Habib v Nationwide News Pty Ltd

[2008] NSWSC 181

CITATION:	Habib v Nationwide News Pty Limited [2008] NSWSC 181 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	26 November - 14 December 2007
JUDGMENT DATE :	7 March 2008
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
DECISION:	1. Judgment and verdict for the defendant. 2. The plaintiff is to pay the defendant's costs.
CATCHWORDS:	DEFAMATION - imputation that plaintiff knowingly made false claims - meaning of the imputation - defence of substantial truth and public interest - plaintiff detained in Pakistan, Egypt and Guantanamo Bay - allegations of mistreatment during detention - plaintiff interviewed by officials whilst in detention - conflicting statements made by plaintiff duirng interviews in Australia - creditability of the plaintiff - EVIDENCE - admissibility - whether admissions influenced by violence or other conduct - whether fear of punishment for wrongdoing relevant conduct - whether evidence improperly obtained - whether circumstances of plaintiff's incarceration or expectation of release influenced plaintiff to make admissions - whether plaintiff a "protected suspect" for purposes of s 23F Crimes Act 1914 (Cth)
LEGISLATION CITED:	Defamation Act 1974 Evidence Act Crimes Act 1914 (Cth) Civil Wrongs Act 2002 (ACT) Criminal Code Act 1913 (WA) Defamation Act 1889 (Qld) Defamation Act 1957 (Tas)
CATEGORY:	Principal judgment
CASES CITED:	Greek Herald v Nikolopoulos (2002) 54 NSWLR 165 John Fairfax Publications Pty Ltd v O’Shane (2005) NSWCA 164 Singleton v Ffrench (1986) 5 NSWLR 425.
TEXTS CITED:	International Covenant on Civil and Political Rights
PARTIES:	Mamdouh Habib (Plaintiff) Nationwide News (Defendant)
FILE NUMBER(S):	SC 20048/2005
COUNSEL:	C Evatt/W B Nicholson/R Rasmassen (Plaintiff) A Leopold SC/T Maltz (Defendant)
SOLICITORS:	Peter Erman (Plaintiff) Blake Dawson Waldron (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

McCLELLAN CJ at CL

FRIDAY 7 MARCH 2008

20048/05 HABIB v NATIONWIDE NEWS PTY LIMITED

JUDGMENT

1 McCLELLAN CJ at CL: Mamdouh Habib (“the plaintiff”) sues Nationwide News Pty Ltd (“the defendant”) for defamation following the publication of an article written by Mr Piers Akerman and published in The Daily Telegraph newspaper on 15 February 2005. A copy of the complete article, with the paragraphs numbered for ease of reference, is Annexure A to these reasons.

2 In 2001 Mr Habib was arrested in Pakistan. He was subsequently detained in Egypt and later in Guantanamo Bay, Cuba. Prior to the publication of the article written by Mr Akerman, Mr Habib had given interviews to the press and other media organisations. His incarceration had attracted significant interest from the media, both in Australia and elsewhere.

3 Although the plaintiff pleaded that a number of imputations defamatory of him were to be found in the newspaper article, a jury found that only one was made out, being that:

“The plaintiff knowingly made some false claims.”

4 The hearing before me was concerned with the defence of truth pleaded by the defendant and, if the plaintiff succeeded on that issue, the quantum of any award of damages. However, the first question which arises is the meaning of the imputation. The problem is whether the “false claims” referred to in the pleaded imputation should be confined to claims that the plaintiff was “tortured” or given a wider meaning. Before considering the defence it is also necessary to consider the admissibility of the record of certain interviews with Mr Habib, which the defendant claims contain relevant admissions. The interviews were with Australian Government officials when Mr Habib was detained, firstly in Pakistan, and later at Guantanamo Bay.

The meaning of the imputation

5 The meaning of a pleaded imputation is a matter to be determined by the court: Singleton v Ffrench (1986) 5 NSWLR 425. When determining the meaning it is important to consider the imputation in the context of the material by which the imputation was conveyed: Greek Herald v Nikolopoulos (2002) 54 NSWLR 165 at [19]-[23]; John Fairfax Publications Pty Ltd v O’Shane (2005) NSWCA 164.

6 The article contains six references to “claims”. Paragraph 8 includes the statement that “the torture claims were perhaps the most powerful”. The reference to “torture claims” being the “most powerful” makes it apparent that the author is referring in that paragraph to claims made by the plaintiff beyond claims that he was tortured. The second reference to “claims” is in paragraph 9, which I understand to be confined to the claim by the plaintiff that he had been tortured.

7 The third reference is in paragraph 14. On this occasion, although there is a reference to the plaintiff allegedly being tortured, the critical element in the paragraph is the “claim” that an Australian official watched him being tortured. The reference to “claims” in paragraph 15 is confined to claims relating to torture. However, the reference in paragraph 17 is not so confined. When read with paragraphs 16 and 18, which contain a reference to Mr Warren Entsch questioning Mr Habib’s credibility generally, the reference to “claims” in paragraph 17 must be understood as a reference to claims extending beyond allegations of torture.

8 The final reference to “claims” is in paragraph 23. That paragraph follows a reference to the remarks of the former Premier of New South Wales, Mr Carr, who apparently made a general attack on Mr Habib and expressed the view that Mr Habib “has a lot of explaining to do”. To my mind the reference to claims in paragraph 23 extends beyond claims by Mr Habib that he had been tortured.

9 It is relevant that the statement of claim pleaded a number of other imputations, all of which were considered by the jury. Amongst the imputations which were rejected, the jury rejected the imputation pleaded in the following terms:

“The plaintiff lied when he said he was tortured and humiliated.”

10 Plainly that imputation is confined to “torture and humiliation” and makes no assertion of any false claim by the plaintiff beyond these matters. As that imputation was rejected by the jury the imputation which the jury accepted must have a wider meaning. As I have indicated in my view the wider meaning is available. A reading of the transcript confirms that this was the meaning attributed to the imputation by the plaintiff’s counsel when he addressed the jury at the hearing pursuant to s 7A of the Defamation Act 1974.

The overseas interviews

11 Mr Habib was born in Egypt and migrated to Australia. In this country he set up a business involving cleaning and security. A major client was the Department of Defence. His contract with the Department was terminated in circumstances which Mr Habib believes were a breach of contract by the Department. There was litigation with the Department in which Mr Habib failed.

12 The evidence indicates that Mr Habib was significantly affected by these events and decided to seek to relocate his family to a Muslim country. Amongst other efforts he wrote letters to Colonel Gaddafi and Saddam Hussein seeking their assistance for his relocation and asking for support by a grant of money to set up a business in their country. He did not receive a reply to this correspondence. There is significant evidence that Mr Habib holds strong views in favour of greater Islamic influence in the world.

13 Before Mr Habib was detained in Pakistan he travelled overseas from Australia on a number of occasions. He explained these visits as part of his efforts to find a suitable Muslim country in which to re-establish his family. Although I have formed an adverse view of Mr Habib’s credit and the veracity of many answers he has given in relation to the issues in these proceedings, I am in no doubt that he was genuine in his efforts to find another country in which to live after his business failed in Australia. However, this does not wholly explain his visits to Pakistan and Afghanistan.

