Habib v Nationwide News Pty Ltd [2010] NSWCA 34 (16 March 2010)

Last Updated: 17 March 2010

NEW SOUTH WALES COURT OF APPEAL

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


FILE NUMBER(S):
40166 of 2008

HEARING DATE(S):
22 May 2009

JUDGMENT DATE:
16 March 2010

PARTIES:
Mamdouh Habib - Appellant
Nationwide News Pty Ltd - Respondent

JUDGMENT OF:
Hodgson JA Tobias JA McColl JA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 20048/2005

LOWER COURT JUDICIAL OFFICER:
McClellan CJ at CL

LOWER COURT DATE OF DECISION:
7 March 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
[2008] NSWSC 181

COUNSEL:
K P Smark SC with C A Evatt and R K Rassmussen - appellant
A Leopold SC with S Chrysanthou - respondent


SOLICITORS:
Peter Erman - appellant
Blake Dawson - respondent

CATCHWORDS:
EVIDENCE – admission – statements made in the course of interrogation in Pakistan and Guantanamo Bay – whether inadmissible by virtue of s 84(1) Evidence Act 1995 (NSW)
EVIDENCE – statements made in the course of interrogation in Pakistan and Guantanamo Bay – whether issue under s 84 raised as required under s 84(2) Evidence Act 1995 (NSW)
EVIDENCE – statements made in the course of interrogation in Pakistan and Guantanamo Bay – whether primary judge reversed onus of proof under s 84(1) Evidence Act 1995 (NSW)
EVIDENCE – statements made in the course of interrogation in Pakistan and Guantanamo Bay – whether respondent discharged burden of demonstrating appellant’s admissions not influenced by s 84(1) conduct
DEFAMATION – whether defence of substantial truth established
DEFAMATION – characterisation of imputation
DEFAMATION – whether imputation general charge against the character of the plaintiff
DEFAMATION – whether interview given after publication of matter complained of sufficiently proximate in time to be relied upon as evidence of substantial truth of imputation
PROCEDURE – abuse of process – whether s 56 Civil Procedure Act 2005 (NSW) obliged appellant to make a strike out application in regard to aspects of the respondent’s defence
WORDS AND PHRASES – “raised in the proceeding an issue about whether the admission or its making were so influenced” – s84(2) Evidence Act 1995 (NSW)

LEGISLATION CITED:
Civil Procedure Act 2005 (NSW)
Civil Wrongs Act 2002 (ACT)
Crimes Act 1914 (Cth)
Criminal Code Act Compilation Act 1913 (WA)
Criminal Procedure Code of the Laws of Brunei (Cap 7)
Defamation Act 1889 (Qld)
Defamation Act 1957 (Tas)
Defamation Act 1974 (NSW)
Evidence Act 1995 (Cth)
Evidence Act 1995 (NSW)
Evidence Bill 1991 (NSW)
Evidence Bill 1991 (Cth)
Federal Court of Australia Act 1976 (Cth)
Police and Criminal Evidence Act 1984 (UK)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Ajodha v The State; Chandree v The State [1982] AC 204
Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735
Assaf v Skalkos (Supreme Court of New South Wales, Levine J, 15 December 1997, unreported)
Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) A Def R 50-080
Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 485
Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
Bookbinder v Tebbit [1989] 1 WLR 640
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Burut v Public Prosecutor [1995] 2 AC 579
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Collins v R [1980] FCA 72; (1980) 31 ALR 257
Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293
DPP v Ping Lin [1976] AC 574
Eastman v R (1997) 76 FCR 9
Ex parte Hamilton; re Fagan [1966] 2 NSWR 732
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gattellaro v Westpac Banking Corporation [2004] HCA 6; (2004) 78 ALJR 394
Graham v R [1998] HCA 61; (1998) 195 CLR 606
Greek Herald v Nikolopoulos [2002] NSWCA 41; (2002) 54 NSWLR 165
Habib v Commonwealth of Australia [2008] FCA 1494
Habib v Nationwide News Pty Ltd [2008] NSWSC 181
Hansen v The Border Morning Mail Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 July 1988, unreported)
Higgins v R [2007] NSWCCA 56
John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164
John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205
Jones v Sutherland [1979] 2 NSWLR 206
Kelly v R [2004] HCA 12; (2004) 218 CLR 216
MacPherson v R [1981] HCA 46; (1981) 147 CLR 512
Maisel v Financial Times Ltd (No 1) (1915) 112 LT 953
Maisel v Financial Times Ltd [1915] 3 KB 336
Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290
McDermott v R [1948] HCA 23; (1948) 76 CLR 501
McNeil v R [2008] HCATrans 383
McNeill v The Queen [2008] FCAFC 80; (2008) 168 FCR 198
Metwally v University of Wollongong (No 2) [1985] HCA 28; (1985) 60 ALR 68
Nationwide News Pty Ltd v Warton [2002] NSWCA 377
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310
Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328
R v Bertrand [2008] VSCA 182; (2008) 20 VR 222
R v Christie [1914] AC 545
R v Douglas [2000] NSWCCA 275
R v Duff (unreported, New South Wales Court of Criminal Appeal, 17 September 1998)
R v Esposito (1998) 45 NSWLR 442
R v Fernando [1999] NSWCCA 66
R v Fulling [1987] QB 426
R v GH [2000] FCA 1618; (2000) 105 FCR 419
R v Heffernan; R v Peters (NSW Court of Criminal Appeal, Smart, Bruce James and Sperling JJ, 16 June 1998, unreported, BC9802596)
R v Horton (1998) 45 NSWLR 426
R v JF [2009] ACTSC 104
R v Norton [1910] 2 KB 496
R v Priestley (1965) 51 Cr App R 1
R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159
R v Thomas [2006] VSCA 165; (2006) 14 VR 475
R v Ul-Haque [2007] NSWSC 1251; (2007) 177 A Crim R 348
R v Zhang [2000] NSWSC 1099
Raul Amon International Pty Ltd v Telstra Corp Ltd [1998] 4 VR 798
Shields v Westpac Banking Corporation [2008] NSWCA 268
Singleton v Ffrench (1986) 5 NSWLR 425
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423
State of New South Wales v Deren [1999] NSWCA 22; (1999) Aust Torts Reports 81-502
Straker v The Queen (1977) 51 ALJR 690; 15 ALR 103
Suttor v Gundowda [1950] HCA 35; (1950) 81 CLR 418
Telstra Corp Ltd v Australis Media Holdings (No 2) (1997) 41 NSWLR 346
Tofilau v R; Marks v R; Hill v R; Clarke v R [2007] HCA 39; (2007) 231 CLR 396
Watson v Foxman (1995) 49 NSWLR 315
Westpac Banking Corporation v Ollis [2007] NSWSC 956
Winterbottom v Vardon & Sons [1920] SALR 357
Woon v R [1964] HCA 23; (1964) 109 CLR 529

TEXTS CITED:
Australian Law Reform Commission, Interim Report on Evidence (1985) No 26
Australian Law Reform Commission, Final Report on Evidence (1987) No 38
Best, A Treatise on the Principles of Evidence and Practice as to Proofs in Courts of Common Law (1849)
Cross on Evidence, LexisNexis Butterworths
International Covenant on Civil and Political Rights
New South Wales Law Reform Commission Report on Evidence (June 1988) No 56
P Milmo and W V H Rogers, Gatley on Libel and Slander, 9th ed, (1998) Sweet & Maxwell
P Milmo and W V H Rogers, Gatley on Libel and Slander, 11th ed (2008) Sweet & Maxwell

DECISION:
1. Appeal allowed with costs. 2. Set aside the judgment and orders of McClellan CJ at CL made on 7 March 2008. 3. In lieu thereof, judgment for the appellant. 4. Respondent to pay the appellant’s costs of the trial to date. 5. Remit the matter to the Common Law Division for the assessment of damages.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA No: 40166/08

SC No: 20048/08

HODGSON JA

TOBIAS JA

McCOLL JA

16 March 2010

Mamdouh Habib v Nationwide News Pty Ltd

HEADNOTE

[This headnote is not to be read as part of the judgment]

A jury determined at a trial pursuant to s 7A of the Defamation Act 1974 (NSW) (the “1974 Act”) that an article published by the respondent, Nationwide News Pty Ltd, in the Daily Telegraph on 15 February 2005, conveyed an imputation, “the plaintiff knowingly made some false claims” and that that imputation was defamatory of the appellant, Mamdouh Habib.

The respondent pleaded that the imputation was substantially true and related to a matter of public interest (s 15, 1974 Act). At a trial conducted pursuant to s 7A(4) of the 1974 Act to determine whether that defence was established the primary judge found the imputation related to a matter of public interest and that it was substantially true because the respondent had proved:

(a) The plaintiff knowingly made false claims as to whether and to what extent he had travelled to Afghanistan (the “first claim”)

(b) The plaintiff knowingly made false claims as to whether he had supported terrorists (the “second claim”)

(c) The plaintiff knowingly made false claims as to where he met the two Germans with whom he was detained (the “third claim”)

(d) The plaintiff knowingly made a false claim to Amnesty International Australia that he had not been in Egypt since he came to Australia (the “fourth claim”).

The appellant was in Afghanistan on 11 September 2001. In early October 2001 he was detained in Pakistan by Pakistani authorities. He was held in custody in Pakistan until late October or November 2001. While he was so held ASIO officers interviewed him on three occasions in the presence of Pakistani officials. In or about late October or November 2001, the appellant was taken to Egypt, then to Afghanistan, before being taken to Guantanamo Bay in Cuba where he was interviewed by the Australian Federal Police and an ASIO officer.

The respondent sought to establish the first and third claims by relying principally on what it alleged were inconsistencies between statements the appellant made during the Pakistan and Guantanamo Bay interviews. It also relied on what it alleged were inconsistent statements in interviews the appellant gave after the publication of the matter complained of – one on a Dateline programme broadcast on 9 March 2005 (the “Dateline interview”), the other conducted by Amnesty International Australia on 22 March 2006 (the “Amnesty International interview”).

The second claim turned on the appellant’s conduct in relation to a Sheikh Omar Abdul Rahman (who had been convicted of conspiracy in relation to the bombings of the World Trade Centre in 1993) and statements the appellant made on a 60 Minutes interview shortly prior to publication of the matter complained of. The fourth claim turned on statements the appellant made during the Amnesty International interview. The respondent asserted each of the statements it relied on in the various interviews constituted a “claim” made by the appellant.

The appellant objected at trial to the admission of the Pakistan and Guantanamo Bay interviews, relying principally on s 84 (and also s 135 and s 138) of the Evidence Act 1995 (NSW). He contended, in substance, that he had been tortured before each interview took place. He accepted that the statements the respondent relied on in the interviews could constitute an “admission” for the purposes of the Evidence Act, but denied they constituted a “claim”.

The primary judge accepted for the purposes of s 84(2) that the appellant had “raised an issue about whether the admission or its making were ... influenced” by conduct referred to in s 84(1). However his Honour held that while he could not exclude the possibility that the plaintiff was mistreated there was no evidence which associated any admission during the interview with a threat of the relevant kind in the circumstances of his detention in both Pakistan and Guantanamo Bay. The primary judge rejected the s 84 objection and admitted all the interviews. In so doing, his Honour made findings that the appellant had been subjected to some of the mistreatment of which he complained in Pakistan and was subject to “degrading” conduct in Guantanamo Bay.

His Honour entered judgment and a verdict for the respondent and ordered the appellant to pay its costs. The appellant appealed from those orders.

The appeal raised multiple issues, including the following:

(1) The characterisation of the imputation, including the nature of the “claims” referred to in the imputation, whether denials could constitute “claims” and whether the respondent could establish the substantial truth of the imputation by relying on the repetition in one interview of substantially the same statement;

(2) In relation to the first and third claim, whether the primary judge reversed the onus of proof under s 84(1) in rejecting the appellant’s s 84 objection to the Pakistan and Guantanamo Bay interviews;

(3) In relation to the second claim, whether the primary judge misunderstood the effect of the statements by the appellant in the 60 Minutes interview;

(4) In relation to the fourth claim, whether the imputation amounted to a general charge against the character of the plaintiff and, if it did, whether the Amnesty International interview which took place after the publication of the matter complained of could be relied upon as evidence of the truth of the fourth claim;

(5) In relation to the fourth claim, whether the primary judge erred in concluding that the appellant’s statements in the Amnesty International interview constituted a “claim” that he had not visited Egypt since he came to Australia.

The respondent filed a notice of contention which contended that (a) no issue was “raised” at trial sufficient to enliven s 84 of the Evidence Act because the appellant gave no evidence from which the Court could conclude that any s 84 conduct (assuming there to be evidence of such conduct) influenced him to make any relevant admissions; (b) that the appellant’s failure to give it notice prior to the trial of the characterisation issue constituted an abuse of process; and (c) the primary judge ought also to have found that the appellant had made a false claim that he had never travelled to Afghanistan by recounting in the Dateline interview what he had said to authorities in Pakistan.

Held, allowing the appeal:

The first and third claims

(a) Raising the s 84 issue

1 The language of s 84, its statutory context and legislative history and the common law position when s 84 was enacted indicate that in order to raise a s 84 issue, there must be some evidence that indicates through legitimate reasoning that there is a reasonable possibility an admission or its making were influenced by proscribed conduct, however it is not necessary that that evidence prove as a fact that an admission or its making were so influenced: (at ([229 – [235])

MacPherson v R [1981] HCA 46; (1981) 147 CLR 512; R v Heffernan; R v Peters (NSW Court of Criminal Appeal, Smart, James and Sperling JJ, 16 June 1998, unreported, BC9802596); R v GH [2000] FCA 1618; (2000) 105 FCR 419; Tofilau v R; Marks v R; Hill v R; Clarke v R [2007] HCA 39; (2007) 231 CLR 396; R v JF [2009] ACTSC 104 considered

Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 referred to

Eastman v R (1997) 76 FCR 9; R v Douglas [2000] NSWCCA 275 distinguished

(b) The admissibility of the Pakistan and Guantanamo Bay interviews

2 The primary judge reversed the onus of proof under s 84. Rather than directing his attention to the s 84 test, namely, that he had to be satisfied that neither the admission nor its making were not influenced by the relevant conduct, his Honour posed a test which placed the onus on the appellant to establish that there was s 84(1) conduct which did influence the making of the admissions relied upon: (at [274]).

3 The primary judge’s s 84(1) conclusions were not founded on credibility findings which attracted appellate inscrutability as the primary judge did make findings that the appellant had been subjected to some of the mistreatment of which he complained in Pakistan, he did not reject the appellant’s evidence in all respects and there were issues relating to the media interviews and the record of the Guantanamo Bay interview of which the primary judge did not take note: (at [274] – [278]).

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 referred to

4 The respondent did not discharge the burden which fell upon it to demonstrate that the appellant’s admission was not influenced by s 84(1) conduct. Having regard to the s 84(1) conduct the primary judge found had been established by the appellant, it could not be said that that conduct did not influence the appellant making admissions in both Pakistan and Guantanamo Bay: (at [279] – 281]).

5 The primary judge erred in concluding that the Pakistan and Guantanamo Bay admissions were admissible: (at [284]).

6 The statement in the Dateline interview was inadmissible. It was open to the appellant on appeal to raise the s 84 objection to the Dateline interview because the passage on which the respondent sought to rely was an account of what the appellant had told his Pakistani interrogators during the Pakistani interviews, all of which were the subject of the s 84 objection: (at [285]).

7 The respondent did not establish the substantial truth of the first or third claims: (at [286], [289]).

(c) Characterising the imputation

8 Taken in the context of the matter complained of, it was reasonable to conclude the imputation, “the plaintiff knowingly made some false claims”, meant the appellant made such claims in a situation where he was capable of exercising a free will as to whether or not, and how, he made public statements and/or responded to questions: (at [294]).

Singleton v Ffrench (1986) 5 NSWLR 425; Greek Herald v Nikolopoulos [2002] NSWCA 41; (2002) 54 NSWLR 165 (at [19] - [23]); John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 discussed

9 The appellant’s statements in the Pakistan interviews and its repetition in the Dateline interview did not constitute the making of a “claim” in the sense in which the imputation should be understood in the context of the matter complained of, having regard to the circumstances in which he was detained in Pakistan and the necessity to be careful about drawing conclusions from negative answers to questioning: (at [295] – [303]).

R v Norton [1910] 2 KB 496; R v Christie [1914] AC 545; Woon v R [1964] HCA 23; (1964) 109 CLR 529; Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82; Straker v The Queen (1977) 51 ALJR 690; 15 ALR 103; Graham v R [1998] HCA 61; (1998) 195 CLR 606 referred to

The second claim

10 The primary judge did not err in concluding the respondent established the substantial truth of the second claim. The evidence the primary judge set out constituted cogent proof that the appellant had previously supported the Sheikh other than for his illness: (at [307] – [310]).

The fourth claim

(a) The subsequent publication point

11 Taken in the context of the matter complained of, the imputation conveyed that the appellant was a person who was given to making “some false claims” knowingly – thus imputing a propensity to him, indicative of his character generally – rather than being confined to any specific incident: (at 332]).

Maisel v Financial Times Ltd [1915] 3 KB 336; Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735; John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 applied

Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) A Def R 50-080; Nationwide News Pty Ltd v Warton [2002] NSWCA 377 considered

P Milmo and W V H Rogers, Gatley on Libel and Slander, 9^th ed, (1998) Sweet & Maxwell referred to

12 The Amnesty International interview was not too remote from the publication of the imputation, principally because the part of the Amnesty International interview on which the respondent relied was a statement which the appellant had made on a previous occasion, and thus was a fact which existed at the time of publication of the matter complained of: (at [334]).

Maisel v Financial Times Ltd [1915] 3 KB 336 applied

Maisel v Financial Times Ltd (No 1) (1915) 112 LT 953; Cohen v Daily Telegraph Ltd [1968] 1 WLR 916; Hansen v The Border Morning Mail Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 July 1988, unreported); Assaf v Skalkos (Supreme Court of New South Wales, Levine J, 15 December 1997, unreported); Raul Amon International Pty Ltd v Telstra Corp Ltd [1998] 4 VR 798 State of New South Wales v Deren [1999] NSWCA 22 considered

Gatley on Libel and Slander, 11^th ed (2008) Sweet & Maxwell referred to

(b) Characterising the statement in the Amnesty International interview

13 The appellant’s statement in the Amnesty International interview could not be construed as an unequivocal statement that he had not physically been in Egypt since he migrated to Australia: (at [343]).

14 The respondent did not establish the substantial truth of the fourth claim.

Whether the imputation required a plurality of false claims

15 In order to establish the substantial truth of the imputation the respondent had to establish that the appellant had made more than one false claim in different interviews. It was not sufficient that he made the same false claim more than once in one interview or in a series of interviews which were substantially connected: (at 305]).

16 Having only established the substantial truth of the second claim the respondent did not establish that the appellant made more than one false claim. It did not, therefore, establish the substantial truth of the imputation: (at [346]).

Abuse of process

17 Section 56 of the Civil Procedure Act 2005 (NSW) did not oblige the appellant to make a strike out application in regard to aspects of the respondent’s defence: (at [306]).

Orders

1. Appeal allowed with costs.

2. Set aside the judgment and orders of McClellan CJ at CL made on 7 March 2008.

3. In lieu thereof, judgment for the appellant.

4. Respondent to pay the appellant’s costs of the trial to date.

5. Remit the matter to the Common Law Division for the assessment of damages.

*********************

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA No: 40166/08

SC No: 20048/08

HODGSON JA

TOBIAS JA

McCOLL JA

Tuesday 16 March 2010

Mamdouh Habib v Nationwide News Pty Ltd

Table of Contents

Paragraph
5	Statement of the case
21	Legislative framework
	THE PRIMARY JUDGMENT
26	The meaning of the imputation
27	The admissibility of the Pakistan and Guantanamo Bay interviews
31	Conflicts with statements made during interviews in Australia
32	The interview in Guantanamo Bay and events in Pakistan - matters of credit and factual findings
35	Questions of admissibility
44	The defence of substantial truth
	ISSUES ON APPEAL
65	Grounds of appeal
69	Notice of contention
	SUBMISSIONS
70	Introduction
73	Section 84 submissions – Pakistan and Guantanamo Bay interviews (first and third claims)
86	The Dateline interview (first claim)
93	Errors in fact-finding (first claim)
100	The 60 Minutes interview (second claim)
102	The Guantanamo Bay interview (third claim)
108	The Amnesty International interview (fourth claim)
116	Whether denials constituted the making of a claim (first claim)
119	Number of claims to be established to sustain defence
120	The Notice of Contention: submissions
	THE DISPUTED INTERVIEWS
122	The Pakistan interviews
126	The Guantanamo Bay interview
132	The 60 Minutes interview
134	The Dateline interview
137	The Amnesty International interview
144	CONDUCT OF THE TRIAL
	LEGAL PRINCIPLES
175	Section 84 – admissions
176	Section 84 – relevance of the common law
181	Admissibility of confessions at common law
196	Section 84 – legislative history
208	Section 84 – raising the issue
237	Section 84 – the meaning of “influence”
242	The nature of s 84(1) conduct
252	Section 84 – conclusion on admissibility of the interviews
290	Characterising the imputation
306	The notice of contention – abuse of process point
307	The second claim: the 60 Minutes interview
311	The fourth claim: the subsequent publication issue
336	The fourth claim: characterising the statement in the Amnesty International interview
346	CONCLUSIONS
349	Orders
	Schedule A

Judgment

1 The Court: On 15 February 2005 Nationwide News Pty Ltd, the respondent, published an article in the Daily Telegraph newspaper captioned, “Mr Habib, it’s time to tell the full story”, which is set out in Schedule A to this judgment. On 11 March 2005, Mamdouh Habib, the appellant, commenced defamation proceedings against the respondent in relation to that publication. At a trial pursuant to s 7A of the Defamation Act 1974 (NSW) (the “1974 Act”) the jury determined that the article conveyed the imputation, “the plaintiff knowingly made some false claims” and that that imputation was defamatory of him.

2 The question whether any defence raised by the respondent and the quantum of any award of damages then fell for determination by a judge, in this case, McClellan CJ at CL: s 7A(4), 1974 Act.

3 His Honour determined that the respondent had established that the imputation was substantially true and that its publication was in the public interest (s 15(2)(b), 1974 Act) and of public benefit for the purposes of the corresponding provisions of the legislation governing defamation in the Australian Capital Territory, Western Australia, Queensland and Tasmania: Habib v Nationwide News Pty Ltd [2008] NSWSC 181. He entered judgment and a verdict for the respondent and ordered the appellant to pay its costs.

4 The appellant appeals from those orders.

Statement of the case

5 The appellant was in Afghanistan on 11 September 2001. On either 4 or 5 October 2001, he was detained in Pakistan by Pakistani authorities while in the company of two men of German nationality, Ibrahim Diab and Bekim Ademi, who were also detained.

6 Between 5 October 2001 and 19 October 2001 the appellant was held in custody in Quetta in Pakistan. On 19 October 2001 he was transferred to Islamabad, the capital of Pakistan.

7 While he was in Pakistan the appellant was interviewed on three occasions: 24 October 2001 (the “first Pakistan interview”), 26 October 2001 (the “second Pakistan interview”) and 29 October 2001 (the “third Pakistan interview”). Each interview was conducted by an officer of the Australian Security Intelligence Organisation (“ASIO”) identified at trial and in the primary judgment as “Officer 1”. The primary judge found (at [91]) that “Officer 1 travelled to Pakistan in October-November 2001 ‘to take ASIO’s interest (in the Habib matter) and to investigate (the Habib) matter’”. A Pakistani official was present during each of the interviews.

8 At some time in or about late October or November 2001, the appellant was taken to Egypt, then to Afghanistan before being taken to Guantanamo Bay in Cuba where he arrived on 7 May 2002.

9 The appellant was interviewed in Guantanamo Bay on 15 May 2002 by three members of the Australian Federal Police and an ASIO officer (the “Guantanamo Bay interview”).

10 The appellant was never charged with any offence. He was released from Guantanamo Bay in January 2005. He returned to Australia on 28 January of that year.

11 Following his return to Australia the appellant participated in several interviews before and after publication of the matter complained of. The respondent sought to rely on statements he made in those interviews in support of its defence of substantial truth.

12 First, the appellant was interviewed by Tara Brown for a 60 Minutes programme which was broadcast on 13 February 2005 (the “60 Minutes interview”). That interview was the subject of some criticism in the matter complained of, published two days later. Following the publication of the matter complained of, Bronwyn Adcock interviewed the appellant for a Dateline programme which was broadcast on 9 March 2005 (the “Dateline interview”). The interview took place a week or so earlier. Finally, Katie Wood interviewed the appellant for Amnesty International Australia on 22 March 2006 (the “Amnesty International interview”).

13 The respondent particularised seven allegations which it alleged demonstrated the substantial truth of the imputation that the appellant made false claims. The primary judge found that it had established the following four of those allegations:

(a) paragraph 21.2: The plaintiff knowingly made false claims as to whether and to what extent he had travelled to Afghanistan (the “first claim”)

(b) paragraph 21.4: The plaintiff knowingly made false claims as to whether he has supported terrorists (the “second claim”)

(c) paragraph 21.7: The plaintiff knowingly made false claims as to where he met the two Germans with whom he was detained (the “third claim”)

(d) paragraph 21.10: The plaintiff knowingly made a false claim to Amnesty International Australia that he had not been in Egypt since he came to Australia (the “fourth claim”)

14 In its second further amended defence, the respondent sought to prove the substantial truth of the first claim by relying, in substance, on what it contended were inconsistent statements made by the appellant as to whether and to what extent he had travelled to Afghanistan. The inconsistent statements lay, it asserted, in the appellant’s claims during the first, second and third Pakistan interviews that he had not travelled to Afghanistan whereas, in the Guantanamo Bay interview, he had admitted having been in Afghanistan during 2001 for periods up to 25 days.

15 The respondent also relied upon an assertion that on or about 26 March 2001 the appellant had said to a protected witness words to the effect, “I have been in Afghanistan training with Al-Qaeda”. The respondent also relied at trial on the statements made by the appellant in the course of the Dateline interview to the effect that he had not been in Afghanistan.

16 Accordingly the respondent put its case in respect of the first claim in its second further amended defence in two ways. Either the appellant’s statements in the Pakistan and Dateline interviews that he had not been in Afghanistan were true, in which case his “claims” to the contrary in the Guantanamo Bay interview were false. Alternatively, the statements the appellant made in the Guantanamo Bay interview were true, in which case the “claims” he made in Pakistan were false.

17 The respondent’s case in respect of the second claim relied on the fact the appellant had organised a protest in support of Sheikh Omar Abdul Rahman (who had been convicted of conspiracy in relation to the bombings of the World Trade Centre in 1993), statements the appellant made in relation to the 1993 bombings of the World Trade Centre when interviewed by New South Wales Police and ASIO officers respectively in November 1999 and June 2000 and the appellant’s denial during the 60 Minutes interview that he supported the Sheikh, other than giving support to him “for his sickness”.

18 The substantial truth of the third claim also depended on inconsistencies the respondent asserted arose by comparing the second Pakistan and Amnesty International interviews with the Guantanamo Bay interview.

19 The substantial truth of the fourth claim as ultimately presented by the respondent at trial turned on the appellant recounting during the Amnesty International interview that he had told an Australian official during one of the Pakistan interviews that he had never been to Egypt, whereas he admitted in answers to interrogatories in the present proceedings that he had visited Egypt since migrating to Australia in 1982.

20 The appellant objected at trial to the admission of the Pakistan and Guantanamo Bay interviews, relying on s 84 and s 138 of the Evidence Act 1995 (NSW). In substance he alleged that he had been tortured before each interview took place. The primary judge rejected this submission and admitted all the interviews. The question of whether this ruling was correct lies at the core of the issues raised on appeal in relation to the first and third claims.

