Roberts-Smith v Fairfax Media Publications Pty Limited

Federal Court of Australia|2022-03-30|Before: Besanko J

Introduction 1 In the course of the trial of these proceedings, a number of witnesses objected to giving evidence on a particular matter on the ground of the privilege against self-incrimination. In the case of many such objections, I held that there were reasonable grounds for the objection and went on to provide the witness with the information referred to in s 128(3) of the Evidence Act 1995 (Cth). A number of witnesses were willing to give the evidence with the benefit of a certificate under s 128 and went on to do so. Some were unwilling to give the evidence even with the benefit of a certificate. 2 Three witnesses, Persons 66, 4 and 56 were unwilling to give evidence on the particular matter they were asked about even with the benefit of a certificate. In the case of Person 4, the respondents, who called Person 4, did not press for an order under s 128(4) that the Court require him to give the evidence. I did not require Person 4 to give the evidence. In the case of Person 66, the respondents, who called Person 66, did press for such an order, but I declined to make an order that he be required to give the particular evidence. I made a similar ruling in the case of Person 56 who was also called by the respondents. The respondents' case with respect to each of the witnesses is that the witness himself was involved in a murder or the murder. These are my reasons for those rulings. 3 To avoid confusion, I should make the following clear. The relevant witnesses gave evidence in the following order with other witnesses between them: Person 4, Person 66, Person 56. For reasons which will become clear, the most comprehensive submissions were made in the case of Person 66. In the circumstances, I will start with Person 66.