14 Mr Habib was overseas in September 2001 and was detained by Pakistani authorities in October 2001. He was subsequently taken to Egypt and then to Afghanistan before being taken to Guantanamo Bay in Cuba. He was never charged with any offence and was released in January 2005.

15 Following his detention Mr Habib was interviewed in Pakistan in the presence of an Australian official. He was subsequently interviewed when he was in Guantanamo Bay. The defendant seeks to tender the record of those interviews to make good part of its defence. The plaintiff objected to the tender relying variously on s 84, s 135 and s 138 of the Evidence Act 1995. The issues are complex. It is convenient if I first relate the relevant events and make factual findings. The relevant evidence was given at a hearing on the voir dire.

Evidence relevant to admissibility of the interviews

16 Mr Habib said that he was travelling on a bus in Pakistan when he was arrested by Pakistani persons and taken to a “secret place”. He said that he had a memory of being interviewed on two occasions following his arrest.

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

“A: They tied up my body a bit higher. They put like concrete, like roller, wire in it. I have to be on the top of this roller and they have joins, batteries, car battery and they join the battery with wire and they keep contact it and I can’t stood up because as soon as I put my feet in the concrete I get shocked and I can’t hold myself up. That’s how it is.
Q: It, of course, was painful?
A: Well --
Q: Obviously. And how long did the electric shock last for? Was it minutes or seconds or what?
A: The first time they – I fainted for a few. I don’t know for how long. I don’t know.”

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

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

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

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

“Q: Had you been beaten at the time of or just prior to those interviews that you remember?
A: Before they take me to the place I’ve been beaten, I’d been electric shocking.
Q: Had you received any drugs prior to or at the time – sorry, just prior to the time you were interviewed?
A: Because I’d been fainted from the electric shock.
Q: I don’t know whether you’re answering the question or not. Had you been given drugs?
A: Yes.
Q: Prior to or just prior to the interviews?
A: Before and in the middle.
Q: So is your answer yes?
A: Yes.
Q: How was your mind when you were having these interviews?
A: I don’t know what I did talk about. I don’t know. Just what I see in the beginning I see American and I see this man and I was --
Q: Was your mind good or bad or what?
A: I wasn’t there. It was a crazy person in there. My attitude was crazy and I don’t know what I’d been doing.
Q: Did you know what you were saying?
A: No, but I believe I was angry from the electric shock.”

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

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

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

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

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

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

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

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

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

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

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

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

34 He was asked:

“What is a water board?”

35 He answered:

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

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

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

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

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

Conflicts with statements made during interviews in Australia

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

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

“Q: Was the answer to my question no, you did not mention?
A: I don’t remember – I don’t remember what happened in interview, to be honest. I remember I have interview, but when people – when ask me for interview, I try my best, I try to give, not distressing myself as well.

Q: Was your answer to my last question an attempt to cover up the fact that you didn’t mention drugs even once in Pakistan.
A: I am not trying to do anything.
Q: When I said ‘didn’t even mention once’, instead of saying no, ‘no, I didn’t,’ you just said ‘well, no, I’m not sure I mentioned everything about these things.’
A: I don’t have to mention all my torture to suffer in myself.
…
Q: Did you mention even once to her that you were forced to hang like a monkey while you were in Pakistan, at any stage of your time in Pakistan?
A: I mentioned about the torture. I don’t have to mention every single thing about the torture.
…
Q: Did you mention anything to her about electric shocks that occurred at any time while you were in Pakistan?
A: I don’t remember if she asked me about Pakistan or not. I don’t remember the interview exactly. I don’t remember what happened in the interview.
Q: You didn’t mention even once to Katie Wood anything about electric shocks being administered to you in either Pakistan or Guantanamo Bay, did you?
A: I believe in the beginning we tried to avoid – even the psychological tell me try to avoid talk about torture because I was very sick and I couldn’t sleep when I talk about it. When I got home I got very sick and very ill, and I believe … .”

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

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

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

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

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

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

The interview in Guantanamo Bay and events in Pakistan

47 Although the plaintiff denied that it occurred, I am satisfied he met with Australian officials in Guantanamo Bay. When interviewed he spoke of his captivity in Pakistan, Egypt and Afghanistan. An account of these events was recorded by the officials in their report to the Australian Government. It is as follows:

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

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

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

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

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

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

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

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

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

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

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

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

22 May 2002.”

Matters of credit and factual findings

48 I am satisfied that Mr Habib’s claims that he was seriously mistreated in the place of detention in Islamabad cannot be accepted. If it were true at least some elements of it would have been revealed in his interviews with Amnesty International or 60 Minutes. I can only conclude that this evidence was given in order to enhance his forensic position in the present litigation.

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

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

51 There were similar difficulties with the plaintiff’s evidence of his experiences in Guantanamo Bay. In particular his account that he was abused and beaten and tortured at Guantanamo Bay before he was interviewed by the Australian team is at odds with the representations contained in the record prepared by those officers for the Prime Minister. Mr Habib had only been in Guantanamo Bay for about 8 days before he was interviewed by the Australian officers. Because of his illness and recent arrival the American authorities had not commenced any program of interrogation of him at that point in time.

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

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

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

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

Questions of admissibility
(a) Islamabad interview

56 The plaintiff objected to the admission of evidence of the interviews relying on s 84 of the Evidence Act. That section is in the following terms:

“Exclusion of admissions influenced by violence and certain other conduct

(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:
(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or

(b) a threat of conduct of that kind.

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

57 The issue having been raised by the plaintiff, the defendant carries the onus of establishing that the admission and the making of the admission were not influenced by conduct of the identified kind.

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.

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

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

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

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

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

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

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

65 The plaintiff also relied on s 138. That section provides:

“(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,

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

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note. The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.”

66 The plaintiff did not suggest that the evidence obtained from the interviews in Islamabad was obtained in contravention of an Australian law. The plaintiff relied upon the same matters as were raised in relation to s 84 to found the alleged impropriety. For the reasons I have indicated in relation to s 84 this submission should be rejected. Accordingly, the question of the exercise of the discretion provided in s 138 does not arise.

67 Even if I was satisfied that the evidence had been obtained improperly, significant questions with respect to the discretion would have arisen. Of relevance would be the authority under Pakistani law pursuant to which Mr Habib was detained. This may be relevant to issues arising under Article 9 of the International Covenant on Civil and Political Rights. I was given no evidence as to relevant Pakistani law. It would also be relevant to the exercise of the discretion that the Australian officers gave evidence that during their presence the plaintiff was not mistreated and gave no signs of having been mistreated on other occasions. During the interview the plaintiff was offered and accepted, refreshments including coffee, tea and cigarettes. He was also offered his medication (Alprozolam). The meeting concluded with handshakes.

