Lewincamp v ACP Magazines Ltd
[2008] ACTSC 69
•23 July 2008
LEWINCAMP v ACP MAGAZINES LIMITED
[2008] ACTSC 69 (23 JULY 2008)
DEFAMATION – plaintiff former Director of Defence Intelligence Organisation (DIO) – publications in prominent current affairs periodical, The Bulletin – publications related to events arising out of Australian Defence Force involvement in InterFET – quality of intelligence estimates provided by DIO – loss of access in East Timor to one intelligence database for short period of time – redress of grievance lodged by military intelligence officer – investigation into and report upon redress of grievance – imputations in publication that plaintiff failed in duties and abused position in several respects – imputations untrue and defamatory
DEFAMATION – DEFENCES – Qualified privilege – traditional category – publication to wide audience – reciprocal duty or interest – whether special knowledge of official exercise of public powers conferred requisite duty or interest – whether publication of a complete government report privileged – extended category – government and political matters – s 22 Defamation Act 1974 (NSW) – whether defendant’s conduct reasonable – whether defendant actuated by malice
Held: Duty or interest capable of founding traditional category of defence not conferred by special knowledge of official exercise of public powers – fair and accurate report a distinct and more specific defence – fair and accurate report not pleaded or made out on facts – traditional category not made out – defendant’s conduct not reasonable – actuated by improper motive amounting to malice – extended category of defence not made out – s 22 Defamation Act 1974 (NSW) not made out
DEFAMATION – DEFENCES – Qualified protection – ss 16(1)(c), 16(1)(e), 16(1)(h), 16(2) and 17 Defamation Act 1889 (Qld) – ss 16(1)(c), 16(1)(e), 16(1)(h), 16(2) and 19 Defamation Act 1957 (Tas) – publications not for protection of interests of some other person – publications not for public good – publications not for purpose of giving information – defendant’s conduct not reasonable – publications not made in good faith – manner of publication – actuated by improper motive amounting to absence of good faith – wilful blindness amounting to knowledge of falsity
Held: Statutory defences of qualified protection not made out
DEFAMATION – DEFENCES – Fair comment – common law defence of fair comment on a matter of public interest – ss 30, 31, 33, 34 and 35 Defamation Act 1974 (NSW) – s 14 Defamation Act 1889 (Qld) – s 14 Defamation Act 1957 (Tas) – defamatory words statements of fact not comment – in any event facts upon which alleged comment based not established – ss 13(1)(d) and 14 Defamation Act 1889 (Qld) – ss 13(1)(d) and 14 Defamation Act 1957 (Tas) – publications not made in good faith for information of public – defamatory words not fair comment
Held: Defence of fair comment on a matter of public interest not made out – statutory defences of fair comment not made out.
DEFAMATION – DEFENCES – Statutory defence of no negligence – s 134 Civil Law (Wrongs) Act 2002 (ACT) – no reasonable steps taken to ensure accuracy of published matter – no reasonable opportunity to comment on published matter given to plaintiff – absence of negligence not established
Held: Statutory defence of no negligence not made out
DEFAMATION – DAMAGES – compensatory damages – factors to be considered – other recoveries and actions – plaintiff made recovery and brought actions in relation to published matters of similar purport or effect but not in relation to publications sued on in present case – ss 124 and 135 Civil Law (Wrongs) Act 2002 (ACT) – s 48 Defamation Act 1974 (NSW) and provisions to similar effect in each jurisdiction except Australian Capital Territory – whether provisions substantive or procedural – whether s 135 Civil Law (Wrongs) Act 2002 (ACT) requires taking into account other recoveries and actions
Held: Provisions substantive – other recoveries and actions to be taken into account in accordance with provisions in each respective jurisdiction – s 135 Civil Law (Wrongs) Act 2002 (ACT) applies only in relation to other recoveries and actions in respect of actual publications sued upon – plaintiff’s other recoveries and actions taken into account in respect of publication in each jurisdiction except Australian Capital Territory