Section 128(4)(a): the Court must be satisfied that the evidence does not tend to prove that the witness has committed an offence against or arising under, a law of a foreign country before requiring the witness to give the evidence 21 As I have said, counsel for Person 66 indicated that the objection was taken by Person 66 on the grounds that the evidence may tend to prove that he has committed an offence against or arising under an Australian law. That is to say, the objection was not taken on the basis that the evidence may tend to prove that he has committed an offence against or arising under a law of a foreign country. 22 There is an obvious relationship between s 128(1)(a) and s 128(4). The respondents do not dispute that the evidence may tend to prove that the witness has committed an offence against or arising under an Australian law. However, they provided a written submission that the evidence did not meet the description of evidence that may tend to prove that Person 66 had committed an offence against or arising under a law of a foreign country. If one was satisfied of that proposition, then that would provide, or effectively provide, the answer to the issue under s 128(4)(a). That explains why the respondents' written submissions in relation to s 128(1)(a) and their written submissions in relation to s 128(4)(a) both refer to the same sources of immunity for Person 66 from Afghan domestic law (see Shi at [8]-[9] per Kiefel CJ, Gageler and Gleeson JJ; at [89] per Edelman J). 23 In his written submissions, Person 66 accepted that the Court could be satisfied of the condition in s 128(4)(a). 24 Counsel for the respondents indicated he did not wish to rely on a question of form to the exclusion of substance. In any event, it seemed to me that it was appropriate that I consider the condition in s 128(4)(a) despite Person 66's acceptance that the Court could be satisfied of that condition. The respondents made brief oral submissions on the issue and otherwise relied on their written submissions. 25 The basis for the respondents' submissions on s 128(4)(a) and Person 66's indication that he accepted that the condition was satisfied, was as follows. First, the only potentially relevant "law of a foreign country" in this case is the law of Afghanistan and secondly, Person 66 has an "immunity" from the law of Afghanistan as a member of the ADF. 26 With respect to the first matter, the respondents submitted that the Rome Statute of the International Criminal Court (the ICC Statute) played no role in the issue of whether the condition in s 128(4)(a) was satisfied. It is an international treaty and it is not "a law of a foreign country". The respondents submitted that although its provisions have been incorporated into the domestic law of many States parties (including into the domestic law of Australia by the Schedule to the Criminal Code), the ICC Statute itself remains an instrument of international law and it is not a "law of a foreign country" within the meaning of s 128(4)(a) of the Evidence Act. The respondents submitted that their construction was supported by the terms of s 174 which addresses the way in which evidence of a "statue, proclamation, treaty or act of state of a foreign country" may be adduced. The respondents submitted that on its terms, s 174 did not embrace international treaties such as the ICC Statute unless such a treaty has become part of the domestic law of a foreign country and they also referred to the observations of Perram J in Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd (No 9) [2013] FCA 323; (2013) 212 FCR 406 (PT Garuda Indonesia) (at [48]), to the effect that international law is not proved in the same way as foreign law and it is to be approached as a question of law rather than as one of fact. The respondents referred to the following remarks of the Victorian Court of Appeal in relation to s 174 of the Evidence Act 2008 (Vic) in Mokbel v The Queen [2013] VSCA 118; (2013) 40 VR 625 per Maxwell ACJ, Buchanan and Weinberg JJA (at [25]): There is another question to be considered in relation to s 174. The section, though headed "[e]vidence of foreign law", speaks of "evidence of a statute, proclamation, treaty or act of State of a foreign country". The term "foreign country" is not defined in the Evidence Act 2008. It is somewhat problematic as to whether the Convention itself, which is a product of the Council of Europe, and not of any of its individual member states (or the European Union), meets that description. (Citations omitted.) 27 I accepted the respondents' submission that the risk of proceedings in the International Criminal Court (the ICC) does not raise an offence against a law of a foreign country within s 128(4)(a) and that the risk of proceedings in the ICC can and should be considered as part of the interests of justice under s 128(4)(b). 28 With respect to the second matter raised in the respondents' submissions, being an "immunity" from the law of Afghanistan that Person 66 was said to have, neither the respondents nor Person 66 made any submission as to the content of the law of Afghanistan. I proceeded on the basis, sufficient for the purposes of s 128(4)(a), that the law of Afghanistan includes an offence of murder (Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492 at [119] per Heydon JA; In Marriage of Atkinson (1997) 136 FLR 347 at 376-377; Gedeon v The Queen [2013] NSWCCA 257; (2013) 280 FLR 275 (Gedeon) at [310] per Bathurst CJ, but see Shi at [32] per Gordon J). 29 It is important to note that s 128(4)(a) directs attention to whether the Court could be satisfied that the evidence "does not tend to prove" that the witness has committed an offence against or arising under a law of a foreign country. In the course of submissions, I raised with counsel for the respondents whether he was submitting that under the subsection, the Court can and should consider more generally the possibility of prosecution. This is, in effect, the matter of construction of s 128(4)(a) raised by the applicant. Counsel made two submissions in relation to that matter. First, he indicated that the respondents were submitting that Person 66's "immunity" could be characterised as a "carve out from the application of the laws of Afghanistan" such that there was no "law of a foreign country" to which Person 66 was subject on his deployment. Secondly, he submitted that should the "immunity" instead be characterised as a form of immunity from suit, i.e., a defence to any action brought against Person 66, the Court could properly consider whether there was a "real and appreciable risk of prosecution" (Shi at [34] per Gordon J) and the risk was theoretical or non-existent in this case. As I will explain, it is ultimately unnecessary for me to decide this point of construction given my conclusions with respect to Person 66's immunity. 30 The respondents pointed to two sources of immunity, both of which arise under instruments of international law. I note that a question as to the interpretation of a treaty which arises in the course of ascertaining the operation of Australian law is to be approached as a question of law rather than as one of fact (PT Garuda Indonesia at [48] per Perram J). 31 The first source of immunity is said to be based on the Military Technical Agreement between the International Security Assistance Force (ISAF) and the Interim Administration of Afghanistan made on 25 January 2002 (the MTA). The respondents provided a confidential written submission on the ADF's membership of ISAF in closed Court and I accept those submissions. I am satisfied of the ADF's membership of ISAF. I refer to the closed Court reasons (at [2]-[4]). 32 Paragraph 3 of Annexure A to the MTA is important and it provides as follows: The ISAF and supporting personnel, including associated liaison personnel, will under all circumstances and at all times be subject to the exclusive jurisdiction of their respective national elements in respect of any criminal or disciplinary offences which may be committed by them on the territory of Afghanistan. The Interim Administration will assist the ISAF contributing nations in the exercise of their respective jurisdictions. 33 The respondents provided three expert opinions dealing with the operation and effect of this paragraph of Annexure A of the MTA. The experts were as follows: (1) Dr Emily Crawford, Associate Professor at the University of Sydney Law School. Associate Professor Crawford holds a Bachelor of Arts with First Class Honours, a Bachelor of Laws and a Doctor of Philosophy in international law from the University of New South Wales and she has worked as an academic in international law since 2008. Dr Crawford identified the MTA as a source of immunity for Australian soldiers deployed to Afghanistan, but she deferred to Afghan law experts on the question of whether and how the immunity is recognised in Afghan domestic law; (2) Dr Abdul Mahir Hazim, an Afghan lawyer. Dr Hazim has a Bachelor of Arts from Alberoni University, Law and Political Sciences Faculty and a Master of Laws, Asian and Comparative Law and Doctor of Philosophy (Law and International Development Policy and Management) from the University of Washington School of Law. Dr Hazim currently works as a lecturer at Alberoni University in Kapisa, Afghanistan. His doctoral thesis considered Afghanistan's mutual legal assistance obligations under international law and he has authored scholarly journal articles on the implementation of the ICC Statute in Afghanistan and cooperation between Afghanistan and the ICC. Dr Hazim has given an opinion that the MTA was in force between ISAF and Afghanistan between 2002 and 2015; and (3) Ms Zulfia Zalmi, an Afghan constitutional lawyer. Ms Zalmi obtained her law degree from Kabul University, Faculty of Law. She has 12 years of experience in private practice in Afghanistan and has held the position of Vice President of the Afghanistan Independent Bar Association. Ms Zalmi has given an opinion that Afghan domestic laws recognise and respect the provisions of immunity set out in the MTA under art 7 of the Constitution of Afghanistan. 34 I received the three expert opinions and the respondents' supporting materials on the respondents' application for the Court to require Person 66 to give the evidence. I note what was said by Perram J in PT Garuda Indonesia, that such evidence is inadmissible as to matters of Australian law, but it is admissible as to matters of foreign law (at [52]). 35 Both the respondents and Person 66 pointed to the "exclusive jurisdiction" over Person 66 vested in Australia by para 3 of Annexure A to the MTA. In construing para 3, I have had regard to art 31 of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) (the Vienna Convention) and the international commentaries and case law referred to by Associate Professor Crawford at paras 8 to 9 of her report. I have not had regard to the opinions expressed by Associate Professor Crawford given my concern at this stage is with the construction of para 3 of Annexure A to the MTA, which is a question of law. It seems to me that what is contemplated by "jurisdiction" in this particular context (art 31(2) of the Vienna Convention) is the authority of the State over the individual as opposed to, for example, the narrower, curial understanding of that expression in the domestic setting, that is, the "authority to decide" that may be reposed in a Court or tribunal (see Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, The Federation Press, 2020) ). To the extent that such "jurisdiction" is "exclusive", that is to say, it is vested in Australia to the exclusion of Afghanistan by para 3 of Annexure A to the MTA, its effect accords more closely with the characterisation invited by the respondents (a "carve out from the application of the laws of Afghanistan") rather than some form of immunity available to Person 66 in relation to any action brought against him. 36 A separate and distinct question then arises, as to the operation of the MTA within Afghan domestic law. On this question, being a question of foreign law, I have had regard to the evidence of Dr Hazim and Ms Zalmi. I accept the opinion they each express, that although it appears that the MTA has never been incorporated into Afghan domestic law (Hazim at paras 8 to 11), art 7 of the Constitution of Afghanistan has the effect that it would be unconstitutional for Afghanistan to assert jurisdiction over Person 66 contrary to para 3 of Annexure A to the MTA (Hazim at paras 3 and 12 to 14; Zalmi at p 2). 37 A final matter raised by the applicant in his written submission in connection with s 128(4)(a) is the significance of events in Afghanistan leading to a situation where the Taliban is now in power. I considered that the respondents' submission concerning that matter is correct. Even if the new Afghan government decided to withdraw from or terminate the MTA, that would not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination (art 70(1)(b) of the Vienna Convention). 38 Having drawn these conclusions as to the first source of immunity raised by the respondents, it is unnecessary for me to consider the second source of immunity raised by the respondents. I describe the second source of immunity in the closed Court reasons (at [5]-[13]). 39 I was satisfied that Person 66 was and is not subject to the law of Afghanistan with respect to his deployment in 2012, such that there is no relevant "law of a foreign country" for the purposes of s 128(4)(a) of the Evidence Act. As such, the evidence could not tend to prove that Person 66 has committed an offence against or arising under a law of a foreign country.