(b) Guantanamo Bay interview

68 Although he denied that it occurred, admissions in the record of the interview at Guantanamo Bay which are agreed by the parties to be relevant to the present proceedings are as follows:

a. Various admissions in relation to the involvement by the plaintiff in courses/training in Lahore;
b. Various admissions particularised by the defendant in relation to the involvement by the plaintiff in courses/training in Kabul;
c. Various admissions by the plaintiff in relation to a notebook in which he made notes relating to weapons;
d. The admission that the plaintiff met the two Germans in Afghanistan.

69 In relation to these matters counsel for the plaintiff submitted that s 84 and/or s 138 would operate to exclude the admissions by reason of the following matters:

a. the absence of a warning;
b. that the impression that “cooperate or else” had in effect been conveyed to the plaintiff, particularly by saying that he could only have a cigarette later;
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 .

70 As I have stated the plaintiff denied that he was present at the interview of 15 May 2002. However, I am completely satisfied that he was interviewed on that occasion. I am also satisfied that I can accept that the transcript is an accurate account of the interview. The basis of the submissions made on his behalf seeking rejection of the record of the interview are of course inconsistent with his stance that he was never interviewed.

71 Neither s 84 nor s 138 require a warning. Section 23F of the Crimes Act 1914 (Cth) requires that an investigating official need only caution a person if he is under arrest or a protected suspect. Although the plaintiff had been detained he had not been arrested by any Commonwealth officer. Mr Jabbour, who was a member of the Australian Federal Police had no power to arrest Mr Habib who, of course, at that point was outside Australia. Mr Jabbour gave evidence, which I accept, that the plaintiff was not a protected suspect. Mr Jabbour at no stage believed there was sufficient evidence to establish that the plaintiff had committed an offence.

72 The transcript of the interview makes plain that the plaintiff was told that he had no obligation to participate in it. The transcript does not reveal any reluctance in the plaintiff to participate and there is no suggestion that he was concerned that if he did not there would be any recriminations. My reading of it does not suggest he was told to “cooperate or else” even if the availability of cigarettes (Mr Habib was a “chain smoker”) was intended to make him more inclined to participate in the interview.

73 The transcript of the interview with Mr Habib contains the following exchange:

“Q: You are under no obligation to participate in this interview.
A: Yeah.
Q: Do you understand that?
A: What that mean?
Q: It means you don’t have if you don’t want to.
A: No I need.
Q: You want to talk about it?
A: I have nothing to – to hide.
Q: H’mm. By participating in this interview, you are not expected to be transferred back to Australia. Do you understand that?
A: I didn’t get it.
Q: By you undertaking this interview …
A: Yes.
Q: … you are not expected that the answer[s] you provide here will provide you the opportunity to go back to Australia.
A: Yeah, why not?
Q: Because I can’t make any assurances that that will occur. As I said to you earlier I am doing an assessment and I have got to ensure that you have committed an offence against Australian law (sic) but by merely you having this interview, cannot be seen by you to being a guarantee to going back to Australia. There’s a lot of steps to go along the way before you return to Australia. Do you understand that?
A: Why not let me return in Australia? What’s the reason?
Q: Sorry.
A: What reason? Am I …
Q: Because the US authorities believe that they have a serious stake in your activities. They believe you have committed offences against their legislation.
A: Mm.
Q: And they believe they have a responsibility to look after you or resolve the issues relating to you as well. So we have to – there has to be some negotiation between the Australian and the US authorities about what is going to happen to Mamdouh Habib. I can’t tell you – and it has not gone anywhere near close enough to be able to say what is going to occur to you at this stage, for me to give any assurances.
A: That’s mean if the America put me in jail. When I finish the jail, or whatever, I can go back to Australia?
Q: No it means that the – all it means in simple terms is that the Australian government and the United States authorities are in negotiation now to decide what to do with you. Do you understand that?
A: (no audible reply)
Q: Mamdouh, you are an Australian citizen.
A: Yes.
Q: You have an Australian passport. When the process is all complete, no matter what happens with that process, whether it takes one week or ten years, the issue of you having Australian citizenship and a passport – you are not in jail and you are a free man, you will be able to return to Australia.”

74 Although it is apparent from this exchange that Mr Habib, not unreasonably, was hopeful and indeed anxious to be released from Guantanamo Bay and to return to Australia, I do not conclude that he responded to the interviewer’s questions in the expectation that this may assist his release. It was made plain to him that, irrespective of the interview, which he was not obliged to participate in, his ultimate fate would be determined by negotiation between the American and Australian authorities. There was nothing which would have led him to conclude that by giving answers to the questions which now constitute the relevant admissions this may have assisted him to be released. The interviewing officer did not do anything which was improper. Furthermore, Mr Habib did not give any evidence in responding to the interview that he believed could influence his chances of returning to Australia. There was simply no connection between any discussion of these matters and his response to the questions.

75 The conditions under which Mr Habib was held in Guantanamo Bay were described in a memorandum distributed to the Prime Minister and other senior officials following the visit by the Australian government team between 13-17 May 2002. The team spent over 27 hours with 2 Australian detainees – David Hicks and the plaintiff. The report reveals that although the team was given unlimited access to the Australian detainees and had extensive discussions with US military officials, because it was not a consular visit, the team could not have access to the hospital or the Muslim chaplain and could not inspect the detainee’s cells.

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

77 The report said:

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

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

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

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

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

“We were forewarned by US officials that Mr Habib had been well when he arrived at Guantanamo but had fallen from his bunk and hit his head soon after arrival and had been hospitalised. As the base did not have CAT scan facilities, he had been kept under observation in hospital for some days until his discharge on 13 May. Given his history of mental problems, he had been prescribed Prozac and was getting sleeping tablets to help him sleep.
Our first interview with Mr Habib started early in the morning and it was possible that he was still suffering the effects of his medication. He was groggy and disorientated (for example he could not remember his home address) he had a pale, yellowish pallor. His face was slightly puffy and he had heavy dark bags under his eyes. The team detected signs of faint bruising on the side of his head and he confirmed that he had been having fainting spells and had fallen and knocked his head. He said bandages on his head had been removed that morning. Mr Hicks told us separately that US officials had shown him a video-cam shot of Mr Habib one week earlier and that Mr Habib appeared to have been lying on a bed with a bruised face (Mr Hicks is not aware that Habib has been brought to Guantanamo) Mr Habib was very subdued and quietly spoken at first but seemed to understand what was said. Compared to earlier photographs of him, he appeared to have lost a little weight but was still well nourished. He was well groomed and clean.
Mr Habib said he had been very ill for seven months that he had been in detention before his arrival in Guantanamo and had suffered serious mistreatment at the hands of his captors. He said he had suffered broken ribs and toes, bleeding from his penis and serious memory loss.
As a result, Mr Habib said he was now in very poor health. By the team’s observation, Mr Habib had some swelling of the feet but his toes showed no sign of having been broken recently. He moved his upper body reasonably freely but it was not possible to make an assessment about broken ribs.”