DEFAMATION – DAMAGES – aggravated damages – aggravating features – defendant’s wilful blindness as to truth of imputations – failure to make inquiries of plaintiff – defendant’s maintenance of defence of justification until shortly before commencement of trial – defendant’s maintenance of truth of certain imputations during trial where truth not established – publications attacked characteristics very much part of plaintiff’s high reputation – defendant’s failure to apologise – exemplary damages – circumstances of case including defendant’s conduct not such as to warrant award of exemplary damages
EVIDENCE – admissibility of letter from solicitor for third party – rule against hearsay – exceptions to rule against hearsay – business records – s 69 Evidence Act 1995 (Cth) – contemplation of proceedings – investigations relating or leading to a criminal proceeding
Australian Public Service Code of Conduct
Civil Law (Wrongs) Act 2002 (ACT) ss 122, 134, 135, 136
Civil Liability Act 1936 (SA), s 11
Crimes Act 1914 (Cth), s 3E
Criminal Code (Qld), s 377(5), 377(8)
Defence Force Discipline Act 1982 (Cth)
Defence (Inquiry) Regulations 1985, regs 69(1), 70A, 72
Defamation Act 1974 (NSW), ss 17(c), 22, 46A, 46(3)(b), 48
Defamation Act 1938 (NT), s 10
Defamation Act 1889 (Qld), ss 14, 16(1)(c), (e) and (h), 16(2), 17, 24
Defamation Act 1957 (Tas), ss 16(1)(c), (e) and (h), 16(2), 19, 25
Evidence Act 1995 (Cth), ss 55, 56(1), 69, 135
Intelligence and Security Act 1986 (ACT), s 8
Public Service Act 1999 (Cth), s 15
Wrongs Act 1958 (Vic), s 12
ACCC v Advanced Medical Institute Pty Ltd (No 2) (2005) 147 FCR 235
Adam v Ward [1917] AC 309
Ainsworth v Burden [2005] NSWCA 174
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Australian Broadcasting Corporation v Comalco Ltd (1986) 68 ALR 259
Australian Consolidated Press Ltd v Uren (1968) 117 CLR 185
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Bridges v Australian Consolidated Press [1967] 2 NSWR 511
Broome v Cassell and Co [1972] ACT 1027
Calwell v IPEC Australian Limited (1975) 135 CLR 321
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Cassel & Co Ltd v Broome [1972] AC 1027
Chakravarti v Advertiser Newspapers (1998) 193 CLR 519
Channel Seven Adelaide Pty Ltd v Manock (2007) 82 ALJR 303
Clark v Ainsworth (1996) 40 NSWLR 463
Clark v Molyneux (1877) 3 QBD 237
Clines v Australian Consolidated Press Ltd (No 3) [1966] 1 NSWR 481
Crampton v Nugawela (1996) 41 NSWLR 176
Guise v Kouvelis (1947) 74 CLR 102
Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 933
John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227
John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503
Justin v Associated Newspapers [1967] 1 NSWR 61
Lamb v Cotogno (1987) 164 CLR 1
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Lewis v Daily Telegraph [1964] AC 234
Loveday v Sun Newspapers Ltd (1938) 59 CLR 503
McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1147
Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374
Morosi v Mirror Newspapers (1977) 2 NSWLR 749
Musca v Astle Corporation Pty Ltd (1988) (1988) 80 ALR 254
Musgrave v The Commonwealth (1937) 57 CLR 514
Nye v State of New South Wales (2002) 134 A Crim R 245
Obeid v John Fairfax Publications Pty Ltd (2006) 68 NSWLR 150
Papakosmas v The Queen (1999) 196 CLR 297
Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309
Queensland Newspaper Pty Ltd v Baker [1937] St.R.Qd. 153
R v Crabbe (1985) 156 CLR 464
Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
Roberts v Bass (2002) 212 CLR 1
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Rookes v Barnard [1964] AC 1129
Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431
Sims v Wran [1984] 1 NSWLR 317
Speight v Gosnay (1891) 60 LJQB 231
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Stevens v Head (1993) 176 CLR 433
Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 634
Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044
Triggell v Pheeney (1951) 82 CLR 497
Uren v John Fairfax and Sons Ltd (1966) 117 CLR 118
The New Shorter Oxford English Dictionary on Historical Principles (Oxford: Clarendon Press, 1993)
Salmond & Heuston in the Law of Torts (20th ed, RFV Heuston and R A Buckley, 1992)
No. SC 578 of 2004
Judge: Besanko J
Supreme Court of the ACT
Date: 23 July 2008
IN THE SUPREME COURT OF THE )
) No. SC 578 of 2004
AUSTRALIAN CAPITAL TERRITORY )
FRANK LEWINCAMP
v
ACP MAGAZINES LIMITED
ORDER
Judge: Besanko J
Date: 23 July 2008
Place: Adelaide (via video link with Canberra)
THE COURT ORDERS THAT:
There be judgment for the plaintiff against the defendant in the sum of $375,000.
The parties have leave to make submissions as to other orders including orders as to interest, vindication of the plaintiff’s reputation and costs.