Section 128(4)(b): the Court must be satisfied that the interests of justice require that the witness give the evidence 40 I begin by identifying a number of general principles which are established by the authorities and which were not in dispute on the hearing of the application. 41 It is a significant inroad on a fundamental common law right for a Court to require a witness who is unwilling to give incriminating evidence to give that evidence. The Court is not to do so unless it is satisfied that the interests of justice require that the witness give the evidence. It is well established by authority that the interests of justice is a broad concept (see, for example, Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187 at [37] per Sheller JA with whom Meagher and Beazley JJA agreed). 42 The onus is on the party seeking to adduce the evidence to establish that the interests of justice require that the witness give the evidence (Gedeon at [285] per Bathurst CJ, with whom Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreed, but see Shi at [89] per Edelman J). 43 It is important to note that the text of s 128(4)(b) is not to the effect that the interests of justice is a relevant consideration in terms of the decision to be made or that the interests of justice must favour a particular course. The test is whether the interests of justice require that the witness give the evidence (emphasis added). This is a demanding test in a context where an affirmative answer will result in the abrogation of a fundamental common law right of a party or a witness. 44 It is not sufficient that the evidence be relevant to the issues in the proceeding; the evidence must be relevant to a substantial degree or extent (Gedeon at [286] per Bathurst CJ). In assessing that matter, a related and relevant consideration is the availability of other evidence from other sources (Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2006] FCA 696 (Worldwide Investments) at [33] per Spender J; Australian Workers' Union v Registered Organisations Commissioner (No 7) [2019] FCA 195 (Australian Workers' Union v Registered Organisations Commissioner) at [26] per Bromberg J). 45 In Kang-Kem v Paine [2003] NSWSC 916 (at [7]), Barrett J made the point that in the first instance at least, the interests of justice is to be approached by reference to the proper and just determination of the proceeding. That matter is no doubt an important consideration, but it is also necessary to keep in mind the importance of the interests of the witness and that it is his or her privilege which is abrogated if the Court decides to require the witness to give the evidence. 46 The submissions of the parties and Person 66 were conveniently analysed by reference to five broad topics. 47 First, it was necessary to consider the weight to be accorded to the nature of the offence in respect of which the privilege against self-incrimination was claimed, the nature of the proceedings in which the privilege was claimed, the fact that a certificate under s 128 may not provide complete protection to the holder thereof and the forensic disadvantage to Person 66 in having to give evidence at this stage. 48 Secondly, it was necessary to consider the likely reliability of the evidence and the extent to which it was relevant in these proceedings. 49 Thirdly, it was necessary to consider the risk to Person 66 of action by the ICC if he was required to give evidence and, if there was a risk, the weight to be accorded to that risk. 50 Fourthly, it was necessary to consider whether Person 66's reputation and professional relationships were likely to be harmed if he was required to give evidence and, if so, the weight to be accorded to that matter. 51 Finally, it was necessary to consider what weight, if any, was to be accorded to any adverse effects on Person 66's mental health if he was required to give evidence. 52 Before turning to address each of these matters in turn, I note the following. 53 Section 128(4) of the Evidence Act provides that the Court may require the witness to give the evidence if the Court is satisfied of the matters in paras (a) and (b) (emphasis added). The use of the word "may" suggests that the Court has a residual discretion to refuse to require a witness to give the evidence even if the Court is satisfied of the matters in paras (a) and (b). 54 In my opinion, there is a residual discretion under s 128(4), although the concept of the interests of justice in para (b) is so broad that the cases will be rare in which a factor not within the concept of the interests of justice would be sufficient to lead to the conclusion that the Court will not require the witness to give the evidence in circumstances where para (a) is satisfied and the interests of justice require that the evidence be given. Person 66 relied on medical evidence which supported a claim that his mental health would be adversely affected should he be required to give the evidence, either as a matter relevant to the interests of justice or a matter relevant to the exercise of the residual discretion. I will deal with that evidence as part of the interests of justice because it involves the effects on the witness of giving the evidence in much the same way as the effect of a certificate providing incomplete protection to a witness or damage to the witness' reputation involves the effects on a witness, both of which are considered under the rubric of the interests of justice. If I am wrong, I think the matter can be considered as part of the residual discretion.

The nature of the offence, the nature of the proceeding and related matters 55 Person 66 submitted that it was highly relevant that the evidence that the respondents seek would amount to a direct admission by him of his guilt of an extremely serious offence, namely, murder. To allow that to occur would be oppressive or unjust. 56 Person 66's counsel relied on observations made by Mason CJ and by Toohey J in Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 (Hamilton v Oades), a case which concerned s 541 of the Companies (New South Wales) Code. Section 541(3) empowered the Supreme Court of New South Wales to order that a director of a company be examined on any matters relating to the affairs of the company and s 541(5) empowered the Court to give such directions as to the matters to be inquired into and as to the procedure to be followed as it thinks fit. Section 541(12) provided that "[a] person is not excused from answering a question put to him at an examination … on the ground that the answer might tend to incriminate him but, where the person claims, before answering the question, that the answer might tend to incriminate him, the answer is not admissible in evidence against him in criminal proceedings other than proceedings under this section or other proceedings in respect of the falsity of the answer". This is clearly a different legislative regime to that established by s 128 of the Evidence Act. 57 Person 66 relied on the following observations of Toohey J (at 515): … A protection against self-incrimination in the terms enunciated by the Court of Appeal gives no effective operation to s. 541(12). And that is so notwithstanding the qualification expressed in the words "concern those facts which constitute the ingredients of the offences …". The areas of inquiry specified by the appellant liquidator may well concern those very facts. The power vested in the court by s. 541(5) to give directions as to the matters to be inquired into may be used to ensure that the matters to be inquired into are relevant to the object of the examination. And, as Barwick C.J. pointed out in Mortimer v. Brown, a question may be so peripheral that it would be oppressive or unjust to require an answer. It is not hard to think of other examples of oppression or injustice. Clearly, a question designed to elicit a direct admission of guilt would fall into this category: see also Huston v Costigan. But it is not enough that the answer to a question may tend to incriminate the person examined. It is precisely this sort of answer that s. 541(12) allows so that the affairs of the company may be relevantly investigated. (Citations omitted.) 58 Person 66 also referred to the following passage in the reasons for judgment of Mason CJ (at 493-494): The risk of injustice with which the Court of Appeal was concerned was that referred to by Gibbs C.J. in Sorby v. The Commonwealth: "If a witness is compelled to answer questions which may show that he has committed a crime with which he may be charged, his answers may place him in real and appreciable danger of conviction, notwithstanding that the answers themselves may not be given in evidence." See also at pp. 310, 312. This is because, in the words of Lord Wilberforce in Rank Film Ltd. v. Video Information Centre: "[W]hatever direct use may or may not be made of information given, or material disclosed, under the compulsory process of the court, it must not be overlooked that, quite apart from that, its provision or disclosure may set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character." (Citations omitted.) 59 I do not consider that these passages advance Person 66's overall submission that it is not in the interests of justice for him to be required to give the evidence in this case. As I have said, there are significant differences between the terms of s 541 of the Companies (New South Wales) Code and the terms of s 128 of the Evidence Act. Not the least of these differences is that the protection afforded by the former did not include material derived from the evidence given and it did not contain an interests of justice requirement in the case of an unwilling witness. 60 Counsel for Person 66 submitted that it is relevant that a certificate given under s 128 would not provide complete protection to Person 66. He referred to the observations of Giles JA in Ross v Internet Wines Pty Ltd [2004] NSWCA 195; (2004) 60 NSWLR 436 (Ross v Internet Wines) as follows (at [99]): It is important, in my view, to recognise that the balance struck by s 128 does not give the disclosing party complete protection. Disclosure to third parties, not necessarily prosecuting authorities, can lead to "the use of the testimony of the witness to search out other testimony to be used against him" (Sorby v Commonwealth (1983) 152 CLR 281 at 293, per Gibbs CJ, referring to Counselman v Hitchcock 142 US 547 (1892)). There may be doubt whether information is obtained as a direct or indirect consequence of his giving the evidence, and questions of proof in that regard. There may be debate over the extra-territorial effect of a certificate, despite provisions in s 128 of the Evidence Act 1995 (Cth) giving federal effect to them and notions of full faith and credit. As a balance of interests, s 128 necessarily impacts upon the disclosing party's common law privilege. It is true that by reason of s 128(7) the certificate covers not only evidence given by a person in respect of which a certificate has been given, but also evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence (i.e., derivative use). However, that is not a complete answer because there may be uncertainty and difficult questions about the matters which led to the obtaining of the information, document or thing. Furthermore, although on the face of it, the circumstances of the alleged unlawful killing would not seem to raise significant evidentiary matters beyond admissions by Person 66 or the applicant, to draw any firm conclusion about that matter involves the risk of error because it is not known what might emerge in the cross-examination of Person 66. 61 It is also necessary to consider the alteration to the accusatorial judicial process if Person 66 is required to give the evidence. In that context, reference should be made to the decision of the High Court in X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 (X7) at [100]-[116] and the following observations of Hayne and Bell JJ (at [124]): Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge. (see also Kiefel J (as her Honour then was) at [158]-[160].) 62 The respondents submitted that the forensic disadvantage identified in X7 was not present, or at least was not as acute, in this case by reason of a matter they identified in closed Court (see closed Court reasons at [16] and see Person 66's response at [17]). 63 If Person 66 is required to give evidence on the particular matter and he gives it in accordance with the outline, he will be admitting to murder. These proceedings involve a claim for damages for defamation. The imputations are very serious. The witness appears by reason of a Subpoena to give evidence. The witness is not a party and he has no apparent interest, financial or otherwise, in the proceedings. 64 Person 66 has not been charged with any offence in relation to events at Syahchow and there is obvious force in the submission that charges are perhaps unlikely where, it appears at this stage, the only other person involved denies that anything unlawful occurred (see closed Court reasons at [18]). Nevertheless, the forensic disadvantage is still present.