Legislative framework

21 As we have said, insofar as publication in New South Wales was concerned, the respondent relied on the defence of substantial truth and relevantly, publication in the public interest in s 15(2) of the 1974 Act. It relied on corresponding legislative defences of truth in respect of publication in Victoria, South Australia, the Australian Capital Territory, the Northern Territory, Queensland, Western Australia and Tasmania. Nothing turns on those corresponding legislative provisions which differ only from s 15(2) in, relevantly, their expression of the qualification such as whether the matter complained of, in addition to being substantially true, was published for the public benefit etc: see s 127 Civil Wrongs Act 2002 (ACT); s 356 Criminal Code Act Compilation Act 1913 (WA); s 15 Defamation Act 1889 (Qld); s 15 Defamation Act 1957 (Tas). The appellant does not challenge the primary judge’s conclusion that the imputation/matter complained of related to a matter of public interest and/or was published for the public benefit.

22 The appellant relied at trial upon the following provisions of the Evidence Act:

“84 Exclusion of admissions influenced by violence and certain other conduct

(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:

(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or

(b) a threat of conduct of that kind.

(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party, or

(b) be misleading or confusing, or

(c) cause or result in undue waste of time.

138 Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Note: The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.”

23 Relevant definitions in the Dictionary to the Evidence Act are as follows:

“ ‘admission’ means a previous representation that is:

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and

(b) adverse to the person’s interest in the outcome of the proceeding.

‘previous representation’ means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.

‘representation’ includes:

(a) an express or implied representation (whether oral or in writing) ...”

24 Article 9 of the International Covenant on Civil and Political Rights (“ICCPR”), to which the primary judge referred in considering questions concerning s 138, relevantly provides:

“Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment...”

25 Section 142 of the Evidence Act is also relevant. It provides:

“142 Admissibility of evidence: standard of proof

(1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding:

(a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not, or

(b) any other question arising under this Act,

have been proved if it is satisfied that they have been proved on the balance of probabilities.

(2) In determining whether it is so satisfied, the matters that the court must take into account include:

(a) the importance of the evidence in the proceeding, and

(b) the gravity of the matters alleged in relation to the question.”

THE PRIMARY JUDGMENT

The meaning of the imputation

26 The first question the primary judge considered was the meaning of the imputation and, in particular, whether the “false claims” referred to in the pleaded imputation should be confined to claims that the appellant was “tortured” or given a wider meaning so as to enable the respondent to plead as matters of substantial truth, matters which were not referred to in the matter complained of. His Honour concluded (at [6] - [8]), having regard to the imputation in the context of the matter complained of, that it had a wider meaning than that the appellant had made false claims that he was tortured. The appellant did not challenge this finding.

The admissibility of the Pakistan and Guantanamo Bay interviews

27 The primary judge then dealt with the admissibility of the Pakistan and Guantanamo Bay interviews and the appellant’s objection to their tender in reliance on s 84, s 135 and s 138 of the Evidence Act. His Honour noted (at [15]) that the relevant evidence was given at a hearing on the voir dire.

28 His Honour proceeded by first setting out the evidence relevant to the admissibility of the interviews, then making findings of fact and credit in relation to that evidence. The relevant aspects of the evidence are as follows.

29 During the period of September to October 2001, the appellant said he was travelling in various countries in an effort to find a suitable place to which to relocate his family. While his Honour accepted the appellant was genuine in his efforts to find another country in which to live after his business failed in Australia, he concluded (at [13]) that this did not wholly explain his visits to Pakistan and Afghanistan.

30 The appellant said he recalled being interviewed on two occasions following his arrest in Pakistan. His Honour recorded his accounts of those interviews as follows:

“17 The plaintiff said that at the time of his arrest his health was ‘very bad’. He said that he was ‘on drugs. I was in electric shocking. I was beaten. I was in different cells.’ He said that he had to stand up all day and night with his hands shackled. The plaintiff said that when he was transferred from the ‘secret place’ to Islamabad he was given electric shocks. He said:

‘A: They tied up my body a bit higher. They put like concrete, like roller, wire in it. I have to be on the top of this roller and they have joins, batteries, car battery and they join the battery with wire and they keep contact it and I can’t stood up because as soon as I put my feet in the concrete I get shocked and I can’t hold myself up. That’s how it is.

Q: It, of course, was painful?

A: Well --

Q: Obviously. And how long did the electric shock last for? Was it minutes or seconds or what?

A: The first time they – I fainted for a few. I don’t know for how long. I don’t know.’

18 The plaintiff said he was beaten all the time, with sticks and was kicked and was dragged like a dog. He said he was ‘handcuffed to his feet.’ He said he was administered drugs through a hypodermic needle. He said he became crazy and ‘I say stuff. I don’t know.’ He said that he was not allowed to sleep. He said they left him without sufficient warmth and he was freezing cold.

19 He said that on occasions he was made to stand for periods on his toes. He said he was sometimes ‘put’ upside down and ‘they put me like a monkey’.

20 The plaintiff said he recalled two interviews in Islamabad. He believes that both interviews were with an Australian official named Alistair Adams, who gave him his business card. He recalls that two female Americans were also present for the second interview.

21 He was asked whether he had been beaten at the time or just prior to those interviews. The following exchange occurred:

‘Q: Had you been beaten at the time of or just prior to those interviews that you remember?

A: Before they take me to the place I’ve been beaten, I’d been electric shocking.

Q: Had you received any drugs prior to or at the time – sorry, just prior to the time you were interviewed?

A: Because I’d been fainted from the electric shock.

Q: I don’t know whether you’re answering the question or not. Had you been given drugs?

A: Yes.

Q: Prior to or just prior to the interviews?

A: Before and in the middle.

Q: So is your answer yes?

A: Yes.

Q: How was your mind when you were having these interviews?

A: I don’t know what I did talk about. I don’t know. Just what I see in the beginning I see American and I see this man and I was --

Q: Was your mind good or bad or what?

A: I wasn’t there. It was a crazy person in there. My attitude was crazy and I don’t know what I’d been doing.

Q: Did you know what you were saying?

A: No, but I believe I was angry from the electric shock.’

22 The plaintiff said that from Pakistan he was taken on a plane to, so he believes, Egypt. He said in Egypt he was given drugs – sometimes daily - and on occasions he lost his mind so that he did not know where he was or who he was. Mr Habib said his fingers were broken and his nails were taken off by the guards. He said he was given electric shocks and when naked, with his hands behind his back and shackles on his feet, he was mistreated. He said ‘they got dog on top of me and they say to do sexual to me’.

23 In Egypt Mr Habib said he was placed in cold water and then straight away removed to another room and placed in hot water. He said he was placed under a tap with water dripping in his face so that ‘you couldn’t breathe’. Sometimes they poured iced water on his head. He said that at times he was handcuffed to a bar and made to hang like a monkey and while in this position he was beaten.

24 Mr Habib said he was taken from Egypt by aeroplane. Before being put on the plane he said he was given a nappy and bound in chains. He said sticky tape was put on his face over his mouth and nose. He said a black bag was then put on his head and he was carried onto the aeroplane. He said it was like being a ‘spring roll’. He said that he understood that he was taken to Pakistan first and then from Pakistan to Bagram in Afghanistan. From Bagram he believed he was taken to Kandahar. From Kandahar he was taken to Guantanamo Bay.

25 In all the plaintiff was in Egypt for about 7 months and arrived in Guantanamo Bay in early May 2002. He was held in Guantanamo Bay until released in January 2005. He then returned to Australia.

26 Mr Habib said that during his time in Guantanamo Bay he was guarded by Americans. He said that when he left Egypt he was paralysed in his left side and had trouble keeping his head up. When he arrived in Guantanamo Bay he says he was placed in the hospital. He said he was very sick and did not know what was going on. He said upon arrival in Guantanamo Bay he was given an injection in the beginning every three days. He said that he had no idea what he was injected with. However, he says the injections ‘left him like a crazy person’, and he lost his memory. He said, ‘I feel I am in Egypt and young boy, I don’t know, a lot of stuff happened to me not normal.’

27 He said that in his early period in Guantanamo Bay he found himself bleeding after he woke up. He said that he was told ‘you are hitting yourself’. He became suspicious that his food was being drugged. He said the food tasted ‘yucky’. He went on a hunger strike.

28 Mr Habib said that during his period in Guantanamo Bay he was handcuffed and shackled. The handcuffs were fixed to chains around his waist which were attached to his feet. He said he was always chained in Guantanamo Bay. He said that if he was to be moved from his cell he was dragged. He said that if he refused to go anywhere officers of a team called the ‘F-Team’ would come to his cell, beat him and drag him away. If he was in the interview room the shackles remained fixed and he was shackled to the floor. He said ‘when they take me to interview, they handcuff right there like that (indicating), stuck in my waist. And I got the shackle in my feet. Then they put me in the chair. They have hook right in the ground. Then they connect the chain from the – between the handcuff to the ground and you have to bend down all the time.’

29 He said that he remembers being interviewed by a lady from Australia. He said ‘she looked like a Chinese lady. She wearing white clothes and hat, and she had a few people with her. I don’t remember their faces, but this woman I see her, I remember her until now. She wearing white clothes and big hat.’

30 He said that at Guantanamo Bay he was not allowed to sleep. He said he was interrogated at night. He said the authorities would remove him to the interrogation room where there were cold fans. He said that he was classified as ‘CIA Lost’ which means that he was not allowed to have a blanket until 11.00 at night which was taken from him at 4.00 in the morning. He said he was not allowed to wear adequate clothing, only shorts.

31 Mr Habib said at some stage in his stay in Guantanamo Bay he was transferred to ‘Block Romeo’. He said, ‘this – before this, some people to be crazy, they send them to this Block Romeo. They make it like a zoo. It has a plastic surrounding the cell, and you have to be naked, and they not allow you with blanket. Nothing inside the cell, all metals and they – if you thirsty, if you want a drink, they put the drink on the floor and you have to lick it. That is what happened in Romeo.’

32 He said that the cells in which they were placed at times became very hot and, at night time, could be very cold.

33 He was asked whether he was beaten by the guards. He said each time before being interrogated he was beaten. He said his cell was also sprayed with a pepper spray.

34 He was asked:

‘What is a water board?’

35 He answered:

‘As I told you, everyone has different treatment if you cooperate, they have tap inside and the tap, like the one used in the bar, like very little amount of water come out of it, and a toilet inside the cell. But if you are not cooperating, they not let water go inside the cell. They close it from outside.’

36 In response to the question ‘Did you have a brain wash? What is a brain wash?’ Mr Habib replied:

‘A: This was in Egypt. They have a clip, they open your eyes, they put your glasses on and you can see like the light but they keep it on. You see stuff, whatever. I see my family being killed, that is what they put it on. And they put something like in your ear to hear it and clip you – open your eyes with clip, and your eye all the time is open.’

37 Mr Habib said that when he was in Guantanamo Bay he had some incidents with female guards. He said that a guard threw menstrual blood in his face. He said that he was threatened with rape by male guards who were wearing a condom.

38 Apart from his recollection of an interview by the ‘Chinese lady’ the plaintiff denied all knowledge of an interview by Australian officials at Guantanamo Bay. I am entirely satisfied that an interview did take place on 15 May 2002. The transcript of that interview, which is in evidence, contains details of his personal history and other matters which could only have come from the plaintiff. An examination of the transcript reveals that the plaintiff was able to respond to various questions in considerable detail. Although he was secured in chains, in a most demeaning position, it is not apparent that he was unable to respond appropriately to any question he was asked. The interview was taped and I have listened to that tape. Although Mr Habib was of quiet demeanour and apparently stressed, he was able to answer complex questions.” (emphasis added)

Conflicts with statements made during interviews in Australia

31 The primary judge then dealt with the conflicts he perceived between the appellant’s evidence concerning the overseas interviews and statements he had made during interviews in Australia:

“39 After he had returned to Australia the plaintiff was interviewed by Ms Katie Wood of Amnesty International Australia. A tape of the interview was in evidence. Mr Habib said that he gave that interview for the purpose of helping others who may be detained in Guantanamo Bay. He said that it was an opportunity for him to set out details of the violation of his ‘human rights’ while he was in Pakistan and Guantanamo Bay. Of significance to the present proceedings was his claim that he was sick during the interview and had a ‘psychological doctor’ with him.

40 When he gave evidence he was challenged about the fact that he did not mention to Ms Wood that he had been drugged when he was in Pakistan. The following exchange occurred:

‘Q: Was the answer to my question no, you did not mention?

A: I don’t remember – I don’t remember what happened in interview, to be honest. I remember I have interview, but when people – when ask me for interview, I try my best, I try to give, not distressing myself as well.

Q: Was your answer to my last question an attempt to cover up the fact that you didn’t mention drugs even once in Pakistan.

A: I am not trying to do anything.

Q: When I said ‘didn’t even mention once’, instead of saying no, ‘no, I didn’t,’ you just said ‘well, no, I’m not sure I mentioned everything about these things.’

A: I don’t have to mention all my torture to suffer in myself.

...

Q: Did you mention even once to her that you were forced to hang like a monkey while you were in Pakistan, at any stage of your time in Pakistan?

A: I mentioned about the torture. I don’t have to mention every single thing about the torture.

...

Q: Did you mention anything to her about electric shocks that occurred at any time while you were in Pakistan?

A: I don’t remember if she asked me about Pakistan or not. I don’t remember the interview exactly. I don’t remember what happened in the interview.

Q: You didn’t mention even once to Katie Wood anything about electric shocks being administered to you in either Pakistan or Guantanamo Bay, did you?

A: I believe in the beginning we tried to avoid – even the psychological tell me try to avoid talk about torture because I was very sick and I couldn’t sleep when I talk about it. When I got home I got very sick and very ill, and I believe ... .’

41 An examination of the transcript of the interview with Ms Katie Wood confirms that the plaintiff did not tell her of the torture which was allegedly inflicted upon him when he was in Islamabad. He said that one reason for not revealing all of the detail to Ms Wood was that his lawyer had told him ‘don’t give too much information about the place you have been in and when you are questioned about it until the court case.’

42 Mr Habib said that during the interview he did not want to talk about the ‘proper torture what I gone through.’ He said ‘he couldn’t talk about electric shock at this time, no.’ He said he did not want to talk about these matters on the day he was interviewed by Ms Wood.

43 When interviewed by Amnesty International Mr Habib stated that he received no torture in the ‘secret place’ being a reference to the place where he was first detained in Islamabad. When cross-examined he said that beatings and electric shocks occurred, at least in part, in the ‘secret place’.

44 There were many other inconsistencies between the answers the plaintiff gave to Ms Katie Wood of Amnesty and the evidence in these proceedings. The evidence in these proceedings was consistent with his interests in the litigation. However, relevant answers he gave to Ms Katie Wood were contrary to his interests in these proceedings. In his interview with Ms Wood Mr Habib did not mention that he had been forced to hang like a monkey or that electric shocks had been administered to him. He described only one occasion on which he was beaten in Islamabad. He told Ms Wood that he had not been hurt by any kicking in Pakistan.

45 Mr Habib was also interviewed for the current affairs program, 60 Minutes. Only some of that interview was broadcast. In this interview Mr Habib said that he was not tortured prior to the first meeting with an Australian official in Pakistan and that the only beating occurred at the airport immediately prior to him being transferred to Egypt which occurred after he was interviewed by the Australian officials. However, when cross-examined in these proceedings he rejected the statements he had previously made to the interviewer.

46 In his evidence in these proceedings the plaintiff said that he was in the ‘secret place’ in Islamabad for 13 days and spent another 14 days in Islamabad. He said he received beatings in Islamabad all the time. He said he was beaten in the ‘secret place’ by more than one person and that these beatings drew blood on occasions and caused bruising. He said there were electric shocks administered to him on one or two times in the ‘secret place’. He also said he was given drugs before he went to Islamabad in the ‘secret place.’ He said that he was beaten maybe fifteen times before he saw Mr Adams and had received electric shocks. He said that he was hung like a monkey once or twice before he met Mr Adams.”

The interview in Guantanamo Bay and events in Pakistan - matters of credit and factual findings

32 The primary judge then set out (at [47]) the account of his captivity in Pakistan, Egypt and Afghanistan Australian officials recorded the appellant as having given them in Guantanamo Bay. He concluded (at [48]) that the appellant’s claims “that he was seriously mistreated in the place of detention in Islamabad cannot be accepted” explaining “[i]f it were true at least some elements of it would have been revealed in his interviews with Amnesty International or 60 Minutes”. He then said:

“49 I have no difficulty in accepting that the experiences which Mr Habib suffered were traumatic. I also have little doubt that from time to time he was mistreated. The circumstances in which he was shackled, and detained were degrading. I have no doubt that he was kicked. It is possible that at times in Egypt he was subject to abusive conduct probably using water, hot and cold rooms and forms of electric shock. However, the evidence he gave was disjointed and on many occasions he failed to respond to a question. I have reflected at length on his evidence and have ultimately concluded that I cannot accept the allegations of mistreatment in the detail which he gave the evidence in this Court. That does not mean that I have concluded that these events did not happen but merely that I cannot be satisfied that they did happen.

50 Although, as I have indicated, I accept that Mr Habib had undergone an extraordinarily stressful experience and at times suffered from depression his demeanour during the interview with Amnesty International does not suggest that he was at that point unwell. During the interview Mr Habib appears to be in high spirits and responded in an animated and direct fashion to the questions he was asked.” (emphasis added)

33 The primary judge also took into account (at [51]) an inconsistency he perceived between the appellant’s evidence at trial of being abused, beaten and tortured at Guantanamo Bay prior to his interview with Australian officials who met him there eight days after he arrived and the report prepared by those officials. Although the appellant made detailed allegations in the interview about having been tortured while in custody in Pakistan and Egypt, he made no complaint of mistreatment in Guantanamo Bay. His Honour noted (at [51]) that because of his illness and recent arrival the American authorities had not commenced any programme of interrogation of the appellant by the time he met the Australian officials.

34 The primary judge concluded:

“52 My general observations of Mr Habib are that, even allowing for some difficulties with the English language, he sought to evade answering questions which may have presented difficulties for his case in these proceedings. Although on occasions he gave a lucid account of matters which were not of particular relevance, when pressed he would either avoid answering the question or provide a lengthy rambling and confused explanation. His denial of the interview of 15 May 2002 at Guantanamo Bay is simply incredible. It is known that Mr Habib was in Guantanamo Bay at this time as he must be aware. His denial that he was interviewed involves the proposition that the interviewing officers have created a fictitious transcript extending over many pages reflecting an interview over more than 4 hours.

53 It also involves a representation that the relevant officers reported to the Prime Minister and other senior officials that they had interviewed Mr Habib when this was not the case.

54 In these circumstances I can only conclude that where Mr Habib gave answers in evidence which are in conflict with what he has said on other occasions the answers given in these proceedings must be rejected.

55 It will be apparent from the discussion below that in a number of respects I have concluded that the plaintiff has knowingly made false claims. Although each of those matters are significant in the context of the present litigation the findings which I have made do not mean that the plaintiff cannot be believed in anything he alleges. I formed the impression that the plaintiff was prone to exaggerate and was cautious with questions which he perceived to be a challenge to his integrity. This caused him on occasions to give oblique answers or fail at all to answer the question. At times the impression he gave was of seeking to avoid the truth although on some occasions this may not have been the case. Given the experiences he has endured during his incarceration without trial, and without ultimately being charged with any offence, his suspicion of authority and guarded responses to any question may have a rational foundation.” (emphasis added)

Questions of admissibility

35 The primary judge then turned to the issue of the admissibility of the overseas interviews. He observed (at [57]) under the heading “Islamabad interview”, that as the appellant had raised the s 84 issue, the respondent carried the onus of establishing that “the admission and the making of the admission were not influenced by conduct of the identified kind”. He added:

“58 It is apparent that there must either be conduct of the relevant kind, which influenced the admission, or a threat of conduct of that kind. There must be a connection, being the relevant influence, between the conduct or threat and the admission. Fear of relevant conduct will not be sufficient; there must at least be a threat which influences the admission.”

His Honour did not repeat his conclusion that the s 84 issue had been raised when he turned to the Guantanamo Bay issue, but we have no doubt his conclusion (at [57]) was intended to extend to it.

36 The primary judge rejected the appellant’s argument that the Pakistan interviews should not be admitted by virtue of s 84 for the following reasons:

“59 When interviewed in Pakistan the plaintiff denied that he had been to Afghanistan. This was not true. However, it was submitted that because the plaintiff asked to speak to the Australian official (who he believed to be Alistair Adams) privately, and this was not disputed by the defendant, and the request was denied, there was relevant oppression.

60 Although the plaintiff made the request for a private conversation in his first interview in Islamabad, he did not repeat it during the second and third interviews when he again denied that he had been in Afghanistan. Even if contrary to my view the admission in the first interview was inadmissible it is available from the second and third interviews.

61 Officer Jabbour, who was one of the Australian officials who interviewed Mr Habib in Guantanamo Bay, confirmed that the plaintiff, when he reached Cuba, made no complaint about any mistreatment in Pakistan. He did however make complaints about the way he was sent to Egypt.

62 It may be that the plaintiff falsely denied that he had been to Afghanistan out of a concern that an admission may have led to further enquiry with the possibility of his further detention. Although he did not refer to the matter in his evidence in chief he said when re-examined that he did not admit he had been to Afghanistan:

“Because what I been through was that Pakistani, I believe definitely these people two way, you are going to kill me or they going to put me away all my life, I going to be in really serious trouble in my life.”

63 A fear of punishment for wrong doing would not be a matter of relevance to s 84. Neither would a fear of continuing incarceration for wrong doing be relevant. Section 84(1)(b) requires a threat of the identified kind which influenced the making of the admission. There is no evidence of such a threat in the present case. Although I could not exclude the possibility that the plaintiff was mistreated, particularly in Egypt, there is no evidence which associates any admission during the interview with a threat of the relevant kind.

64 The plaintiff was also interviewed by Ms Bronwyn Adcock of the Dateline program. In that interview the plaintiff repeated his statement that he had never been to Afghanistan.** There was no hint of any conduct falling within s 84 which influenced the making of this false statement. The plaintiff’s response to the question of Ms Adcock suggests that he was embarrassed about his journey to Afghanistan and was fearful that there may either have been legal consequences or that people may have thought less of him if they were aware that he had been there.” (emphasis added)

** We would note, with respect, that this statement does not state precisely what happened during the Dateline interview. In response to a question from Ms Adcock about his interrogation in Pakistan, the appellant recounted, in substance, that he had told his Pakistani interrogators that he had not been to Afghanistan.

37 Because the appellant relied on the same matters as were raised in relation to s 84 to invoke the s 138 discretion, and did not suggest that the evidence obtained from the Pakistan interviews was obtained in contravention of an Australian law, the primary judge held (at [66]) that the question of the exercise of the s 138 discretion did not arise. He added (at [67]) that even if he had been satisfied that the evidence had been obtained improperly, significant questions with respect to the discretion would have arisen. These included the authority under Pakistani law pursuant to which the appellant was detained (as to which there was no evidence) which his Honour considered may be relevant to issues arising under Article 9 of the ICCPR. His Honour also considered it would be relevant to the exercise of the s 138 discretion that the Australian officers gave evidence that the plaintiff was not mistreated in their presence and gave no signs of having been mistreated on other occasions. Rather, his Honour accepted, that during the interview the plaintiff was offered and accepted, refreshments including coffee, tea and cigarettes, was also offered his medication, and the meeting concluded with handshakes.

38 The primary judge rejected (at [52]) the appellant’s denial that the Guantanamo Bay interview took place. His Honour noted (at [68]) that the parties agreed the following admissions in the Guantanamo Bay interview were relevant:

“a. Various admissions in relation to the involvement by the plaintiff in courses/training in Lahore;

b. Various admissions particularised by the defendant in relation to the involvement by the plaintiff in courses/training in Kabul;

c. Various admissions by the plaintiff in relation to a notebook in which he made notes relating to weapons;

d. The admission that the plaintiff met the two Germans in Afghanistan.”

(a) – (c) were relevant to other aspects of the substantial truth defence the primary judge rejected – (d) was relevant to the third claim.

39 The appellant again relied on s 84 and s 138 of the Evidence Act to exclude these admissions by reason of (primary judgment at [69]):

“a. the absence of a warning;

b. that the impression that ‘cooperate or else’ had in effect been conveyed to the plaintiff;

c. oppression or impropriety resulting from the way in which the plaintiff was shackled;

d. an improper inducement for the plaintiff to cooperate in return for a promise of negotiations with the Americans to repatriate him to Australia;

e. that his detention was improper being in breach of Article 9 of the International Covenant on Civil and Political Rights.”

40 The primary judge rejected the appellant’s challenge to the admissibility of the Guantanamo Bay interview. He held (at [71]) that neither s 84 nor s 138 required a warning as the appellant had not been arrested by any Commonwealth officer: s 23F, Crimes Act 1914 (Cth). Next, he concluded (at [72] – [74]) that the transcript of the interview did not suggest the appellant was told to “cooperate or else” or that the appellant expected that by cooperating he would secure his release. Rather, in his Honour’s view, the transcript showed that the appellant was told that he had no obligation to participate in the interview (as was apparent from the extract of the interview his Honour reproduced at [73]), did not reveal any reluctance in the appellant to participate and there was no suggestion that he was concerned that if he did not there would be any recriminations or benefit.

41 As to the conditions under which the appellant was held, his Honour noted that the Australian government team which visited Guantanamo Bay between 13 –– 17 May 2002 could not inspect the detainees’ cells – referring to the appellant and Mr David Hicks. Notwithstanding that, their report apparently described the detainees’ conditions, from which his Honour drew the following:

“76 The officers reported that each detainee was held in a cell about 2½ metres by 3 metres in size with one solid exterior wall and wire mesh internal walls. The facility was air conditioned. Each cell contained one bed, squat style toilet and water fountain.

77 The report said:

‘The detainees do not wear physical restraints in their cells or during their exercise session. When they are moved and during questioning, they are restrained with stainless steel chains around their waist, connected to handcuffs locking their hands in place around their stomach. Their feet are shackled with short chains such that they shuffle to walk ... In the [interrogation] room, their feet are shackled to the floor. The handcuffs are released on request.’

78 The report indicated that in the view of the officers the detainees appear to have been well treated by the US authorities. They received full medical examinations on arrival and had access to medical treatment on request. The food was described of a reasonable quality. Muslim religious observance was respected. However, outdoor exercise was limited to 1 hour per week and only a weekly shower was permitted.

79 The officers reported that ‘the detainees are interrogated (this is the word the US authorities use) on a regular basis by US authorities ... Due to his recent arrival and poor health, US interrogation of Mr Habib had not yet commenced at the time of our visit.’ The investigating team formed the view that there was no indication of mistreatment during the interrogation of Mr Hicks. The report contains the following:

‘Mamdouh Habib arrived at Guantanamo Bay only 8 days before the team met him. He is receiving medical treatment for depression – a pre-existing medical condition – and complained of being in poor health. Mr Habib seemed tired and of yellowish pallor. He had faint bruises on his head caused, he said, from recent falls induced by fainting spells. During the early part of our initial interview, he seemed disorientated (possibly due his medication) but later became more lucid. Mr Habib was evasive and not cooperative during questioning.’

80 The report says the following in relation to the interview of Mr Habib:

‘We were forewarned by US officials that Mr Habib had been well when he arrived at Guantanamo but had fallen from his bunk and hit his head soon after arrival and had been hospitalised. As the base did not have CAT scan facilities, he had been kept under observation in hospital for some days until his discharge on 13 May. Given his history of mental problems, he had been prescribed Prozac and was getting sleeping tablets to help him sleep.

Our first interview with Mr Habib started early in the morning and it was possible that he was still suffering the effects of his medication. He was groggy and disorientated (for example he could not remember his home address) he had a pale, yellowish pallor. His face was slightly puffy and he had heavy dark bags under his eyes. The team detected signs of faint bruising on the side of his head and he confirmed that he had been having fainting spells and had fallen and knocked his head. He said bandages on his head had been removed that morning. Mr Hicks told us separately that US officials had shown him a video-cam shot of Mr Habib one week earlier and that Mr Habib appeared to have been lying on a bed with a bruised face (Mr Hicks is not aware that Habib has been brought to Guantanamo) Mr Habib was very subdued and quietly spoken at first but seemed to understand what was said. Compared to earlier photographs of him, he appeared to have lost a little weight but was still well nourished. He was well groomed and clean.

