to Mr Lewis.
59 In this case there is no evidence of any communications before the publications between the journalists and any of the witnesses who are the subject of Outlines of Evidence.
60 The applicant developed his submissions by reference to examples which he contended established disclosure of the identity of the informants. There were five examples in his written submissions and the first two of these were the subject of detailed oral submissions.
61 The first example concerns the alleged murder of Ali Jan on 11 September 2012 in or about the village of Darwan.
62 The first matter complained of concerned articles published in The Sydney Morning Herald newspaper and entitled "SAS's day of shame" and "Troops kept 'kill board': SAS's day of shame" on 9 June 2018.
63 The article refers to a respected and experienced operator who heard the applicant relay a message that a spotter had been killed in action, and who a short time later, observed from a helicopter what looked like a body at the bottom of a cliff.
64 The article refers to a junior soldier who witnessed the applicant kick a detainee off the edge of a 10 metre high cliff and who also told his superiors that the injured man was executed. The article refers to a second witness serving with the SASR who says he saw the applicant kicking a detainee who was then summarily executed in some scrub out of the view of the other detainees and most of the other soldiers. The article refers to the fact that, although stories differ about the precise sequence of events, both witnesses (i.e., the junior soldier and the person serving with the SASR) said that the applicant was party to the decision to put the detainee "out of his misery". A similar claim is made in the article published on 10 June 2018.
65 In the Defence and letter of particulars, it is alleged that the applicant kicked a detainee off a cliff and then directed Person 12, a member of the Afghan Partner Force, to shoot him. The particulars again expressly allege the applicant committed murder.
66 Three of the Outlines of Evidence served by the respondents deal with this incident, or some aspect of it. The Outlines are those of Persons 4, 7 and 13.
67 Person 4 deals with it in paragraphs 22 to 25 of his Outline of Evidence. He states that the applicant took the man (that is, a man being detained by Australian soldiers) to the edge of a small cliff. The man was handcuffed. The applicant placed the man onto his knees facing away from the cliff and towards the applicant. The applicant took a small run up and kicked the man in his chest. The man fell over the edge of the cliff. Person 4 saw the man's face hit the side of the cliff and his teeth fly out of his mouth. The man was lying on the dry creek bed below and Person 4 saw the applicant and Person 11 walk down to the bottom of the creek bed and confer with each other. When Person 4 went to the bottom of the small cliff, he saw that the man had been shot dead. He used a digital camera to take a photograph of the man showing him deceased, including the injuries to his face. Person 4 then states that he, the applicant and Person 11 concocted a story to cover up the assault and execution of the man.
68 Person 13 was deployed to Afghanistan as a translator with the United States armed forces in 2012. He saw the applicant standing at the top of a small cliff with his patrol and approximate to where detainees were being held. Person 13 was standing at the bottom of a small cliff with Person 12 who was a commander within the Afghan Partner Force. Person 13 then observed the applicant take a handcuffed detainee to the edge of a small cliff. The applicant placed the detainee on his knees at the edge of the cliff. The applicant took a few steps back and kicked the detainee extremely hard in his midriff off the cliff. Person 13 observed that the detainee was seriously hurt and his face was badly injured. The applicant then directed Person 12 to execute the detainee. The applicant explained to Person 13 and Person 12 that the detainee should be executed because he was suspicious. Person 13 translated the applicant's directive to Person 12. Person 12 and Person 13 then picked the detainee up off the ground where he was lying and walked him to nearby bushes to execute him as they did not want the remainder of the detainees to witness the execution. Person 12 then shot the detainee.
69 Person 7 describes the incident so far as he was involved. He heard the applicant report over the radio that they had engaged a spotter and that he was an enemy killed in action (EKIA). Person 7 said that he had not seen any person that could have been deemed to be a spotter. Person 7 said that when he was in the helicopter on the way out of Darwan, he looked downwards towards the village as he was wondering how the incident may have occurred and he saw, what he believes, was the body of the individual who had been killed.
70 In his Outline of Evidence, the applicant denies that any such event took place. He states that at the time, he and Person 11 engaged and killed a spotter in a corn field. He states that a Sensitive Site Exploitation (SSE) was undertaken and a photograph was taken of the body. He states that Person 12 was not in Darwan on the mission at that time and, in fact, had been stood down at the end of July 2012. He also states that Person 13 (the interpreter) was not with his patrol at any time during the Darwan mission and that on that day the only contact his patrol had with an interpreter was at an early stage.
71 The applicant has filed and served an Outline of Evidence on behalf of Person 11 and he denies that an incident occurred as has been described by the respondents. Furthermore, Person 12 was not present for any part of the Darwan mission, and Person 13 was not with the applicant's patrol during that mission. The only interpreter the patrol had contact with had earlier been escorted to the rear.
72 The applicant submits that it is obvious that the soldier source referred to in Particulars 99 and 101-102 accompanying the Statement of Claim was Person 7. The applicant submits that the second person referred to in Particular 106 can only be Person 13 and that the junior soldier referred to in Particular 103 can only be Person 4.