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

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

83 Even if I was satisfied for the purpose of s 138 that the admissions were obtained by some impropriety, questions of discretion would again arise. The evidence is highly probative of some of the issues which must be determined in these proceedings. I was given no evidence as to the justification for Mr Habib’s detention. Difficult questions as to whether or not his detention was governed by Cuban law or the law of the United States may arise. Although not fully argued it would seem that a breach of Article 9 of the International Covenant on Civil and Political Rights occurred. However, in the absence of a finding of relevant impropriety these questions need not be determined.

84 It follows that in my view the admissions contained in the interviews both in Islamabad and Guantanamo Bay are admissible in these proceedings.

85 Although s 135 was referred to, no submission was made that it could sustain rejection of the evidence containing the admission. There was no suggestion that the probative value of the evidence could be outweighed by any of the matters raised by s 135.

The defence

86 The defendant pleaded truth alleging that on many occasions the plaintiff knowingly made false claims. The defence was repleaded on more than one occasion. Ultimately there were seven occasions on which it was alleged that the plaintiff made false claims. The defence carries the onus of proving the allegations. It is convenient to consider each of the allegations in the order in which they were pleaded.

Paragraph 21.1
The plaintiff knowingly made false claims that he was tortured in the presence of Alastair Adams

87 This allegation arises from the interview which the plaintiff gave to Tara Brown of 60 Minutes in early February 2005. In the course of that interview Mr Habib said that when he was detained in Pakistan an Australian official, whom he believed to be the Australian Consul, came to see him. He said that the Australian Consul came to see him twice but did not interrogate him. He said that the consul told him that he could not help him to be released and that he would have to go through “a court case with the Pakistani.”

88 The plaintiff said that after the second visit he saw the Australian Consul at the airport. The exchange with Ms Brown was as follows:

“TB: Did the Australian Consul witness you being tortured?
MH: 100% he see me tortured in airport.
TB: How were you tortured?
MH: Well in airport I been beated. I been beaten by the American people. I was naked. They done a lot of bad things to me in airport.
TB: What did they do to you?
MH: Well ..
TB: Now’s the time to tell, what did they do to you, if you can tell.
MH: [extended pause] When I was in airport they beaten me, about 15 of the guys, the American guys and about 4 Pakistani. They have guns, they have clashing in their hands. They beaten me and after this they take me naked, in a bad way, they start .. I have tracksuit and they get the scissors and start strip my clothes piece by piece and [extended pause] when they strip me, I don’t know they put something in my bottom, I don’t know what it is and they put me in nappies and they ties me up all the way like a roll by shame and they make photograph of me in front of him and they make video in front of him.
TB: This is all in front of the Australian Consul you are saying?
MH: Yes.
TB: You are 100% certain?
MH: I guarantee. Like I see you now. I never forget this man. I never forget it.
TB: And if it wasn’t the Australian Consul it was definitely an Australian?
MH: Well I not work with him, but what he present himself and what the Pakistani people tell me and he give me his card and I give it to the German guys. That’s what the guy he present himself as, as Australian Consul. I believe it because the German guy, the German Consul they meet him and he was taking care of them and they send them home, nicely and peacefully.
TB: Did this Australian beat you at all?
MH: No, Australian he was watching me when I been beaten.
TB: Did he tell you where you were going or what you were doing?
MH: No.
TB: Did he board the plane with you?
MH: He was there when I’m going to fly and that’s last thing.
TB: Did he get on the plane?
MH: Yeah, about plane full.
TB: Sorry?
MH: The plane for me.
TB: Did he get on that plane with you?
MH: I didn’t see him, no.”

89 The defendant did not challenge in these proceedings the plaintiff’s allegation that he was tortured at the airport. The controversy relates to whether this occurred in the presence of an Australian consular official, Mr Alistair Adams.

90 The plaintiff made similar allegations when he was interviewed by Ms Katie Wood of Amnesty International. On that occasion he said that Alistair Adams was present although his face was covered by a balaclava. He said he could recognise Alistair Adams who was “wearing the same clothes.” The account he gave was of a degrading and brutal attack by a number of American and Pakistani persons.

91 Mr Alistair Adams did not give evidence. However, the defendant called an ASIO officer who was identified as Officer 1. Officer 1 travelled to Pakistan in October-November 2001 “to take ASIO’s interest (in the Habib matter) and to investigate (the Habib) matter.” He met with the Australian High Commissioner and with the Australian Federal Police liaison officer – Mr Mark Briskey – and the Australian Consulate of the High Commission. The consular official was Mr Alistair Adams.

92 Officer 1 interviewed Mr Habib. On the first occasion he said he was accompanied only by a Pakistani official. Officer 1 said he introduced himself as Mr Ray and discussed what he described as “the limited options that the Australian government – in this case the High Commission in Islamabad might be able to provide to him.” Amongst other matters he said that he gave Mr Habib the business card of Mr Alistair Adams.

93 Officer 1 said that he then proceeded to question Mr Habib about matters relevant to ASIO’s interests. He asked Mr Habib whether he had been to Afghanistan and he said that he had not.

94 There were two further occasions when Officer 1 interviewed the plaintiff. On the second occasion he was accompanied by Mr Briskey, two American officials and various Pakistani officials. The two Americans were females.

95 Officer 1 was asked whether he had ever been involved in an incident with Mr Habib when he was wearing a balaclava. He denied this. He also said that he was not involved with any incident with Mr Habib at an airport.

96 Mr Briskey did not give evidence.

97 Mr Habib gave evidence about these events and was cross examined. He firmly maintained that an Australian official was present at the airport when he was mistreated. Although wearing a balaclava he said that he could recognise the man from his clothes.

98 On an earlier occasion Mr Habib brought proceedings in the High Court. The allegation of mistreatment was in similar terms to the account he gave in the interview. It was pleaded that “Adams was present throughout and acquiesced in what was done to the plaintiff and gave him no assistance.” It was further pleaded that “in the presence of Adams, the plaintiff was kidnapped, abducted and forcefully and unlawfully placed on an aircraft.”

99 I have little doubt that the plaintiff genuinely believes that the Australian official who interviewed him in Pakistan was Mr Alistair Adams. Although I am also satisfied that he is confused about the events, this is perfectly understandable. He was given Mr Adams’ card. The circumstances under which he was detained and his subsequent lengthy incarceration would be unlikely to have left him with a clear recollection of all that was said to him. The fact that he had been given the business card makes it entirely plausible that he would believe that Mr Adams was the person who came to see him.

100 As to the events at the airport, I cannot reach a firm conclusion. It is possible that he was mistreated in some fashion although, without corroborating material, I cannot make a judgment about the matter. I accept Officer 1 when he said that he was not present at the airport. However, whether another Australian official was present, which would be plausible, I cannot determine. Whether any of those present were wearing balaclavas cannot be determined although it would seem unlikely. However, if as Mr Habib asserts, he was cruelly mistreated, those who inflicted the mistreatment may have sought anonymity.