Mr Habib said he had been very ill for seven months that he had been in detention before his arrival in Guantanamo and had suffered serious mistreatment at the hands of his captors. He said he had suffered broken ribs and toes, bleeding from his penis and serious memory loss.

As a result, Mr Habib said he was now in very poor health. By the team’s observation, Mr Habib had some swelling of the feet but his toes showed no sign of having been broken recently. He moved his upper body reasonably freely but it was not possible to make an assessment about broken ribs.’

81 The report later says that Mr Habib said that conditions at Guantanamo were better than in Afghanistan. However, ‘he complained about his treatment on arrival saying he had not been treated humanely and had been mocked during his initial medical examination.’ The US authorities denied that this had occurred.

82 I am satisfied that the conditions at Guantanamo Bay were arduous and degrading. Mr Habib was confined to his cell with almost no opportunity for exercise. On the occasions when he was moved and during questioning he was shackled with chains and reduced to a shuffle. He said he was shackled at other times. Although this is contradicted by the report made by the Australian officials they did not observe him otherwise than during the interview and were reliant on information given to them by American officials. Whatever be the true position in relation to shackles it is apparent that the physical conditions of an inmate’s incarceration, lack of access to exercise and more particularly uncertainties associated with there being no charge laid or expectation of release, properly described as indefinite detention, defied basic human rights. However, Mr Habib had only been there for a few days when interviewed. The evidence does not suggest that the circumstances of his incarceration influenced the plaintiff to make the admissions relied upon by the defendant in these proceedings. Nor was any admission obtained as a consequence of any improper conduct or contravention of an Australian law.” (emphasis added)

42 The primary judge concluded (at [83]) that even if he were satisfied for the purpose of s 138 that the Guantanamo Bay admissions were obtained by some impropriety, questions of discretion would again arise. Those included the fact that the evidence was “highly probative of some of the issues which must be determined in these proceedings”, the fact he was given no evidence as to the justification for the appellant’s detention and questions as to whether or not his detention was governed by Cuban law or the law of the United States. His Honour accepted that although it was not fully argued it would seem that a breach of Article 9 of the ICCPR occurred. In the absence of a finding of relevant impropriety his Honour concluded these questions need not be determined.

43 The primary judge concluded that the admissions contained in the Pakistan and Guantanamo Bay interviews were admissible: at [84]. He noted (at [85]) that although s 135 of the Evidence Act was referred to, there was no suggestion that the probative value of the evidence could be outweighed by any of the matters raised by s 135 so as to attract the discretionary exclusion of the interviews.

The defence of substantial truth

44 The primary judge then dealt with each of the respondent’s allegations that the appellant had made false claims. We have already explained those his Honour found to have been established: the first, second, third and fourth claims. It is convenient to repeat them at this stage to put his Honour’s findings in context.

45 The first matter relied on in justification of the imputation was that “the plaintiff knowingly made false claims as to whether and to what extent he had travelled to Afghanistan”.

46 The appellant admitted at trial that he had been in Afghanistan in 2001. Accordingly the primary judge concluded that the only issue in relation to the first claim was whether the appellant had made a contrary claim when he answered “no” to the question asked during the Pakistan interviews as to whether he had ever been to Afghanistan – an answer which was incorrect. The appellant ultimately did not dispute that his denial that he had been in Afghanistan was untrue, but, in addition to the s 84, s 135 and s 138 objections, sought to argue that a denial was not a “claim”: see primary judgment (at [104]). The primary judge rejected that argument, holding (at [106]) that the appellant’s denial in the Pakistan interviews amounted to a “claim”, being an assertion of a fact, and was a false claim which established the substantial truth of the first claim.

47 It is convenient to note at this point that although the respondent also relied upon the Dateline interview as part of its contentions in respect of the first claim, and his Honour referred to that interview (at [64]) in the context of dealing with the admissibility of the Pakistan interviews, he did not rely upon it as evidence of the substantial truth of the first claim. That gave rise to competing contentions in this Court. The respondent sought to bolster its case on the first claim by arguing in its notice of contention that the Dateline interview was another occasion on which the appellant made a false claim about whether he had travelled to Afghanistan. The appellant sought to argue that that part of the Dateline interview on which the respondent relied ought to be excluded on the basis of s 84 of the Evidence Act. The respondent resisted that application on the basis the Dateline interview had been admitted without objection at trial. It will be necessary to return to this issue.

48 The second matter relied on in justification of the imputation was that “the plaintiff knowingly made false claims as to whether he has supported terrorists”.

49 The respondent’s case in relation to the second claim was that the appellant had made false claims in relation to his support of Sheikh Omar Abdul Rahman, who had been convicted of conspiracy in relation to the bombings of the World Trade Centre in 1993. The primary judge accepted (at [126]) that, having regard to that conviction, it was appropriate to describe the Sheikh as a terrorist. The appellant does not challenge that conclusion. His Honour then set out that part of the 60 Minutes interview on which the respondent relied (at [127]) where the appellant stated he supported the Sheikh:

“ ... deeply for his sickness. That’s all. I have nothing to do, nothing else. ... I support his sickness, that’s it. ... I support this man for his sickness and his illness. I have nothing to do what he did. What he did he has been punished for ...”

50 His Honour then commented:

(The statement ‘I have nothing to do what he did. What he did he has been punished for ... .’ exposes that the plaintiff did know what the Sheik had been convicted of despite the plaintiff’s attempts to deny this in cross-examination.”

51 The primary judge accepted (at [128]) the respondent’s submission that it was apparent that the appellant was asserting “that he supported the Sheikh only in respect of his illness” and “sought to disassociate himself from any support for the Sheik for his criminal acts and accepted that he had been punished for them”. His Honour concluded that this claim was false and knowingly false for a number of reasons.

52 The first was that on 1 March 1997 the plaintiff organised a march in support of Sheikh Omar Abdul Rahman and, apparently in association with the march, authorised and distributed a pamphlet in which he described the Sheikh as “Our innocent but wrongly convicted Brother”: primary judgment (at [129]).

53 Secondly, on 25 November 1999 an ASIO officer, known as Officer 3, interviewed the appellant about these matters. Officer 3 gave evidence that during that interview the appellant “insisted that the Sheik was innocent, the real bomber was named Joseph and was in Israel, the convicted conspirators were ignorant and only found guilty because they were Muslims”: primary judgment (at [130]). The primary judge was satisfied that Officer 3’s evidence was reliable and rejected the appellant’s suggestion that he was not interviewed by him: primary judgment (at [131]).

54 Thirdly, on 29 June 2000 the appellant met another ASIO officer, identified as Officer 2. According to the primary judge, Officer 2 gave evidence that on that occasion the appellant “insisted the Sheik was innocent of conspiracy in relation to the 1993 World Trade Centre bombings, having been set up by the Jews in order to blame the Muslims. He also said that he thought the Sheik was a good Islamic leader”. The appellant again denied this conversation had taken place, but his Honour found it was confirmed by a minute reporting the interview prepared at the time, without any expectation that it would be used in proceedings such as the present, and that there was no reason for it to have been fabricated. He accepted Officer 2’s evidence: primary judgment (at [132]).

55 His Honour found:

“133 The only available conclusion is that the plaintiff did support the Sheik because he was a Muslim and Mr Habib believed he was innocent of the crime of which he had been convicted. He took active steps to support the Sheik and seek his release. His claim to Tara Brown that he only supported the Sheik for ‘his sickness and his illness’ was knowingly false.”

56 The third matter relied on in justification of the imputation was that “the plaintiff knowingly made false claims as to where he met the two Germans with whom he was detained”.

57 The respondent’s case at trial concerning the third claim also depended on allegedly conflicting statements made by the appellant during the Pakistan, Guantanamo Bay and Amnesty International interviews concerning where he had met the two Germans with whom he was detained. It is relevant to note at this point that the s 84 objection at trial was not raised in relation to statements in the Pakistan interviews as to where the appellant met the two Germans. The appellant accepted in this Court therefore that he could not rely on the s 84 point concerning the Pakistan interviews in relation to the third claim. Rather his focus was on the reception of the Guantanamo Bay and Amnesty International interviews as evidence of falsity.

58 In the second Pakistan interview the appellant said, in substance, that he first met the two Germans in Quetta shortly before he and they were about to embark on a trip to Karachi in Pakistan. During the Guantanamo Bay interview, the appellant said he first met the two Germans in Kandahar in Afghanistan. During the Amnesty International interview, the appellant said he first met Mr Diab and a male German in Quetta in Pakistan on the day he was detained there.

59 The primary judge concluded (at [144], [146]) that the statements in the second Pakistan interview and the Guantanamo Bay interview were in conflict and that the conflict was not a mistake. He was satisfied that the appellant’s statement that he met the two Germans in Afghanistan was “the true position [and] [t]he earlier statement that he met them in Pakistan was knowingly false”. This was because, in his Honour’s view (at [144]) the appellant’s statement in the Pakistan interviews that he met the Germans in Pakistan was made at the time he was trying to avoid detention as a terrorist suspect by denying he had been in Afghanistan.

60 The fourth matter relied on in justification of the imputation was that “the plaintiff knowingly made a false claim to Amnesty International Australia that he had not been in Egypt since he came to Australia”.

61 The primary judge found the fourth claim to be substantially true on the basis of the Amnesty International interview during which the appellant recounted part of his interview in Pakistan with a person he believed (wrongly, as the primary judge found) was an Australian official named Alistair Adams. During that interview the appellant said he and the Australian official “were discussing where he might be sent and the officer suggested that he may be sent to Egypt”. The appellant said that he resisted this possibility and told the Australian official “I have never been in Egypt since I come to Australia.” In his answers to interrogatories, the appellant said he had visited Egypt on or about five or six occasions since he migrated to Australia in 1982.

62 The appellant did not dispute that the Amnesty International interview was admissible or, if an admission was made in it, might provide a basis for the respondent’s submission. However, his counsel submitted that the answer given to the interviewer was unclear and was explained by the plaintiff’s evidence when “he said he was referring to going to Egypt with (or without a visa) and that he did not deny or intend to deny visiting”: primary judgment (at [150]).

63 The primary judge rejected that submission. He accepted that the written transcript of the Amnesty International interview was an accurate record of the appellant’s statement. He observed that the context of the statement to the Australian official was an attempt by the appellant to persuade the authorities that he should be returned to Australia and not Egypt. It was consistent with his endeavour that he should deny recent visits to his country of birth. He held that the appellant’s denial that he had been to Egypt since coming to Australia was a deliberate and knowingly false claim: primary judgment (at [151] - [152]).

64 Finally, having found the respondent had made out four of the matters it relied upon in support of its defence of substantial truth, the primary judge also held that the question whether the appellant had made false claims was a matter of public interest: primary judgment (at [153]). As we have said, the appellant does not challenge the latter ruling.

ISSUES ON APPEAL

Grounds of appeal

65 The appellant’s eighteen grounds of appeal can be grouped under discrete headings as follows.

66 The appellant makes the following complaints in respect of the admission of the Pakistan and Guantanamo Bay interviews:

The primary judge erred in admitting into evidence admissions and/or statements made by the appellant in the Guantanamo Bay interview on 15 May 2002 or any part of that interview (Grounds 1 & 2).

The primary judge erred in admitting into evidence admissions and/or statements made by the appellant in the Pakistan interviews or any part of those interviews (Grounds 3 & 4).

The primary judge erred by failing to exclude the interviews pursuant to the provisions of s 84 and s 138 and other sections of the Evidence Act and on general grounds that the interviews were unfair because of their circumstances and the mental and physical condition of the appellant (Grounds 5 & 6).

The primary judge erred in concluding that what the appellant said in the Pakistan interviews evidenced the making of a “claim”. (It was not precisely apparent which ground of appeal covered this complaint, but it was uncontroversial that it was a live issue on appeal.)

The primary judge misapplied the onus of proof (Ground 15).

67 Next, the appellant complains that the primary judge erred in defining the imputation “the plaintiff knowingly made some false claims” as applying to claims made after the publication of the matter complained of, specifically in the Amnesty International Interview (Grounds 7 and 14, (the “subsequent publication issue”).

68 The appellant makes the following complaints concerning the findings of substantial truth:

The first claim

The primary judge erred (at [105]) when he said that “Mr Habib must have been mindful of the likelihood of Australian officials passing information to Pakistani authorities” when considering the appellant’s denial of having been to Afghanistan and his request to speak to the Australian officials in private. The primary judge was in error in referring to the likelihood of Australian officials passing information to Pakistani authorities because the Pakistani authorities were present at the interviews and the appellant believed that if they heard he had been to Afghanistan he would have been subject to punishment or penalties (Ground 9).

The second claim

The primary judge erred in finding the appellant knowingly made false claims as to whether he supported terrorists (at [126]-[133]) because he misunderstood the effect of the statement by the appellant to Tara Brown in the 60 Minutes interview as set out at [127] (Ground 10).

The primary judge should have found that what the appellant told Tara Brown was not inconsistent with the information he gave to ASIO officers about his association with Sheikh Omar Abdul Rahman in 1997-2000 (Ground 11).

The third claim

His Honour erred in law by misconstruing what the appellant told Katie Wood during the Amnesty International interview.

The primary judge erred in finding that the appellant knowingly made false claims as to where he met the two Germans with whom he was detained (at [142] - [146]). His Honour should have found that because of the presence of Pakistani security authorities, the appellant had compelling reasons not to disclose he had been in Afghanistan (Ground 12).

The fourth claim

The primary judge erred in finding that the imputation “the plaintiff knowingly made some false claims” extended to claims made after publication.

His Honour should have found that what the appellant said to Amnesty International about not being in Egypt since coming to Australia was not a claim but simply a statement he made about a previous conversation which took place in Islamabad with an official whom the appellant believed was Alastair Adams (Ground 14).

Generally

The primary judge failed to take into account all relevant evidence in upholding the defence of justification (Ground 16).

The primary judge erred in not finding that claims made by the appellant, which the primary judge ruled were false, were trivial and unimportant matters which should not have affected the overall outcome of the trial (Ground 17). (The notice of appeal omitted the word “not”, but it is plain that that was the purport of this ground.)

The primary judge erred in finding the respondent had established its defence of truth (Ground 18).

Notice of contention

69 The respondent filed a notice of contention raising three issues. First, it contends that no issue was “raised” at trial sufficient to enliven s 84 of the Evidence Act. Secondly, it contends in substance that, even if the imputation had a narrower meaning than that found by the primary judge, the appellant’s failure to advance at trial the propositions concerning the imputation upon which it now seeks to rely constitutes an abuse of process such that they cannot now be raised. Thirdly, the respondent contends that in addition to the false claims the primary judge found the appellant to have made in the Pakistan interviews in respect of his presence in Afghanistan, his Honour ought also to have found that the appellant had made a false claim that he had never travelled to Afghanistan by recounting in the Dateline interview that he had told authorities in Pakistan that he had never been to Afghanistan.

SUBMISSIONS

Introduction

70 It is expedient to summarise the gist of the appellant’s complaints before examining their detail.

71 Mr K P Smark SC, who appeared for the appellant on appeal with Mr C E Evatt and Mr R Rasmussen raised the following objections to the admission/use of the various interviews:

(a) insofar as the first claim is concerned, he submitted the Pakistan interviews ought to have been excluded on the proper application of s 84 and/or s 135 of the Evidence Act; he also sought to argue that this Court should now exclude the statement in the Dateline interview on the basis of s 84 and because the statements in the Dateline interview were made subsequent to the publication of the matter complained of;

(b) insofar as the second claim is concerned, he submitted that the primary judge took the appellant’s statement in the 60 Minutes interview out of context;

(c) insofar as the third claim is concerned, he submitted the Guantanamo Bay interview ought to have been excluded on the proper application of s 84 and/or s 135 of the Evidence Act; if that interview was excluded, he contended there was no evidence the third claim was substantially true; he submitted the appellant’s statement about where he met the two Germans was not a “claim” and he raised another subsequent publication point, contending that the making of statements by the appellant in the Amnesty International interview, more than a year after the publication of the matter complained of, was irrelevant to the truth defence;

(d) insofar as the fourth claim is concerned, he again contended that the statements in the Amnesty International interview were made too late to be relevant to the truth defence.

72 Insofar as the first, third and fourth claims were concerned, Mr Smark submitted the primary judge erred in finding what the appellant relevantly said in the Pakistan and Amnesty International interviews constituted the making of a “claim”. He also contended that to make good its defence, the respondent had to establish the substantial truth of more than one “claim”.

Section 84 submissions – Pakistan and Guantanamo Bay interviews (first and third claims)

73 Mr Smark complained that the primary judge erred by effectively reversing the test posed by s 84(1). He pointed out that his Honour had accepted some of the appellant’s evidence, including that he had undergone traumatic experiences, was mistreated from time to time, that the circumstances in which he was shackled and detained were degrading, that his Honour had no doubt that the appellant was kicked, and that it was possible that at times in Egypt he was subject to abusive conduct probably using water, hot and cold rooms and forms of electric shock. To the extent he had not accepted “the allegations of mistreatment in the detail which [the appellant] gave the evidence in this Court” his Honour did not conclude “these events did not happen” but only that he “cannot be satisfied that they did happen”: primary judgment (at [49]).

74 Mr Smark submitted that in taking this approach, his Honour reversed the onus of proof. He contended that once an issue as to the conduct or threats to which s 84(1) applies was raised, it was not incumbent on the appellant to satisfy the primary judge that such conduct had occurred, but, rather, for the Court to reach a state of positive satisfaction that the conduct had not influenced the making of the admissions in question. In the circumstances of the present case, he argued, where his Honour accepted some degree of mistreatment had occurred, the state of satisfaction required for admissibility under s 84(1) could not be reached unless the primary judge positively concluded that conduct to which s 84(1) related did not influence the claimed admission.

75 Mr Smark next submitted that the primary judge also erred in concluding, after referring to the appellant’s evidence that he had admitted having been in Afghanistan to his Pakistani interrogators because he feared being killed or incarcerated for life in Pakistan, that such a fear was irrelevant to s 84 if it amounted to a “fear of punishment for wrong doing”. Mr Smark contended that his Honour’s approach diverted attention from the requirements of s 84 and, further, proceeded on the assumption, not supported by the evidence, that the appellant’s fear was of lawful execution or imprisonment.

76 Mr Smark submitted that if the Court found that the primary judge was in error in his approach to s 84, there was no need for a new trial of the respondent’s defence because it was open for the Court to find that the respondent had not discharged its onus under s 84. He accepted that if the Pakistan and Dateline interviews were admissible, and the appellant’s denial that he had been in Afghanistan was a “claim”, he could not dispute that the respondent had established the denial was knowingly false.

77 In amplification of his argument that the Court could deal with the s 84(1) issue, Mr Smark handed the Court a document described as “Appellant’s schedule re oppression”, setting out his contentions about the evidence that the appellant was subject to oppression or the threat of oppression at the time of the Pakistan interviews. That document drew attention to the following matters:

‘(a) Detention by Pakistanis for 3 weeks, without charge, and in a context where the detention was (and turned out to be) indefinite (making his inquiry, ‘am I going back to jail?’ at the end of the first Pakistani interview, quite plaintive. Similarly he asked in the course of the second Pakistani interview, ‘what's going to happen to me?’ and that question was apparently avoided deliberately by the Australian official.

(b) In the course of the second interview, according to Officer 1, Habib asks, ‘Why am I in gaol’? This is surely the most basic of entitlements of any prisoner to know. Yet the official simply notes that ‘He was directed again to the question - how do you explain the gap in your timeline’ (ibid) and encouraged to tell more, all without being told what his crime was or why he was being held.

(c) There was no caution, or even hint of it, in VD2, VD4 or VD6.* Not only was there no warning that anything he said might be used in evidence against him, but also no indication to him that he did not have to say anything if he didn't want to. Indeed every indication is that he was simply interrogated in the true sense. At the start of the second interview, Habib was encouraged to ‘be open and honest and answer questions as completely as possible’ as ‘the best way to resolve his situation’.

(d) Mr Habib had not been allowed any outside contact including telephone contact with his wife, which was evidently a matter of real concern to him.

(e) Mr Habib was suffering from depression, and was apparently on medication for that condition.

(f) Mr Habib's evidence of maltreatment, which was hardly implausible given the circumstances of his detention, nor the evidence of Officer 1 of the reputation of Pakistani authorities being notorious for maltreatment of prisoners etc.

(g) Length of interviews: second interview was 4 hours; third interview was 2 hours.

(h) Presence of Pakistani official at each of the three meetings.

(i) Refusal to permit speaking to Officer in private, not disputed by defendant.

(j) The apparently deliberate evasion by the Australian official of Habib's request to have a lawyer present.

(k) Habib to Katie Wood: other people being tortured, screaming; Habib being kicked, no blanket, no food.

(l) Contemporaneous evidence from Officer 1 that Habib needed assistance to walk back into the room after a short break in the second interview, and again after a break in the third interview.

(m) Habib's evidence that the Pakistanis would kill him, harm him badly or put him away all his life.

(n) The absence of evidence to the contrary.” (emphasis in original)

*VD2, VD4 and VD6 were the three Pakistan interviews.

78 Mr A Leopold SC appeared for the respondent with Ms S T Chrysanthou at trial and on appeal. His primary submission about s 84 was that raised in the respondent’s notice of contention: that s 84 was not enlivened because the appellant had not raised an issue about whether “the admission or its making” was influenced by relevant conduct: s 84(2). He contended that in order for that issue to be “raised”, there must be an evidentiary basis for a finding that a particular admission was influenced by s 84(1) conduct, rather than merely an assertion of the existence of such conduct in an interview generally.

79 Accordingly, Mr Leopold submitted in relation to the Pakistan interviews, that the matters relied on by the appellant as oppressive conduct, including his detention without charge, prior to and during the interviews, and the refusal of his request to see Officer 1 in private could not discharge the s 84(2) onus because the appellant did not give evidence as to how those matters influenced his admission that he had not been in Afghanistan. He also contended that the evidence was not capable of giving rise to an inference of influence.

80 Mr Leopold’s written submissions also argued that McClellan CJ at CL found that there was no evidence of any s 84 conduct in relation to the Pakistan interviews, save as to the evidence in re-examination which he contended the primary judge correctly rejected as not falling within s 84. In oral argument he appeared to accept that the appellant gave evidence about his treatment in Pakistan which was capable of constituting oppressive conduct for the purposes of s 84, but argued that the s 84 issue was not “raised” in relation to that conduct because there was no evidence from which the Court could conclude that that conduct influenced the appellant to make particular admissions.

81 Mr Leopold next submitted that if s 84 was enlivened, the primary judge correctly directed himself as to the requisite onus. Having found that there was “no evidence” of a threat of violence influencing any admission made in Pakistan (primary judgment at [63]) and that the appellant’s claims of serious mistreatment in Pakistan “cannot be accepted” (primary judgment at [48]), his Honour was affirmatively satisfied that none of the elements of s 84 were made out. Such findings, he argued, should also be understood in the broader context of the primary judge’s credibility findings which were adverse to the appellant (primary judgment at [54]).

82 Mr Leopold submitted the only evidence that the appellant gave in relation to the question of s 84 influence was a statement he made in re-examination to the effect that he believed he would be killed by the Pakistani authorities if he admitted he had been to Afghanistan. Mr Leopold argued that the primary judge’s rejection of the relevance of this evidence to s 84 because it rose no higher than a “fear” was correct. He contended that s 84 required objectively manifested oppression or threat of oppression, not a subjective fear. He also contended that, in any event, it could be concluded the primary judge was not satisfied the “fear” was well-founded having regard to his finding that the appellant had not been substantially mistreated in Pakistan.

83 Insofar as the Guantanamo Bay interview was concerned, Mr Smark drew attention to the primary judge’s finding (at [82]) that the physical conditions of the appellant’s incarceration at Guantanamo Bay, including his state of indefinite detention and that he was shackled when moved or questioned, were “degrading” and “defied basic human rights”, one of the matters to which s 84(1) is directed. In the light of those findings, Mr Smark submitted, the primary judge reversed the onus of proof in s 84(1) by concluding (at [82]) that that evidence in relation to the Guantanamo Bay interview did “not suggest that the circumstances of his incarceration influenced the plaintiff to make the admissions relied upon by the defendant in these proceedings”. He submitted that his Honour failed to address the question of whether he was satisfied that the admissions were not influenced by the “degrading” circumstances. He also submitted that these circumstances were so alien to common law notions of proper treatment of accused persons that the requisite satisfaction under s 84 could not have been achieved.

84 Mr Leopold accepted that there was evidence of oppressive conduct in relation to the Guantanamo Bay interview. However he argued that absent evidence of a causal link to the appellant’s admissions in that interview, the primary judge’s finding (at [82]) that conditions there were “arduous and degrading” was not capable of founding an inference that the appellant was influenced by s 84 conduct to make the relevant admission within the meaning of s 84(2). He contended that this was the conclusion to which the primary judge came (at [84]) when he stated “[t]he evidence does not suggest that the circumstances of his incarceration influenced the plaintiff to make the admissions relied upon by the defendant in these proceedings”. He submitted that the finding that the appellant had been in Guantanamo Bay for only a few days prior to being interviewed was important, particularly when taking into account evidence that the appellant was in hospital receiving some medical treatment for those days.

85 Accordingly, Mr Leopold contended that, to the extent that the primary judge did not so find, there was no arguable basis on the evidence for a finding of any causal link between the purported s 84 conduct and the making of any admission in the challenged interviews which would support a finding that the appellant had raised the s 84 issue.

The Dateline interview (first claim)

86 Although the Dateline interview was tendered without relevant objection at trial, Mr Smark sought leave to argue that it should also be excluded pursuant to s 84. He submitted that as the respondent sought to rely on the section of the Dateline interview in which the appellant recounted statements he had made during the Pakistan interviews to which the s 84 objection had been taken, it was open to the appellant to object on appeal to the admissibility of the appellant’s statements in the Dateline interview about whether he had been in Afghanistan, because to do so did not raise any new evidentiary issue. He relied on Suttor v Gundowda [1950] HCA 35; (1950) 81 CLR 418 and O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 (at 319) per Mason J.

87 Next, Mr Smark contended that the Dateline interview could not be used as evidence of the truth of the imputation because it took place subsequent to the publication of the matter complained of. However he resiled from this submission during oral argument, no doubt because Mr Evatt conceded at trial that the Dateline interview was recorded and broadcast within a reasonable time after the matter complained of was published.

88 Mr Smark also submitted that the primary judge erred in finding (at [64]) that the appellant’s statement in the Dateline interview that he had denied that he had been to Afghanistan to Pakistani interrogators was evidence of the substantial truth of the first claim. He argued that because that statement was merely an account of what the appellant said in the Pakistan interviews without any endorsement of its truth, it could not be construed as a separate “claim” that he had not been to Afghanistan.

89 Mr Leopold relied on the statements in the Dateline interview that the appellant had told Pakistani authorities he had never been to Afghanistan, firstly as an independent claim by him that he had never been to Afghanistan, and secondly as evidence of what was said in Pakistan. In relation to the latter, Mr Leopold submitted that the appellant could not rely on the subsequent publication point on appeal in respect of the Dateline interview because not only had no such objection been raised at trial, but also because Mr Evatt had expressly abandoned reliance on any such point.

90 Mr Leopold accepted that the trial would not have been conducted any differently if the appellant had objected to the admission of the Dateline interview on the basis of s 84. However he submitted that Suttor v Gundowda had no application because the appellant had waived his right to object the Dateline interview on the basis of s 84, and unlike a failure to take a point below, a right waived could not be revived: Jones v Sutherland [1979] 2 NSWLR 206 (at 219); Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 (at [46]); Metwally v University of Wollongong (No 2) [1985] HCA 28; (1985) 60 ALR 68 (at 71).

91 Finally, during oral submissions, Mr Leopold submitted that it was unnecessary to examine the admissibility of the Dateline interview under s 84 because during re-examination the appellant gave evidence afresh that when he was being questioned in Islamabad he had said he had not been to Afghanistan. Having been adduced without objection, in the substantive case, it was admissible for all purposes.