73 The applicant submits that any documents and information supplied by Persons 4, 7 and 13 will be critical. He asks the Court to bear in mind the circumstance that he denies the event took place. In fact, the man he supposedly ordered to shoot Ali Jan on 11 September 2012, being Person 12, had been stood down in July 2012. The applicant's evidence will be that Person 13 was also not with his patrol at any time during the Darwan mission. He has no proper opportunity to prepare to meet the allegation of murder which is being made against him and discovery of documents and information provided by the sources is, according to the applicant, critical.
74 The second example concerns the alleged execution of an Afghan Male in 2009: "blooding the rookie".
75 In an article published on 10 June 2018, there are statements to the effect that an SASR trooper on his first deployment to Afghanistan was pressured to execute an elderly, unarmed detainee by fellow higher-ranking soldiers as part of a "blooding ritual" according to defence insiders who were witnesses at the scene. The execution is said to have taken place on Easter Sunday in 2009. The victim was a suspected Taliban member, but at the time presented no threat to Australian soldiers. The article contained statements to the effect that the newly deployed soldier allegedly shot the man after being prompted by two more senior soldiers, one of whom was earlier overheard proclaiming a need to "blood the rookie". One of the sources said that the killing was less abhorrent than the pressuring.
76 The incident is referred to in paragraph 46 of the Particulars to the Defence. The allegation is that in the presence of the applicant, Person 5 ordered Person 4 to execute a person described as an Afghan Male 1. Pursuant to that order, Person 4 placed Afghan Male 1 on his knees and shot him in the back of the head. Person 4 was ordered to execute the Afghan male so that he could be "bloodied". The applicant did not say or do anything to encourage Person 5 to withdraw the order or to stop Person 4 following the order. The allegation is that, in those circumstances, it may be inferred that the applicant was complicit in and approved of the order. It is further alleged that by his conduct with respect to Afghan Male 1, the applicant was complicit in and responsible for murder.
77 The respondents have filed an Outline of Evidence from Person 4. In that Outline, it is said that Person 5 directed Person 4 to execute one of the Afghan men. The applicant was present when this directive was given. Person 4 removed the Afghan male to a nearby location, placed him on his knees and executed him.
78 The only other Outline filed and served by the respondents in which the incident is referred to is the Outline of Evidence filed on behalf of Person 14. In Person 14's Outline, it is said that after the mission, Person 5 came out of "Whiskey 108" (a compound given that code name) and said: "I finally bloodied the rookie" (referring to Person 4).
79 The applicant denies that any such incident occurred. He states that Person 4 had already killed an insurgent approximately one month before this time and that the expression "blooding the rookie" was not used in the SASR. Person 5 denies that any such execution occurred. Person 29 states that there were no fighting aged males detained within the compound so that the incident could not have happened. He also said that the phrase "blooding the rookie" was not used in the SASR. Person 35 gives evidence to similar effect to that of Person 29. Person 27 also states in his Outline that the terminology of "blooding the rookie" was not known in the SASR at the time.
80 The applicant submits that the only participants or witnesses to the incident were the applicant, Person 5 and Person 4. Given the statements made by the applicant and Person 5, the source of the information about the incident must be Person 4. The applicant submits that insofar as Person 14 provides corroborative evidence, his identity is also not confidential. The applicant submits that he simply cannot prepare fairly to meet the allegation without seeing the documents and information provided by the source.
81 In my opinion, it must be quite clear that there is information available which discloses the informant's identity, or enables the identity to be ascertained, before the journalist's privilege in s 126K(1) is displaced. The publisher or journalist carries the onus of establishing the elements of the section, but does not carry the onus of negating a claim that disclosure of identity has already taken place. The onus of establishing that is on the person who claims that the privilege has been displaced. There is a broad analogy between the circumstances of prior disclosure sufficient to displace journalist privilege and waiver of legal professional privilege in that the person who asserts displacement or waiver must establish it and the evidence establishing such displacement or waiver must be quite clear.
82 It is important to bear in mind that the person whose identity is protected is an informant, that is to say, a person who gives information to a journalist. That person is not necessarily an eyewitness or a person whose information would be admissible evidence in a court.
83 The articles themselves make it clear that not only has there been a detailed investigation by the journalists (over months and involving interviews with dozens of current and former soldiers and senior officials, the hiring of an Afghan journalist) (Particulars of First Matter complained of, para 44), but also a Defence Force Inquiry in 2016 and a Confidential Report (Particulars of First Matter complained of, paras 8 and 9), and detailed testimony of first-hand witnesses (First Matter complained of, para 7), and finally, the entire culture and command structure of Australia's most renowned and trusted fighting force being under scrutiny in a manner unprecedented in Australian military history (First matter complained of, para 46). It is also true that there are examples of reports of statements being made by first-hand witnesses or witnesses, but no express statement that the statements were made to the journalists themselves (First Matter complained of, paras 7 and 27).
84 I have considered all of the above matters and, bearing in mind the range of possible sources in this case, I am not satisfied that there has been a disclosure such as to displace the journalist privilege.