IINTRODUCTION
The plaintiff, Mr Frank Lewincamp, has brought an action against ACP Magazines Limited claiming that he was defamed in 2004 in two publications made by that company. He claims damages, including aggravated and exemplary damages, and other relief. The action was commenced against ACP Publishing Pty Limited and after trial the company changed its name to ACP Magazines Limited.
In 2004 the plaintiff was a senior Commonwealth public servant and he held the position of the Director of the Defence Intelligence Organisation (“DIO”). The defendant is an incorporated body and in 2004 it was the publisher of a national weekly news magazine called The Bulletin. On 14 April 2004 the defendant published an edition of The Bulletin which was dated 20 April 2004 and it is alleged by the plaintiff that in that edition the defendant made defamatory statements of and concerning him. The defamatory matter upon which the plaintiff relies is identified later in these reasons. I will refer to this edition as the first publication. On 21 April 2004 the defendant published an edition of The Bulletin which was dated 27 April 2004 and it is alleged by the plaintiff that in that edition the defendant also made defamatory statements of and concerning him. The defamatory matter upon which the plaintiff relies is identified later in these reasons. I will refer to this edition as the second publication. Both editions were distributed and sold in each State and Territory of the Commonwealth of Australia.
The alleged defamatory matter in the first publication appears on the front cover, in the contents page, in an article with accompanying visual images entitled Rotten to the Corps (pages 30 to 36 of the first publication), and in a document entitled The Toohey Inquiry – the Restricted Report. The plaintiff claims that in their ordinary and natural meaning the words in that matter were defamatory of him and he alleges that seven imputations arose. He has particularised the imputations as follows:
(a)[the plaintiff] abused his position as Director of the [DIO], by allowing a “pro‑Jakarta lobby” within DIO to distort intelligence assessments so as to be compatible with the policy of the government of the day, instead of ensuring that DIO fulfilled its duty to protect Australia’s national interest by providing independent objective intelligence to the Australian government.
(b)[the plaintiff] allowed a “pro-Jakarta lobby” within the DIO to distort intelligence assessments so as to be compatible with the policy of the government of the day, instead of ensuring that DIO fulfilled its duty to protect Australia’s national interest by providing independent objective intelligence to the Australian government.
(c)[the plaintiff] betrayed his duty as Director of the DIO, to protect the Australian national interest, by allowing intelligence assessments concerning atrocities and terrorist activities committed by the Indonesian military in East Timor to be distorted so as to be compatible with the policy (accommodating of the Indonesian government) of the Australian government of the day.
(d)[the plaintiff] abused his position as Director of the DIO in that, out of mere personal frustration with the activities of Lt Col Lance Collins (“Collins”) in East Timor, he deliberately caused the flow of intelligence to Australian soldiers in East Timor during the Interfet military operation to be suspended for 24 hours, thereby needlessly endangering the lives of those soldiers.
(e)[the plaintiff] abused his position as Director of the DIO in that, out of mere personal frustration with the activities of Collins in East Timor, he deliberately caused the flow of intelligence to Australian soldiers in East Timor during the Interfet military operation to be suspended for 24 hours.
(f)[the plaintiff] abused his position as Director of DIO in that, out of mere personal frustration with the activities of Collins in East Timor, he tried to prevent Collins from continuing to raise constructive and accurate criticism of DIO’s assessments.
(g)[the plaintiff] abused his position as Director of DIO in that, merely because of his dislike of and frustration with a leading intelligence analyst namely Collins, he participated in the passing of Collins’ details to the Australian Federal Police, which resulted in Collins being unnecessarily named on a widely publicised AFP search warrant, thereby contributing to ruining Collins’ career.
In broad terms, these imputations may be characterised as imputations concerning the distortion of intelligence assessments ((a), (b) and (c)), imputations concerning a suspension of the flow of intelligence (otherwise referred to in the evidence as the cut to intelligence) ((d) and (e)), imputations concerning an attempt to prevent criticism by Lt‑Col Collins ((f)) and an imputation concerning Lt-Col Collins’ name appearing on an Australian Federal Police (“AFP”) search warrant ((g)).
The alleged defamatory matter in the second publication appears on the front cover, in the contents page, and in an article with accompanying visual images entitled Justice under Fire (pages 22 to 23 of the second publication). The plaintiff claims that in their ordinary and natural meaning the words in that matter were defamatory of him and he alleges that one imputation arose. He has particularised that imputation as follows:
(a)[The plaintiff] abused his position as Director of the DIO in that, because of a mere personal dispute with Collins, he deliberately caused the flow of intelligence to East Timor during the Interfet operation to be suspended for 24 hours, thereby needlessly endangering the lives of Australian soldiers in East Timor.