92 In reply, Mr Smark submitted that the evidence the appellant gave in re-examination about what was said in Pakistan, ought to have been treated as an oversight by the part of counsel at trial and the primary judge in that it should have been treated as having been part of the voir dire evidence. He also invoked s 56 of the Civil Procedure Act 2005 (NSW) to argue that the Court could remedy the omission on appeal in order to prevent a waste of the resources of the court below.

Errors in fact-finding (first claim)

93 Mr Smark next submitted that even if the primary judge’s approach to s 84 was correct, it was open to this Court to find that, even allowing for the benefit his Honour enjoyed in seeing the witnesses, he erred in three respects in concluding that he could not accept the appellant’s allegations of misconduct by the Pakistani authorities.

94 First, he complained that his Honour failed to place any real weight on the appellant’s request to see Officer 1 in private during the first Pakistan interview apparently because of the importance his Honour attached to the failure to renew this request during the second and third Pakistan interviews in the following few days. Mr Smark submitted that the fact the appellant would not renew such a request was not surprising given that it was rejected, and, if made again, had to be made in the presence of his Pakistani captors. He contended the request was consistent with a history of extensive mistreatment at the hands of the appellant’s captors.

95 Secondly, Mr Smark pointed to the primary judge’s finding (at [105]) that the appellant “must have been mindful of the likelihood of Australian officials passing information to Pakistan authorities” in rejecting the possibility that the appellant may have disclosed his travels to Afghanistan to Officer 1 if given the opportunity to speak to him privately. He argued that there was no basis for his Honour’s speculation about the appellant’s thought processes, nor for the proposition the Australian officials would have passed information on to Pakistan authorities. In fact, he contended, the appellant’s request was consistent with him being concerned about making disclosure in front of the Pakistani officials and this, in turn, was consistent with (and probative of) the oppression to which s 84 is directed.

96 Thirdly, Mr Smark submitted that the primary judge erred in disbelieving the appellant’s account of mistreatment in Pakistan on the basis that his Honour considered that, if true, the appellant would have made such allegations in the course of the Amnesty International interview and the 60 Minutes interview. He drew attention to passages in the Amnesty International interview in which, in the context of the Pakistan interviews, the appellant referred to hearing other people being tortured, said he was kicked and badly beaten (the beating was referred to by the primary judge (at [44])) and said that he had told Officer 1 that he had been tortured. He added that during the Amnesty International interview the appellant had also referred to being drugged, given electric shocks and that he was ”brain washed” and was suffering physically as a result, albeit in the context of his captivity in Egypt rather than Pakistan. He also noted that the appellant had referred to being beaten in Guantanamo Bay during the Amnesty International interview.

97 Next, Mr Smark submitted that when the comparative lengths of the appellant’s imprisonment in Pakistan (one month), Egypt (seven months) and Guantanamo Bay (two and a half years) was taken into consideration, it could be understood why the appellant’s focus during the Amnesty International interview was not upon mistreatment in Pakistan. In summary, he contended that the facts did not support the primary judge’s conclusion that the appellant had not referred to some elements of his mistreatment in Pakistan in the course of that interview.

98 Mr Smark also contended that the portion of the 60 Minutes interview to which the primary judge referred (at [45]) had to be read in context and, when that was done, it could be seen the appellant had also referred to some elements of his mistreatment in Pakistan.

99 Mr Leopold submitted that the appellant’s criticism of the primary judge’s failure to place any real weight on the appellant’s request to see Officer 1 in private depended on the premise the primary judge had rejected, namely that the appellant had suffered “extensive mistreatment” and this rejection was not “glaringly improbable”. He also contended there was nothing in Officer 1’s denial of the request capable of amounting to “oppressive conduct”.

The 60 Minutes interview (second claim)

100 Mr Smark submitted that, read in context, the appellant’s statements in the 60 Minutes interview did not amount to the making of a false claim by the appellant that he denied he had previously supported the Sheikh’s innocence. He contended that the interviewer was proposing that the appellant had condoned the Sheikh’s criminal conduct and his answer merely rejected that proposition.

101 Mr Leopold submitted that Mr Smark’s argument that the appellant had only rejected the proposition that he condoned criminal conduct by the Sheikh was unsustainable in the context of the 60 Minutes interview. While the appellant did reject that proposition, Mr Leopold argued he embellished that rejection with the repeated assertion that he supported the Sheikh for his sickness, and for nothing else, assertions which were objectively false.

The Guantanamo Bay interview (third claim)

102 We have already dealt with the appellant’s complaint that the primary judge reversed the onus of proof under s 84 in allowing the respondent to tender the Guantanamo Bay interview.

103 Mr Smark sought to challenge the finding that the third claim was substantially true on three other bases.

104 First, he argued that the Guantanamo Bay interview was the only evidence of the falsity of the appellant’s statements in the Pakistan interviews as to where he had met the Germans. He pointed out that at trial the appellant’s case had been that he had met the Germans in Pakistan, contrary to the primary judge’s apparent belief (at [145]) that he had conceded having met them in Afghanistan. Accordingly, if the Guantanamo Bay interview was inadmissible by virtue of s 84, there was no evidence that the appellant’s statements that he had met the two Germans in Pakistan were false.

105 Secondly, he argued that the primary judge ought not have admitted the Amnesty International interview as, having regard to when it was recorded, it was irrelevant to the truth defence. This raised the subsequent publication point which we consider in more detail in relation to the fourth claim which depended entirely on the admissibility of the Amnesty International interview.

106 Thirdly, Mr Smark contended that even if the Guantanamo Bay and Amnesty International interviews were admitted, a question arose as to whether what the appellant said in the Pakistan interviews about where he met the Germans was a “claim”.

107 Mr Leopold effectively joined issue with the appellant insofar as the first point was concerned, relying on his submissions that the primary judge had not erred in admitting the Pakistan and Guantanamo Bay interviews. As to the second point, we have set out his submissions when dealing with the subsequent publication issue in respect of the fourth claim. As to the third point, he contended the appellant’s statement in the Guantanamo Bay interview about where he met the two Germans was a claim which was not in the form of mere denial, but, rather, was a positive assertion of fact: “I meet the boys in Afghanistan”.

The Amnesty International interview (fourth claim)

108 Mr Smark advanced two propositions in support of the complaint that the primary judge erred in using the Amnesty International interview as evidence of the substantial truth of the fourth claim. The first was that the imputation was an allegation of past specific conduct, rather than a general charge against the character of the plaintiff such as would attract the principle in Maisel v Financial Times Ltd [1915] 3 KB 336.

109 The second was that the Amnesty International interview was irrelevant to the truth defence because, even assuming the imputation was one of general bad character, it took place more than a year after the publication of the matter complained of.

110 Mr Smark next submitted that read in context and against the background of the appellant’s limited language skills, the statement the appellant made in the Amnesty International interview could not be clearly construed as a claim that he had not visited Egypt since he came to Australia. He argued that as the appellant’s statement that he had “never been in Egypt since I come in Australia” was made in response to a line of questioning about citizenship, his statement should be construed as meaning that he had not been an Egyptian resident or citizen since moving to Australia, rather than referring to visits to that country.

111 Finally, Mr Smark submitted that the material relied on by the primary judge in the Amnesty International interview was simply the appellant recounting to Ms Wood what he had said in the course of the Pakistan interview, not a distinct claim of the underlying truth of those matters.

112 Mr Leopold submitted that the imputation was a hybrid one which was as much an allegation about the appellant’s character as his conduct such that Maisel did apply.

113 He also submitted that Mr Evatt had conceded at trial in relation to the Dateline interview that the respondent was, on Maisel principles, entitled to adduce evidence of facts occurring within a reasonable time after publication and should not be permitted to resile from this concession. We understand that argument to have been addressed to the issue of whether, assuming the imputation was of a Maisel character, Mr Evatt had conceded that reasonably contemporaneous post-publication material was admissible.

114 Next, Mr Leopold argued that the appellant’s repetition in the Amnesty International interview of his earlier claim in the Pakistan interview, having been asserted without qualification as to its truth, was an independent claim that the appellant had never been to Egypt.

115 Finally, Mr Leopold submitted that there was no reason not to take literally the appellant’s statement in the Amnesty International interview that he had never been to Egypt since he came to Australia. He contended that the primary judge had not erred in rejecting (at [150]) a submission by the appellant’s counsel at trial that the answer given to the interviewer was unclear.

Whether denials constituted the making of a claim (first claim)

116 Mr Smark next submitted that even if the Pakistan interviews were correctly admitted, they did not establish the making of a “claim” by the appellant. He contended that that not every utterance is a “claim”. He argued that a claim involved making a positive assertion, not lesser conduct, such as an evasion or a denial. He also argued that whether a statement was a “claim” had to be examined in the context in which it was made. He submitted that the appellant’s denial in the Pakistan interviews that he had been to Afghanistan, made while under significant stress in an interrogation context, could not be a “claim” compared, for example, to the making of a statement in a public broadcast.

117 Mr Leopold maintained that nothing in the ordinary meaning of the term “claims”, or in the context of the matter complained of, confined its meaning in the manner for which Mr Smark contended. He argued that the notion that a claim must be only a positive assertion focused on form rather than substance, and that it did not matter whether an assertion of fact by the appellant was made publicly or privately, it bore equally on whether he was truthful.

118 Finally, Mr Leopold submitted, even if the imputation was to be understood as Mr Smark contended, in all cases it was satisfied because each claim was a positive assertion of fact, had a public flavour and was repeated multiple times.

Number of claims to be established to sustain defence

119 Finally, Mr Smark argued that as the imputation referred to “claims” plural, the respondent had to prove the truth of more than one claim to establish its substantial truth defence. Mr Leopold submitted that “claims” should not be construed as requiring the respondent to establish a plurality of different claims. Rather, he contended the respondent’s defence of substantial truth succeeded even if it only established the substantial truth of one claim if the appellant made the same false claim more than once in one interview.

The Notice of Contention: submissions

120 In support of the first ground in the notice of contention, Mr Leopold argued the s 84 issue was not “raised” (s 84(2)) because the appellant gave no evidence from which the Court could conclude that any s 84 conduct (assuming there to be evidence of such conduct, as to which see above) influenced him to make any relevant admissions. To the extent there was any such evidence in the appellant’s re-examination, he argued the primary judge properly held it did not fall within s 84 because it was a fear of going to prison for wrongdoings.

121 In support of the second ground in the notice of contention, Mr Leopold argued that because it was the appellant who formulated the imputation, it was an abuse of process for him only to raise in the course of argument at trial that the word “claims” in the imputation did not include either denials or statements made to an interrogator in private. He argued that the matter should have been raised prior to the hearing so the respondent could have sought leave to amend its defence accordingly. He conceded there was no specific authority for that proposition but relied on the general principles of efficient administration of justice, as expressed in s 56 of the Civil Procedure Act.

THE DISPUTED INTERVIEWS

The Pakistan interviews

122 The respondent did not tender a transcript of the Pakistan interviews. Rather, it tendered on the voir dire documents described as “interview report”, apparently prepared by ASIO. Substantial parts of the interview reports are blacked out. The appellant submitted, and the respondent did not dispute, that the interview reports were in the nature of summaries in which responses attributed to the appellant were interspersed with observations and opinions from the report’s apparent author – Officer 1. At the time of the first Pakistan interview, the appellant had been under detention by the Pakistani authorities for almost three weeks.

123 The first Pakistan interview lasted four hours, the second and third for two hours each. As we have said, Officer 1 conducted the interviews and a Pakistani official was present during each. Three officials from the United States were also present at the second and third interviews.

124 During the first Pakistan interview the appellant’s request to speak to Officer 1 in private was refused.

125 The following relevantly appeared in each interview report:

First Pakistan interview (24 October 2001)

“7. ...I explained to Habib that if he gave his consent DFAT would contact his wife....at first Habib insisted on calling his wife himself. I reminded him he was in Pakistani custody and access to a telephone and other such matters was at the discretion of the Pakistani authorities

Habib’s plea for release

10. Habib asked me if I could get him out of ‘gaol’. I explained again (this was reinforced several times during our discussion) that he was in Pakistan, subject to Pakistan law and that the Australian government had no power to have him released...

Brief discussion of his travel and activity

11. ... Where did you go – all over – I have been to Pakistan four times, I have been everywhere. What about this visit, you were in Quelta [sic, as in original, should be Quetta] – yes, I stayed there for a while. Did you go to Afghanistan – no. What was the reason for your trip to Pakistan – he provided confusing evasive answers – long silences etc. ...It was during this conversation that Habib made the first of many demands that I help him.

12. A couple of times Habib said he wanted to talk to me in private. I said this was not possible, that the Pakistani authorities have control of his situation...I then told Habib there are a number of issues concerning his travel, activities and the reason for his trip to Pakistan which are of interest to various people...

14....I stressed to him ... that when we next meet...he should answer my questions honestly and fully. At this point he asked whether he could have a lawyer present. I reminded him that among the papers I had given him was a list of local lawyers. I did not directly answer his question....For the first and only time I told him I was interested in the ‘security aspects of this matter’...

15. At this point I wound up the interview. Habib asked whether he was going back to gaol. Yes – his custody is a matter for the Pakistan authorities... ” (emphasis added)

Second Pakistan interview (26 October 2001)

“5...In response to his question ‘what’s going to happen to me?’ I reminded Habib that the Australian High Commission is aware of his situation but avoided any other discussion relating to consular matters.

Physical condition and demeanour

6. As far as I could tell Habib ... appeared to be in reasonably physical condition [sic, as in original]. I could see no evidence nor have any reasons to believe, that he had suffered physical injury or been mistreated ... However later in the interview, when Habib returned to the room after a short break, he needed some assistance to walk back into the room. As far as his emotional state is concerned, he appeared subdued, worried, etc. At one point he was given ... what I understand may be an anti-depressant.

Interview

8. I commenced by telling Habib I wanted to go over his travel from Australia ... in considerable detail... [Habib] did not understand why he was being held...

Diab and Ademi

26. Habib claims he met the two Germans for the first time in Quetta ...They told him they were also travelling to Karachi...they boarded the bus to Quetta [sic, should be Karachi] late in the afternoon ... the bus was stopped by police and the two Germans were asked to leave the bus. Habib asked why they were in trouble and then the police asked Habib if he was travelling with Diab and Ademi. He said he had just met them ..he was then also detained by the police ...

Travel to Afghanistan

29. Before asking Habib about travel to Afghanistan, he was asked to think carefully about this next question before answering, to be sure of his reply – ‘do you understand’ [sic as in original]. These [sic as in original] was then asked specifically – ‘have you been to Afghanistan during this current trip away from Australia?’ No. Question restated – so you didn’t go over to Afghanistan from Pakistan – perhaps from Quetta? No. Habib then launched into a series of questions and statements about why would this be a problem. Many people go to Afghanistan – why am I in trouble [portion blacked out] responded that the actions of other people are not the issue, what matters is your travel, activities and contacts. Habib was then asked whether he had ever been to Afghanistan, perhaps during one a previous visits to Pakistan [sic, as in original]. Same answer – No.

...

Conclusion of interview

32...’Why am I in gaol?’ Then he was directed again to the question – how do you explain the gap in your timeline?......

35. Habib asked if he was going back to gaol. I said I understood he would remain in custody and I reminded him that he was under the control of the Pakistan authorities ... .” (emphasis added)

Third Pakistan interview (29 October 2001)

“Habib’s Appearance and Demeanour

4. Habib ... was subdued and a little untidy but again showed no evidence of physical mistreatment...

Interview – gaps in his story

5. I told Habib that following our last meeting, we had gone over the information he had provided and done some checking ... there are a number of gaps and inconsistencies in his answers which we would like to clarify...

Habib’s claims to contacts in the Sydney community about travel to Afghanistan

10. I then raised with Habib comments that he had reportedly made to members of the Sydney community, that he had been to Afghanistan and attended military training camps. I said to Habib that 'I have a problem.' 'You have told me several times that you have never been to Afghanistan, and yet you have told people in Sydney that you have been to Afghanistan and undertaken military training in Afghanistan'. 'How can that be?' 'Did you lie to me or were you lying to those people in Sydney- which is it?' Habib's immediate response was to ask aggressively, who had said this about him. I told him that that information was confidential but I wanted him to explain. At first he denied having ever told anyone that he had been to Afghanistan. He then went on about people in the community making up stories about him working for the CIA etc. I asked him why people made up these stories about him - 'why you?' 'What is it about you that people say these things?' No direct answer - more tangents and claims that people in the community hate him and want to discredit him. But no logical reason provided why those people did that.

11. We then switched tactic. Briskey asked Habib whether it was possible that he could have said something to someone in the community – told someone that he had been to Afghanistan –perhaps he had exaggerated a story to impress someone. [portion blacked out] ... After a lengthy discussion, Habib agreed it was possible he may have said that, but he couldn’t remember doing so, or think of any circumstances in which he would have done so.

....

16. After expressing my dissatisfaction with his answers, I said I would like to move back to talk about events before his 26 September call to his wife. I then said to Habib in a calm, matter of fact manner - 'I know you made a call to his wife from Kabul in Afghanistan on 11 September' - 'you called your wife on 11 September for Kabul in Afghanistan’. 'Do you remember?'

17. Habib was clearly stunned. He was silent. His body language changed dramatically – He went very still, quiet and thoughtful [portion blacked out] I let him sit in silence for two or three minutes while I continued to write notes. [portion blacked out] Briskey also remained silent as we awaited Habib’s response [portion blacked out].

18. After several minutes, I broke the silence - 'OK, I have caught up on my notes, and you have had time to think' 'So, 11 September, Kabul - your call to your wife - tell me about this call'. 'What were you doing in Kabul? - who did you see? - tell me about the circumstances of this call’. Habib remained silent. At one point he bent over and placed his head in his cupped hands - still no response. 'You must remember making the call - This was have been an important call [sic, as in original] - you must remember the call.'

19. Habib then responded. 'I made several calls to my wife'. 'Whenever I can, I talk to my wife.' 'I ring her on the mobile phone from all over Pakistan.' 'I try to talk to her whenever I can.' 'Yes', I said, 'its good to keep in contact with your family, but we aren't talking about that'. 'I want to know about Kabul, 11 September - you were there, I want to know why you were there, what you were doing, who you were with'. Habib responded - 'I don't understand'. 'I was not in Kabul, I rang my wife several times, I don't understand'. Habib then turned the conversation away. 'You say I have been to a training camp - you keep trying to get me to say I went to a training camp'. I cut him off and responded- 'I asked you about training camps-I said that people in the community have said that you have told them you have been to Afghanistan and attended training camps'. 'I want you to tell me the truth'. 'I just want you to be honest, to tell me in detail about where you have been, what you have done and who you were with; without all the other stories'. 'A very simple question which you can answer very easily'. ' 11 September, Kabul - why were you there, what were you doing, who were you with?' Again a long silence, then as the question was repeated he denied he was in Kabul. 'I can't remember where I was when I called my wife'. Then he equivocated. 'Maybe I was in Kabul, maybe not. The point was put to him again, by me and then by [portion blacked out]. 'We know you were in Kabul on 11 September'. 'This is fact-you know it and so do we!' 'What we want to know is why you were there, what you were doing and who you were with'. Another long pause.

....

21 ...Habib was brought back into the room ... ([portion blacked out] It was at this point he required some assistance to walk, although as soon as he sat, he stood and walked across the room to retrieve an ashtray.)

22... I then restated the point. ‘11 September, Kabul – why were you there, what were you doing, who were you with?’ ...[portion blacked out] interjected ...[portion blacked out] with a shout – STOP! ‘We have heard all this before – what we want is for you to answer the question put before you – it’s very simple ....etc’. Habib responded- raised voice – ‘all you care about is what you want to know ... You don’t care about my rights – you should look after me, help me’. ‘You have the power to get me out of here...’

...

24. We stood and prepared to leave. Habib asked ‘does this mean I have to stay here?’ I respond that he is in Pakistan custody ...” (emphasis added)

The Guantanamo Bay interview

126 The Guantanamo Bay interview insofar as it recorded the appellant’s period in Pakistan, Egypt and Afghanistan was set out by the primary judge (at [47]):

“Allegations by Mr Habib about his treatment while in the custody of Pakistan and Egypt.

At the end of the first day of interviews with Mr Habib, he said he wanted to tell the team about his mistreatment and torture while in the custody of the Pakistani and Egyptian government over the last seven months. Mr Habib was very emotional as he told his story and there are some gaps in his account. It is recorded below as related to the team by Mr Habib.

Mr Habib said he was captured by Pakistani authorities who told him that it was being done to protect him from the United States. He was blindfolded and taken somewhere - he did not know where. He was told that the United States wanted to kill Arabs, but Mr Habib said he protested that he was an Australian. He asked to be taken to the airport and offered to give his captors USD 3000 to let him go.

Mr Habib said he was taken on a bus ride (about 15-30 minutes) and after three days or so was put in a plane and thinks he ended up in Quetta. He believes he was under the control of the ­Pakistani army. He was kept blindfolded in jail for about a week. He was told that he had no criminal record so that once the interviews were completed he would be sent back to Australia. They told Mr Habib that they would fly him to Islamabad where tickets and passport would be available.

At this stage, Mr Habib was aware that two Germans were also with him. At some stage (Mr Habib was not clear about the sequence of events), he said he was met by an Australian consular officer and another officer. The consular officer said he had no authority to take Mr Habib back to Australia.

Mr Habib believes that on 10 October he was flown to Islamabad on a normal commercial flight in the expectation of being released. He said he contacted the Australian High Commission and told them of the plans. When he arrived at the airport, Mr Habib said he was again blindfolded and told not to ask questions - this was being done to ‘save you from the US’.

Mr Habib said he wanted to talk with the Australian High Commissioner. He claims that the High Commissioner met him, left him in the custody of Pakistani authorities and told him that he would leave for Australia the following day. Mr Habib understands that the German Ambassador also met the German detainees and took them with him.

In the early evening, he went back to the hotel to prepare to depart for Australia, but at about 10pm, Pakistani authorities came and blindfolded him and took him to the airport in handcuffs. He was stripped of his clothes and drugged. He was unconscious for an uncertain period and when he woke up, he was told he was in Egypt.

Mr Habib said he was held in a small room (smaller than cells at Guantanamo) for six months. He said he was tortured (water was dripped on his head and he was administered electric shocks over his body). Mr Habib said he was trussed upside down and his body beaten. He said he sustained broken ribs, two broken toes and bleeding from his penis. The Egyptian authorities said that ‘they wanted the truth’. Mr Habib claims he said he knew nothing but that the authorities wanted him to confess that he was going to hijack a flight. Mr Habib suggested that he would be paid USD 4 million (in another part of the interview, he talked about USD 1 million); if he did not confess, he would stay in prison for the rest of his life. Mr Habib said he told his captors that he did not do anything. They said it was bad luck. If he confessed, he would get a three-year jail term and the money. As time went on, the price was lowered to USD 2 million.

Mr Habib said that the torture continued - physical and mental. The captors made him listen to noises that resembled his family and the sound of his wife being raped and his children being beaten. He said he was placed neck-high in water for extended periods of time and not allowed to sleep. After about six months, the torture stopped after a doctor told his captors that he would die.

At this stage, the Egyptian captors told Mr Habib that they now believed Mr Habib had not done anything wrong. They said that Mr Habib was an Egyptian national and that they wanted to bring his wife and family to Egypt to live. They told him that Australia did not want him. Mr Habib said he refused this, saying that he wanted to return to his family in Australia. He said the captors then told him that he would be allowed to return to Australia after his bruising had faded.

According to Mr Habib, soon after this, he was blindfolded and put into a taxi. His credit cards, passport and other details (bank account numbers, password for computer etc) were taken from him. He said he was put into a private plane and that he was tied up for about eight hours. He believes he was drugged and slept for the whole flight. When he awoke, he realised he had vomited and urinated in his clothes. When he screamed, his mouth was taped. Mr Habib said he believed the flight went back to Pakistan and another flight took him to Afghanistan, where he was blindfolded and taken into US military custody at Kandahar. He said he was not harmed while in Kandahar and was then transferred to Guantanamo Bay.

22 May 2002.”

127 The Australian officials who interviewed the appellant in Guantanamo Bay, “underlined” to him that he was “in the custody of the US Military authorities and had been captured in a wartime situation.” They “outlined possible options for future steps (prosecution in Australia if charges could be found, US military commission or criminal trial or indefinite detention) [and] ... emphasised that, as the detainee was in US custody, final decisions would be taken by the US Government, in consultation with the Australian Government”.

128 Prior to the interview, the appellant had been kept in an isolation cell. He was aware he was being held by US authorities, but not that he was in Cuba.

129 The appellant eschewed any suggestion that whatever had happened to the appellant in Pakistan and Egypt was relevant to the s 84 issue in relation to Guantanamo Bay.

130 It should be noted that in the transcript of the Guantanamo Bay interview, the following appears:

“Q1664 Okay. All right, have the answers you’ve been giving during the interview been of your own free will?...

A1664 Yes.

Q1665 H’mm. Has any threat been held out to you to provide the answers you gave today.

A665 No threat.

Q1666 Sorry?

A1666 I’m already in threat. I’m already in a cage, I’m already in my handcuffs.

Q1667 But have I threatened you to give those answers that you gave today?

A1667 You not afraid me but the place I am. I’m afraid of it.

...

Q1670 Did I induce you, did I encourage you to give those answers today?

A1670 Well I have to, I have to improve myself, I have to defend myself. I have to be here. I have to answer.” (emphasis added)

131 The passage from the Guantanamo Bay interview upon which the respondent relied as evidence of the third claim was:

“Q274 And whereabouts did you say you made that booking?

A274 In Quetta.

Q275 H’mm.

A274 And I catch the bus.

Q276 From?

A276 Quetta to go to Karachi. Then the bus went. I meet two boys – Germany.

...

Q279 Where did you meet the boys?

A279 I meet the boys in Afghanistan.

Q280 And which city in Afghanistan?

A280 Kandahar.

[FEDERAL AGENT] LANCASTER:

Q281 All right, when did you meet them – the German boys?

A281 Well I meet them in Kandahar in same day we left to – depart from Afghanistan

Q282 All right, so what day did you meet them?

A282 You can say two of, ah, October.

...

Q284 So that is the first time ---

A284 First time ---

Q285 ---that you ever met them?

A285 Yeah.”

The 60 Minutes interview

132 The following passage from the unexpurgated version of the 60 Minutes interview sets out the context of the appellant’s statements concerning Sheikh Omar Adbul Rahman which was relevant to the second claim:

“TB (Tara Brown): You had your support for Dr Omar Abdul Rahman, did that continue after he was convicted?

MB (Mamdouh Habib): Sheikh Omar Abdel-Rahman I only did support him when I read in a newspaper and I see on TV he was in hospital, he was in jail, he's a blind man. He haven't been treated for some times, he's a diabetic man, he need medicine. They being chop his legs off, they cut his legs off because he's a diabetic. He have nobody with him in a room. That's what the news said and I’m guessing said, and he needs some support. And I did ask if somebody help. They say you have to do something for him and I ask the American people to give him some support. And I find out only way to do it to go to American Consulate and to tell him to help this man to get his life to live as a human being.

TB: What about the human beings he tried to kill?

MB: I have nothing to do this.

TB: Does that not concern you though?

MB: I have no idea what he did, I have no idea. As I say everyone criminal in the world. He get punished for what he did. His punishment he's in jail. He been already punished, but he has to have his right inside the jail. If he did some mistake or he admit something, is what he did he get punished for. But what I believe he have his right to get surviving and treated as a human being where he is and that's what I ask for to treated well. You've got a lot of people in Cuba that being say, ‘Yes, he did admit he done mistakes, he be punished’. Well, he get punished but he don't have to be treated like animal.

TB: So even though this man is a terrorist you believe he needed your support?

MB: Anybody going to jail and he got punished for what he did. Enough for him. He got punished and every government and everyone in the world, he's punished for what he did, he have to be in jail, it's fair enough. What he did here 500, 600, but to get torture, this is not fair. You shouldn't torture anybody. This is no torture. I believe George Bush himself he say we don't torture anybody. I can't torture people. People sick and you stop to give him his medicine to get his treatment.

