Roberts-Smith v Fairfax Media Publications Pty Limited

1. The evidence of Persons 62, 63, 64 and 65 be heard commencing on Monday, 26 July 2021. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BESANKO J: 1 On Tuesday, 29 June 2021, I made an order that the trial of these three defamation proceedings be adjourned for mention to Monday, 19 July 2021 at 9:30 am. As I said in my reasons, I did that "with a view, depending on the circumstances, to the trial recommencing a week later" (Roberts-Smith v Fairfax Media Publications Pty Limited (No 17) [2021] FCA 764 (Roberts-Smith (No 17)) at [7]). Since that time, the stay at home order in Sydney has been extended and is presently due to expire on 30 July 2021. 2 The respondents made an application that the trial recommence on Monday, 26 July 2021 for the limited purpose of hearing the evidence of the four Afghan witnesses. It seems clear from the written submissions of the applicant and those of the respondents that the parties accept that because of the current outbreak of COVID-19 and various border closures and isolation requirements, subject to the present application, the likelihood is that it will not be possible to recommence the trial for some time. The time at which the trial may recommence and the venue for the continuation of the trial are matters which will need to be debated in the near future. 3 I am told that the evidence of the four Afghan witnesses could take up to a week. The broad basis of the respondents' application is that the security situation in Afghanistan is deteriorating rapidly and there is an appreciable and substantial risk that if the evidence is not taken soon, it will become unavailable. 4 After hearing submissions on the respondents' application on 19 July 2021, I made an order that the evidence of the Afghan witnesses be heard commencing on Monday, 26 July 2021. These are my reasons for making that order. 5 I have delivered a number of rulings in these proceedings. Roberts-Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067 (Roberts-Smith (No 5)) provides a detailed summary of the nature of these proceedings, including the imputations said to arise from the matters complained of, and the defences raised by the respondents. I refer to that decision. 6 One of the allegations made in the Particulars of Truth relied on by the respondents is that the applicant was complicit in, and responsible for, the murder of an Afghan man by the name of Ali Jan. Indeed, the circumstances of the alleged murder, including the applicant kicking Ali Jan off a small cliff, are a prominent feature of a number of the articles containing the matters complained of. The reasons in Roberts-Smith (No 5) contain (at [30]-[58]) a detailed discussion of the allegations concerning the alleged murder of Ali Jan as those reasons were addressed to, inter alia, an application by the respondents to amend those allegations. The reasons in Roberts-Smith (No 5) also contain (at [59]-[68]) a brief summary of the proposed evidence of the Afghan witnesses, referred to in those reasons as Persons 62, 63, 64 and 65. 7 The evidence of the Afghan witnesses is an important part of the respondents' case. Of course, in saying this, I am not making any observation about whether the proposed evidence, if given, will be accepted. That is a matter for the trial in the usual way. I did not understand the applicant to dispute the importance of the evidence of the Afghan witnesses in this sense. In any event, I had no doubt their evidence is an important part of the respondents' case. 8 All of the Afghan witnesses lived in the village of Darwan, Uruzghan Province, in Afghanistan in September 2012. The three men were farmers at that time growing wheat, corn, potatoes and tomatoes. Person 64 and Person 62 were father and son and Person 64's second wife was Ali Jan's sister. The third male (Person 63) claims to have grown up with Ali Jan and to be a distant relative. 9 The respondents have used Mr Sharif Khoram to make logistical arrangements for the Afghan witnesses in Afghanistan. Mr Khoram and Persons 62, 63 and 64 have had concerns about the safety of Persons 62, 63 and 64 and, in particular, Persons 62 and 63 for reasons that include the fact that they have been repeatedly approached by persons wanting to question them about the death of Ali Jan. 10 In March 2021, Persons 62 and 63 moved to Kandahar and Person 64 moved there in May 2021. That was done, in part, because of concerns about their safety. 