The likely reliability of the evidence and the extent to which it is relevant in these proceedings 65 Person 66 submitted that the respondents have not established that the evidence to be adduced from him rises above evidence which is relevant. In that regard, he relied on the observations of Bathurst CJ in Gedeon as follows (at [286]): Second, the requisite standard provided for in s 128(4)(b) of the Evidence Act is that the interests of justice require admission of the evidence. It is not enough that the evidence be relevant and in this case satisfy the exception to the credibility rule in s 103 of the Evidence Act. This relatively high standard of satisfaction is consistent with the fact that the legislation to a significant extent abrogates a basic common law right. Person 66's point was that his evidence on the particular matter was no more than relevant. 66 The basis upon which this application proceeds is that Person 66 is likely to give evidence in accordance with the outline of evidence. Of course, he may not give that evidence. The outline is not signed and the respondents' source for the information in the outline is not known to the Court. Furthermore, as I have said, it is not known what may or may not be established in cross-examination. The fact is that what is ultimately to be made of evidence given by Person 66 could only be assessed after all the evidence has been adduced. In those circumstances, it is difficult to assess reliability at this stage. It may be more appropriate then to put this factor in terms of whether there is anything to indicate at this stage that the evidence may be unreliable. 67 On the face of it, the evidence is highly probative in terms of the respondents' case and, as the respondents submit, if it is accepted an independent and of itself, sufficient pathway to establish their justification and contextual truth defences. On the face of it, there is nothing to suggest that the evidence is inherently unreliable. The witness will have the benefit of a certificate if he is required to give the evidence. He has the benefit of a pseudonym and the public will not be able to see (as distinct from hear) him give evidence. In terms of the likely reliability of the evidence, the respondents rely on the matters identified in [14] and [15] of the closed Court reasons. 68 As I have said, the only witnesses to the alleged murder at Syahchow are the applicant and Person 66. The applicant denies that any unlawful killing or murder took place. 69 Mr Andrew Hastie MP (referred to as Person 67 in the Particulars of Truth) gave his evidence before Person 66 was called to give evidence. He knew both the applicant and Person 66 and was at Syahchow and saw them on the day of the alleged unlawful killing. He did not witness the alleged unlawful killing, but made certain observations and heard certain things that may bear on the immediate circumstances surrounding the killing, if it occurred. Those matters are identified in the substantive reasons in Section 6 of Part 3 which deals with the mission to Syahchow. The short point for present purposes is that absent the evidence from Person 66, the respondents' case with respect to events on the mission to Syahchow must fail. The respondents accept this. 70 In terms of the relevance of the evidence, Person 66 placed great weight in this context on the fact that the alleged events at Syahchow are not part of the matters in the articles complained of. In other words, the events at Syahchow are not referred to in the articles. He submitted that the Court had heard a large body of evidence relevant to Imputations 2 and 3 and the contextual imputations. While the events at Syahchow may be relevant to proving Imputations 4, 9, 11 and 14, Person 66 submitted that "his evidence is not the best evidence, or even probative, of the alleged conduct or incidents which are the subject of the publications which allegedly carry or convey those four imputations". Person 66 relied on observations in the authorities to the effect that the availability of other evidence was a relevant consideration (see, for example, Lifetime Investments at [33] per Spender J; Australian Workers' Union v Registered Organisations Commissioner at [26] per Bromberg J). Person 66 summarised this submission by saying that his foreshadowed evidence was not important evidence in the overall context of the proceedings. Proof of the applicant's involvement in an unlawful killing at Syahchow would establish the substantial truth of Imputations 2 and 3 and, on the respondents' case, insofar as they are contextual imputations, there would be no further harm to the applicant by reason of the other defamatory imputations. 71 The fact that the alleged unlawful killing at Syahchow is not referred to in any of the articles sued upon was, in those circumstances, relevant, but of limited weight. A more important point which was to be given some weight was that the alleged unlawful killing at Syahchow was one of a number of unlawful killings alleged by the respondents and about which, in a number of cases, a considerable body of evidence had been called by the respondents. In other words, there were and are other pathways for the respondents to establish their pleas of justification and contextual truth. The respondents' case is that the applicant was involved in two murders at Whiskey 108 (W108), one murder at Darwan, one murder at Chinartu, one murder at Syahchow and one murder at Fasil.