TB: But what about the people he killed?

MH: People have to get punished. Anybody get punished for what he did.

TB: This is a man, a convicted terrorist now who applauded the September 11 attacks, who said ‘Kill the enemies of God’. This is a man that you supported.

MH: Who's that?

TB: The blind cleric.

MH: Well I didn't support anybody for what he did. I said I supported deeply for his sickness. That's all. I have nothing to do, nothing else.

TB: Do you support him now?

MH: He's dead I believe.

TB: But do you support?

MH: What he did, I not support what he did, what he's doing. I support his sickness, that's it.

TB: Do you understand that it is fairly confusing that you...

MH: I make it clear for you.

TB: Yeah, you make it clear for me.

MH: Very clear. If he done mistake, he punish for it. But if he sick, he need treatment, he have to get treated.

TB: And you felt it was your duty to help him?

MB: Everybody have to. You do it as well, you have to help man or anybody being torture or mistreated. If I do any problem or I did any crime I have to get punished for my crime.

TB: So you didn't despise him for what he did?

MB: I don't despise anybody. Anyone do crime I'm not with him, I not agree with what he's doing. I'm telling you the guy, the Lakemba one, no one allowed and no one have authority to follow his law if your country have a law. If you have a constitution in a country and rules and good system, and I accept your system, I have to follow your system. If you tell me this our system and you leave with me and I do agreement with you I can't broke my agreement. And because we did this I have to follow the other way.

TB: It's been reported here that you told people he was your teacher?

MB: I am teacher.

TB: That the blind cleric was your teacher?

MB: When?

TB: Did you believe what he believed in?

MB: Well, I don't know what he believe. I don't know what it is, what's in his mind, because I don't know him. I never say to know he used to be my teacher.

TB: Did you say that to people?

MH: People, I told you in the beginning, people can say whatever.

TB: Yeah, I'm asking you though if you told me people that.

MH: I never tell anybody anything like this.

TB: Why would they think that?

MH: Well I don't know who these people say. I don't know what they talking about me.

TB: But do you understand why it looks like you have supported this person that you agree with what he did?

MH: Ah, I told you and I'm going to keep say it again, I support this man for his sickness and his illness. I have nothing to do what he did. What he did he has been punished for, but his illness have to be treated as a human being. If you believe in human being.” (emphasis added)

133 The following passages from the transcript of the 60 Minutes interview are relevant to Mr Smark’s submission that the appellant referred to some aspects of his mistreatment in Pakistan during this interview:

“TB: At this stage had you been tortured in any way or abused in any way?

MH: Until he see me the first time I wasn't being tortured, just, being treated like animal. I sleeping with one blanket, no food. They always blindfold us. They go take us to the bathroom with shackle and handcuff and yes one day we've been beaten to sign paper for Pakistani people and we refuse, me and German. And we inform the German people.

TB: Did you inform the Australian Consul?

MH: See what I exactly told the Australian Consul this only see me. I told the man "I have a problem, I want to talk to you privately". And he say, "I can't talk to you. The Pakistani authority they not going to get me". I say, "You my Consul I have a problem and I have to talk between me and you".

TB: What did you want to tell him?

MH: I got a lot of things I want to tell him, about beating, about the other thing, I can't say it now. And he tell me "I not want to listen to you. Whatever you have you say it in a court". I said "I want to inform you to do something for me. This is between me and you in the beginning because I have to tell you." He say, "I can't, Pakistani authority is not going to let me". And I look to the two Pakistani guards who were sit down there, I told them, "Listen can I talk with Consul privately". The guy he started to get up and he went and moved. And the Australian Consul say "No, no, no just say". I said 'This mean you don't want to start talking to me privately". He said "Man, I have nothing to do with you. I inform you here and when I say I am going to tell you your rights and that's what it is". I say, "No my right I have to talk to you to tell you my problem". He say, "I have nothing to do with your problem. I give you the lawyer"'. He give me a few names of the lawyers in Pakistan. He say, "These people belong to Australia they can act for you and this my number, this is my security number and you can contact him anytime you want".

...

MH: When they take me to the airport was a military airport. I was beaten in there. I was beaten in there. They take my clothes off, they put me naked, they put nappy on me, I had been beaten by the American and Pakistani people and was very bad. I believe they doesn't want to show themselves they were there and they make full video and they make some photograph.

TB: So if you're right if there was an Australian Consul there, the Australian Consul was a witness to you being abused is that what you're saying?

MH: Yes, yes, yes I'm positive. He is the one. I don't know. The card he give it to me I believe I want yourself to contact the German guys and tell them where's the card.

TB: So the Australian Consul was a witness to the abuse?

MH: I'm positive.

TB: Did the Australian Consul abuse you in any way?

MH: Well he just ignore me.

TB: He ignored you?

MH: Completely ignore me and he is happy with what happened to me.

TB: Did he heart [sic, as in original] you in any way?

MH: He doesn't hurt me but he see me when I been beaten, he see me when I been the way I travelled, they take me away. This doesn't make any different if he'd been there to do it to me. This make different. I can't run to anybody to damage people. If I can fight I can tell people to fight as they will kill somebody else. This is my hand, I give him the money, I hired them people to killing people, that's exactly what he did.” (emphasis in original)

The Dateline interview

134 One aspect of the Dateline interview which should be noted is that the appellant’s then solicitor appears to have been present throughout the interview and, as the narrator commented, kept the appellant “on a tight chain” apparently because of legal proceedings which were in contemplation and a concern that evidence may be tampered with if too much information was divulged.

135 In the course of the interview the following was said:

“NARRATOR: ... after around a month’s detention in Pakistan, Habib ended up here, in Cairo ... for six months Habib says he was subjected to brutal torture – including regular beatings, electric shocks and the threat of being raped by dogs.

MAMDOUH HABIB: Actually I been tortured the first day. I don’t know – every question they been torturing me from the beginning to the end. I don’t know why. It’s not torturing about questions. I just say they enjoy to torture – that’s it”.

136 The relevant part of the Dateline interview on which the respondent relied was as follows:

“NARRATOR: Mamdouh Habib’s version of events goes way beyond the question of information sharing. He alleges on one occasion in Pakistan he was interrogated by American officials with an Australian present.

MAMDOUH HABIB: They call me again for another interview ...the Australian consul** and about two Pakistani people.

REPORTER: And was this an interrogation?

MAMDOUH HABIB: It was like interrogation and they ask me questions but wasn’t really as serious. And they ask me if I know anybody in Afghanistan, if I know anybody terrorists – if I know anything,

I say:

‘why you ask me this question – have nothing to do with me. I don’t know. I haven’t been to Afghanistan. And I don’t want to answer your questions and if you want to question me, take me back to Australia’.”

** The primary judge found (at [99]) that the appellant “genuinely believes that the Australian official who interviewed him in Pakistan was Mr Alistair Adams”, a consular official then apparently stationed at the Australian Consulate of the High Commission in Islamabad: see [91]. His Honour concluded the appellant was “confused about the events, [which was] perfectly understandable [because] [h]e was given Mr Adams’ card” by Officer 1 during the first Pakistan interview.

The Amnesty International interview

137 In the course of the Amnesty International interview, the appellant said that when he was taken off the bus by men who it can reasonably be inferred were Pakistani authorities, he was handcuffed, tied up and blindfolded. He was put in a cell two by three metres in dimension. When he was transported anywhere he was blindfolded. He was kept handcuffed and shackled. A few days later he was taken to a smaller cell apparently in a different location with military guarding his cell. He said he could hear people being tortured but he was not “really torture[d], just kicking, no blanket ... no food”. He said he was not asked questions.

138 It appears that the appellant was then taken to Islamabad. It was there, he said, “they start beating us badly, that’s the first beating”. The following exchange took place:

“Mamdouh Habib: They say to admit we’ve been dealing with Lashkar-e-Toiba training. We’ve been beaten and tortured for this to sign ...

Question: But they had beaten you?

Mamdouh Habib: Yeah, badly ...”.

139 At a later stage when he appears to have been referring to being taken to be interviewed for the first of the Pakistan interviews, he said he was “shackled ... handcuffed and blindfolded until we got in the building ...”.

140 He said he told the person he believed to be Alastair Adams:

“Listen why am I here? You told me you come to help me, what’s this paper, what are you talking about? I haven’t been arrested, I’ve been kidnapped, I’ve been tortured. How come you come to tell me you come in to help me. You should take my hand and take me out of here. These people are criminal, they kidnap me. I’m Australian citizen, I shouldn’t be here. He said ‘Listen, Mr Habib, I have nothing to do with you, completely nothing to do with you. American, since September 11, they decide to take any one citizen whatever they like and you not Australian anymore ...”.

141 At the end of the interview the appellant said he was blindfolded again and taken back to gaol.

142 The respondent relied on a passage in the Amnesty International interview in which the appellant explained where he had met the two Germans with whom he was detained as evidence of the falsity of his statement in the Guantanamo Bay interview that he had met them in Afghanistan. It is sufficient to set out the passage to which the primary judge referred (at [142]) in upholding that submission:

“Question: Tell us what happened, ah, when you were first detained, so talking about the arrest, who arrested you, exactly what happened that first moment that you were picked up?

Mamdouh Habib: I’m not calling arrest, first I call that I was kidnapped. I was in Pakistan in the travel agent to book in for the way back home. I met with two German guys....”.

.

143 The respondent relied on the following exchange place during the Amnesty International interview as evidence of the substantial truth of the fourth claim. The appellant was being asked about what happened during the second Pakistan interview.

“Question: So this is for your second interview?

Mamdouh Habib: Yes. Alistair Adam he was sitting like Maha and the female was on my left side. I remember, like now, the two American, the guy – old man he was right in front of me. He doesn’t talk much. They always talk the Egyptian woman. She was very rude, very, very rude.

Question: The American woman who spoke Egyptian?

Mamdouh Habib: Yes, the Egyptian one. And I was rude too and what Alistair Adam told me, he told me ‘Listen Habib, you want to go back to Australia you can decide or maybe we send you to Egypt.’

Question: So they told you then?

Mamdouh Habib: Yeah. ‘If you cooperate with American because now you’re not citizen. Maybe if American you deal with American maybe they give you citizen, they send you back to Australia. If you deal with American, I have nothing to do with this, you will be maybe, maybe American decide to send you Australia. If American is not happy with you that’s it and I just tell you just help yourself with American.’ I said ‘Listen, I’m Australian, I am from Australia. I never been in Egypt since I come in Australia. I have not hold any citizen Egyptian anymore since I’ve been in Australia. I have nothing to do with Egypt and if you don’t want to help me, that’s it, but I’m not going to talk with any American....’”.

CONDUCT OF THE TRIAL

144 The respondent’s notice of contention asserted that no issue was “raised” at trial sufficient to enliven s 84, a matter which Mr Leopold expanded orally by asserting that that issue had not been raised “by any evidentiary basis”, and, in a further explanation, that there was no evidence from which an inference could be drawn that what the appellant had said in the interviews to which objection was taken was influenced by relevant oppressive conduct.

145 At the conclusion of the hearing, the Court asked counsel to provide an agreed summary of the matters the appellant relied upon at trial as the basis for his objections to the evidence the respondent sought to adduce of his admissions. The parties were unable to reach agreement. However it is apparent from the exchange of documents which ensued between them (respondent, 26 May 2009 and 27 May 2009; appellant, 28 May 2009) that the following is the position.

146 Prior to the trial it appears the respondent forwarded to the appellant a draft indexed tender bundle dated 17 September 2007. The index described each document by reference to an item number, its date, a description and the source and left blank columns enabling the appellant to indicate whether or not the document was or was not to be admitted by consent and the ground of any objection. The appellant’s response was dated 23 November 2007 and was entitled “Amended objections to draft index to tender bundle”.

147 It is apparent by comparing those two documents, that the appellant objected to the admission of the three Pakistan interviews (identified as documents 13, 14 and 16) on the following basis:

“No caution was given prior to the interview commencing.

The redactions in the document entail that a proper understanding of the document is not possible and works an injustice to the Plaintiff.

The document does not purport to be an interview of the Plaintiff but is an opinion as to what was purportedly said by the Plaintiff.

The Plaintiff’s first language is Arabic and his understanding of English is deficient.

The Plaintiff disputes that the document is an accurate representation of what it purports took place, or that the interview took place at all.

Hearsay.

The Plaintiff was tortured before interrogated.

No lawyer was present for the Plaintiff.”

148 He objected to the admission of the Guantanamo Bay interview (document 20) on the following basis:

“No caution was given prior to the interview commencing.

The redactions in the document entail that a proper understanding of the document is not possible and works an injustice to the Plaintiff.

The Plaintiff’s first language is Arabic and his understanding of English is deficient.

The Plaintiff disputes that the document is an accurate representation of what it purports took place, or that the interview took place at all.

The Plaintiff was tortured before interrogated.

No lawyer was present for the Plaintiff.”

149 No objection was taken to the admission of the 60 Minutes programme. The transcript of the Dateline interview was objected to but only on the basis that the appellant’s “first language is Arabic and his understanding of English is deficient” and that “the interview has been edited with parts left out”.

150 No objection was taken to the transcript of the Amnesty International interview, but objection was taken to the audio-visual record of that interview on the basis that it had been “edited with parts left out”.

151 At the outset of the trial, when the primary judge was seeking to ascertain how the hearing would be managed, he raised with Mr Evatt the issue of the defendant’s proposed tender of various documents. It was clear that his Honour understood at that stage that the appellant sought to challenge the admissibility of those documents on the basis that “some of it was obtained in breach of relevant rights”, to which Mr Evatt responded, “under duress laws even while drugged” [sic, as in original]. His Honour then enquired whether Mr Evatt would call the appellant to which the response was “on the voir dire only”.

152 In response to the primary judge’s question as to whether there would have to be eight separate voir dires (presumably in relation to each document/audio-visual record the respondent sought to tender), Mr Evatt responded, in substance, that there were only “three relevant cases”. He continued, relevantly, to identify documents 13, 14, and 16 as going to the three interviews in Islamabad and Pakistan and document 20 as going to the interviews in Guantanamo Bay.

153 Mr Evatt also referred to documents 3 and 4 which appear to relate to interviews in 1999, but we do not understand to relate to any issue on the appeal. He then said:

“So it is proposed that the plaintiff will give evidence he was tortured and drugged during the interview in Guantanamo Bay and your Honour might not have much trouble in finding that because right throughout that interview there are references to being tortured and drugged. So the plaintiff would have to give evidence on the voir dire. The three Islamabad, he would just give the one piece of evidence on the voir dire, that he was tortured during the three interviews ....”.

154 Mr Evatt repeated the assertion in relation to the Guantanamo Bay interview, that the appellant alleged he was “tortured and drugged before that interview and possibly during that interview” and asserted that those matters emerged from reading the transcript as well as on the voir dire. Mr Evatt asserted that it was apparent from the transcript of the interview where, apparently, the interviewers said “you’re under the influence of drugs” or “you are sick”.

155 Mr Leopold raised the issue in relation to s 84 that there was “a question of causation or influence built into the section which makes it necessary to look at the particular parts and the particular conduct and see if there is any substantial connection between the two”.

156 During the debate which preceded the commencement of the voir dire, Mr Leopold complained about what he described as the “vagueness of the objections” to the various interviews.

157 Two DVDs and a transcript of the Amnesty International interview were admitted without objection in the respondent’s case. The Dateline interview was also tendered without objection.

158 When the respondent sought to tender the Guantanamo Bay interview (the audio tapes and transcript), Mr Evatt complained on the basis that the interview fell foul of s 84, s 135 and s 138 of the Evidence Act and their admissibility was an issue to be determined on the voir dire: in particular he said:

“But the plaintiff was shackled by chains to the floor, was drugged, was tortured before and during the interview.”

159 When the respondent sought to tender the three Pakistan interviews, Mr Leopold made it clear that he apprehended the objection to those was based on s 84 and s 135 and that would have to be dealt with on the voir dire. At this stage he again alluded to his complaint about the vagueness of the objections, and the approach that he was apparently going to learn of the particulars of the objections during the voir dire. Mr Evatt said: “It’s ‘torture’ and ‘degradation’”, while the primary judge said:

“I’ve got three words: ‘shackled’, ‘degraded’ and ‘tortured’. I think we know the territory. I’m not troubled by it”.

160 The appellant’s voir dire evidence concluded on the fifth day of the trial, 4 December 2007. On the eighth day, 7 December 2007, Mr Leopold started cross-examining the appellant in respect of matters not the subject of the voir dire objections. However in the course of that cross-examination he sought to play the audiotape of the Guantanamo Bay interview to the appellant. Mr Evatt objected on the basis the primary judge had not ruled on whether the interview was admissible. Mr Leopold then proposed that any questions he asked in respect of the Pakistan and Guantanamo Bay interviews should be treated as having been objected to by Mr Evatt “on that basis” – that being presumably any basis on which Mr Evatt had objected to the admissibility of those interviews – so that if the primary judge ultimately ruled the interviews were inadmissible, the question he had asked would be inadmissible. Mr Evatt then clarified that, having regard to Mr Leopold’s submission, he did not need to take that objection again, a proposition the primary judge accepted.

161 In the course of the cross-examination, Mr Leopold asked the appellant questions about the Dateline interview and, in particular, his statement during that interview about what he had told his interrogators in Pakistan. The cross-examination then moved directly to what he had said to those interrogators about having been in Afghanistan:

“Q. You knew when you said to the people in Islamabad in October 2001 “I haven’t been to Afghanistan” that you were making a false claim to them about that, didn’t you?

A. No, no.

Q. What, you believed you hadn’t been in Afghanistan, did you?

A. I told them I haven’t been in Afghanistan because what I been through was I haven’t been in Afghanistan, what I been through, what they going to do to me, what are they going to do to me if I told them I been in Afghanistan.

...

Q. When you said those words to those people in Islamabad, namely that ‘I haven’t been in Afghanistan’ you knew that to be false, didn’t you?

A. No.

Q. Are you saying you thought it was true, that you haven’t been to Afghanistan?

A. I have been in Afghanistan.

Q. You knew it to be false to say to them ‘I haven’t been in Afghanistan’, didn’t you?

A. No.

Q. How can you say that Mr Habib?

A. Because I am not saying, everything I seen it is not real, this people try to kill me, people trying to anything against me, I can’t say legal people front of me to tell them truth or not truth, you know are these people after.

Q. They didn’t lay a hand on you, did they?

A. No, they torture me, they torture me badly, okay, thank you very much, they torture me badly...I been tortured by Pakistani.”

162 In re-examination, the following exchange took place:

“Q. When you were being questioned in Islamabad you said you had not been to Afghanistan, that’s correct?

A. That’s right.

Q. Why did you say that?

A. Because what I been through was the Pakistani, I believe definitely these people two way, you are going to kill me or they are going to put me away all my life, I going to be in really serious trouble in my life.

Q. Is what you are saying this, that if you said you had been to Afghanistan you would have got into trouble?

OBJECTION. LEADING

LEOPOLD: It is not in re-examination at all, it is on the voir dire. I should have objected to the first question. It is a question on the voir dire. Leave would have been granted to do that because I was granted leave.

HIS HONOUR: Why ask it just on the voir dire?

LEOPOLD: It doesn’t go to the facts of whether the statement was made.

HIS HONOUR: It goes to credit.

LEOPOLD: The question is leading and I object to it.

EVATT: I agree with leading, I must admit, I don’t dispute that.

Q. Could you answer this question: what was your belief as to what would have happened if you had said you had been to Afghanistan?

A. As I said, two way, they kill me or they going to harm me badly.”

163 It is this exchange which Mr Smark submits should be treated as if it had been subject to the s 84 objection, and hence as if given on the voir dire.

164 On the twelfth day of the trial, Mr Evatt informed the primary judge that the only part of the Pakistan interviews he asked be ruled inadmissible was the appellant’s statement that he had not been to Afghanistan.

165 In his written submissions at trial on the admissibility of the Pakistan interviews, Mr Evatt made the following points:

“4. Admissibility of the Islamabad Interviews

The Pakistani Government (Security Official) was present at each interview. This would have had the effect of intimidating the Plaintiff or putting pressure on him.

Although the Plaintiff was given a business card from Alastar [sic] Adams and a list of lawyers, no arrangements were made for him to contact Mr Adams or contact any lawyers. The Plaintiff was therefore deprived of legal advice during the interviews.

It is obvious from the evidence of Officer 3 that the Plaintiff wanted to be repatriated and to be put in touch with his wife and family. No cautions or warnings were given to the Plaintiff as to the use of what he said at the interviews. At the second and third interviews after the break the Plaintiff was seen having difficulty in walking. The Plaintiff said he was tortured and drugged in Islamabad and Officer 3 admitted that Pakistani officials had a reputation for harsh treatment of at least political prisoners. At the time (after 11 September 2001) persons leaving Afghanistan for Pakistan were arrested or interrogated. The Plaintiff felt he was constrained from speaking openly and did not admit going to Afghanistan because of fear of retribution.

The interviews should not be allowed in evidence pursuant to Sections 84 and 138. This is because at the least any admissions made by the Plaintiff were influenced by oppressive conduct.”

166 Insofar as the Guantanamo Bay interview was concerned, the written submissions stated:

“5. 15 May 2002 Interview at Guantanamo Bay

This interview is critical for the Defendant as virtually all the surviving particulars of truth depend on the admissibility of the Plaintiffs statements at that interview. The Plaintiff says he had been beaten, tortured and drugged certainly prior to the interview. No caution or warning was given by the Australian Federal Police Officer and the Plaintiff was shackled in chains which could be heard frequently in the audio recording. All the Plaintiff wanted to do was to be released and put in touch with his wife and family. It could be inferred he would say anything he thought would please the interrogators to achieve this purpose.

Mr Jabbour says the interview lasted just over 4 hours. However VD2 and VD4 would indicate there was an interview lasting 13-15 hours. VD4 comprising the ASIO notes of the interview seems to refer to the same material and allegations made by the Plaintiff in the transcript of Mr Jabbour's affidavit. In any event whether 4 hours or 15 hours the interviews were too long.

VD2 corroborates the torture and physical maltreatment of the Plaintiff right up to and including the 15 May 2002 interview. He had been tortured for 7 months in Egypt and suffered injury at Guantanamo Bay when he ‘fell out of his bed’. There is a report that David Hicks saw the Plaintiff lying on his bunk bruised.

The interview should not be admitted in evidence.”

167 Mr Evatt expanded on those written submissions in oral address. It is sufficient to set out the key points of what he said in response to the primary judge’s query as to why the Pakistan interviews were not admissible. Mr Evatt complained that, in the first place, none of the interviews was an actual record but, rather, Officer 1’s recollection of what was said. Next, he pointed out the interview was conducted in the presence of the appellant’s gaoler, the Pakistani Government official and, too, that American CIA agents were present at at least one or two of the interviews.

168 Mr Evatt submitted that the evidence supported the proposition that the appellant’s evidence was that he was “treated badly by the Pakistanis, he was beaten and tortured.” He pointed out that:

“... even Officer 1 admitted that the Pakistanis had a reputation of hard treatment of prisoners and all the plaintiff wanted was to get out, to be released, to get in touch with his wife and children ... . Contrary to the provisions of s 84 we submit that the interview was oppressive, or the three interrogations were oppressive.”

169 Pressed again by the primary judge as to the reason for this submission Mr Evatt again referred to the presence of the Pakistani official. He then said:

“He is asked questions as to whether he had been in Afghanistan, Officer 1 gave evidence that persons who had been in Afghanistan and were crossing the border into Pakistan were arrested and interrogated after September 11. There was this atmosphere of arresting and interrogating persons who came from Afghanistan into Pakistan and yet they asked the plaintiff whether he had been in Afghanistan and he said he wanted to speak to the officer alone and the officer wouldn’t even make any attempt to let him speak to him alone ...”.

170 There was then a debate between Mr Evatt and his Honour about how the s 84 issue was to be approached.

171 In the course of his address, Mr Evatt pointed out that the appellant’s statement during the Dateline interview amounted to him recounting to the interviewer what had happened when he was interrogated by Officer 1, not making an independent assertion that “he had not been in Afghanistan”, as the particulars of truth in the second further amended defence asserted (par 21.2(dm)). Mr Evatt made substantially the same submission concerning the Amnesty International interview, namely, again, that the appellant was recounting what he told those in Pakistan rather than making a fresh assertion. He submitted that merely recounting an earlier statement could not be a false claim.

172 Mr Evatt also submitted during final addresses that it was because the appellant’s request to speak to Officer 1 alone was refused that he said he had not been in Afghanistan. He argued that that statement was made because of an implied threat that if he admitted to having travelled to Afghanistan, the Pakistan authorities would deal him with harshly. He contended that that implied threat invoked s 84(1)(b). He reiterated that the appellant was in “fear of retribution if he admits going to Afghanistan”. He added “mind you we say it [sic, he] was drugged and everything” then pointed to the contrasting situation in Guantanamo Bay where, when there were no Pakistan officials present, the appellant admitted he had been in Afghanistan.

173 In the course of his submissions about Guantanamo Bay, Mr Evatt drew the primary judge’s attention to the physical restraint on the appellant in the form of shackles and chains, the dimensions of the cell in which he was detained (“one metre by one and a half metres”), and the fact that the appellant was restrained while he was questioned. He made those submissions by reference to the report apparently prepared by the Australian officials who visited Guantanamo Bay and intended for distribution in Australia to among others, the Prime Minister, the Foreign Minister, the Defence Minister, the Attorney-General and sundry other Commonwealth authorities which the primary judge substantially reproduced (at [76] – [81]) insofar as it concerned the appellant. However, we note that while the primary judge recorded the officers as having reported that each detainee was held in a cell about two and a half metres by three metres in size, those officers also reported that, as Mr Evatt submitted, there was only about one metre by one and a half metres of walking space in each cell. The Guantanamo Bay detainees were kept in the cells for all but two 15-minute periods a week when they were permitted to exercise.

174 Mr Evatt’s oral summary at trial of the case in relation to Guantanamo Bay was somewhat disjointed. He referred to the shackles the appellant was required to wear, to the fact that a Mr Jabbour, apparently one of those who interviewed the appellant in Guantanamo Bay, said he suspected him of committing offences under Australian law and that he was going to send the record of interview to the Director of Public Prosecutions for possible prosecution. He pointed out that there was no caution, no warning and no lawyer while the appellant was “saying throughout that he wanted to get out and go home”. He reminded the primary judge that the respondent bore the onus of showing that the interview was not oppressive. He pointed out that by failing to give the appellant a caution or access to a lawyer the Australian officials were conveying the impression that he should “cooperate or else”. He also drew attention to the fact that the appellant had been tortured severely for seven months prior to his arrival in Guantanamo Bay eight days earlier and that he “would be a wreck”.

LEGAL PRINCIPLES

Section 84 – admissions

175 We have set out the definition of “admission” at [23] above. The respondent did not dispute that the statements in the Pakistan and Guantanamo Bay interviews fell within that definition. We note that it might be argued that the statements in the Pakistan interviews at least were exculpatory. There is a debate as to whether, without a definition such as that found in the Dictionary to the Evidence Act, an exculpatory statement can constitute an admission: see Kelly v R [2004] HCA 12; (2004) 218 CLR 216 (at [21]). However, in R v Horton (1998) 45 NSWLR 426 (at 437 – 438) Wood CJ at CL (Sully and Ireland JJ agreeing) held that the Dictionary definition of “admission” was wide enough to include “any form of representation, whether by conduct or by oral or written statement, so long as it is ‘adverse to the (maker's) interest in the outcome of the proceedings’” and thus sufficiently wide to encompass both inculpatory and exculpatory statements. The same conclusion was reached in R v Duff (unreported, New South Wales Court of Criminal Appeal, 17 September 1998) per Sully and Greg James JJ, Sperling J contra; R v Esposito (1998) 45 NSWLR 442 (at 458) per Wood CJ at CL (Bruce James J agreeing); R v Fernando [1999] NSWCCA 66 (at [93]). In any event neither party challenges Horton and it is unnecessary further to consider the point: Kelly (at [21]).