This imputation is similar to the imputations concerning a suspension of the flow of intelligence in the first publication (that is, (d) and (e)).
At all relevant times, Lt-Col Lance Collins (who is referred to in the above imputations) was a member of the intelligence corps of the Australian Army.
The factual background in which the issues must be considered was established by a number of documents tendered by the respective parties and by the oral evidence which was given. A number of facts were not disputed. Where there was a dispute I will indicate the nature of the dispute and how I have resolved it.
II THE FACTUAL BACKGROUND
The plaintiff was born on 14 March 1953. He attended the University of Tasmania and, in 1977, he obtained a Bachelor of Arts degree with first-class honours. He was active in university life and he was the recipient of a number of prizes. After he graduated from university, the plaintiff worked as a part-time tutor in politics and philosophy.
In 1984 the plaintiff commenced work in the Commonwealth Public Service when he joined the Defence Department as a graduate recruit. From July 1999 to January 2005, the plaintiff was the Director of the DIO. From February 2005 to July 2007 he was the Chief Operating Officer of the Defence Material Organisation and since 30 July 2007, he has been the Head of Defence Business Improvement.
It is necessary to describe the functions of the DIO, albeit in general terms. The DIO is an all-source assessment agency working within the Department of Defence. Its principal responsibility is to provide intelligence at the strategic level to senior defence personnel and Ministers in Canberra and assessments for the use of the Australian Defence Force and the Defence Organisation wherever they may be. In general terms, it is not a collection agency; it obtains information from other sources and analyses, checks and processes that information. It prepares assessments, reports and analysis and that material was referred to in the evidence as the “product” of the DIO. I will also use that description.
DIO product can be used at various “levels”. The levels referred to in the evidence were the strategic level, the operational level and the tactical level. A particular piece of intelligence might be used at all levels. Speaking generally, the strategic level is the broadest level and might link intelligence with the plans and intentions of countries and matters of that nature. The next level is the operational level where the principal customer is the operational commander and as the plaintiff said, “their intent is to support his immediate intelligence needs and [the way] the system works [is] that the people operating at that level operate within the broad strategic assessments and intelligence provided by DIO and they provide more immediate intelligence”. The plaintiff gave various examples including the level of capability of different units, their level of staffing and morale, and training, or their estimated capacity in different types of operations. The final level is the tactical level and that involves intelligence which is more immediate and the plaintiff described this level as involving issues such as where units are located, what they are likely to be doing, and “what’s the immediate situation, if you like, on the ground”.
DIO considers only foreign intelligence or intelligence involving other countries.
The plaintiff said that there were various ways of classifying information and they ranged in ascending order of secrecy from restricted to confidential, secret and top-secret. At all material times, the plaintiff was cleared to top-secret level.
The plaintiff became the Director of DIO after he had been asked if he would take the position. Prior to his appointment as the Director of DIO he was the Chief Financial Officer of the Resources and Financial Programs, Division of Defence.
On 30 August 1999 a referendum was held in East Timor and, on or about 20 September 1999, Australian troops were deployed to East Timor as part of a peace-keeping operation called InterFET. The Australian troops in East Timor were provided with a range of intelligence facilities and the plaintiff described those facilities as they were in December 1999. A good deal of evidence was given about one particular database on one of the intelligence support systems. The name of the database and the name of the intelligence support system were not referred to in the evidence because of considerations relevant to national security. I suggested to the parties that the intelligence support system be referred to as “system A” and the database on that system be referred to as “database X”. That suggestion was adopted by the parties. System A and database X were maintained by the DIO and developed for the use of the DIO analysts. Except where it is necessary to be more specific, I will refer to database X on system A as “the database”.
The plaintiff said that prior to December 1999 he understood that the database was available to the Australian Theatre in Sydney and to the Deployable Joint Force Headquarters in Brisbane. It seems it was made available to the deployed forces in East Timor without any consultation with DIO.
The actions of Lt-Col Collins are important to an understanding of the issues in this case. To explain his role and its relevance to the events as they transpired it is necessary to start with an event in August 1997. On 21 August 1997 Lt-Col Collins wrote a brief entitled Brief for COMAST: Indonesian Intelligence Collection against the ADF. Like a number of documents tendered in evidence in this case, substantial parts of the document had been redacted because of considerations relevant to national security. The aim of the brief was said to be to discuss the threat posed to the ADF security by the Indonesian intelligence services. In the course of the discussion in the brief Lt-Col Collins identified what he called faults in intelligence organisations and he referred to organisational incompetence. In that context he made the following statement:
While there is not time here to go into this in detail, Commanders might note that there is evidence that Desk level advice on Indonesia is sometimes given a pro-Indonesian bias.