The risk to Person 66 of action by the ICC 72 Person 66 submitted that, although the foreshadowed evidence does not tend to prove that he has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country within the terms of s 128(4)(a), it does tend to prove that he has committed an offence contrary to international criminal law which may attract the interest of, or lead to his investigation or prosecution, by the ICC. Person 66 accepted (as I have said) that the risk of the ICC pursuing him because he has given evidence in these proceedings is a low risk. Nevertheless, he asked the Court to take the risk into account. Person 66 did not address the ICC Statute or its likely operation in these circumstances in any detail. 73 As I have said, the respondents submitted that the ICC-related risk was properly considered at the s 128(4)(b) stage and I accept that submission. The respondents made brief oral submissions on this matter and otherwise relied on their written submissions, as did Person 66. I am indebted to the respondents for the very detailed and clear written submissions they made about the risk that the ICC would take action against Person 66. What follows is largely based on those submissions. 74 The respondents made a submission as to the appropriate test or state of satisfaction in considering any ICC-related risk under s 128(4)(b). It seems to me that it is not necessary to formulate any precise test. The question under s 128(4)(b) is whether the interests of justice require that the witness give the evidence. As I have said, the concept of the interests of justice is to be construed broadly (Cureton at [37]) and it encompasses matters such as the interests of the witness and the incomplete protection afforded by a certificate. Any ICC-related risk will be balanced against matters such as the importance of the evidence and its reliability in determining whether the interests of justice require that the witness give the evidence. 75 The respondents accepted that the ICC has personal jurisdiction over Person 66 as a national of an ICC State party (Australia) and as an ADF member deployed to Afghanistan (itself an ICC State party) (see art 12(1) and (2) of the ICC Statute). The ICC's personal jurisdiction over ADF personnel in Afghanistan has been enlivened (Judgment on the Appeal against the Decision on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan (International Criminal Court, Appeals Chamber, ICC-02/17 OA4, 5 March 2020) at [61] and [79]). On its face, Person 66's anticipated evidence would engage the subject-matter jurisdiction of the ICC (arts 5(c) and 8(c)(i) of the ICC Statute; Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan (International Criminal Court, Pre-Trial Chamber II, ICC-02-17, 12 April 2019) at [123]-[129]). 76 The respondents put their submissions at two levels. First, they submit that any risk of Person 66 being exposed before the ICC was theoretical and it is not a real or appreciable risk. Secondly, they submit that should the Court require Person 66 to give the evidence with the protection of a certificate, there is no real or appreciable risk that the evidence could be used against him in any ICC prosecution. 77 As to the first matter, the respondents' submissions can be summarised as follows: (1) The ICC Prosecutor's investigation into Afghanistan which was authorised by the Appeals Chamber, was formally deferred pursuant to art 18(2) of the ICC Statute following a deferral request by the government of Afghanistan made on 26 March 2020, on the basis that it was investigating or has investigated its nationals or others within its jurisdiction with respect to alleged criminal acts. As such, the ICC's jurisdiction is "deferred" to Afghanistan and, as recorded above (at [25]), the respondents submit that ADF members were not subject to the laws of Afghanistan on their deployment to Afghanistan; (2) On 27 September 2021, following the change in national authorities in Afghanistan, the new ICC Prosecutor filed an application for an expedited order seeking authorisation to resume his Afghanistan investigation. At the time of my ruling, that application had not yet been heard such that the investigation remained formally deferred pursuant to art 18(2) of the ICC Statute. In any case, the Prosecutor has made public comment that if granted leave to resume the investigation, his Office will focus only on alleged crimes committed by the Taliban and Islamic State - Khorasan Province. The Prosecutor referred to "the limited resources available to my Office" and indicated he would "deprioritise other aspects of this investigation". In relation to those aspects of the investigation that have not been prioritised, the Prosecutor said his Office will remain alive to its evidence preservation responsibilities and will promote accountability efforts. In the circumstances, the respondents submit that there is no real or appreciable risk that the ICC would exercise its jurisdiction to prosecute Person 66; (3) Any case against Person 66 before the ICC would be inadmissible under art 17 of the ICC Statute. Admissibility is a pre-condition for any prosecution by the ICC and it provides that a case will be inadmissible "if the case is being investigated or prosecuted by a State which has jurisdiction over it". Article 17 is incapable of being satisfied in this case because there are extant investigations by Australia which constitute genuine and concrete steps to investigate the matter, as discussed in Prosecutor v Gaddafi (Judgment on the Appeal of Libya against the Decision of Pre-Trial Chamber I of 31 May 2013 entitled "Decision on the Admissibility of the Case against Saif Al-Islam Gaddafi") (International Criminal Court, Appeals Chamber, ICC-01/11-01/11 OA4, 21 May 2014) (at [54]-[55], [73] and [122]). In this connection, the respondents referred to the inquiry conducted by the Inspector-General of the ADF and the further investigations being undertaken by the Office of the Special Investigator and the Australian Federal Police. Australia's formal declaration to be made upon ratifying the ICC Statute of 19 June 2002 indicated that Australia would take a strict approach to the admissibility of any case before the ICC and would not surrender any person to the Court until it had the full opportunity to investigate or prosecute the matter; and (4) Another matter which militates against admissibility under art 17 of the ICC Statute is the concept of "gravity". The assessment of gravity arises at both the stage of the prosecutorial discretion to decide whether to investigate the matter and/or bring a prosecution, and at the stage of case admissibility under art 17. The same factors are considered at both stages and they include the nature, scale and manner of commission of the alleged crime(s) as well as their impact on victims (Decision on the Request of the Union of the Comoros to Review the Prosecutor's Decision not to Initiate an Investigation (International Criminal Court, Pre-Trial Chamber I, ICC-01/13, 16 July 2015) (Comoros) at [21]). Additional matters include whether the alleged crime(s) were committed by senior commanders (Decision on the Prosecutor's Application for Warrants of Arrest, Article 58 (International Criminal Court, Pre-Trial Chamber I, ICC-01/04-520-Anx2, 10 February 2006) at [46]) and the number of persons injured or killed (Comoros at [26]). The Office of the Prosecutor's Policy Paper on Case Selection and Prioritisation dated 15 September 2016 states that the Prosecutor may apply a stricter test in assessing gravity given the need to prioritise between many cases (at [36]). The Paper makes clear that the policy of the Office is to focus on mid-to-high level perpetrators but the Office may also decide to prosecute lower-level perpetrators "where their conduct has been particularly grave or notorious" (at [42]-[46]). Applying these factors to the case of Person 66, it is inconceivable that his conduct or position would satisfy either the Prosecutor's discretionary assessment of gravity or the admissibility assessment of gravity under art 17(1) of the ICC Statute. Among other things, Person 66 was in a low-level position and of the 46 defendants before the ICC, 45 have been senior political or military figures and Person 66's alleged conduct cannot be characterised as so grave or notorious as to warrant the first prosecution of a low-level perpetrator by the ICC. 78 As to the second matter, the respondents submitted that Australia would and could not provide the ICC with any record of the evidence given by Person 66 in this proceeding and, even if it did, the ICC would not use the evidence against the witness. Taking those matters in turn: (1) The ICC could only obtain a record of evidence given by Person 66 in this proceeding by making a request to Australia for its cooperation, a process which is governed by the ICC Statute as well as the International Criminal Court Act 2002 (Cth) (the ICC Act). A request for cooperation may seek the provision of official records and documents (art 93(1)(i) of the ICC Statute; s 7 of the ICC Act). Section 69A(3) of the ICC Act provides that such material may include material obtained in the exercise of a coercive power by a Court. A State in receipt of a request for cooperation may deny the request if the cooperation requested is prohibited in that State on the basis of an existing fundamental legal principle of general application and the ICC will "modify" the request as necessary (art 93(3) of the ICC Statute; s 53 of the ICC Act). The respondents submit that providing a record of evidence given by a person under compulsion where there is any risk that the evidence could be used in a potential ICC investigation or prosecution of that person, would be in contravention of the internationally-recognised privilege against self-incrimination (arts 55(2)(b) and 67(1)(g) of the ICC Statute; see also art 14(3)(g) of the International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976)) and in breach of fundamental Australian common law principles (Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455 at [46] and [51]); and (2) Even if the ICC obtained a record of evidence given by Person 66 in this proceeding, the respondents submit that it is inconceivable that it would be admitted into evidence in any proceedings before the ICC. Although the ICC has never considered the question of the admissibility of compelled testimony before, the ICC Statute provides that admissibility is to be assessed having regard to matters such as prejudice the evidence may cause to a fair trial (art 69(4)) and evidence shall be excluded if it is obtained in violation of the ICC Statute or internationally-recognised human rights and if admitting the evidence would be antithetical to and would seriously damage the integrity of the proceedings (art 69(7)(b)). The respondents repeated their submission that the privilege against self-incrimination is internationally recognised (see (1) above) such that the evidence given by Person 66 would not be admitted into evidence. The respondents submitted that their contention is supported by international case law (Prosecutor v Sefer Halilovic (Decision on Interlocutory Appeal Concerning Admission of Record of Interview of the Accused from the Bar Table) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-01-48-AR73.2, 19 August 2005) at [14]; Prosecutor v Miluntinovic (Decision on Prosecution Motion to Admit Documentary Evidence) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-05-87-T, 10 October 2006) at [44]; Saunders v United Kingdom (1997) 23 EHRR 313 at [68]-[69] and [74]). 79 The respondents made a further submission that if there is any residual ICC-related risk then that risk already exists and Person 66's jeopardy is not increased by giving compelled evidence in this case. As I have said, I do not consider what the respondents referred to as "the existing risk" to be of significance. There is minimal publicity attending the existing risk which is to be contrasted with the publicity this case has and is likely to receive. 80 I concluded that the risk that Person 66 would be prosecuted by the ICC is fairly minimal, but is not something that can be completely ignored.