85 The first two examples are the applicant's strongest examples and as he has failed with respect to those examples, he must fail as to his other examples. I will describe those other examples for the sake of completeness.
86 The third example concerns the alleged murder of a man identified as Afghan Male 2 with a prosthetic leg in 2009.
87 The article published on 10 June 2018 refers to an Afghan man whose right leg is a prosthetic who was killed in 2009. It is said that his prosthetic leg was taken back to the Perth headquarters of the SAS as a "trophy". The article states that the SASR are the "sources" and claim that the man with the prosthetic leg was machine gunned by the applicant. This allegation is picked up in the Defence where it is alleged that the applicant carried an Afghan male with a prosthetic leg outside the compound and threw him on the ground. He then shot Afghan Male 2 approximately 10 to 15 times with a light machine gun. It is alleged that Afghan Male 2 was a person under control who posed no immediate threat, particularly given that he was impaired and the applicant was able to carry him outside of the compound and throw him to the ground. The allegations include an allegation that the applicant's conduct with respect to Afghan Male 2 constituted murder. This is alleged to have occurred on Easter Sunday, 2009.
88 The applicant submits that the only Outline of Evidence served by the respondents which deal with this incident is an Outline of Person 14. In Person 14's Outline he states that he saw movement in his right peripheral vision at the entry point of Whiskey 108. He observed an Australian soldier throw a dark object from shoulder height onto the ground near the entry of the compound. The Australian soldier then shot the object approximately 10-15 times. From the sound of the weapon, Person 14 could tell that the weapon was a light machine gun (F89 LSW). Person 14 described the soldier as tall and thick in the upper body.
89 The applicant submits that there is no other person in the respondents' Outlines of Evidence that refer to this incident. So far as the applicant is aware, the allegation of murder rests only on this account.
90 The applicant agrees that he engaged and killed an insurgent who was armed with a rifle outside Whiskey 108 after it had been secured. He agrees that after this occurred, he noticed that the insurgent had a prosthetic leg. The applicant recovered a bolt action rifle from the body and took a photograph during the SSE. The applicant claims that the incident as recorded by Person 14 could not have occurred for the following reasons: (1) Person 14 could not have seen him given their respective positions at this time; (2) the applicant could not have carried an insurgent outside of the compound given his equipment load of webbing, body armour, a helmet and machine gun; and (3) 10-15 rounds from a machine gun would show significant trauma on the body. The applicant only shot the insurgent once or twice. The applicant submits that a number of witnesses will corroborate his account (Persons 27, 29, 35, and 38).
91 The applicant submits that Person 14 is the sole support for the allegation of murder reported in the article and that Person 14 is no longer a confidential source. The applicant submits that it is obvious that any documents or information provided by Person 14 in respect of this allegation will be critical and the applicant cannot fairly prepare to meet this allegation of murder without access to those documents and information.
92 The fourth example concerns an unlawful assault of a man identified as Afghan Male 3 in March 2012, Rotation 12.
93 In the article published on 11 and 12 August 2018, there is a reference to one experienced SAS soldier describing intervening to stop the applicant bashing an unarmed Afghan whom patrol commanders were seeking to arrest in 2012. There is reference to the detainee being in a foetal position when the applicant entered the room wearing Kevlar gloves and to the applicant pummelling the detainee in the face with his fists and in the stomach with his knees. The source said "Whoa whoa whoa. Back off mate. We have this under control". This allegation is referred to in the Defence. The Defence records Persons 7 and 8 being present when the applicant wearing Kevlar gloves assaulted the detainee by hitting his face and stomach. The Defence records Person 7 as making the comment "Whoa, whoa, whoa what you doing? Get out of here we are looking after this". Person 7's Outline of Evidence records an incident in these terms. The applicant submits that the source for this allegation in the manner complained of is clearly Person 7. Even if, which seems unlikely, Person 8 is also a source, that would not affect the position of Person 7.
94 The final example concerns a mock execution in May 2012.
95 In the article published on 11 and 12 August 2018, there is reference to an incident during a training exercise in Perth where the applicant ordered a soldier to shoot a detainee. The source is said to be an SAS solider who claims to have witnessed the event. He describes the applicant as saying "F-ing kill him, f-ing him" and after the mock execution had been simulated, the applicant saying "You good with that?". It is also stated that two patrol commanders challenged the applicant telling him to "pull his head in".
96 This incident is referred in the Defence.
97 There are two Outlines of Evidence which deal with it. There is the Outline of Person 7. In the Outline, Person 7 states that he approached the applicant and said words to the effect of "Wake up to yourself and pull your bloody head in". It would seem that he was the patrol commander who reprimanded the applicant after the incident. Person 10 also refers to the incident. He is identified as the trainee ordered to perform the mock execution.
98 The applicant submits that there is no confidentiality in Person 7 and 10 being the sources for this incident or any information pertaining to the incident. This is the case whether or not other persons (irrespective of whether they were confidential sources) witnessed the incident.
99 As I have said, the above three examples rise no higher than the first two examples and they do not lead to the displacement of the journalist privilege for the reasons given in relation to those examples.