101 In any event I am not required in these proceedings to answer those questions. The defendant pleads that the plaintiff’s claim “that he was tortured at the airport in Islamabad in the presence of the person he called Alistair Adams” was knowingly false. Although I am not persuaded that the claim is true I could not conclude that Mr Habib, on any occasion when he made the claim, knew it to be false.

Paragraph 21.2
The plaintiff knowingly made false claims as to whether and to what extent he had travelled to Afghanistan

102 As ultimately pleaded this allegation is confined to what was said to be a false claim by the plaintiff that he had not travelled to Afghanistan. In fact, as the plaintiff has readily admitted, he was in Afghanistan in August/September 2001 and was present at the time of the terrorists’ attack on 11 September 2001.

103 When the plaintiff was interviewed by Officer 1 he was asked about Afghanistan. Officer 1 asked him on more than one occasion had he ever been to Afghanistan and he answered “no.” That answer was not correct. Notwithstanding his denials, the relevant Pakistani and Australian officials were either aware or strongly suspected that he had been in Afghanistan. This would appear to be the occasion for his arrest and detention.

104 As I have indicated there is no issue that the denial by the plaintiff that he had been in Afghanistan was untrue. But was it for present purposes a false claim?

105 I have previously indicated that Mr Habib asked to speak with Australian officials, in particular Officer 1 alone. The request was denied, although the justification for that decision is not apparent. I was asked to infer that if he had been allowed a private conversation Mr Habib may have told Australian officials the truth. However, I could not reach that conclusion. Mr Habib must have been mindful of the likelihood of Australian officials passing information to Pakistani authorities.

106 The Macquarie Dictionary relevantly defines claim as the “assertion of something as a fact.” Although the relevant statement was made by way of a denial of a proposition put by the questioner, I am satisfied that it was relevantly the assertion of a fact which was false. A denial when questioned that a relevant event occurred is as much an assertion of fact as a response that the assertion in the question is true. In my judgment the defendant has made good this allegation.

Paragraph 21.3
The plaintiff knowingly made false claims as to his involvement in training camps or courses in Afghanistan and/or Pakistan

107 During the course of the interview by Tara Brown of 60 Minutes the following exchange occurred:

“TB: Okay, so tell me what else you can cover, but I’m assuming from what you’ve just said is this question is the one you can answer. The accusations against you are that you trained with Al Qaeda and Lashkar-e-Toiba five times since 1988, is that the case?
MH: I never train with anybody. Never trained. No Lashkar-e-Toiba. I never train with Lashkar-e-Toiba or with Al Qaeda people, never.
TB: Not in Afghanistan, Pakistan …
MH: Never, never.
TB: … nowhere in the world?
MH: Never trained with anybody. Nobody. Very clear, nobody. Training? Never in my life.
TB: So what were you doing in Afghanistan?
MH: Afghanistan I said I will leave it to the judge, he is the one to judge my case.
TB: What could take you there if it wasn’t to train with Al Qaeda?
MH: Again I’m going to say both Afghanistan I will, this one, the judge he is the one, they going to prove my innocent.

108 The defendant submitted that the claim by the plaintiff that he had not trained with anyone was knowingly false.

109 When interviewed in Islamabad on 26 October 2001 Officer 1 said that the plaintiff was asked whether he had ever engaged in military training or military style training. Apart from military service in Egypt the plaintiff denied that he had undertaken military training.

110 The defendant submitted that the true position is that Mr Habib did undertake military/weapons training in at least the year 2000 and probably in 2001. Apart from the evidence of Ibrahim Fraser, which I discuss below, who says that he was acquainted with Mr Habib, the evidence is circumstantial. I am not persuaded that the plaintiff did in fact undertake such training, although it is conceivable that he had a desire to do so.

The evidence of Mr Ibrahim Fraser

111 Mr Fraser is an invalid pensioner who lives in Western Australia. He said that he first met Mr Habib in 1998 when he lived in Lakemba. He said he would see Mr Habib at the coffee shop which the plaintiff owned. He said he went to the coffee shop on many occasions. The last occasion on which he saw Mr Habib was in March 2001. On this occasion he gave evidence that the following occurred:

“Q: In any period since you first met him?
A: Well, I remember that the last time I saw him was in March 2001 and I know it was that day because it was my birthday. And I was sitting outside that same coffee shop at the Island Palms – or Cocos Palms restaurant there opposite the mosque in Haldon Street near the train station having a cup of coffee, and I saw him drive down the street in his Tarago. And I yelled out to him ‘Mamdouh’. And he pulled down the road there and he came back and we gave each other salam and a hug, sort of embraced, and he sat down and, you know, I asked him what he had been up to. I said, ‘Well, what have you been up to?’ And he said, ‘I’ve been to Afghanistan.’ And I remember it clearly because on that day he was wearing a T-shirt that had across the top of it Osama bin Laden. And also I remember that there was some Arabic writing underneath. And I asked him where he had been.
Q: Just take a moment. I will slowly ask you this question while you gain your breath. Do you remember the date of this occasion approximately?
A: Yes, 26 March.
Q: You got up to saying, I think he said ‘I’ve been to Afghanistan.’ Was there any further conversation between you and Mr Habib?
A: Yeah, he told me he had met Osama bin Laden there. He told me he had been there looking for a religious school for his children to attend, and I asked him what else he had been doing there. He also told me he had done some military training.
Q: Did he say anything about the military training?
A: No, he just said that he had done weapons training. I mean, I don’t know, I mean --
Q: Did he say anything more about Afghanistan?
A: He said he wanted to go back to Afghanistan, and he wanted to return to Afghanistan to live because he felt it was more of an Islamic environment than anywhere else in the world at that time.
Q: Do you remember what else he was wearing, apart from the T-shirt you described?
A: He was wearing some military style cargo pants.”

112 I am quite satisfied that Mr Fraser knew Mr Habib and had many conversations with him. However, I am not persuaded that I should accept his assertion that Mr Habib told him that he had undertaken weapons training. Mr Fraser was not a convincing witness.

113 After Mr Habib had become a person of public interest Mr Fraser was interviewed for the 4 Corners program. He was asked about his meeting with Mr Habib when he told Mr Fraser that he had been in Afghanistan. The interviewer asked Mr Fraser:

“Did he, Mr Habib, tell you what he had done there in Afghanistan?”

114 He responded:

“No, he didn’t tell me whether he had done anything in Afghanistan. He didn’t tell me. He didn’t say that he had been on a jihad. He hadn’t said that he had done any training.”

115 When giving evidence he said that he had lied to the 4 Corners program. He said he did this because he was worried about his children’s safety if he told the truth about another Muslim. However, Mr Fraser also gave the authorities information about Jack Roche and gave evidence against him. Roche was convicted of terrorism offences following a trial. He did this without apparent concerns for his safety. His explanation for his earlier lies about Mr Habib was not convincing.

116 Mr Habib denied the alleged conversation with Mr Fraser. In the circumstances I am not able to conclude that the account given by Mr Fraser to this Court should be accepted.