The risk of damage to Person 66's reputation and professional relationships 81 Person 66 submitted that his reputation and professional relationships would be affected if he was required to give the evidence. He submitted that that was a relevant consideration and he relied on the following observations of Whealy J in R v Lodhi [2006] NSWSC 638; (2006) 199 FLR 328 (R v Lodhi) (at [55]): But the certificate does not give absolute protection. There are, for example, the indefinable but no doubt real prejudices that may result where a witness has given evidence of the kind dealt with in s 128 which may as a consequence bring him into disfavour with some sections of the community or people who have previously held the witness in high regard. … 82 In determining the issue of whether the interests of justice require that the witness give the evidence, the Court will consider the damage to reputation and professional relationships to the witness if he or she is required to give the evidence. In other words, the interests of justice include the witness' own reputation and standing in the eyes of the community. 83 Person 66 will be heard but not seen should he give evidence. Nevertheless, there is a substantial risk that those in the SASR, or those who were in the SASR, with the motivation to do so, will be able to identify him.

The risk of harm to Person 66's mental health 84 Person 66 submitted that the Court can take into account the risks to his mental health if he was required to give the evidence. Person 66 submitted that a report of a psychiatrist established the causal link between Person 66's participation in these proceedings and his symptoms. 85 Person 66 submitted that his mental health can be taken into account either as an aspect of the interests of justice, and more particularly, the effect on the witness of being required to give the evidence, or as part of the residual discretion given to the Court. 86 Person 66 provided a report of Dr Christopher Walsh dated 19 January 2022 in support of his submissions. Dr Walsh is a psychiatrist who has been treating Person 66 since March 2020. 87 According to Dr Walsh's report, Person 66 suffers from post-traumatic stress disorder (PTSD), with flashbacks and symptoms of autonomic hyper-arousal (jumpiness and irritability) and heavy alcohol consumption. Dr Walsh records that Person 66's symptoms, including flashbacks, nightmares, escalated alcohol consumption, anxiety and suicidal ideation, have worsened at those times when he has had involvement, or is soon to have involvement, in inquiries or Court cases such as the present case. Dr Walsh last saw Person 66 on 11 January 2022 when he observed that Person 66 was still relatively well, but with signs of anxiety due to the upcoming Court case. Dr Walsh expresses the opinion that the legal matters exacerbate Person 66's condition to the point that "they could endanger his life". He makes a request that Person 66's legal involvement be kept to "a bare minimum". He states that it would be preferable from the point of view of Person 66's health that he did not have to go into Court at all. 88 The respondents pointed to matters discussed in the closed Court reasons (at [19]-[22]) (see also Person 66's response (at [23])) which, in their submission, suggest that the effect on Person 66's mental health of having to give evidence might not be as severe as it might seem at first blush. I take those matters into account. 89 I do not think the medical evidence is a significant factor in this case. I have reached the conclusion that the interests of justice do not require that Person 66 give the evidence and if the medical evidence is relevant to the concept of the interests of justice, it does not add a great deal to that conclusion or alter it in any way. If it is a residual matter, and I had reached the conclusion that the interests of justice required the giving of the evidence, then I would give effect to that conclusion despite the medical evidence.