11 In May 2021, Persons 62 and 63 moved to Kabul and Person 64 moved there in June 2021. Their residence in Kabul is temporary, but they will stay there until at least they have given their evidence in these proceedings. None of them intend to leave Afghanistan and, in any event, none of them think that they have the practical means of doing so. 12 Person 65 lives in a district in Kandahar and intends to travel to Kabul to give evidence. She then intends to return to Kandahar. Person 65 does not intend to leave Afghanistan and, in any event, she does not consider that she has any practical means of doing so. 13 Earlier this year, the respondents made an application under s 47A of the Federal Court of Australia Act 1976 (Cth) that the Afghan witnesses be permitted to give evidence by audio-visual link from the offices of lawyers (Kakar Advocates LLC) in Kabul. I granted that application and the Afghan witnesses will give evidence by audio-visual link (Roberts-Smith v Fairfax Media Publications Pty Limited (No 10) [2021] FCA 317). More recently, I granted an application by the respondents to allow the interpreter who was required by an earlier order to be in the courtroom in Sydney, to provide interpretation remotely from Ontario, Canada (Roberts-Smith v Fairfax Media Publications Pty Limited (No 19) [2021] FCA 818). 14 In Roberts-Smith (No 17), I referred to the then uncertainty as to when the Afghan witnesses could give their evidence. I said (at [6]): Some days ago and before the present circumstances reached the point they now have, counsel for the respondents indicated that his case would commence with four soldier witnesses. This morning, counsel for the respondents submitted that in view of the deteriorating situation in Afghanistan, the respondents ask that the Afghan witnesses be heard as soon as possible. Whilst I am sympathetic to that consideration, I think there is a good deal of uncertainty associated with when the evidence of the Afghan witnesses could be heard arising from (1) uncertainty as to when the section 38B orders can be amended; (2) the applicant's request for three days between being provided with the documents and the hearing of the evidence; and (3) some uncertainty, perhaps not great, about whether the parties can be physically present in the courtroom during the evidence of the Afghan witnesses. There is no longer any uncertainty about when the Afghan witnesses can give their evidence. They can do so during the week commencing on 26 July 2021. 15 The parties put before the Court a consolidated version of the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 (the Order), being a version that included all amendments, including an amendment made during the evening of the day before the argument. 16 The object of the Order is said to be to respond to cases of community transmission of COVID-19 in Greater Sydney by placing certain temporary restrictions and other requirements on movements and gatherings in the State of New South Wales. Clause 20(1) of the Order provides that the Minister for Health and Medical Research directs that an affected person must not without reasonable excuse be away from the person's place of residence. "Reasonable excuses" are defined in Sch 1 of the Order (see also cl 20(2)) and that definition includes attendance at work where it is not reasonably practicable for the employee to work at the employee's place of residence. 17 Clause 24 provides that the Minister directs that certain listed premises must not be open to members of the public in Greater Sydney. The list of premises does not include court premises. 18 Schedule 2 of the Order contains a list of exempt gatherings and includes as an exempt gathering, a gathering at a court or tribunal. 19 The other point to note about the Order is that it contains directions about the maximum number of persons permitted on premises (cl 11) and directions about the wearing of a "fitted face covering" over both a person's nose and mouth (cl 17). 20 The evidence adduced by the respondents as to the conditions in Afghanistan is as follows: (1) The webpage "Afghanistan Travel Advice and Safety" published by Smartraveller which disseminates travel advice provided by the Department of Foreign Affairs and Trade; (2) The webpage "Foreign travel advice: Afghanistan" published by the United Kingdom Foreign, Commonwealth and Development Office; (3) The webpage "Afghanistan Travel Advisory" published by the United States Department of State; (4) A report by Thomas Kraemer, Senior Counsel at Kakar Advocates LLC, containing his assessment of the situation in Kabul. It is proposed that the Afghan witnesses give their evidence from the offices of Kakar Advocates LLC in Kabul; and (5) A report on various matters concerning conditions in Afghanistan by Emeritus Professor William Maley of the Coral Bell School of Asia-Pacific Affairs at the Australian National University. 21 I have read all of the material, but will focus on the reports of Mr Kraemer and Professor Maley respectively. 