117 The defendant also emphasised the circumstances of Mr Habib’s visits to Afghanistan as supporting a conclusion that he had undergone military training. The evidence relied upon is complex but does not in my judgment admit of the conclusion for which the defendant contends.

118 A number of emails were tendered in evidence. Although denied by the plaintiff I am satisfied that he sent them or was responsible for sending them. They reveal a desire in the plaintiff to enter jihad and do “what Allah has ordered us to do.” One email states that the “matter regarding jihad would be explained after [his] arrival in Pakistan.”

119 The plaintiff’s records indicate that he travelled to Pakistan on a number of occasions. He was asked about the purpose for his visits but apart from general assertions about “business” he did not provide any detail of his activities whilst in Pakistan or for that matter in Afghanistan. He also had difficulty explaining the nature and purpose of some of his movements in Pakistan, suggesting that he may have entered Afghanistan but preferred not to disclose that fact.

120 When interviewed in Guantanamo Bay Mr Habib was asked about military training when he was in Pakistan. Although he admitted to some instructions in surveillance work, which appears to have been rudimentary, he denied any weapons training.

121 On one occasion he said that he had been to a training camp of the Lashkar-e-Touyba. He said he spent two days there but what he saw was “stupid”. He said that there was “no way I fight for Kashmir.”

122 He was asked about entries in a small notebook which was found in his possession. He agreed that he had made some entries in it at the training camp and may have used it to draw diagrams for others. He said, and I accept, that he was previously familiar with weapons and had owned a gun in Australia. I have included below a translation of entries from this notebook. Page 1 was the cover of a “Pilot Notebook.” The translation begins with page 2:

“(Translation from Arabic)
In the name of Allah, the Compassionate, the Merciful
(Page 2)
(A rough drawing of a rifle)
1- the first mistake is the first and the last
2- make sure (you understand) the explanation before use or (5 indecipherable words)
3- Do not put the (one indecipherable word) to the front and do not train it at any one, rather direct it to the ground or the sky
4- Remove the magazine before you check shik it.
5- It (the weapon) must be checked before and after target practice
6- Removal of magazine is the first thing that gives you complete safety.
(AK47 clshincof) Klashinkof
It is a Russian weapon and it is made in Russia
First manufactured in (1949) (by a man) named Miekail Clhnkop
He was given the rights to manufacture it in 1949 but he (one illegible word) in 1946
Half automatic and full automatic.
(in 1949) the butt was made of wood, but in (25) 1952, the weapon was developed and improved and had a foldable steel butt.
(Page 3)
This weapon has three types of magazine
30, 40 and 100 bullets bolit
This is one of the best weapons because the barrel is very good.
(Two indecipherable words) the needs of Special Forces.
Information about (it)
1- Its weight is 4.3 kb (K)
2- There are 4 spiral grooves inside the barrel.
3- Fatal arrange/effective distance is 300 M meters.
4- Injurious range is 800M meters
5- Maximum range is 3000M meters.
(Page 4)
Ammunition enters from right to left
Ammunition comes in a chain of 30 bullets
Other chains (of bullets) can also be used at the same time.
Operation by shock and it goes back to its position again
(Drawing)
There are 16 Grofs spiral grooves in the barrel of the main passage of the weapon.
(Page 5)
ADS 30 MM 17 GL
(Two illegible words) 30 MM ADS 17GL
1- Calibre: 30 MM
2- 35 Kg.
3- Length of the shaft: 29 parol.
4- Maximum range: 1750
5- Effective range: 800 to 1200
6- Rate of fire: 56 round per minute
7- Weight of bullet: 2.57 gm
8- Effective range/lethal range 300 M
(Drawing)
(Page 6)
60 M Mortar 60 MM Mortar
60 MM Mortar MK -1
120-00 GSP
(Drawing)
1- calibre : 60 MM the diameter of the (on illegible word)
2- Distance : 427 at least
3- Maximum range : 455
4- Ceiling : 127 meter
5- Ceiling : 1495
6- Cylinder length : 22 inch
7- Weight of projectile : 3.8 pound
(Drawing)
(Page 7)
Par Particulars
First attacking the enemies from their rear
252 meters from above
Maximum distance (illegible figure) at 80 degree
To be carried any where by hand
Rate of firing 10 to 25 seconds
Deadly range 150 meters. (One illegible word) 100 meters
Choosing the distance direct the weapon in accordance with number (The rest of this page is unclear)
(Page 8)
(Drawing)
PM Bellister Missle
PM Bellstoc Missile - HE
107R – 107MM
18 KG – 18 kg,
Maximum range 18 Km
(this weapon) can be used without base and without a special launching page.
(illegible English)
(Drawing)
(Illegible English)
(page 9)
Docdruf
Dectirouf
7-62-39
(Drawing)
Weight : 7 kg
(Weapon’s) length : 1.36
Helixic line : 4
Bullet’s weight : 16 gm
Lethal range : 800 meters
Effective range : 1500 meters
(2 illegible words) : 4500 meters
Magazine capacity : 100 bullets
(Page 10)
Almighty God, if you had written my name in the records of the wretched (or misfortunate) ones, then efface what you desire, for verily you are the master of all books.
Almighty God, if you willed it that I be among the miserable ones, then save me from this misery, for you can efface what you wish and verily you are the master of all books.
(Page 11)
Allah
Allah, the living God, the one who lives for ever
(Page 12)
Hizbu Allah
(The Party of Allah)
The people of Hizbu Allah will verily be victorious

123 When interviewed in Guantanamo Bay the plaintiff was asked about the notebook. His answers were rambling and the transcript difficult to understand. I have set out a relevant extract below:

“Q: No books?
A: They have bookses. When I go back to the house – they have people study bookses.
Q: H’mm.
A: And ---
Q: Had some back at the house?
A: Huh?
Q: They had some back at the house?
A: Yes. Some people study. And they want – if they done course, they study and they leave the bookses. They keep it there. I take one of these bookses.
Q: So you took one?
A: I took one – some one he was writing.
Q: And what sort of book was that?
A: Oh, he write about the Kalashnikov, how to do it. They writing about a lot of stuff like this.
Q: Did you take that book from the Lashkar-eTayyiba house in Lahore?
A: In Lahore, yes.
Q: Or in the camp?
A: No, from Lahore.
Q: You found that book --
A: In the house
Q: In the – what is that house called? Does it have a name?
A: They – they write the, ah, Lashkar-e-Tayyiba house.
Q: Okay. And so that book you found --
A: In Lashkar-e-Tayyiba.
Q: --- in the Lashkar-e-Tayyiba premises in Lahore?
A: Yes.
Q: Okay. And whose was it?
A: I don’t know.
Q: Can you continue asking [sic] Agent Lancaster’s question about what was in that book? You mentioned there was pictures or --
A: Yeah, they – they tell how to do the guns, all this stuff.
Q: H’mm. Who did you say the book belonged to?
A: I have no idea. It was there – I took it.
Q: When you say it was there, did they secure it away? Was it secured in a room?
A: No, no, no, they have books – Koran – people – because people, when they leave – when they finish – from Saudi Arabia, Arab people especially – when they finish study they leave everything.
Q: Why were you allowed there in that room?
A: Everybody they are in that room. They live there.
Q: Why did you want to take a book like that for?
A: I love to know weapon and I used to ---
Q: You loved to what?
A: I like – I love shooting a lot I love this stuff.
Q: H’mm, and what do you mean by that? Where did you learn --
A: Hunting.
Q: Hunting?
A: Yeah.
Q: Where did you hunt?
A: I used to be - before
Q: H’mm. What guns did you own?
A: Ah, what do you call, ah, like a Kalshn --
Q: A what?
A: I used to have one in Australia. They – I don’t know what they call it. The – like a Kalashn, but ah, different one for the animal.
Q: Is it registered?
A: Ah, registered – they took it off me.
Q: They took it off you?
A: Yeah.
Q: How long did you have that gun for?
A: About one year. One, two years.
Q: So you like shooting guns? H’mm. So you went to the – to that course. You came back, you took that book.
A: Yeah.
Q: Did they know you took the book?
A: They tell me you’re not allowed to take it – maybe there in airport take it or say anything, so – why? There’s nothing wrong with this.