Section 84 – relevance of the common law

176 The Evidence Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which it applies, except so far as the Act provides otherwise expressly or by necessary intendment: s 9.

177 Despite s 9, views differ about the extent to which recourse can be had to common law concepts of evidence in areas now dealt with by the Evidence Act. In Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 (at [10], [39] – [40]) Gleeson CJ and Hayne J (Gaudron and Kirby JJ agreeing) observed that it was “clear from the language of the [Evidence] Act, and from its legislative history, that it was intended to make, and that it has made, substantial changes to the law of evidence in New South Wales”. Having regard to s 9 and the fact that the provisions of the Act with which Papakosmas was concerned had made express provision different from the common law, in their Honours’ view it was the language of the Act which determined how the challenged evidence was to be treated. Their Honours rejected an argument that the meaning and effect of that language, properly understood, was to be determined in the light of, and in a manner that conformed to, the pre-existing common law. Nevertheless they thought it was necessary, in order to deal with that argument to refer to the position at common law. Gaudron and Kirby JJ, in addition to agreeing with Gleeson CJ and Hayne J, said (at [51]): “that is not to say that the common law cannot provide guidance on the issue”. McHugh J observed (at [88]) that the Act had “made substantial changes to the law of evidence” and “[n]otwithstanding s 9, reference to pre-existing common law concepts will often be unhelpful”.

178 The Evidence Act replaced the common law on confessions with “a wholly restructured system”: Tofilau v R; Marks v R; Hill v R; Clarke v R [2007] HCA 39; (2007) 231 CLR 396 (at [322(d)]) per Callinan, Heydon and Crennan JJ. The effect of s 56, which appears in Chapter 3 dealing with admissibility of evidence (in which s 84 appears) and which states that “[e]xcept as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding”, is that relevant provisions of the Act apply to the exclusion of inconsistent principles of the common law concerning admissibility: see Telstra Corp Ltd v Australis Media Holdings (No 2) (1997) 41 NSWLR 346 (at 349) per McLelland CJ in Eq; Gattellaro v Westpac Banking Corporation [2004] HCA 6; (2004) 78 ALJR 394 (at [17]); McNeill v The Queen [2008] FCAFC 80; (2008) 168 FCR 198 (at [60] – [62]) (special leave refused: McNeil v R [2008] HCATrans 383).

179 Nevertheless “the modern approach to statutory interpretation (a) insists that the context be considered in the first instance... and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy”: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 (at 408) per Brennan CJ, Dawson, Toohey and Gummow JJ; see also Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 (at 341) per Mason A-CJ, Wilson and Dawson JJ; Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290 (at [30]) per McHugh J. In Telstra (at 350), for example, McLelland CJ in Eq had regard to the reports of the Australian Law Reform Commission (“ALRC”) which preceded the enactment of the Evidence Act, although he concluded that they provided little assistance.

180 In our view it is appropriate to make some reference to the common law position concerning the admissibility of confessions to set the enactment of s 84 in context.

Admissibility of confessions at common law

181 At common law, evidence of a confession could not be received against an accused person unless it was shown to be voluntary. A statement was made voluntarily when “it has been made in the exercise of [a person’s] free choice”. However, if a person confessed to a crime because his will was overborne his confession could not be admitted into evidence. It did not matter by what means he was overborne: “[i]f his statement was the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it [could not] be voluntary”: McDermott v R [1948] HCA 23; (1948) 76 CLR 501 (at 511) per Dixon J; Tofilau (at [6]) per Gleeson CJ.

182 Voluntariness was not an issue to be determined by reference to some hypothetical standard, but required a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused: Collins v R [1980] FCA 72; (1980) 31 ALR 257 (at 307) per Brennan J.

183 The rule that a confession must be made voluntarily before evidence may be given of it is described as “basal voluntariness”. It is derived from common law principles under which “voluntariness was used as the touchstone of reliability”: Tofilau (at [47]) per Gummow and Hayne JJ; (at [122]) per Kirby J; (at [325] ff) per Callinan, Heydon and Crennan JJ. As Callinan, Heydon and Crennan JJ explained (at [275], footnotes omitted):

“The ground initially given for rejecting induced confessions in R v Warickshall was unreliability. But the inquiry did not turn on whether in the particular circumstances of a given case a confession was unreliable. Once an inducement was made out – and the decisions on that question were lenient to the accused – the confession was automatically excluded without further inquiry into the likelihood of its being untrue. Thus in 1783 Hotham B said: ‘It is almost impossible to be too careful ... Too great a chastity cannot be preserved on this subject’ ”. (emphasis added)

Their Honours were using the concept of “inducement” in the context of what they described as the inducement rule: “an admission by an accused person ‘is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed’ ” (at [245]).

184 Thus it is said that involuntary statements are “inadmissible not because the law presumes them to be untrue, but because of the danger that they might be unreliable [a] rationale [which] trenches on considerations of fairness to the accused”: R v Swaffield; Pavic v R [1998] HCA 1; (1998) 192 CLR 159 (at [74]) per Toohey, Gaudron and Gummow JJ.

185 In Tofilau, Gummow and Hayne JJ pointed out (footnotes omitted):

“[53] When one turns to the common law respecting the inadmissibility of some confessional statements, it must first be said that the common law tests of voluntariness have never required a subjective inquiry into the mind of the confessionalist to determine why it was that he or she made the statement of which evidence is to be given. Rather, subject to what later is said about the discretion to reject confessional evidence, the common law rules have sought to operate by excluding evidence from consideration of the tribunal of fact that is deemed so unreliable as a class that it should not be available for consideration. The exclusionary effect of the rules is important. Although it is for the prosecution to demonstrate that a confession was made voluntarily before it becomes admissible, the rules are essentially exclusionary in character. The rules deal only with the admissibility of evidence of out-of-court confessional statements. If the evidence is admitted, it remains open for the confessionalist to argue, and for the tribunal of fact to accept, that, even if the statement was made, it is not reliable.

[54] To the extent to which questions of fairness are distinct from reliability, and to the extent to which questions of controlling police conduct and methods are relevant, they are best dealt with under the discretion. Questions of basal voluntariness are to be understood as informed only by considerations of reliability of the evidence concerned. Do the circumstances in which the evidence was obtained fall into the category of cases which the law classifies as so likely to produce unreliable evidence that the evidence should be excluded from consideration by the tribunal of fact?” (emphasis added)

186 Their Honours (at [55]) described Dixon J’s reasons in McDermott v The King, as “the authoritative statement of the common law of Australia on the admissibility of confessions”. Dixon J explained in McDermott (at 511) the requirement that a confession be voluntary in the following terms:

“This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary...”

187 Gummow and Hayne JJ remarked (Tofilau, at [56]) on the evident similarities between Dixon J’s statement of the applicable rules and the following passage from the first edition of Best on Evidence (Best, A Treatise on the Principles of Evidence and Practice as to Proofs in Courts of Common Law (1849), 418 – 419) (see Tofilau, (at [37])):

“Self-disserving evidence is not always receivable in criminal cases, as it is in civil. There is this condition precedent to its admissibility, that the party against whom it is adduced must be shown to have supplied it voluntarily, or at least freely ... [T]he law on the subject as it stands at present is merely that every confession or criminative statement of any kind, which either has been extracted by any species of physical torture, coercion, or duress of imprisonment; or been made in consequence of inducements held out to the accused, by any person in whose custody he is, or who has any lawful authority, judicial or otherwise, over his person or the charge against him, ought to be rejected.” (emphasis added)

As their Honours explained (Tofilau, at [58]) the “criteria that ... found the legal conclusion that a confession was not made ‘voluntarily’... [a]ll are species of compulsion”.

188 Gummow and Hayne JJ (Tofilau, at [59]) distinguished cases of statements preceded by an inducement held out by a person in authority from confessions in which a person in authority has so acted as to engage the principle of basal voluntariness. In the latter case, they pointed out “if a person in authority subjects a suspect to coercion, whether by threats of violence or other intimidatory acts, the rule excluding a confession made to a person in authority in response to an inducement is readily applied”. In cases of confessions made under compulsion their Honours said (at [60], footnotes omitted):

“The key inquiry is about the quality of the compulsion that is said to have overborne the free choice of whether to speak or to remain silent. In this context, ‘overborne’ should be understood in the sense described by Dixon J as ‘the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure’. It is necessary to focus upon the sufficiency of the compulsion.” (emphasis added)

189 Callinan, Heydon and Crennan JJ also pointed out (Tofilau, at [287]) that the traditional English approach to excluding confessions eschewed “an inquiry into the accused's mental processes ... in order to examine whether the inducement did stimulate the flattery of hope or the torture of fear, and whether it was the flattery or the torture, as distinct from some other cause, which forced the confession from the accused's mind”. The consequence was (footnotes omitted):

“...that very small inducements were fatal... A small selection from a huge field of examples would include: ‘It will be the right thing ... to make a clean breast of it’; ‘I think it might be better if you made a statement and told me exactly what happened’; ‘Put your cards on the table. Tell them the lot’; ‘You had better tell the truth’ ”.

190 Callinan, Heydon and Crennan JJ examined (at [329] ff) what constituted oppression under English common law. In R v Priestley (1965) 51 Cr App R 1, Sachs J described it as "something which tends to sap, and has sapped, that free will which must exist before a confession is voluntary", a description which accords with Dixon J’s statement in McDermott of confessions made by a person whose will was overborne of which he gave non-exhaustive illustrations: Tofilau (at [330] – [331], [364]).

191 At common law it is not necessary, before a statement is held to be inadmissible because it is not shown to have been voluntary, that the relevant impropriety be found in the conduct of the person to whom the statement was made. Rather, what has to be considered, is whether the statement is shown to have been voluntary: DPP v Ping Lin [1976] AC 574 (at 594) per Lord Morris of Borth-y-Gest (Lord Wilberforce agreeing) and (at 602) Lord Hailsham. As was explained in R v Bertrand [2008] VSCA 182; (2008) 20 VR 222 (at [50]), Lin emphasised that the question of the admissibility of a confession turned on the application of common sense, and the recognition “that the main reason for receiving a confession was that if made freely, it was very probably true.” Thus it would be sufficient, in accordance with Lin, to reject a confession if it was elicited after the accused had been subjected to relevant oppressive conduct, even if those to whom the confession was made were not complicit in that conduct, as long as the court could conclude the conduct was a cause of the confession being made.

192 Burut v Public Prosecutor [1995] 2 AC 579 (Privy Council) is a decision to like effect. The accused were suspected of a firearms offence (which was a capital offence) and in accordance with a “special procedure” for such cases, were manacled and hooded during some of their interviews. However, they made their confessions, not during those interviews, but in interviews during which they had not been manacled or hooded. At their trial the accused contended that their statements were inadmissible under s 117 of the Criminal Procedure Code of the Laws of Brunei (Cap 7) because in the circumstances in which they were obtained the prosecution would not be able to satisfy the court, as it was required to do under s 117(2), that “the statement was voluntary, that is to say that it was not obtained by violence, inducement, threat or oppression by a person in authority”. The accused did not give evidence on the voir dire conducted to determine the admissibility of the confessions. Lord Steyn, who delivered the advice of their Lordships, held (at 593):

“For the police to interview an arrested person while he is manacled and hooded is plainly oppressive conduct calculated to sap the will of the person being interviewed.”

193 Lord Steyn then turned to the question whether the confessions were “obtained by ... oppression”. He emphasised that an inference could be drawn from the circumstances of the oppressive conduct, that the confessions may have been obtained by oppression, saying (at 593):

“In the gaps between the application of the ‘special procedure’ and the signing of the written statements the appellants were questioned by police officers. As their Lordships have observed virtually nothing is known about those interviews. Moreover, during those gaps the appellants remained deprived of visits of relatives. Nothing had happened to remove the implied threat of further sessions subject to the ‘special procedure.’ The trial court misdirected itself by finding that in the absence of oral evidence from the appellants on the voir dire there was no evidence that the statements were obtained by oppression. Even without evidence from the appellants the very nature of the ‘special procedure,’ and the relatively short gaps between the application of the ‘special procedure’ and the taking of the statements, inferentially suggested that the statements were, or may have been, obtained by oppression. In these circumstances their Lordships are free to depart from the findings of fact of the trial court. The correct conclusion is that, against the background of the ‘special procedure,’ the prosecution upon whom the burden rested failed to prove to the requisite standard that the statements were not obtained by oppression. It follows that the trial court should have ruled all the written statements inadmissible.” (emphasis added)

194 In R v Thomas [2006] VSCA 165; (2006) 14 VR 475 (at [83]), the Court of Appeal (Maxwell P, Buchanan and Vincent JJA) also took the view that the question of voluntariness was to be determined by assessing whether any relevant impropriety was likely to have been operating upon the mind of the accused at the time he was interviewed. In Thomas, the accused was arrested in Pakistan, held by Pakistani authorities for two months in solitary confinement and interviewed by Pakistani authorities and on six occasions by members of a joint team of Australian Federal Police and ASIO officers. In holding statements he made should have been ruled to be inadmissible at trial, the Court said:

“91 What is important is whether the applicant could, in any real sense, be said to have had a free choice to speak or remain silent. In our view, the Judge fell into error by divorcing the interview from the context in which it occurred, a context which his Honour found operated on the will of the applicant. It is necessary, when considering the admissibility of an inculpatory statement made by a person in the course of a police interview, to bear in mind that evidence of this kind differs from most other forms of evidence. The most obvious difference, which has long been identified and to a large extent underlies the principles governing the admissibility of such evidence, is that the evidence comes into existence at the time of the interview and is a product not only of the interview itself but of many factors, both external and personal to the maker. Whether or not an individual decides to speak or remain silent, and the content and form of any statement made, will inevitably be influenced by his perception of the situation in which he is placed at that time.” (emphasis added)

195 The Court concluded (at [92]), that “[w]hile nothing occurred in the interview itself that could be seen to overbear the will of the applicant, there can be little doubt he was, at that time, subject to externally-imposed pressure of a kind calculated to overbear his will and thereby restrict, in a practical sense, his available choices and the manner of their exercise” and (at [94]) that “[a]dmissions made in the circumstances we have described could not, in our view, be held to be voluntary”.

Section 84 – legislative history

196 The Evidence Act derives from an extensive inquiry into the laws of evidence conducted by the ALRC. The ALRC’s Interim Report on Evidence (ALRC, Interim Report on Evidence (1985) No 26, Vol 1, at pars 752–766) noted many criticisms of the voluntariness rule, one of which was that it attempted to address both reliability and public interest concerns but failed adequately to distinguish between them (at par 965).

197 Clause 71 in the draft Evidence Bill attached to the Interim Report (Vol 2, at 40), included the presumption against admissibility contained in the present s 84:

“71. Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by violent, oppressive, inhuman or degrading conduct, whether toward the person who made the admission or toward some other person, or by a threat of conduct of that kind”

198 The ALRC explained the philosophy behind the proposal as follows (Vol 1, at par 765):

“Techniques which are perceived as particularly likely to substantially impair the mental freedom of a suspect may be prohibited, and any evidence produced as a result of them excluded. If interrogators engage in acts of violence, threats of violence, torture or inhuman, degrading or oppressive conduct, then an admission made subsequent to such conduct may be untrue, regardless of the characteristics of the suspect being interrogated.”

199 The Evidence Act was based on the draft Evidence Bill attached to the ALRC’s Final Report on Evidence (1987) No 38, Vol 1. Section 84(1) was cl 72 of the draft bill. The ALRC observed in relation to that clause (Summary of Recommendations, at par 34):

“34. Violence and admissions. Evidence of an admission should be excluded where it was influenced by violence to any person. It should not be necessary to establish a causal link between the violence and the admission (para 154(a); Bill, cl72).”

200 Paragraph 154(a) stated:

“154. Interim Report proposals. Some exclusionary rules were proposed. Two of these proposals were to apply in both civil and criminal proceedings.

(a) Violence and admissions. Evidence of an admission should be excluded unless the court is satisfied that the admission was not influenced by violent, aggressive, inhuman or degrading conduct to any person....”

201 The Final Report on Evidence dealt with deficiencies of the common law voluntariness rule. It observed (at [156], footnotes omitted):

“● There is also a vast body of technical and unclear law dealing with the admissibility of a confession induced by threats or promises by a person in authority. Fine distinctions have been drawn. For example, 'Be sure to tell the truth', is not a threat or promise that should exclude a confession but 'It would be better for you to tell the truth' is. It is unclear whether the inducement must actually cause the confession or whether it is sufficient that the inducement preceded the confession and was not removed.

The result in practice has been that attention tends to focus on whether the accused was overborne in some way or whether threats or promises were made. In practice, unless the accused can demonstrate that he or she was overborne, or that inducements were offered by a person in authority, the accused will fail to have a court rule a confession involuntary. Thus, while the onus of proving voluntariness is formally on the prosecution, in practice there is a subtle reversal of the onus - it is placed on the accused. This means that, in particular where psychological pressure is relied upon, it is extremely difficult for an attack on a confession on the grounds of involuntariness to be successful. The tendency is to admit rather than the exclude.” (emphasis added)

202 The Final Report (at [157]) noted that an attempt was made to address a number of these criticisms, but in the end found that not to be possible and the decision was made to adopt the Interim Report approach.

203 In June 1988, the New South Wales Law Reform Commission released its Report on Evidence (June 1988) No 56, in which it adopted without amendment most of the ALRC’s proposed Evidence Bill including cl 72.

204 In 1991, the New South Wales Attorney General introduced the Evidence Bill 1991 into the Legislative Council for the purpose of exposing it for public consideration and comment, based “substantially upon the recommendations of the Australian Law Reform Commission and the New South Wales Law Reform Commission”: New South Wales Legislative Council, Parliamentary Debates (Hansard), 20 March 1991 (at 1436).

205 The Commonwealth followed suit, introducing its own exposure draft into the Federal Parliament in October 1991: Evidence Bill 1991 (Cth). In August 1993 a further exposure draft bill was introduced in New South Wales to obtain further comments. These exposure drafts made no significant alterations to cl 72 in the ALRC draft Evidence Bill.

206 The final Commonwealth Evidence Bill was introduced in the House of Representatives in December 1993. It represented a text which was agreed between New South Wales and the Commonwealth, taking into account comments made on the New South Wales exposure draft. Relevantly, it added a new subsection to cl 72 of the ALRC draft Evidence Bill, in the terms of s 84(2). Nothing in the Explanatory Memorandum to the Evidence Bill 1993 (Cth), or the Second Reading Speech, explains the genesis of this development.

207 In the Second Reading Speech for the Evidence Bill, the Minister for Justice, the Hon J W Shaw MLC noted that one of the aims of the Bill was to combine the “primary objectives of the volunteering rule – maximising the probability of the truth of the admission and the preservation of the rights of the individual suspect”: New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 May 1995, at 116.

Section 84 – raising the issue

208 At common law once an objection was taken to the admissibility of a confession on the basis that it was not voluntarily made, the proper course was for the judge to hear evidence on the voir dire in the absence of the jury as to the circumstances in which the confession was made: MacPherson v R [1981] HCA 46; (1981) 147 CLR 512 (at 520) per Gibbs CJ and Wilson J; (at 532) per Mason J.

209 MacPherson involved an unrepresented accused who cross-examined the police to suggest they had threatened him to induce him to confess. No voir dire was conducted to determine the admissibility of his confession. Gibbs CJ and Wilson J held (at 523) that a primary judge had to hold a voir dire once it appeared “there [was] a real question as to the voluntariness of a confession”, even if the accused had not sought one. They did not elaborate on the standard for determining whether there was “a real question”. They emphasised that it was “the duty of the judge ... to ensure that the confession is not admitted until the fact that it was voluntary has been established”.

210 In considering the question whether the trial judge had a discretion to grant or refuse a voir dire examination in order to determine the voluntariness of a confession, Mason J referred with approval to Ex parte Hamilton; re Fagan [1966] 2 NSWR 732. In that case Collins J held (at 734) that if an accused raised the issue of the voluntariness of an admission of guilt by objecting to the prosecution tendering the evidence, the court was required “to proceed to an inquiry of the issue thus raised”.

211 Brennan J was also clearly of the view that once the accused objected to the admissibility of the confession, it was incumbent on the trial judge to hold a voir dire to determine the issue of voluntariness: MacPherson (at 545). He referred (at 547) with approval to Ajodha v The State; Chandree v The State [1982] AC 204 in which the Privy Council held that it was sufficient to raise the issue of involuntariness and to require the safeguard of a judicial ruling, that the accused did not give evidence but raised the issue of voluntariness for judicial decision only in cross-examination of prosecution witnesses and later in an unsworn statement from the dock.

212 The respondent cited three authorities in support of its submission that in order to enliven s 84, the appellant had to adduce evidence that the relevant admission was “influenced by” s 84(1) conduct. In his oral submissions Mr Leopold argued that the appellant had to establish a causal nexus between the making of the admission and the conduct. He argued the appellant gave no such evidence, with the exception of his evidence in re-examination which he contended the primary judge properly held (at [63]) did not fall within s 84(2) because it was evidence of a fear of lawful punishment.

213 The first authority was R v Douglas [2000] NSWCCA 275 (at [61]). In that case, the trial judge rejected the only ground on which the accused sought to have two ERISP interviews excluded, namely statements by the police that they would look after his wife if he participated. On appeal counsel sought to argue the trial judge erred in not excluding the ERISPs on the basis that the police had refused to permit the accused to have access to a lawyer (the “incommunicado conversation”): Douglas (at [43]). Mason P (Sully and Sperling JJ agreeing) said (at [59]) that “s 84(1) did not require the rejection of the Penrith ERISPs [because] [t]he incommunicado conversation was not relied upon below as ‘violent, oppressive, inhuman or degrading conduct’ let alone conduct that led to the confessions.” He said, in the passage upon which the respondent relied:

“[61] Had there been any suggestion at trial that the incommunicado conversation had been the cause of the appellant breaking down I would have been concerned about the absence of findings about precisely what was said, the appellant's perception of what ... [the detective] said and its causative impact. Non sequitur that I would have found that the trial miscarried. But the critical points are that there was nothing to support the submission that the discussion ‘influenced’ the appellant to confess; and that the case was not run this way at trial.” (emphasis added)

214 In our view, Mason P’s statements about the causative impact of any statements by the detective were not intended to identify a test the accused had to satisfy for the purposes of s 84(2). They were made in the context of explaining the accused’s failure to put at trial the case he sought to argue on appeal. It was clear a s 84 issue had been “raised”, but on a different basis to that advanced on appeal. Moreover, even if Mason P’s statement could be read as directed to s 84(2), the expression he used was “any suggestion ... the incommunicado conversation had been the cause of the appellant breaking down”. It is not clear whether his Honour was directing attention to an evidentiary onus, or the fact counsel had not conducted the trial in the manner relied upon on appeal. In any event, when his Honour identified what he said were the critical points, as to the first, he merely repeated the verb “influenced” which appears in both limbs of s 84.

215 The second case the respondent relied upon was R v GH [2000] FCA 1618; (2000) 105 FCR 419. The facts and issues appear from the headnote. GH was tried for conspiring to pervert the course of justice. The trial judge found, for the purpose of ruling under s 84(1) of the Evidence Act 1995 (Cth) (which is in identical terms to s 84 of the New South Wales Evidence Act) that GH was threatened by persons named as co-conspirators that unless he submitted to punishment by gunshot wound he would be killed. GH submitted. He twice stated to police that he had accidentally shot himself. The Crown case was that GH agreed with the other persons to make the statements to prevent the others from being brought to justice. The Crown sought to have evidence of the statements admitted as overt acts going to prove the conspiracy. On the voir dire, the Crown gave evidence of the statements. There was no evidence from or for GH. The trial judge ruled evidence of the statements inadmissible by virtue of s 84(1) and ordered a verdict of acquittal be recorded. The Director of Public Prosecutions sought a determination of questions submitted under s 30A of the Federal Court of Australia Act 1976 (Cth), including whether the statements were admissions within the meaning of the Act.

216 Miles J (Spender and Madgwick JJ agreeing) held (at [55]) that the statement on which the Director sought to rely was not a representation adverse to his interests in the outcome of the trial but, rather, was a representation in his own interests, that there was no criminality in the events surrounding his being shot. Accordingly it was not an admission for the purposes of s 84(1).

217 In the course of argument, the Director of Public Prosecutions submitted the trial judge should not have ruled that the statement by the accused was inadmissible under s 84 because that was not an issue that had been raised in the trial by the accused giving or calling evidence that he was influenced by the threats. Miles J held (at [58]) that:

“[58] The absence of evidence for the accused that he was influenced by threats to make the statement to the police did not preclude his Honour from arriving at the conclusion on the evidence in the prosecution case given in the trial and on the voir dire that he was not satisfied as a matter of fact that the threats did not influence the accused to make the statement. The accused was entitled to raise the issue, as he did, on that evidence and his Honour was then bound to determine the issue accordingly.”

218 Miles J then said, in passage on which the respondent relied:

“[59] There is some difficulty in relating this submission to the two questions of law to which the appeal by the Director seeks answers. However, assuming that the submission is relevant, or alternatively that it raises a separate question of law required to be answered for the purposes of the appeal, it is clear that an accused person may rely on evidence in the prosecution case to raise the issue under s 84(1) without the need to give or call evidence on a voir dire. In some circumstances a voir dire may be convenient as a matter of procedure. In other cases, where there is nothing in the prosecution evidence in the trial to raise the issue, a voir dire hearing in which the accused gives or calls evidence would appear to be necessary if the issue is to be properly raised. There is no need in all cases for the accused to give or adduce evidence on a voir dire. If the evidence in the prosecution case is capable of leading to a finding that the making of an admission was influenced by the sort of conduct provided for by s 84(1), then the accused is entitled to raise the issue of non-admissibility of an admission under s 84(1). Once the issue is raised, the court is bound to give effect to the provisions of the section and not to admit the evidence of the admission unless the prosecution has discharged the onus. In the present case, the evidence was clearly capable of leading to the finding made by his Honour.” (emphasis added)

219 It is not, with respect, clear what aspect of s 84 Miles J was addressing. As is apparent, he was doubtful whether the Director’s submissions related to the question whether the accused’s statements were admissions for the purposes of s 84 – which they clearly were not. His Honour’s consideration of those submissions was, accordingly, not essential for the disposition of the case. Moreover his Honour did not expressly refer to s 84(2) and appears to have been directing his attention only to s 84(1). Finally, if Miles J’s statement (at [59]) was to be viewed as part of the reasons for disposing of the case and to be read in the manner for which the respondent contends, we would, with respect, for the reasons which follow, be of the view that his Honour was in error and GH should not be followed: Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 485 (at 492).

220 Spender J (at [1]) expressly endorsed Miles J's finding that an accused person may rely on evidence in the prosecution case to raise an issue under s 84(1) without the need to give or call evidence on a voir dire. However his agreement with Miles J’s conclusion that the accused’s statement was not an admission was based on his view (see [14] – [22]) that the accused’s exculpatory statements, even if shown to be false, were not previous representations adverse to the interests of an accused at his trial.

221 Finally Mr Leopold submitted, relying on Eastman v R (1997) 76 FCR 9 (at 110) that to raise a s 84 issue the appellant had to demonstrate a “cogent” connection between the conduct in s 84(1) and the admission or its making. In the passage on which he relied, the Court (von Doussa, O’Loughlin and Cooper JJ) said:

“On the information placed before the Court on the voir dire the trial judge was not satisfied by the evidence of alleged harassment that the making of the admissions which the Crown alleged were recorded on the tapes was influenced by oppressive conduct. Section 84 of the Evidence Act relevantly provides that evidence of an admission is not admissible unless the Court is satisfied that the admission and the making of the admission were not influenced by violent, oppressive, inhuman or degrading conduct towards the person who made the admission. Although s 84 of the Evidence Act was not referred to by counsel in argument, or by the trial judge when delivering his ruling, it is clear, in our view, that the issue of voluntariness raised by s 84 was the issue which his Honour considered and decided against the appellant. The conclusion of the trial judge has not been shown to be wrong. On the contrary, in our view the evidence failed to suggest any cogent link between the acts of harassment alleged by the appellant and the making of the utterances by him when alone within the four walls of his flat.” (emphasis added)

222 In our view Eastman does not assist the respondent. It is clear the Court was addressing the correct test under s 84(1), the only part of the provision they quoted. Their Honours were not addressing s 84(2).