Another matter 90 A submission made by the applicant relevant to the interests of justice or the residual discretion is set out in [24] of the closed Court reasons. As I explain, I did not need to rule on the relevance of that matter.

Conclusion 91 It would appear that Person 66 is able to give relevant and probative evidence. Considered only through the lens of these proceedings and the parties to it, the interests of justice would strongly favour requiring Person 66 to give the evidence. Serious allegations are made and the Court is best served by having all available evidence before it. The respondents are likely to be the party disadvantaged if Person 66 is not required to give the evidence. 92 However, the interests of justice is not only concerned with these proceedings and the parties to it. It includes the interests of the witness and the deviation from the accusatorial judicial process. This is occurring in a case where the offence is the most serious in the criminal calendar and where there is other evidence in support of the respondents' defences of substantial truth and contextual truth. In the circumstances, I decided that it was not in the interests of justice to require Person 66 to give the evidence.

Person 4 93 Person 4 raised an objection to giving evidence on certain matters relating to the mission to Darwan on the ground specified in s 128(1) of the Evidence Act. I decided that there were reasonable grounds for a number of these objections and provided the information in s 128(3) to Person 4. Person 4 gave the evidence willingly with the benefit of a certificate. 94 When it came to questions about the mission to W108, Person 4 raised an objection to giving evidence on that particular matter under s 128(1) of the Evidence Act. The particular question to which he objected was as follows: … can you please tell me what you recall happened on a mission to a compound called Whisky 108 on or about Easter Sunday in 2009? 95 The respondents had filed an outline of evidence of Person 4 in May 2019 and it included the following: 6. On or about 12 April 2009, the Applicant, Person 4 and the troop of which they were a part conducted a mission around the village of Kakarak. 7. The troop was instructed to assault a compound code-named Whiskey 108. Gothic 5, which was the patrol that both Person 4 and the Applicant were members of, was responsible for conducting the assault on Whiskey 108. 8. Upon entering a compound, Person 4, Person 5 and the Applicant encountered two Afghan males in the compound. They observed that the compound had a significant cache and tunnel system, where rockets and small arms were being stored. 9. Person 4 observed that the two Afghan males were not engaging in conduct and posed no risk. 10. Person 4 observed the two Afghan males and discussed with Person 5 and the Applicant how to deal with the Afghan males. 11. Person 5 directed Person 4 to execute one of the Afghan men. The Applicant was present when this directive was given. 12. Person 4 removed the Afghan male to a nearby location, placed him on his knees and executed him. 96 Counsel for Person 4 referred to these paragraphs in the outline and the evidence already given by Person 41 in relation to the events at W108 in support of his submission that there were reasonable grounds for Person 4's objection. 97 It should be noted that Person 4 gave evidence that he had no input into the outline and had not seen it prior to giving evidence. 98 I determined under s 128(2) of the Evidence Act that there were reasonable grounds for the objection and I provided the information in s 128(3) of the Evidence Act to Person 4. Person 4 indicated that he was unwilling to give the evidence. The respondents indicated that they were not withdrawing the question. 99 Person 4 was represented by counsel and his counsel made submissions on whether Person 4 should be required to give the evidence under s 128(4) of the Evidence Act. He tendered two medical reports in support of his submission that Person 4 should not be required to give evidence. The first medical report is dated 26 February 2022 and is a report of Dr Michaela Iliescu, a consultant psychiatrist, who has been treating Person 4 since August 2020. The second medical report is dated 26 February 2022 and is a report of Ms Ciara Mitchell, a psychologist, who has been treating Person 4 since 2020. Person 4 suffers from four mental health conditions and takes various forms of medication. The details of these matters are the subject of non-disclosure and non-publication orders made on 1 March 2022 under ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth). Person 4 has had two hospital admissions in the past as a result of his mental health conditions and he has taken anti-psychotic medication to deal with his symptoms. Of direct relevance to the present issue was Dr Iliescu's opinion that giving evidence would be a major trigger for Person 4 with acute and severe psychotic reactions as described by him and was likely to exacerbate his suicidal ideation and increase the risk of self-harm. Ms Mitchell's opinion was to similar effect, although more pessimistic as to the consequences. She referred to the more than likely imminent risk of "suicide related behaviours/attempt (possible suicide completion)". 100 Person 4's counsel made a submission that the onus under s 128(4) of the Evidence Act was on the party seeking to adduce the evidence, that is, the respondents. Person 4's counsel began his submissions by reference to the interests of justice under s 128(4)(b) and, in that context, he relied heavily on the medical reports. He emphasised the balancing exercise between these proceedings which were proceedings for compensation in relation to damage to a reputational interest on the one hand, and the health of Person 4 on the other. 101 Secondly, Person 4's counsel emphasised the incomplete and limited protection provided by a certificate under s 128. He referred to Ross v Internet Wines (at [99]). 102 Thirdly, Person 4's counsel referred to the accusatorial nature of the process for the investigation, prosecution and trial of an indictable offence. In this regard, he referred to X7. 103 The issue here is not one as it was in X7 of whether there was power to require answers to questions. There clearly is power in s 128(4). Nevertheless, the accusatorial nature of the criminal process is relevant. It is something a person would ordinarily have the benefit of and, therefore, is relevant to the assessment of the interests of justice under s 128(4)(b). 104 Fourthly, Person 4's counsel submitted that the heavy publicity attending this case may well influence a jury involved in any subsequent charge against Person 4. 105 Finally, Person 4's counsel referred to the risk of exposure to foreign process. In this regard, Person 4's counsel made extensive submissions about the risk that the ICC may take action. He accepted that the potential for action by the ICC did not fall within the terms of s 128(4)(a) because it did not involve "a law of a foreign country". As I understood it, he submitted that the risk of action by the ICC was a matter relevant not to s 128(4)(a), but to s 128(4)(b). 106 In short, the focus of the submissions made by Person 4 was on the requirement in s 128(4)(b) and not on the requirement in s 128(4)(a). That is an observation, not a criticism. Person 4 did not want to give evidence. The respondents who were seeking to adduce the evidence said very little about s 128(4)(a). It is important to understand how that came about. 107 Counsel for the respondents advised the Court that the respondents were not going to seek to have Person 4 compelled to give evidence on the particular matter. He said that he did not accept that there would be any exposure to incrimination under a law of a foreign country and, in particular, a law of Afghanistan. He foreshadowed (as I have said, Person 4 gave evidence before Person 66) the reference he subsequently made in the case of Person 66 to the MTA. He indicated that he did not accept that a liability to a risk of prosecution by the ICC fell within the language of a law of a foreign country in s 128(4)(a). He accepted that there was a risk of prosecution by the ICC. In addition, counsel for the respondents accepted that there already existed a significant body of evidence in the case tending to incriminate Person 4 in relation to the events at W108. He adopted the submission of Person 4's counsel with respect to the effect of the decision in X7. He also referred to Person 4's medical conditions. 108 It was during the course of the submissions that Person 4's counsel disclosed to the Court a letter from the solicitors for the respondents to Person 4's solicitors dated 7 February 2022 which contains the following: We refer to the above-mentioned proceedings. As you are aware, the Respondents filed an Outline of Evidence on behalf of Person 4 in May 2019. As set to out in the Outline of Evidence, we anticipate that your client can give relevant evidence in relation to two missions the subject of these proceedings: (a) a mission to Whiskey 108 on 12 April 2009 (Whiskey 108); and (b) a mission to Darwan on 11 September 2012 (Darwan). If your client agrees to willingly give evidence at trial in relation to Darwan, we undertake to adopt the following forensic positions under s 128 of the Evidence Act 1995 (Cth) in respect of his evidence. First, in relation to Darwan: 1. we agree not to oppose a submission by your client under s 128(1)(a) that the evidence may tend to prove that he has committed an offence against or arising under Australian law; and 2. we agree not to oppose a submission by your client under s 128(2) that there are reasonable grounds for the objection. If the Court determines that there are reasonable grounds for such an objection, then in accordance with the position outlined above, your client would then give the evidence willingly with the protection of a certificate issued under s 128(3)(b)(i). Secondly, in relation to Whiskey 108: 1. we agree not to oppose a submission by your client under s 128(1)(a) that the evidence may tend to prove that he has committed an offence against or arising under Australian law; 2. we agree not to oppose a submission by your client under s 128(2) that there are reasonable grounds for the objection; and 3. if the Court determines that there are reasonable grounds for such an objection, and your client does not willingly give the evidence with the protection of a certificate issued under s 128(3)(b)(i), we agree not to ask the Court to require your client to give the evidence under s 128(4) of the Evidence Act. Please let us know if you would like to discuss any aspect of the above. 109 I mention this matter because it assists in explaining the approach taken by the respondents to whether Person 4 should be required to give evidence. The respondents' approach explains in turn, at least in part, the reasons I decided the issue in the case of Person 4 under s 128(4)(b) rather than both limbs of s 128(4). 110 As I have said, I did not require Person 4 to give the evidence. I was not satisfied that the interests of justice required Person 4 give evidence on the particular matter. Similar matters to those I have identified in the case of Person 66, led me to the decision I reached in the case of Person 4.