Q: It’s a book. Did the Lashkar-e-Tayyiba know that you took the book?
A: Yeah, some of the people.
Q: H’mm. Did you write in that book?
A: Mm?
Q: Did you write in that book?
A: Oh, I think maybe I write a few ones. Few --
Q: Few what?
A: Few things in it.
Q: What sort of things?
A: About the Kalashn – how to get up and down maybe.
Q: The Kalashnikov?
A: Maybe.
Q: Why would you write that in there for?
A: Huh?
Q: Why would you write that in there for?
A: Why I write it?
Q: Why did you write it?
A: To learn.
Q: Mm?
A: To learn it.
Q: But who taught you that there? Why did you write it there? Did someone teach you while you were there?
A: Teach me to do it.
Q: Did someone teach you something so you wrote that in the book?
A: No, I see how they – to do it. I write it in my own writing.
Q: So no-one taught you on that course about it and you just wrote it in the book at that time?
A: No-one give me courses. I didn’t have courses.
Q: All right, how much did you write in that book?
A: Maybe one paper or two paper.
Q: Did you know who wrote in the rest of the book?
A: No.
Q: Where is that book now?
A: Ah, now in my home.
Q: Your home where?
A: I don’t know where I put it.
Q: In Sydney?
A: In Sydney.
Q: So you took it back to Australia with you?
A: Yeah, I took it in Australia.
Q: All right, so you went to a course with Lashkar-e-Tayyiba. You didn’t – you’re saying you didn’t do anything there. You stayed there for two days. And then you left there because you thought they were stupid.
A: Yes.
Q: And – but you took a book there about military weapons.
A: Not say stupid, it’s not nice to say “stupid.” I said it is – it’s no interest to me.
Q: You said it was rubbish.
A: Rubbish is this I say about Kashmir. Kashmir has been for years. If they wanted Kashmir, they take Kashmir.
Q: But you found a textbook which interested you.
A: I interested to know.
Q: And you wrote something in that book about something you already knew about it.
A: Not really knew about it. Something new. To --
Q: And how was it new? How did you know it was new? Who told you?
A: It’s in the book.
Q: But you wrote something in the book.
A: Yeah.
Q: Why did you write that in the book?
A: To – to explain to myself how to – to use this and stuff.
Q. H’mm. But it wasn’t already in the book so who – who told you that information to write it in there?
A. They have different books there. They have a different another books. To read it. How to lift it up, how to do it. That’s why.
Q. So you looked at another book and wrote that in your --
A. Yeah.
Q. Sorry – let me just get this clear. In the Lashkar-e-Tayyiba house in Lahore there was a book that you took which was hand-written notes.
A. Mm.
Q. Is that correct?
A. Yes.
Q. There were other books there as well?
A. Yeah, they have so many books.
Q. Like instruction booklets? How to use a rifle?
A. Yeah, they have books like this too.
Q. So what you wrote in your book --
A. Mm.
Q. -- on the Kalashnikov – where did that come from, that information? What you wrote, where did you get that from?
A. Actually I don’t remember exactly. Maybe some one of the guys when we talk, I start showing how to do it. I don’t remember exactly why – why I did write it.
Q. Did you write that in the book in Lahore or in the training camp?
A. In Lahore. Lahore.
Okay.”

124 The plaintiff’s evidence on these matters arouses considerable suspicion. He said that he did not participate in any military training but yet came away with a notebook containing detailed information about weapons. His account that he rejected the purpose for which training was proposed is however plausible. His undoubted interest in weapons could explain his curiosity in recording relevant details from books which were available. Whether he was trained in the use of weapons is another matter. Given the apparently short period of his stay this would seem unlikely.

125 In these circumstances I could not conclude that his claim that he had not undertaken military training was knowingly false. Accordingly, I reject the defendant’s submission in this respect.

Paragraph 21.4
The plaintiff knowingly made false claims as to whether he has supported terrorists

126 Sheik Omar Abdul Rahman was convicted of conspiracy in relation to the bombings of the World Trade Centre in 1993. There can be no doubt that this was a terrorist activity and accordingly the Sheik may be appropriately described as a terrorist.

127 In the 60 Minutes interview with Tara Brown in early February 2005 the plaintiff stated that:

“He supported the Sheik “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 …”. (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.)”

128 From this statement, as the defendant submitted, it is apparent that the plaintiff asserted that he supported the Sheik only in respect of his illness. He sought to disassociate himself from any support for the Sheik for his criminal acts and accepted that he had been punished for them. In my judgment this claim was false and knowingly false. There are a number of relevant matters.

129 On 1 March 1997 the plaintiff organised a march in support of Sheik Omar Abdul Rahman. In a pamphlet which he authorised and distributed he described the Sheik as “Our innocent but wrongly convicted Brother.” The claim of the Sheik’s innocence was repeated together with a quote from the Prophet urging Muslims to urge the release of their imprisoned brothers and sisters.

130 The plaintiff was interviewed by ASIO officers about these matters. An ASIO officer, known as Officer 3, interviewed him at the Bankstown Police Station on 25 November 1999. Officer 3 said that during that interview the plaintiff 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.

131 Although when cross-examined the plaintiff denied that Officer 3 had interviewed him, his counsel did not challenge Officer 3’s evidence in this respect. I am entirely satisfied that Officer 3’s evidence was reliable and reject the plaintiff’s suggestion that he was not interviewed by him.

132 On 29 June 2000 the plaintiff met the ASIO officer, identified as Officer 2. Officer 2 said that on this occasion the plaintiff insisted that the Sheik was innocent of conspiracy in relation to the 1993 World Trade Centre bombings, having been set up by the Jews in order to blame the Muslims. He also said that he thought the Sheik was a good Islamic leader. Although the plaintiff denied this conversation with Officer 2, it is confirmed by a minute reporting the interview which was prepared at the time and without any expectation that it would be used in proceedings such as the present. There is no reason for it to have been fabricated. I accept the evidence of Officer 2.