223 Two other authorities should be referred to.

224 In R v Heffernan; R v Peters (NSW Court of Criminal Appeal, Smart, Bruce James and Sperling JJ, 16 June 1998, unreported, BC9802596 at 22), the Court said:

“There are sound reasons for not giving an expansive interpretation to ‘oppression’ in s 84 of the Evidence Act. The section applies to both civil and criminal proceedings. The section does not confer a discretion; if evidence of an admission falls within the terms of the section, then the evidence is not to be admitted. The section places the onus on the issue of admissibility on the proponent of the evidence (assuming that the evidentiary onus under subs 2 has been satisfied). It is sufficient to require the exclusion of evidence of an admission under s 84, that the court is not satisfied that the making of the admission was not ‘influenced by’ any conduct of the prescribed kinds.” (emphasis added)

225 Their Honours’ remarks were dicta – they had already determined the admissibility issue according to common law principles. They did not explain the basis for their observation as to there being an “evidentiary onus” under s 84(2) or how that onus might be discharged. To the extent their Honours’ observations appear to connote a party seeking to invoke s 84 must adduce evidence to satisfy s 84(2), they are inconsistent with GH from which it is clear that much will depend on the circumstances of the case.

226 In R v JF [2009] ACTSC 104 (at [22]), Refshauge J accepted that the effect of GH was that the accused seeking to have admissions excluded by virtue of s 84 was not obliged to give evidence. He held (at [44]) that even though the accused had not given evidence about the effect of the violent and oppressive conduct which he had concluded preceded the making of an admission, he could not be satisfied that the confession was not influenced by that conduct.

227 Returning to the respondent’s submission the critical issue is whether, before s 84(1) could apply, the appellant had to adduce evidence positively establishing a causal nexus between the proscribed conduct and the alleged admission.

228 In our view, the language of s 84(2) does not support that proposition. The expression “has raised” does not import any notion that the s 84(2) party has to prove the issue being “raised”, namely whether “the admission or its making” were influenced by the s 84(1) conduct.

229 The concept of a party raising the issue in s 84(2) is juxtaposed with the proposition in the same sub-section that another party is seeking to “adduce” “evidence of the admission” – a strong internal indication that the party seeking to raise the issue may do so without having to establish the fact of conduct actually having influenced the admission. Otherwise the effect of s 84(2) would be to reverse the negative test required by s 84(1) to be satisfied before the relevant admission becomes admissible.

230 Further, in contrast to s 84(2), other provisions of the Evidence Act in which the concept of a matter being “raised” appears do refer to the necessity to adduce evidence: see for example s 146(2) (evidence produced by processes, machines and other devices); s 147(2) (documents produced by processes, machines and other devices in the course of business); s 155(2) (evidence of official records); s 160(1) (postal articles); s 161(1) (electronic communications) and s 162(1) (lettergrams and telegrams) all of which provide: “It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced)....”. These are contextual contradictions of the respondent’s construction argument.

231 A requirement that the s 84(2) party give evidence that the relevant conduct caused the admission would also be inconsistent with the common law at the time s 84 was enacted. As is apparent from Tofilau (at [53], [60]) the issue of voluntariness did not turn on a subjective inquiry into the mind of the confessionalist, but rather on “the sufficiency of the compulsion”. It is clear from the historical materials to which we have referred that s 84 was not intended to make it harder to exclude admissions obtained in proscribed circumstances.

232 As already observed, the respondent’s suggested construction of s 84(2) would invert the test s 84 clearly intended a court to apply, namely to be satisfied the relevant conduct did not influence the admission or its making. On the respondent’s argument, the party raising the s 84 issue would have to discharge a causal burden (it did not suggest at what level of proof) before the Court could consider whether the party tendering the document had established the converse! This would be a remarkable outcome particularly in light of the ALRC’s concern that the one aspect of the common law rules of voluntariness was their tendency to cast the burden of proof on the issue of voluntariness on the accused rather than the prosecution. It would not, in our view, be consistent with the purpose of the section.

233 It should be borne in mind in construing s 84 that it applies in both civil and criminal proceedings. The Court should not import into s 84 requirements which may be thought to be comparatively harmless to satisfy in civil proceedings, but which could have significant adverse consequences for the wide range of accused in criminal proceedings seeking to challenge the admissibility of admissions.

234 We would conclude from the language of s 84, the statutory context and legislative history and the common law position when s 84 was enacted that in order to raise a s 84 issue, that there must be some evidence that indicates through legitimate reasoning that there is a reasonable possibility an admission or its making were influenced by proscribed conduct (cf Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 (at [19](1) per Hodgson JA, Handley and Ipp JJA agreeing). However it is not necessary that that evidence prove as a fact that an admission or its making were so influenced.

235 Here, in our view, there was plainly evidence of oppressive conduct of the nature s 84 contemplates (as the discussion under the heading “Section 84 – conclusion on admissibility of the interviews” (at [253] ff) makes apparent) from which it was open to the primary judge to conclude as a reasonable possibility that the admissions the respondent sought to tender were so influenced.

236 In our view the primary judge did not err in concluding the appellant had raised the s 84 issue. We would reject the first ground in the notice of contention.

Section 84 – the meaning of “influence”

237 As we have said, under the common law voluntariness rule, the question was whether the will of the confessionalist was overborne by the allegedly improper conduct. This language is still used in some judgments. In Higgins v R [2007] NSWCCA 56 (at [28]) Hoeben J (Sully and Bell JJ agreeing) referred to the lack of evidence that “[the maker’s] will was overborne in any way”. However, as Adams J observed in R v Ul-Haque [2007] NSWSC 1251; (2007) 177 A Crim R 348 (at [120]), that is not the relevant test under s 84.

238 The Macquarie Dictionary Online defines “influence”, relevantly, to mean “modify, affect, or sway”, while the Oxford English Dictionary Online refers to “influence” as to “affect the mind or action or; to move or induce by influence” and also “to affect the condition of, to have an effect on”. Neither of these definitions evokes a particularly high test of causation.

239 In R v Zhang [2000] NSWSC 1099 (at [44]), Simpson J held that:

“...s 84 does not require the isolation of a single reason, or a single event or incident or instance of conduct provoking the confession; there may be a number of factors working together that, combined, cause the admission to be made. If oppressive conduct on the part of police is one of those factors (or, more accurately, if the Crown has failed to negative such conduct as one of those factors) then the evidence is inadmissible.” (emphasis added)

240 Hoeben J cited Simpson J’s statement with approval in Higgins (at [26]). Refshauge J cited Simpson J’s comments in R v JF (at [32]), as establishing that “the test to determine the causal relationship between the conduct and the admission is not a stringent test”.

241 In R v JF (at [37]), Refshauge J commented that because the effect of s 84 was “...automatic exclusion of the confession, with no discretion, and a relatively low threshold of causation, it does seem that the conduct involved should be of a relatively significant level of impropriety”. With respect, that imposes a gloss on the section which, in our view, is not warranted by its language. The only question s 84(1) poses is whether the “admission and [its] making” were “not influenced by” conduct of the nature identified. At best, as was said in Heffernan (at 22), the wide scope of the section in its application in both civil and criminal proceedings is a reason for not giving “an expansive meaning to ‘oppression’ in s 84”.

The nature of s 84(1) conduct

242 It appears to have been common ground at trial that if the appellant’s evidence of how he was treated in Pakistan, Egypt and Guantanamo Bay was accepted, it fell within the description of the conduct proscribed by s 84(1). The primary judge also appears to have taken that approach and did not explore the nature of s 84(1) conduct.

243 However it is necessary in this Court to explore the nature of that conduct, particularly in light of Mr Smark’s submission that if the Court was of the view that the primary judge had reversed the s 84(1) onus of proof, this Court could determine the admissibility of the interviews despite the primary judge’s credit findings.

244 Although Mr Smark handed the Court a schedule relating to what he identified as “oppressive” conduct, we did not understand the appellant to eschew reliance on the other conduct in s 84(1) conduct, in particular that involving violence and degradation. There is no definition of any of the s 84(1) conduct in the Evidence Act. The concept of violence needs no definition.

245 The Macquarie Dictionary defines “oppressive”, relevantly as “burdensome, unjustly harsh... causing discomfort because uncomfortably great, intense” and “oppression” as “the exercise of authority or power in a burdensome, cruel or unjust manner”. The Macquarie Dictionary also defines “degrade” relevantly as “to lower in dignity or estimation; bring into contempt”.

246 In Higgins (at [26]) Hoeben J held “that the concept [of ‘oppressive’ in s 84(1)] should not be limited to physical or threatened physical conduct but can encompass mental and psychological pressure”.

247 In Zhang (at [40]), Simpson J concluded there had been oppressive conduct within the meaning of s 84 in circumstances where the accused:

“...was offered witness protection in exchange for co-operation in the context of being confronted with two alternatives only: to co-operate with police or be charged with murder. He was offered those alternatives at the same time as being told that he could expect a reduced (or no) sentence in return for his co-operation. There was a threat of some kind, of physical violence (when Detective Goodwin told him he would like to hit his face); and, finally and importantly, he was told that once Detective Goodwin had left the room he would have no further opportunity to co-operate with police. This last was calculated to apply pressure to the accused.”

248 In Ul-Haque (at [95]), Adams J observed that the precise boundaries of the term “oppressive...conduct” in s 84 were uncertain. While he commented that some assistance was afforded by the other conduct mentioned in s 84(1)(a), it was unnecessary to elaborate as he had concluded the impugned conduct (assumption of unlawful powers of direction, control and detention) “was well within the meaning of the phrase”.

249 In Tofilau (at [322(d)] Callinan, Heydon and Crennan JJ described s 76 of the Police and Criminal Evidence Act 1984 (UK) (the “PACE Act”) as the English equivalent to s 84 and s 85 of the Evidence Act. There are, with respect, some significant differences between the provisions. First, s 76 only applies in criminal proceedings. Secondly, unlike s 84, “oppression” is defined in s 76(8) of the PACE Act to “include torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)”. In R v Fulling [1987] QB 426 (at 431 - 432) the Court of Appeal (Lord Lane CJ, Taylor and Henry JJ) held that because the PACE Act was a codifying Act, it should be construed by reference to the natural meaning of its language uninfluenced by considerations derived from the previous state of the law. On that basis the Court concluded that “oppression” in s 76(2)(a) should be given its Oxford English Dictionary meaning which, relevantly, was:

“Exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc.; the imposition of unreasonable or unjust burdens.”

250 The primary judge concluded (at [49]) without criticism from the respondent in this Court that “the circumstances in which [the appellant] was shackled, and detained [in Guantanamo Bay] were degrading”.

251 In Habib v Commonwealth of Australia [2008] FCA 1494 (at [14]), in what might be described as a mastery of understatement, Perram J remarked of the circumstance that the appellant was chained to the floor during his interrogation in Guantanamo Bay that “[t]he chaining of a person to a floor is quite capable of generating that sort of distress” referring to the appellant’s claim that as a result of being so chained, he suffered, inter alia, “great pain of body and mind”.

Section 84 – conclusion on admissibility of the interviews

252 The primary judge’s factual findings relating to the s 84 issue have to be analysed carefully having regard to the respondent’s submission that, properly understood, the primary judge (at [49]) was affirmatively satisfied in relation to the Pakistan interviews that the appellant had not established any s 84(1) conduct which might have influenced any relevant admission.

253 In our view, that submission must be rejected.

254 There is no doubt that the primary judge rejected some of what might be called the more lurid aspects of the appellant’s evidence at trial (which he set out in some detail (at [16] – [38]). He did that, it appears, substantially insofar as he perceived conflicts between that evidence and statements the appellant made in the Dateline and Amnesty International interviews. Insofar as the Guantanamo Bay interview is concerned, his Honour also took into account the record the Australian officials who met the appellant in Guantanamo Bay made of his account of his captivity in Pakistan and Egypt (set out by his Honour (at [47])).

255 The primary judge’s findings about whether or not s 84(1) conduct had taken place were substantially grouped under the heading “Matters of credit and factual findings” and proceeded in a series of steps.

256 First, his Honour concluded that he could not accept the appellant’s claim that he was “seriously mistreated in the place of detention in Islamabad”. The rationale for this conclusion was his Honour’s expectation that if those claims were true some elements would have been revealed in his interviews with Amnesty International or 60 Minutes.

257 Nevertheless, the primary judge did accept (at [49]) with respect to his detention in Pakistan that:

(a) the experiences the appellant suffered were traumatic;

(b) from time to time he was mistreated;

(c) the circumstances in which he was shackled and detained were degrading;

(d) he had no doubt the appellant was kicked;

(e) at times in Egypt he was subject to abusive conduct probably using water, hot and cold rooms and forms of electric shock.

258 His Honour then said (at [49]), in what appears to have been an elaboration of the first sentence of this section of his judgment:

“However the evidence he gave was disjointed and on many occasions he failed to respond to a question. I have reflected at length on his evidence and have ultimately concluded that I cannot accept the allegations of mistreatment in the detail which he gave the evidence in this Court. That does not mean that I have concluded that these events did not happen but merely that I cannot be satisfied that they did happen.” (emphasis added)

259 The primary judge rejected (at [51]) the appellant’s account that he was abused, beaten and tortured in Guantanamo Bay before he was interviewed by the Australian team on two bases: first, because it was inconsistent with the reports of those interviews to which we have earlier referred and secondly, because as the appellant had only recently arrived in Guantanamo Bay, and also because of his illness, he had not yet been interrogated there by the Americans.

260 Accordingly, his Honour concluded, (at [54]) that where the appellant gave answers in evidence which were in conflict with what he had said on other occasions, the answers in these proceedings must be rejected.

261 It is significant to note that his Honour next made it plain that while he had reached conclusions that the appellant had made four of the false claims relied on by the respondent, he had not entirely rejected the appellant as a witness of truth. Rather, (at [55]) his Honour gave the appellant the benefit of the doubt in terms of the cautious manner in which he answered questions and his tendency to exaggerate, concluding that in light of his detention without trial and without being charged with any offence, his suspicion of authority and guarded responses (apparently reflected in his evidence) may have a rational foundation.

262 When his Honour came to the admissibility of the Islamabad interview he noted that the focus had to be on the connection between the conduct and the relevant admission. He recorded the submission which had been put to him that the appellant’s denial that he had been to Afghanistan was made in circumstances where his request to speak privately to Officer 1 had been denied. The primary judge rejected that submission apparently because the appellant did not repeat the request during the second and third interviews when he made the same denial.

263 His Honour then interpolated (at [61]) an observation to the effect that one of the Australian officials who interviewed the appellant in Guantanamo Bay had confirmed that the appellant had made no complaint about mistreatment in Pakistan. It is not clear what the purpose of that sentence was in this section of the judgment, particularly having regard to his Honour’s finding (at [48] – [49]) that he accepted that at least some mistreatment of the appellant had taken place in Pakistan.

264 Next, his Honour referred to the respondent’s evidence in re-examination that his denial that he had been in Afghanistan was made “ ... definitely these people two way, you are going to kill me or they going to put me away all my life, I going to be in really serious trouble all my life”.

265 The primary judge interpreted that re-examination (at [63]) as being “a fear of punishment for wrongdoing”, or “a fear of continuing incarceration for wrongdoing” and accordingly, not being “a matter relevant to s 84.”

266 With respect, it is difficult to understand how the primary judge could have reached that conclusion. At the time the appellant made his statements during the Pakistan interviews, he had been in Pakistani detention for approximately three weeks. He had not been charged with any offence. No Australian official suggested he was guilty of any offence. He had, even on the primary judge’s findings, been mistreated by the Pakistanis. The Australian officials made it clear that they had no power to intervene to alleviate the appellant’s situation even though they noted that he, in substance, was pleading for release.

267 There was, in our view, no basis for an inference that the appellant had any apprehension that he was in lawful custody, about to be subjected to the legal processes, whatever they might have been, of Pakistan. Rather, he made it plain to the Australian officials that he was desperate to get out of Pakistan, that he did not feel comfortable talking in the presence of the Pakistani officials and wanted to talk to Officer 1 in private. In our view it was not possible to interpret the appellant’s evidence in re-examination as anything but evidence of the fact that he felt compelled to deny he had been in Afghanistan because of the fear he derived from the circumstances in which he found himself, including that he felt threatened by violent (“they are going to kill me”) and oppressive (“they are going to put me away all my life”) conduct.

268 The primary judge’s conclusion (at [63]) was that while he could not exclude the possibility that the appellant was mistreated, particularly in Egypt (a remark which clearly included his mistreatment in Pakistan) “there is no evidence which associates any admission during the interview with the threat of the relevant kind.”

269 We will return to the significance of that finding.

270 We should also note that his Honour then referred (at [64]) to the appellant’s repetition in the Dateline interview of his statement that he had never been to Afghanistan in connection with an observation that no s 84 conduct influenced the making of this “false statement”. However, with respect to his Honour, he does not appear to have taken into consideration that in the Dateline interview the appellant was not making an independent assertion that he had not been in Afghanistan; rather, he was repeating the part of the Pakistan interviews which touched on this topic.

271 When his Honour came to the Guantanamo Bay interview he made the following relevant findings (at [82]):

(a) the conditions at Guantanamo Bay were arduous and degrading;

(b) the appellant was confined to his cell with almost no opportunity for exercise;

(c) when he was moved, and during questioning, he was shackled with chains and reduced to a shuffle;

(d) the physical conditions of his incarceration, lack of access to exercise and more particularly uncertainties associated with there being no charge laid or expectation of release, properly described as indefinite detention, defied basic human rights.

272 Notwithstanding those findings the primary judge concluded (at [82]) that as the appellant had only been in Guantanamo Bay for a few days when interviewed,

“[t]he evidence does not suggest that the circumstances of his incarceration influenced [him] to make the admissions relied upon by [the respondent] in these proceedings.”

273 In our view this conclusion and that which the primary judge had earlier reached in relation to Pakistan (at [63]) with regard to the influence of the mistreatment he had identified on the making by the appellant of the admissions the respondent relied upon did, as the appellant submits, reverse the onus of proof under s 84(1). Rather than directing his attention to the s 84(1) test namely, that he had to be satisfied that both the admission and its making were not influenced by the relevant conduct, his Honour posed a test which placed the onus on the appellant to establish that there was s 84(1) conduct which did influence the making of the admissions relied upon. But s 84(1) placed the relevant onus squarely upon the respondent once the primary judge concluded, as in our view he did, that there was s 84(1) conduct in relation to the appellant’s situation in both Pakistan and Guantanamo Bay. It was required to satisfy the Court that that conduct had not influenced the making of the relevant admissions. The primary judge made no finding that he was so satisfied.

274 The respondent seeks to resist the conclusion that the primary judge erred in reaching his s 84(1) findings on the basis that they were founded on credibility findings which attracted Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 inscrutability. That submission should be rejected for a number of reasons.

275 First, it is apparent that the primary judge did make findings that the appellant had been subjected to some of the mistreatment of which he complained in Pakistan, including being beaten and, to describe it as neutrally as possible, was subject to degrading conduct in Guantanamo Bay.

276 Secondly, as we have said, his Honour made it plain that he did not reject the appellant in all respects.

277 Thirdly, insofar as the primary judge relied upon what he perceived to be inconsistencies between the appellant’s evidence and his statements in various media interviews the following might be noted. The appellant was responding in those interviews to the interviewers’ questions. He was not given a free range as to what he could say. Insofar as the Dateline interview was concerned, as we have earlier observed, his solicitor was clearly severely restraining the answers he gave. Nevertheless in each of the interviews insofar as it was relevant to the question, the appellant gave some account of his detention in Pakistan, including that he had been beaten there, and also to having communicated those circumstances in various levels of detail to Officer 1. The account the Australian officials recorded in Guantanamo Bay described the appellant wanting to relate his mistreatment and torture in Pakistan and Egypt. It is clear that the account as recorded is inadequate because it barely describes events the primary judge appears otherwise to have accepted, for example, concerning the appellant having been beaten in Pakistan before being interviewed by Officer 1, being blindfolded there and so on, all of which were matters the appellant recounted, inter alia, in some of the media interviews.

278 Fourthly, insofar as the Pakistan interviews were concerned, in our view the primary judge erred in concluding that there was no relevant oppression in the second or third Pakistan interviews because the appellant did not repeat his request that he be able to speak to Officer 1 in private. Having regard to the circumstances in which he found himself, it is clear, in our view, that having once been unsuccessful in that attempt, the appellant would not repeat it. That does not mean, however, that it was open to the primary judge to conclude that his denials in the second and third Pakistan interviews that he had been in Afghanistan were not influenced by s 84(1) conduct. Once he had denied having been there in the first interview (in circumstances where he clearly perceived it to be in his interests to do so) it was entirely to be expected that he would adhere to his story.

279 The question nevertheless arises, whether the respondent had discharged the burden which fell upon it to demonstrate that the appellant’s admission was not influenced by s 84(1) conduct. It should be borne in mind that the respondent had to discharge that burden on the balance of probabilities: s 142(1), Evidence Act.

280 In our view the respondent did not discharge that onus. The first point to note in this respect is that the primary judge approached this issue on too narrow a basis. As we have observed, the question whether an admission was “not influenced by” relevant s 84(1) conduct is not a stringent test. We have set out the s 84(1) conduct the primary judge did find the appellant had established. In our view one could not be satisfied that that conduct did not influence the appellant making admissions in both Pakistan and Guantanamo Bay. It will be recalled that Mr Evatt had identified a number of circumstances as constituting oppressive conduct. That conduct properly, in our view, extended beyond the particular circumstances of the interviews. As the earlier discussion demonstrates, it is not necessary that the s 84(1) conduct actually take place at the time the admission is made. Rather, the relevant inquiry to which s 84(1) directs the Court is as to whether any admission was not influenced by s 84(1) conduct. It is clear that that conduct may have occurred prior to any relevant interview and need not have been the conduct of those interviewing the relevant party. The question is whether such conduct did not have any influence at the time of the interview.

281 In our view, the circumstances which preceded the appellant being interviewed in Pakistan could not be excluded in the inquiry as to the making of the admission during the interviews. This is particularly so in light of his re-examination in which he identified his fear of either being killed or put away all his life. It is plain that that fear was generated by the circumstances of his detention by the Pakistani authorities although, we would add, his mental state would not have been assisted by Officer 1’s constant repetition of the proposition that, in substance, there was nothing Australian officials could do to assist him.

282 It is pertinent to state, at this stage, that we would reject the respondent’s submission that the appellant’s statement in re-examination that “when he was being questioned in Islamabad he had said he had not been to Afghanistan” was a false claim, independent of either the Dateline interview or the Pakistan interviews. The re-examination clearly arose from the cross-examination about what he had told his Pakistani interrogators about whether he had been to Afghanistan. As such it was, as Mr Leopold himself said to the primary judge, on the voir dire. This was correct. The arrangement made at Mr Leopold’s suggestion early in the cross-examination to which we have referred at [160] above, made it apparent that questions which went to what the appellant said, inter alia, to the Pakistani interrogators were to be treated as subject to the s 84 objection. That arrangement clearly extended to re-examination on such topics.

283 Equally, insofar as Guantanamo Bay was concerned, we are not prepared to draw the conclusion that the conduct the primary judge found the appellant had established had not influenced his making of admissions in the Guantanamo Bay interviews. It is not to point that the appellant did not appear reluctant to participate or concerned that if he did not there would be any recriminations (primary judgment at [72]), an attitude which might be understandable in the light of the primary judge’s finding (at [74]) that he was “hopeful and indeed anxious to be released from Guantanamo Bay and to return to Australia”.

284 In our view, the primary judge erred in concluding that the Pakistan and Guantanamo Bay admissions were admissible. Rather, his Honour ought to have concluded that he could not be satisfied that the admissions were not influenced by s 84(1) conduct.

285 In our view the appellant should be permitted to raise the s 84 objection to the Dateline interview. The relevant passage from that interview set out at [136] above was an account of what the appellant had told his Pakistani interrogators during the Pakistani interviews, all of which were the subject of the s 84 objection. Mr Evatt pointed out in submissions at trial that the Dateline interview was only an account of what was said in the challenged Pakistan interviews. The primary judge did not rely upon the Dateline interview to find in the respondent’s favour on the first claim. The respondent would not have conducted the case any differently if a formal s 84 objection had been taken. While the appellant is bound by the manner in which counsel conducted his case (Smits v Roach (at [46]) per Gleeson CJ, Heydon and Crennan JJ), it is plain, in our view, that counsel conducted the trial on the basis that any statement the appellant made about what he told his Pakistani interrogators to the effect that he had not been to Afghanistan was the subject of that objection. As we have concluded that the admission in the Pakistan interviews is inadmissible by virtue of s 84, so, too, is its repetition in the Dateline interview. The third paragraph of the notice of contention should be rejected.

286 The conclusion that the Pakistan, Guantanamo Bay and Dateline interviews were inadmissible means the respondent had not established the substantial truth of the first or third claims.

287 We would therefore uphold the first to fifth, twelfth and fifteenth grounds of appeal.

288 Having regard to these conclusions, it is unnecessary to consider grounds six, nine, sixteen and seventeen.

289 The conclusion that the Pakistan, Guantanamo Bay and Dateline interviews were inadmissible, and that the appellant’s re-examination should have been treated as part of the voir dire evidence means there was no evidence before the primary judge which would support the defence of truth of the first and third claims. Although the respondent submitted that if the Court came to the conclusion that the interviews were inadmissible it should remit the issue for a further trial, it did not support that submission by any cogent argument. This Court is required to make on appeal any finding or order the primary judge ought to have made: s 75A(10), Supreme Court Act 1970 (NSW). The primary judge found relevant s 84 conduct had occurred, but misdirected himself in applying the statutory test. Once this Court has concluded, on the correct application of that test, that the statements the respondent relied upon to make good the first and third claims were inadmissible, it is open to it to find that the respondent did not establish the substantial truth of those claims.

Characterising the imputation

290 The issues which appear to arise under this heading are:

(a) what is the nature of the “claims” referred to in the imputation?

(b) could the denials in the Pakistan interviews constitute “claims”?

(c) whether it was sufficient for the respondent to establish the truth of the imputation by merely establishing one of the four claims;

(d) if not, could the respondent establish the truth of the imputation by establishing the appellant made the same false claim more than once in one interview?

(e) should the appellant be permitted to argue on appeal that the imputation connotes only positive assertions and not denials, and only statements to a public audience (the notice of contention issue)?

291 The primary judge said (at [5]) and referring to Singleton v Ffrench (1986) 5 NSWLR 425 that the meaning of a pleaded imputation was a matter to be determined by the court and that when determining the meaning it is important to consider the imputation in the context of the material by which the imputation was conveyed: Greek Herald v Nikolopoulos [2002] NSWCA 41; (2002) 54 NSWLR 165 (at [19] - [23]); John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164. Neither party disputes the correctness of these statements.

292 In Singleton (at 428), Mahoney JA described the imputation as “the statement which, as the plaintiff alleges, the publication gives the reader or viewer to understand”.

293 In Greek Herald v Nikolopoulos, Mason P (Wood CJ at CL agreeing) rejected as contrary to the general rules of pleading and basic principle, a submission that, on a s 7A trial, the jury should be directed that when assessing whether an imputation was defamatory, they were to do so from its terms alone without importing any significance to the words of the imputation from the knowledge the reader had from the article or the affair generally. After referring with approval (at [18]) to Mahoney JA’s statement in Singleton, he added, “[i]t is not a straitjacket, although the rules of procedural fairness place limits upon judge and jury’s capacity to enlarge the issues”. He then said:

“19 A plaintiff’s pleaded imputations set the scene for the contest which follows. The defendant’s pleadings will respond to the asserted causes of action. The jury will have to decide whether the matter complained of carries the imputation and, if so, whether it is defamatory of the plaintiff. Defences as to truth, contextual truth and comment are also responsive to the pleaded imputations (Defamation Act, ss15(2), 16(2), New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340). But even here, the plaintiff will be bound by the substance, as distinct from the precise words of the pleaded imputation (see Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771).