Person 56 111 Person 56 was the last witness called by the respondents in their case. The respondents had issued an Interlocutory application seeking leave to issue a Subpoena to give evidence to Person 56. That application was opposed by Person 56 who, in turn, issued an application to set aside the Subpoena to give evidence should leave be granted. Needless to say, Person 56's application was opposed by the respondents. The basis of Person 56's objection to giving evidence was the serious effect giving evidence would have on his mental health and his demanding personal circumstances. I dealt with both applications in Roberts-Smith v Fairfax Media Publications Pty Limited (No 30) [2022] FCA 266 (Roberts-Smith (No 30)). I granted leave to the respondents to issue a Subpoena to give evidence to Person 56 and I refused Person 56's application to set aside the Subpoena. 112 Person 56 appeared as a witness and he was questioned at length about the mission to Darwan. His evidence is dealt with in the substantive reasons in Section 4 of Part 3 which deals with the mission to Darwan. Person 56 objected to a question asked by counsel for the respondents as to whether he participated in a mission to a village called Fasil on or about 5 November 2012. 113 Person 56's counsel, who was given leave to appear, identified the offence as the offence of murder and he referred to [23] of the reasons in Roberts-Smith (No 30) as follows: Person 56 does not refer to any other missions in his statement. In a memorandum dated 27 August 2021 from Mr Dean Levitan, a solicitor for the respondents, to Mr Bartlett, there is a statement with respect to a mission in Fasil that "[w]e believe that Person 56 and BRS are the two individuals responsible for the execution of the PUCs at Fasil". In a record of a telephone conversation between Mr Levitan and counsel for Person 56, Mr Levitan is recorded as saying "[t]he two people killed were by BRS and a member of his patrol, which we now know to be your client". Those reasons also refer to aspects of Person 56's mental health. 114 Counsel for Person 56 had seen the submissions made by counsel for Person 66 in the application involving Person 66 and he relied on a number of those submissions. 115 I considered that there were reasonable grounds for Person 56's objection and I provided to Person 56 the information identified in s 128(3) of the Evidence Act. Person 56 indicated that he was unwilling to give the evidence on the particular matter. 116 Counsel for the respondents made a formal submission that I should require Person 56 to give the evidence under s 128(4), but he accepted that in light of my ruling in relation to other witnesses, that is, Persons 4 and 66, and in particular, in light of the forensic disadvantage that would be suffered by Person 56 in relation to a charge as serious as the one that has been identified, the Court would not compel him to give that evidence. 117 I decided that I would not require Person 56 to give evidence on the particular matter under s 128(4) of the Evidence Act. My reasons for that decision were, in substance, the same as my reasons in the case of Person 66 and Person 4. I certify that the preceding one-hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.

SCHEDULE OF PARTIES NSD 1485 of 2018

NSD 1487 of 2018 Respondents Second Respondent: NICK MCKENZIE Third Respondent: CHRIS MASTERS Fourth Respondent: DAVID WROE

Defamation Act 2005(NSW)ss 25, 26

Evidence Act 1995(Cth)ss 128, 129, 174

en [2013] VSCA 118; (2013) 40 VR 625 Prosecutor v Gaddafi (Judgment on the Appeal of Libya against the Decision of Pre-Trial Chamber I of 31 May 2013 entitled "Decision on the Admissibility of the Case against Saif Al-Islam Gaddafi") (International Criminal Court, Appeals Chamber, ICC-01/11-01/11 OA4, 21 May 2014) Prosecutor v Sefer Halilovic (Decision on Interlocutory Appeal Concerning Admission of Record of Interview of the Accused from the Bar Table) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-01-48-AR73.2, 19 August 2005) Prosecutor v Miluntinovic (Decision on Prosecution Motion to Admit Documentary Evidence) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-05-87-T, 10 October 2006) R v Lodhi [2006] NSWSC 638; (2006) 199 FLR 328 Roberts-Smith v Fairfax Media Publications Pty Limited (No 30) [2022] FCA 266 Ross v Internet Wines Pty Ltd [2004] NSWCA 195; (2004) 60 NSWLR 436 Saunders v United Kingdom (1997) 23 EHRR 313 X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (27)