Habib v Nationwide News Pty Ltd - [2010] NSWCA 34

No judgment structure available for this case.

Reported Decision: 76 NSWLR 299

New South Wales

Court of Appeal

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

HEARING DATE(S): 22 May 2009

JUDGMENT DATE:
16 March 2010

JUDGMENT OF: Hodgson JA at 1; Tobias JA at 1; McColl JA at 1

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.

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) 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) 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

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

FILE NUMBER(S): CA 40166 of 2008

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

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

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:

(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

R v Heffernan; R v Peters

R v GH

Tofilau v R; Marks v R; Hill v R; Clarke v R

R v JF

Colosimo v Director of Public Prosecutions (NSW)

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

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

Greek Herald v Nikolopoulos

John Fairfax Publications Pty Ltd v O’Shane

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

R v Christie

Woon v R

Barca v The Queen

Straker v The Queen

Graham v R

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]).

(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

Anderson v Mirror Newspapers Ltd (No 2)

John Fairfax Publications Pty Ltd v Jones

Attorney-General (NSW) v TCN Channel Nine Pty Ltd

Nationwide News Pty Ltd v Warton

Gatley on Libel and Slander,

^th

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

^th

(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]).

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

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.

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

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”)

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 ActCompilation 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

(b) a threat of conduct of that kind.

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:

(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:

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

(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:

(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.

(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.

International Covenant on Civil and Political Rights

Human Rights and Equal Opportunity Commission Act

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

(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.

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:

(b) any other question arising under this Act,

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

(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:

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.’

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:

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.’

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?’

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.’

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:

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:

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 … .’

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:

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:

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.”

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:

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.”

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)

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:

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.”

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]):

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:

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.’

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.’

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.’

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]).

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):

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.

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):

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

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:

Trade Practices Act

Fair Trading Act

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.

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:

…

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:

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

Citations

Habib v Nationwide News Pty Ltd [2010] NSWCA 34

Most Recent Citation

Cases Citing This Decision

33

Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228

Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335

Habib v Nationwide News Pty Ltd (No 2) [2010] NSWCA 291

Cases Cited

57

Statutory Material Cited

16

R v Douglas [2000] NSWCCA 275

David Harold Eastman v The Honourable Jeffrey Allan Miles [2006] ACTSC 57

State of New South Wales v Deren [1999] NSWCA 22

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CITATION:	Habib v Nationwide News Pty Ltd [2010] NSWCA 34
HEARING DATE(S):	22 May 2009
JUDGMENT DATE:	16 March 2010
JUDGMENT OF:	Hodgson JA at 1; Tobias JA at 1; McColl JA at 1
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.
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) 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) 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
PARTIES:	Mamdouh Habib - Appellant Nationwide News Pty Ltd - Respondent
FILE NUMBER(S):	CA 40166 of 2008
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
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