20 The pleaded imputation is itself a statement extrapolating something from the matter complained of. The statement will seldom be found in the very words used (sometimes the matter complained of is only a picture). The imputation will often be implicit in the text (see generally Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 195-6).

21 These considerations point to the broader issue of principle. Words, a fortiori words not found in the text, are necessarily to be read in context. This is a basic tenet of literary and legal construction (Metropolitan Gas Co v Federated Gas Employees’ Industrial Union [1925] HCA 5; (1925) 35 CLR 449 at 455; Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 634). Holmes J, in Towne v Eisner 254 US 418 (1918) at 425, reminds us that: ‘A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.’

22 Context may clarify or intensify the sting of a facially benign (pleaded) imputation. The converse is also true (see JG Fleming, The Law of Torts 7th ed p588).

23 The defendants wish to have the imputation removed from the context of the article as a whole so that the jury can be invited to debate the moral issue whether lying is always wrong, and whether (if it is not) it is defamatory of a person to say that he or she lied. Such matters may befit a philosophy seminar. But they are so divorced from the reality of the true dispute between the litigants as to be a wasteful perversion of justice. After all, it was pleaded that the imputed lie was to the members of the Club of which the plaintiff were the directors.

24 This pleading may well have been ambiguous and embarrassing. If so it should have been objected to on that basis. Had the objection been taken and upheld, the plaintiffs would have been forced to greater specificity, with possible consequences as regards the defences open to the defendants and the jury’s determination on the matters reserved for them. But these points were not taken at trial and they are not issues before this Court.”

294 In our view there is force in the appellant’s submission which was, in substance, that a statement cannot be a “claim” if it is extracted in the circumstances in which the appellant found himself in Pakistan and Guantanamo Bay. The matter complained of was addressing the “claims” it asserted the appellant made during the 60 Minutes interview. There was no assertion that the appellant was under any compulsion when he participated in that interview. It was an interview it was reasonable for the reader to infer the appellant would have expected would have been broadcast to the public in whole or in part. Accordingly, set in the context of the matter complained of, it was reasonable to conclude that the imputation, “the plaintiff knowingly made some false claims”, conveyed that he made such claims in a situation where he was capable of exercising a free will as to whether or not, and how, he made public statements and/or responded to questions.

295 There is also force in the appellant’s submission that the appellant’s denial in the second Pakistan interview that he had been to Afghanistan was not a claim. In criminal proceedings, an accused’s denials are not capable of being regarded by the jury as admissions: Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 (at 107); Straker v The Queen (1977) 51 ALJR 690 (at 694); 15 ALR 103 (at 109); Graham v R [1998] HCA 61; (1998) 195 CLR 606 (at [40]) per Callinan J; Gleeson CJ agreeing.

296 In Straker, evidence was given that the appellant, in the course of his interrogation by the police, was asked questions, which he denied, as to whether he had had anal intercourse with the deceased. Gibbs J (ALR, at 109) said “this evidence should have been excluded in accordance with the rule of practice that has been followed ever since the decision in R v Norton [1910] 2 KB 496 at 500”.

297 In R v Norton [1910] 2 KB 496 (at 499 - 500) the Court of Criminal Appeal (Lord Alverstone CJ, Pickford and Lord Coleridge JJ) held that the appellant’s statement in response to a sexual assault victim’s accusation that it was he “who had done it”, “No, Madge, you are mistaken” was inadmissible as evidence of an admission on his part of the accusation:

“unless ... there [was] evidence fit to be submitted to the jury that the prisoner by his answer to them, whether given by word or conduct, acknowledged the truth of the whole or part of them. If there be no such evidence, then the contents of the statement should be excluded; if there be such evidence, then they should be admitted, and the question whether the prisoner's answer, by words or conduct, did or did not in fact amount to an acknowledgment of them left to the jury.”

The Court formulated a direction to be given to a jury in like circumstances: Norton (at 500 - 501).

298 The course proposed in Norton was approved by the House of Lords in R v Christie [1914] AC 545 “as a prudent rule of practice for the protection of accused persons”: Woon v R [1964] HCA 23; (1964) 109 CLR 529 (at 538 – 539) per Taylor J. It was no doubt that rule to which Gibbs J was referring in Straker.

299 In Woon, Windeyer J explained (at 541):

“A question asked of a person accused or suspected of a crime, or a statement made in his presence, is admissible if he is invited to, or might reasonably be expected to, respond in some way indicative of denial or of acceptance. It is not that what is said to the accused can of itself be evidence against him. But his response or reaction may be; and that is why what is said to him is admitted. His words, silence or conduct may amount to an admission of the truth of what was said.” (emphasis added)

300 These cases demonstrate the necessity to exercise care in drawing conclusions from negative answers to questioning. Of course the respondent does not assert that the appellant’s denials that he had been to Afghanistan were admissions he had been there. Nevertheless it invites the Court to conclude that his denials were positive assertions which amounted to “claims”.

301 When one returns to the Pakistan interviews, it can be seen that the relevant “claims” are said to be found in the following statements:

“Did you go to Afghanistan – no.” (First Pakistan interview)

“‘[H]ave you been to Afghanistan during this current trip away from Australia?’ No. Question restated – so you didn’t go over to Afghanistan from Pakistan – perhaps from Quetta? No. Habib then launched into a series of questions and statements about why would this be a problem. Many people go to Afghanistan – why am I in trouble [portion blacked out] responded that the actions of other people are not the issue, what matters is your travel, activities and contacts. Habib was then asked whether he had ever been to Afghanistan, perhaps during one a previous visits to Pakistan [sic, as in original]. Same answer – No.” (Second Pakistan interview)

“16. After expressing my dissatisfaction with his answers, I said I would like to move back to talk about events before his 26 September call to his wife. I then said to Habib in a calm, matter of fact manner - 'I know you made a call to his wife from Kabul in Afghanistan on 11 September' - 'you called your wife on 11 September for Kabul in Afghanistan’. 'Do you remember?'...

...

18. ... So, 11 September, Kabul - your call to your wife - tell me about this call'. 'What were you doing in Kabul? - who did you see? - tell me about the circumstances of this call’. Habib remained silent.

19. ... 11 September - you were there, I want to know why you were there, what you were doing, who you were with'. Habib responded - 'I don't understand'. 'I was not in Kabul, I rang my wife several times, I don't understand'. Habib then turned the conversation away. 'You say I have been to a training camp - you keep trying to get me to say I went to a training camp'. I cut him off and responded- 'I asked you about training camps – I said that people in the community have said that you have told them you have been to Afghanistan and attended training camps'. 'I want you to tell me the truth'. 'I just want you to be honest, to tell me in detail about where you have been, what you have done and who you were with; without all the other stories'. 'A very simple question which you can answer very easily'. '11 September, Kabul - why were you there, what were you doing, who were you with?' Again a long silence, then as the question was repeated he denied he was in Kabul. 'I can't remember where I was when I called my wife'. Then he equivocated. 'Maybe I was in Kabul, maybe not. The point was put to him again, by me and then by [portion blacked out]. 'We know you were in Kabul on 11 September'. 'This is fact – you know it and so do we!' 'What we want to know is why you were there, what you were doing and who you were with'. Another long pause...” (Third Pakistan interview)

302 In our view these passages (as well as the circumstances in which the appellant was answering the questions set out earlier) demonstrate that the appellant was not making a “claim” in the sense in which the imputation should be understood in the context of the matter complained of. He was not in a position where he could freely answer questions. He was not making public statements. Rather, he was being interrogated by Australians officials in circumstances where he had been detained without charge for some weeks, at the very least beaten by his captors and, despite his pleas to those officials for assistance in being released, offered no succour.

303 This conclusion flows through to the Dateline interview to the extent that the respondent seeks to contend that the appellant’s statement in that interview was a “claim” that he had not been to Afghanistan. What the appellant did in the relevant part of the Dateline interview was, in substance, to repeat the negative answer he had given to his interrogators in Pakistan about whether or not he had been to Afghanistan. It did not constitute a separate claim. This is an additional basis for rejecting the third ground in the notice of contention.

304 Insofar as the second ground in the notice of contention appeared to assert that the appellant’s submissions that the denials did not constitute claims had not been raised at trial, that assertion is not borne out by the transcript of the hearing. Insofar as that claim relates to matters the respondent contends the appellant ought to have done prior to the hearing, it is dealt with below.

305 Finally, in our view, in order to establish the substantial truth of the imputation the respondent had to establish that the appellant had made more than one false claim. In other words, it was not sufficient, for example, that he made the same false claim more than once in one interview or in a series of interviews which were substantially connected.

The notice of contention – abuse of process point

306 In our view the second paragraph of the respondent’s notice of contention is misconceived. Nothing in s 56 of the Civil Procedure Act made it incumbent on the appellant to initiate a strike out application in regard to aspects of the respondent’s defence. There having been no reply by the appellant to the defence, there was an implied joinder of issue which operated as a denial of every allegation of fact made in the defence: Uniform Civil Procedure Rules 2005 (NSW) 14.27. The respondent’s assertion, variously particularised, that the appellant had made false claims was an allegation of fact that was open to the appellant to resist on all bases, including that it did not meet the appellant’s case.

The second claim: the 60 Minutes interview

307 The issue concerning the 60 Minutes interview is relatively straightforward: whether the appellant made false claims in relation to his support of Sheikh Omar Abdul Rahman. In our view the primary judge did not err in concluding that the respondent established the substantial truth of this allegation.

308 We have set out the passage from the 60 Minutes interview in which the appellant was interviewed about the Sheikh. It is clear that the interviewer was putting to the appellant that his action in supporting the Sheikh amounted to condoning the Sheikh’s terrorist acts. The appellant sought to resist that proposition by asserting that he “didn’t support anybody for what he did”, but only “for his sickness” and “I support this man for his sickness and his illness. I have nothing to do what he did”.

309 The evidence the primary judge set out (at [129] – [132]) constituted cogent proof that the appellant had previously supported the Sheikh who, as the primary judge found, he “believed ... was innocent of the crime of which he had been convicted” and in which respect he “took active steps to support the Sheik and seek his release”.

310 We would reject the tenth and eleventh grounds of appeal.

The fourth claim: the subsequent publication issue

311 The fourth claim turned on what the appellant said during the Amnesty International interview in March 2006.

312 The appellant’s first complaint about the fourth claim is that the Amnesty International interview did not take place within a reasonable time after publication and could not, therefore, be taken into account on the issue of substantial truth.

313 The general rule is that an imputation must be justified by reference to the facts in existence at the time of publication. However the general rule may be departed from in circumstances where an imputation amounts to a general charge against the character of the plaintiff: P Milmo and W V H Rogers, Gatley on Libel and Slander, 11^th ed (2008) Sweet & Maxwell (“Gatley”) (at [11.8]); see also Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735 (at 737) per Hunt J; John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 (at [9]) per Spigelman CJ; (at [79]) per Hodgson JA.

314 The permissible grounds for departure from the general rule to which Gatley refers were established in two cases involving Mr Maisel. He sued the Financial Times for defamation, alleging that an article it published setting out the circumstances of his arrest on a charge of fraud conveyed the imputation that “he was a man of dishonest character and unfit to be a director”. The newspaper sought to justify the imputation by relying on dishonest acts other than those referred to in the article. The plaintiff moved to strike out those particulars of the justification defence arguing that the defendant could not justify the defamation by matters not referred to in the article. The House of Lords rejected that argument, saying that where a plaintiff pleaded that the defendant published an imputation alleging “general dishonesty”, the defendant was entitled to give particulars demonstrating why that was true and were not confined to the facts in the article: Maisel v Financial Times Ltd (No 1) (1915) 112 LT 953 (at 955). That case established the entitlement of the respondent in this case (which the appellant did not dispute) to plead substantial truth in respect of a wide variety of matters, none of which, as earlier observed, sought directly to justify the principal sting of the matter complained of.

315 After the House of Lords’ decision, further pleadings were then exchanged in Mr Maisel’s action. The plaintiff amended his imputations to include one asserting that “his character and reputation were such that he was likely to have misappropriated funds of companies with which he was connected”. The defendant filed an amended defence pleading justification and relied in its particulars on events which had taken place after the date of publication of the matter complained of. The plaintiff sought to strike out the particulars of post-publication facts. He was unsuccessful: Maisel v Financial Times Ltd [1915] 3 KB 336. Lord Cozens-Hardy MR said (at 339 - 340):

“In a general allegation by way of justification of general character and general tendency, which are the only words I can think of at the moment as the meaning of the word ‘likely’, I do not see how you can exclude events which happen, I will not say years later, but within a reasonable time from the date of the publications. I instance a case which seems to me to be rather analogous; an allegation that the plaintiff was addicted to drink and would get drunk if he could. Could you exclude evidence that the day after publication of that libel he had been found suffering from delirium tremens? It seems to me you could not in answer to a general allegation of what the man was likely to have done if he could.” (emphasis added)

316 Pickford LJ said (at 340) that there could be no direct answer to the question whether particulars of justification alleging facts which occurred after the libel could be allowed. In his view, it depended on the nature of the libel and on the nature of the acts. Dealing with the case in hand, he said (at 341):

“...the innuendo of the plaintiff ... alleges that this libel has three meanings ...: that he was of a character and reputation such that he was likely to have misappropriated; that he would have misappropriated if he had had the opportunity and that he was an unfit person to be a director - the third one I have left out. That being the meaning as alleged and the defence of justification which is set up, it seems to me that it is impossible to exclude, by one general proposition, any particulars of acts that took place after the libel. The allegation is that he was of a character to misappropriate funds and that he would misappropriate funds if he got the chance. It seems to me that it cannot be irrelevant to show that very shortly after the libel, as soon as he did get the chance, he did misappropriate.” (emphasis added)

317 Pickford LJ eschewed (at 342) the proposition that the defendant could pray in aid “a series of acts extending over the plaintiff’s life”, confining his reasons to conduct which occurred “a short time after the libel”. In his view, issues of remoteness (and therefore inadmissibility) might occur in relation to acts done “so long after the libel that it would have no relevance at all having regard to the time of the libel”. He concluded that the acts the defendant pleaded were not in that category because they commenced a month after publication and continued systematically for another three months.

318 In Hansen v The Border Morning Mail Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 July 1988, unreported) Hunt J described Pickford LJ’s statement in Maisel (at 340) as “eminently good sound common sense.” His Honour also disapproved of the Full Court of South Australia decision in Winterbottom v Vardon & Sons [1920] SALR 357, that Maisel was only applicable where the imputation to be justified related to the plaintiff's likely future conduct.

319 In Assaf v Skalkos (Supreme Court of New South Wales, Levine J, 15 December 1997, unreported) Levine J referred with approval to Hunt J’s decision in Hansen. His Honour also said that “[t]here must be a qualitative proximity [between the defendant’s particulars of truth and] ... the charge laid in the imputation and the particulars must be of matters that have a temporal proximity”. He added that, “[t]he post publication act, if not qualitatively proximate to the charge in the imputation, will not be relevant to justification either as a substantive defence ...[and a] post publication act, qualitatively proximate, but distant in time may be more problematical.”

320 In State of New South Wales v Deren [1999] NSWCA 22; (1999) Aust Torts Reports ¶81-502 (at [95]), dealing with the use of post-publication material for the purposes of a truth defence, Priestley JA observed (at [94]) that little authority existed on the requisite element of temporal proximity because that issue inevitably involved factual assessments. He described (at [95]) Pickford LJ’s statement in Maisel (at 342) set out above as the “best statement of the ‘rule’ ”, but reformulated it in “terms more familiar in regard to jury questions in New South Wales” as follows (at [96]):

“[I]t is open to a judge to rule that evidence of an act or acts by a plaintiff could not rationally enable a conclusion of fact to be drawn and therefore should not as a matter of law be allowed to go before a jury considering that issue of fact when the time between the act or acts the defendant wished to rely on and the defamation was such that there was no relation between that act or acts and the imputation the defendant was seeking to justify.”

321 Raul Amon International Pty Ltd v Telstra Corp Ltd [1998] 4 VR 798 is an illustration of a case where the post-publication facts were said, in substance, to be too remote to be relied upon in a justification defence. The plaintiff alleged that Telstra had held out his company in late 1993 as selling or willing to sell products or services of a sexually explicit nature. Telstra sought to justify that imputation by establishing that the company had been selling such material in early 1995. Charles JA (with whom Ormiston JA agreed) said (at 810) “that, upon the principle stated in Maisel, it would be neither relevant nor admissible to prove ... that the company's Northcote premises were offering R-rated videos in March to May 1995”.

322 The question whether an imputation amounts to a general charge against the character of a plaintiff is one to be approached with care. Many, if not all, defamatory imputations will cast some adverse light on a plaintiff’s character. If too ready a conclusion was drawn that an imputation fell into the Maisel category, then the court might unduly open up avenues for defences of justification and contextual truth which would otherwise be barred to a defendant – and prolong the hearing of defamation cases.

323 We have already set out the two imputations which were held in Maisel to constitute a general charge against the character of the plaintiff. It is helpful to examine other cases in which a similar conclusion has been reached to assess the competing submissions on the subsequent publication issue.

324 In Hansen Hunt J described a contextual imputation that “[t]he plaintiff is a person who is likely to use threats and violence in the course of his business as a drug dealer” as one which related to the plaintiff's general character and general tendency as at the date of publication. Accordingly the defendant could seek to justify it by proving actions of the plaintiff which took place within a reasonable period thereafter because such actions would “normally be logically probative of that general character and tendency”.

325 In Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) A Def R 50-080 Hunt J held (at 40,593) that imputations that Mr Deren “engaged in the sexual abuse of young children” and that he “sexually abused young children” were expressed in very general terms and (at 40,598), that in accordance with Maisel, the defendant in a defamation action would be entitled to lead evidence of sexual abuse by Mr Deren upon occasions other than those referred to in the matter complained of. It is consistent with that ruling that the defendant would have been entitled to justify those imputations by proving actions of the plaintiff which took place within a reasonable period after the broadcast.

326 In Deren, dealing with the question whether the defendant’s contextual imputation was a “charge ... of general bad conduct”, Priestley JA approved (at [92]) a statement in P Milmo and W V H Rogers, Gatley on Libel and Slander, 9^th ed, (1998) Sweet & Maxwell (at [11.9]) that “... each case depends very much on its own facts because the question whether a particular charge of wrongdoing carries a general charge may depend on the context in which the words are used...”. The 9^th edition of Gatley cited Bookbinder v Tebbit [1989] 1 WLR 640 (at 647) per Ralph Gibson LJ as authority for this proposition. The 11^th edition (at 11.11, footnote 103) now cites Deren.

327 The 11^th edition of Gatley (at 11.11) also now adds to the proposition Priestley JA approved, that the question may also turn on “the gravity of the misconduct imputed in the particular charge”, referring to Nationwide News Pty Ltd v Warton [2002] NSWCA 377. In that case, in the course of dealing with the defendant’s submission that “as a general proposition a publication which talks about a specific incident is incapable of supporting an imputation of general application” (and rejecting the defendant’s submission that a jury verdict that the matter complained of conveyed the imputation that “[t]he plaintiff is dishonest” was perverse), Heydon JA (with whom Handley and Hodgson JJA agreed) said (at [61]):

“61 The article does not suggest that the plaintiff’s act is other than an isolated act of dishonesty, but it does suggest that it is a most serious act of dishonesty. It involved gambling with one man’s health (that of Chavez), exploiting another man’s reputation (that of Tszyu), doing it only for money, doing it in a way which was attracting great criticism in America, both among the public and the authorities which regulate boxing, and doing it in a manner justifying the arrest of the plaintiff. While a person can do a dishonest thing without being thought a dishonest person, some things are so dishonest that one can infer that only a dishonest person would do them. The activities attributed to the plaintiff in the article are so extensive, serious and risky that it is open to ordinary reasonable readers to infer that only a dishonest person would have done them.”

328 Finally we would note that in John Fairfax Publications Pty Limited v Jones, both Hodgson JA (at [59]) and Ipp JA (at [107]) were of the view that an imputation, in substance that the plaintiff was a dishonest broadcaster in that he did a particular act, “carrie[d] with it the meaning that the act was indicative of his character as being that of a dishonest broadcaster, and could not be considered as merely an isolated dishonest act proceeding ‘out of character’ from someone who was otherwise an honest broadcaster.”

329 The imputation was conveyed in the context of a most serious article: one which imputed that the plaintiff had knowingly made false claims to the Australian public when appearing on a well-known current affairs programme, 60 Minutes. It sought to denigrate his “claims” of torture by asserting the making of such claims was a tactic suggested to “students of terrorism...should they ever be captured”. It attributed to a Liberal Member of Parliament, Mr Warren Entsch, the statement that “...the torture allegations had had not been proven and some of Mr Habib's claims had already been shown to be false" and quoted him as saying:

“I really have a lot of issue [sic, as in original] in relation to Habib’s credibility. In my view he has not displayed what I consider to be the signs of a reasonable or good Australian citizen...I think Mr Habib’s got a hell of a lot more that he’s got to be able to reveal before ... he’s going to have any level of credibility.”

330 The matter complained of also quoted then Premier of New South Wales, the Hon Bob Carr MP, as being unimpressed with the appellant’s “case”, and his statement that “[a]nyone who is off running with terrorists in Afghanistan has a lot of explaining to do.” It then stated:

“Nine and the ABC don’t have any such doubts, however, and rather than the word of Australian government officials prefer to accept unsubstantiated claims made by a fundraiser for international terrorists, a would-be recruiter of fighters for the jihad and a man who refuses to answer questions about his presence on the Afghanistan-Pakistan border.”

331 Thus the matter complained of imputed that the appellant was prepared to make false claims in the context of very serious allegations asserting that he was, at the very least, a reader of a student manual on terrorism, as well as a person who had undertaken the acts referred to in the last-quoted paragraphs. [We appreciate that the jury appears to have found imputations closely modelled on the penultimate proposition in the quoted paragraph were not conveyed, but that does not preclude the Court from sensibly considering the context in which the imputation was found.]

332 In our view, in the context of the matter complained of, the imputation conveyed that the appellant was a person who was given to making “some false claims” knowingly – thus imputing a propensity to him, indicative of his character generally – rather than being confined to any specific incident.

333 In those circumstances Maisel applied and it was open to the respondent to seek to justify the imputation by reference to post-publication conduct as long as there was a sufficient temporal proximity between publication and the post- publication act sought to be relied on.

334 The Amnesty International interview was not, in our view, too remote from the publication of the imputation. The part of that interview on which the respondent relied was not, in fact, a new “claim” (assuming for present purposes it was a “claim”). Rather, it was a statement in which the appellant repeated to the interviewer what he asserted he had said when interviewed in Pakistan concerning whether or not he had been in Egypt since being in Australia. Thus the statement had been made on a previous occasion, and was a fact which existed at the time of publication of the matter complained of. Further, it clearly had a qualitative proximity to the sting of the imputation and, if it matters, was rationally connected to the matter complained of as it concerned what the appellant asserted had taken place while he was in detention.

335 Accordingly we would reject the seventh ground of appeal and that part of the fourteenth ground which raises the subsequent publication complaint.

The fourth claim: characterising the statement in the Amnesty International interview

336 The next question is whether the statement in the Amnesty International interview was a “claim” that the appellant had not been in Egypt since he came to Australia.

337 It is appropriate at this stage to refer to the standard of proof the respondent had to attain to make good its assertion that the appellant had made false claims.

338 Section 140(1) of the Evidence Act requires the Court to find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. However s 140(2) preserves the doctrine in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (at 361–362): Westpac Banking Corporation v Ollis [2007] NSWSC 956 (at [15]) per Einstein J (appeal dismissed: Shields v Westpac Banking Corporation [2008] NSWCA 268 (at [6]) per Hodgson JA, Spigelman CJ and Macfarlan JA agreeing)).

339 In Watson v Foxman (1995) 49 NSWLR 315 (at 318 – 319), McLelland CJ in Eq said:

“Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as ‘misleading’) within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. (emphasis added)

340 The necessity that there be “clear or cogent or strict proof...where so serious a matter as fraud is to be found” was also referred to in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170. The joint judgment (Mason CJ, Brennan, Deane and Gaudron JJ at 449–450) explained that while the ordinary standard of proof in civil litigation of proof on the balance of probabilities remained even where the matter to be proved involved criminal conduct or fraud, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.

341 The appellant gave the following evidence when cross-examined about the fourth claim:

“Q. Do you accept that when you were at the interview with Katie Wood you were telling her the truth, that is, that back in Islamabad in that room, the one with the Americans there and the man you call Alistair Adams, you had said those words; that was the truth, wasn’t it?

A. What words?

Q. ‘I have never been in Egypt since I come in Australia’?

A. I mean I never been in Egypt with – without visa.

Q. There is a word ‘in’ at the end which is either ‘in’ or ‘to’. You said earlier ‘I have never been in Egypt since I come in Australia’. The transcript says ‘in’?

A. In Egypt without visa, that’s what I might mean.

...

Q. So that the statement you made to Katie Wood that you have never been in Egypt since you came to Australia was simply false, wasn’t it?

A. No.

Q. You knew it was false, didn’t you?

A. No.

...

Q. Then when you were talking to Katie Wood, two sentences later, you said, ‘I have nothing to do with Egypt’?

A. It is true. I am saying now I have nothing to do with Egypt. I hate it.

Q. And you said, one sentence after the words in question, you said ‘I have not hold any citizen Egyptian anymore since I been in Australia’?

A. Definitely true.

Q. And the third concept was the first one, ‘I have never been in Egypt since I come in Australia’?

A. Yeah, as Egyptian citizen or with Egyptian passport, but I never be renewed as citizen. I never been applied to citizen as Egyptian. I never applied. I never renew my Egyptian passport, nothing to do with Egypt.

Q. You said to Katie Wood that you said it, correct?

A. Yes.

Q. And it was true, that’s what you said back in Islamabad back in 01?

A. I mean, I never been in Egypt with visa, without visa, Australian visa. I have never been in Egypt without Australian passport. I never been in Egypt with Egyptian passport.

Q. The words you told her were ‘I have never been in Egypt since I come in Australia’?

A. That’s what I just explained to you. That is what I mean.

...

Q. You agree you were in effect making a claim to her that you had never been in Egypt since you came to Australia?

A. With no Australian visa.”

342 While the strength of the fourth claim should be finally determined on the basis of what was said during the interview, in our view this passage of cross-examination lends support to the proposition that the appellant was not saying in that interview that he had never been to Egypt since emigrating.

343 In our view the appellant’s statement in the Amnesty International interview could not be construed as an unequivocal statement that he had not physically been in Egypt since he migrated to Australia. In context it is equally capable of the meaning for which Mr Smark contended, namely, that the appellant was seeking to disassociate himself from being an Egyptian citizen and emphasising that he was an Australian citizen who should not, as the man he believed was Mr Adams had threatened, be sent to Egypt.

344 Accordingly the respondent did not establish the substantial truth of the fourth claim.

345 The thirteenth and fourteenth grounds of appeal should be upheld.

CONCLUSIONS

346 In our view the respondent has failed to establish the substantial truth of the first, third and fourth claims. Having only established the substantial truth of the second claim it did not establish that the appellant made more than one false claim. Contrary to the respondent’s submission that is not sufficient to establish the substantial truth of the imputation which speaks of “claims” – in the plural.

347 The primary judge did not assess damages in the event he was wrong. The appellant’s invitation in its grounds of appeal that this Court should do so was not, we think, seriously advanced. It was not supported by any written submissions.

348 In our view the matter should be remitted to the Common Law Division for damages to be assessed.

Orders

349 We make the following orders:

1. Appeal allowed with costs.

2. Set aside the judgment and orders of McClellan CJ at CL made on 7 March 2008.

3. In lieu thereof, judgment for the appellant.

4. Respondent to pay the appellant’s costs of the trial to date.

5. Remit the matter to the Common Law Division for the assessment of damages.

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Schedule A

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LAST UPDATED:
16 March 2010