22 Mr Kraemer is an American lawyer who has been in Kabul since July 2015. He states that the security situation has been deteriorating since that time, but it is now at its most tense and with the US and NATO troops completing their withdrawal, a sense of panic is setting in. He states that the Afghan military is underpaid, undertrained and completely demoralised and that the Taliban forces are making daily gains. 23 Mr Kraemer expresses the opinion that none of the larger cities are in jeopardy at present, but the Taliban has proved capable of conducting attacks in Kabul almost at will. The largest land border crossing with Tajikistan is now in the hands of the Taliban enabling it to control trade and the associated income from customs, etc. 24 Mr Kraemer states that there is now a more pronounced growth of regional militias and there is "re-thinking" of the continued presence of diplomatic missions. 25 Mr Kraemer outlines the views of other expatriates he has spoken to. There are still commercial flights, but only a handful of airlines service Kabul. 26 Mr Kraemer identifies the following matters as relevant to the ability of the Afghan witnesses to give evidence. One matter referred to by him - the prospect of the Afghan witnesses leaving Afghanistan - is not relevant because of the evidence I referred to earlier (at [11]-[12]). However, the other matters Mr Kraemer refers to are significant. 27 The province of Uruzghan has been under Taliban control for years. Movement through Taliban territory will be scrutinised. If the Afghan witnesses leave Kabul without giving evidence and return to Uruzghan, then they may be unable or unwilling to return to Kabul at a later time. 28 Mr Kraemer states that the proceedings will have no impact on the lives of the Afghan witnesses and, with considerable uncertainty about Afghanistan's political future and a lack of understanding of the Australian court process and its ultimate purpose, the Afghan witnesses may begin to worry about whether someone will be angry at them for participating in the proceedings. 29 Mr Kraemer and the managing partner at Kakar Advocates LLC are American and have no plans at present to alter the firm's operations. However, they are monitoring the situation. The availability of power and fuel for the services at the offices of Kakar Advocates LLC may become a problem. 30 Professor Maley has extensive, specialised knowledge, training and experience as an academic expert of the history of Afghanistan and of the Taliban movement. He has published extensively on the subjects of his expertise and details of his publications are set out in his report. Professor Maley's opinion about the security situation in Afghanistan at large and how this may change in the foreseeable future is as follows: The security situation in Afghanistan is deteriorating rapidly, and is exceptionally fluid. The signing on 29 February 2020 of a US-Taliban agreement, and the consequent withdrawal of almost all international forces from the country, have resulted in an escalation of Taliban attacks in many different provinces. There is a great deal of apprehension amongst Afghans about the future of the country, apparent from a wide range of social media sources as well as my own conversations with Afghan acquaintances in Afghanistan, and there is a grave risk that Afghanistan will fall victim to what social scientists call a 'cascade', where even people who despise the Taliban decide to shift support to them because they think they are going to come out on top anyway. This is a well-recognised phenomenon (see Cass R. Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge: Cambridge University Press, 2005) pp.94-98). This can lead to unexpected and very dramatic power shifts. It is pertinent to note that in 1992, when the beleaguered communist regime collapsed, only 29 days elapsed between the onset of the regime's final crisis on 18 March, and the regime's disintegration on 16 April (see William Maley, The Afghanistan Wars (London: Red Globe Press/Macmillan, 2021) pp.151-152). A particular source of alarm has been successful Taliban operations in provinces such as Badghis and Badakhshan which historically have been strongholds for forces opposed to the Taliban (see Kate Clark and Obaid Ali, A Quarter of Afghanistan's Districts Fall to the Taleban amid Calls for a 'Second Resistance' (Kabul: Afghanistan Analysts Network, 2 July 2021)). That said, the Taliban have also remained very active militarily in provinces where they have long had a presence, such as Uruzgan and Ghazni. One consequence of the deteriorating security situation in diverse parts of the country is that Afghans may feel obligated to make their way to districts under threat, or in the hands of the Taliban, in order to assist vulnerable family members. 