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

Paragraph 21.5

134 This paragraph was not pressed.

Paragraph 21.6
The plaintiff knowingly made false claims to Australian officials as to the extent to which he was the author of the notes in a notebook depicting lethal weapons

135 This allegation arises entirely from the interview at Guatanamo Bay with Officers Lancaster and Jabbour of which I have previously included an extract from the transcript [125]. The “Pilot” notebook to which I have previously referred was discussed with the plaintiff. There are entries in the notebook consistent with instruction about the design, operational capacity and method of operating various weapons.

136 At an early point in the interview Mr Habib said that when he went to the training camp of Lashkar-e-Tayyba there were books in the house where he stayed. He said that “people study bookses.” He said that “some people study. And they want – if they done course, they study and they leave bookses. They keep it there. I take one of these bookses.” He was asked:

“And what sort of book was that”

137 To which he answered:

“Oh, he write about the Kalishnikov, how to do it. They writing about a lot of stuff like this.”

138 He also agreed that he had written in the book, and although he had not attended any courses he wrote in the book about weapons “To learn it” and to “Teach me to do it.” He said that he wrote “I think maybe I write few ones” and later said “Maybe one or two pages”(sic).

139 Later in the interview he was shown the notebook and asked which pages he had written. He accepted that 8 of the 10 pages were written by him. He disclaimed only the seventh and tenth pages.

140 The defendant says that the inconsistencies at different stages of the interview have the consequence that on occasions he knowingly made false claims. It was submitted that on the earlier occasion the plaintiff was endeavouring to disassociate himself from the notebook when he knew this to be false.

141 Although there are inconsistencies in the statements which the plaintiff made to his interviewers, and it may be that he was seeking to distance himself from the notebook, I could not conclude that he knowingly made false claims. At the early stage of the interview he was asked to speak without reference to the notebook and in general terms. He did acknowledge that he wrote in the book and he included information about weapons – a matter which Mr Habib would have known to be of particular interest to his interviewers. When later shown the book and questioned about each particular page and asked to recognise the handwriting it is no surprise that he responded with far greater particularity. Although the answers given at each stage of the interview were inconsistent I could not conclude that he knowingly made false claims.

Paragraph 21.7
The plaintiff knowingly made false claims as to where he met the two Germans with whom he was detained

142 When the plaintiff was detained in Pakistan he was in the company of two German persons, Ibrahm Dirab and Bakim Adlemir. They were arrested when travelling on a bus. When interviewed by Amnesty International the plaintiff said that he “met with two German guys” in a travel agency in Pakistan. He said the travel agency was in Quetta, a city in Pakistan. Mr Habib made the same claim when interviewed by Officer 1 with Mr Brisley on 26 October 2001.

143 Mr Habib was asked about these matters when interviewed at Guantanamo Bay on 15 May 2002. On this occasion he said that he met the Germans, who he described as “boys” in Kandahar in Afghanistan.

144 The two statements are in conflict. I am satisfied that the conflict was not a mistake. The plaintiff’s original assertion that he had met the Germans in Pakistan was made at a time when he was denying having been in Afghanistan at all. As I have already explained his motivation for that denial may have been to avoid detention as a terrorist suspect. It was not correct. By the time of the Guantanamo Bay interview the plaintiff had abandoned the pretence that he had not been to Afghanistan. I am satisfied that the statement that he met the two Germans in Afghanistan is the true position. The earlier statement that he met them in Pakistan was knowingly false.

145 It was submitted by counsel for the plaintiff that his initial recollection that he met the Germans in Pakistan may have been mistaken. It was suggested that his memory may have improved and he may have realised by May 2002 that the meeting was in Afghanistan.

146 There is no substance in this suggestion. When asked by the officers about his meeting with the Germans the plaintiff provided detail of the meeting. He said that it was at the place that he bought the bus ticket. He said he noticed they were foreigners and approached them. They told him they were also travelling to Karachi. The fact that the plaintiff gave this detailed account belies any suggestion that his later recollection that he met these persons in Afghanistan was merely the consequence of an improved recollection. To my mind it was knowingly false.

Paragraph 21.8 and 21.9

147 These paragraphs were not pressed.

Paragraph 21.10
The plaintiff knowingly made a false claim to Amnesty International Australia that he had not been in Egypt since he came to Australia

148 The plaintiff migrated to Australia in 1982. Since then the evidence from his answers to interrogatories established that he has visited Egypt on about 5 or 6 occasions. He has family there and it is quite understandable that he would have chosen to visit them and take his family to Egypt on various occasions.

149 When interviewed by Ms Katie Wood from Amnesty International, the plaintiff recounted part of his interview in Pakistan with the official he believes was Alistair Adams. He said they were discussing where he might be sent and the officer suggested that he may be sent to Egypt. Mr Habib said that he resisted this possibility and said “I have never been in Egypt since I come to Australia.”

150 The plaintiff does not dispute that the record of the interview is admissible in the proceedings or, if an admission was made, it may provide a basis for the defendant’s submission. However, his counsel submitted that the answer given to the interviewer was unclear and submitted that it was explained by the plaintiff’s evidence when “he said he was referring to going to Egypt with (or without a visa) and that he did not deny or intend to deny visiting”.

151 I am in no doubt that the written transcript is an accurate record of the plaintiff’s statement. The context was of course an attempt to persuade the authorities that he should be returned to Australia and not Egypt. It was consistent with his endeavour that he should deny recent visits to his country of birth.

152 In my judgment the denial that he had been to Egypt since coming to Australia was a deliberate and knowingly false claim.

Conclusion

153 Although the defendant has not established all of its allegations that the plaintiff has knowingly made some false claims, a number have been established. Accordingly, I am satisfied that imputation 5(c) is substantially true (s 15 Defamation Act 1974). The relevant legislation in the Australian Capital Territory, Western Australia, Queensland and Tasmania (s 127 Civil Wrongs Act 2002 (ACT); s 356 Criminal Code Act 1913 (WA); s 15 Defamation Act 1889 (Qld); s 15 Defamation Act 1957 (Tas)) required that before the defence could be made good the publication must be for the “public benefit”. In New South Wales to make good the defence the publication of the imputation was required to be in the “public interest”.

154 The plaintiff is a person who was detained in various countries and ultimately in Guantanamo Bay without charge. He has made various well publicised claims about his treatment by the authorities on various occasions. Discussion of his general credibility and whether he had made false claims were matters of considerable public interest and of public benefit.

155 In my judgment the defendant has succeeded in its defence of justification and is entitled to a verdict.

Orders
1. Judgment and verdict for the defendant.
2. The plaintiff is to pay the defendant’s costs.
**********

20/03/2008 - authority incorrectly cited. - Paragraph(s) [5]