31 Professor Maley's opinion about the security situation in Kabul and how this might change in the foreseeable future may be summarised as follows: (1) The security situation is poor and deteriorating as is shown by the "snap closure of the Australian Embassy in Kabul on 28 May [2021]"; (2) Official Australian Government advice as of 12 July 2021 warns of "credible reports of imminent terror attacks in Kabul city"; (3) Travel within the city is dangerous with the threat of vehicle-borne explosives (car bombs) and magnetic mines that have been attached to otherwise secure forms of transport; (4) It is likely that at some point there will be a concerted Taliban attempt to besiege Kabul. It is difficult to know when this is likely to occur; (5) The Afghan national security forces find themselves in a precarious position; and (6) All of the above matters point to the looming danger of battles for control of Kabul which is the key symbol of state power. 32 Professor Maley also identified three logistical matters which may impact on the ability of the Afghan witnesses to give evidence from the offices of Kakar Advocates LLC in Kabul. They are as follows: (1) transportation to and from the offices of Kakar Advocates LLC may be a problem; (2) electricity supplies to Kabul have been subject to attacks; and (3) the ability of Kakar Advocates LLC to link electronically to the wider world could be compromised by Taliban attacks on communications infrastructure. 33 The applicant neither consented to, nor opposed, the respondents' application. He said that the submissions he made were made to assist the Court in balancing the relevant factors. 34 First, he referred to a number of circumstances identified in the evidence that suggest that it may be some time before Kabul is in immediate danger. For example, there are Mr Kraemer's statements that none of the larger cities are in jeopardy at the moment, that most expatriates in Kabul are taking a "wait and see" approach, that if a change of regime occurs, it is likely to be a "drawn" out process and "the situation in Kabul is not dire (yet)". 35 The applicant also invited the Court to consider whether there is sufficient evidence to suggest that there is any real and present danger to the Afghan witnesses who are presently located in Kabul and whether the situation is such as to warrant recommencing on 26 July 2021 "only to stop again to some date later in the year". He suggested, as an alternative to the respondents' approach, that the Court should indicate its willingness to reconsider the matter if there is evidence of a further deterioration in the security situation in Kabul. 36 In my opinion, taking into account the evidence as a whole and acknowledging that it is very difficult to make an assessment with confidence of likely future events bearing on, for example, the security situation in Kabul, there is a substantial risk that the evidence of the Afghan witnesses will become unavailable if it is not taken soon. As I have said, the evidence is an important part of the respondents' case. 37 There are three points to make about my decision on 29 June 2021 to adjourn the trial for mention to Monday, 19 July 2021 at 9:30 am and the reasons for that decision. First, at that time I did not have the evidence I have now as to the security situation in Afghanistan, and in Kabul in particular, and the possible logistical difficulties. At that time, I had no more information than what was notorious. Secondly, at that time, as I have said, there was a good deal of uncertainty associated with when the evidence of the Afghan witnesses could be heard. As it happens, the Afghan witnesses are likely to be heard at about the very time they would have been heard had I acceded to the respondents' request on 29 June 2021. Thirdly, the COVID-19 situation in New South Wales, and in Greater Sydney in particular, has not improved. It has, in fact, become worse and that will have an effect on when the trial (apart from the Afghan witnesses) will recommence. 38 The overarching consideration is the interests of justice, having regard to the circumstances I have identified. In my opinion, the interests of justice are that the evidence of the Afghan witnesses be heard as soon as possible. 39 The applicant also raised the need for him to have his legal team in Court during the evidence of the Afghan witnesses and that at the same time it would be necessary to comply with social distancing requirements. I am satisfied from what I have been told that those requirements can be met. 40 Finally, the applicant in his written submissions pointed to a lack of evidence about the location of the Afghan witnesses. To the extent that there was a lack of evidence and it is relevant, the deficiency has now been overcome by the supplementary affidavit of Mr Dougal Hurley affirmed on 16 July 2021. 41 It was for these reasons that I considered it appropriate that the Court hear the evidence of the Afghan witnesses commencing on 26 July 2021. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.