On 8 July 1998 Lt-Col Collins, as an “Estimate Team Leader”, prepared for COMAST an estimate entitled Intelligence Estimate on East Timor (Draft). The estimate is 31 pages in length and a number of passages in it have been redacted. The purpose of the estimate is said to be “to examine the rapidly changing circumstances relative to [East Timor] promote HQAST situational awareness”. The estimate contained a discussion of circumstances in Indonesia including changes in the Indonesian government and a discussion of international considerations including the attitude to East Timor of the United States of America and Portugal, respectively. The estimate contained a reference to resolutions of the United Nations and international law and a discussion of the advantages for Indonesia in preserving its territorial integrity by denying independence to East Timor. The estimate contained an assessment of potential outcomes and it identified what it called “potential scenarios”. In that context four scenarios were identified.
The estimate was given to the DIO in July 1998. This was well before the plaintiff joined the organisation. On or about 14 July 1998, an officer within the DIO, a Mr Ashton Robinson, who is described as “Director, Indonesia”, prepared a minute and annexure which dealt with the estimate. The annexure contained responses to specific questions raised in the estimate. However, Mr Robinson stated that the DIO was not able to respond appropriately to the draft document by the close of business on 14 July 1998 given the short “lead time”. Mr Robinson stated that if a formal review of the estimate was required, a lead-time of one week was the minimum that the DIO believed would be required. Mr Robinson stated that “[d]ue to the comments on policy matters and implied recommendations on policy options, the paper was formally referred to IP Division for comment with a response requested by COB Friday 17 July 1998”.
It is clear from Mr Robinson’s response that the DIO did not carry out a formal review of the estimate and that the estimate was given to the International Policy Division. On 20 July 1998 a Mr M Scrafton responded on behalf of that Division. In the minute he prepared he said that the DIO had passed a copy of the document to him. He said that the estimate had serious flaws. In particular, he said the following:
2. While I understand that the purpose of the Estimate is to raise HQAST’s awareness of the situation in East Timor, I have two major concerns with the document: The first is that the document focuses purely at the strategic level, and raises issues which are outside the scope of an operational level intelligence assessment. I believe that ASTJIC should limit itself to setting out the operational implications of developments in East Timor and the impact on ADF preparedness and planning, where there is a stated strategic level requirement. Not only does the paper not do this, but the need has not been articulated.
3. Secondly, and of more concern to me, the estimate fails to understand some of the fundamental drivers behind our strategic relationship with Indonesia and contains several assessments about Australian Foreign and Defence policy regarding the political status of East Timor.
On 12 February 1999 Lt-Col Collins sent an electronic message to another person, whose identity is not material, and in that message he said:
Attached are documents prepared at HQAST last year on the East Timor (EM) question. I understand they are still working on it. I got into strife (water off a duck’s back) for making uncomplimentary statements about our polics in the Jul ed, or an earlier version. Some people are very sensitive!
On 12 May 1999 Lt-Col Collins sent an electronic message to about 34 persons stating that a DIO assessment was “too timid” and attaching certain notes which he had prepared. The notes were said to be draft notes as at 7 May 1999 and the title of the notes was OP [… (a word or words edited out)] Notes on Information Operations. Again, long passages in the document have been redacted. However, at one point Lt‑Col Collins referred to what he called the “Jakarta lobby”, which he describes in the following terms:
The Jakarta Lobby is well covered in the writings of a number of prominent academics and journalists. It is an informal network of people in politics, business, the media, government departments, Defence, and the military who consistently push a pro-Indonesian agenda or interpretation of events. Many have invested significant intellectual, career, emotional or financial capital in their commitment to supporting [Indonesia]. This reached its highest expression in the secret defence treaty and the overwhelming prominence given the “bilateral relationship”. The Jakarta Lobby has achieved pre-eminence in the official Australian decision making process relative to [Indonesia]. [Footnotes omitted.]
At about this time, Lt-Col Collins was discussing his views about Indonesia and the DIO with another army officer, Capt Clinton Fernandes. On 19 May 1999 Lt-Col Collins sent an electronic message to Capt Fernandes which referred to an article which had appeared in the Time magazine. In the course of his message he made the following observations:
That explains alot [sic] – and DIO were too dopey to be awake up to it … The irony of it being in the issue covering Suharto would be lost on his loyal or/and unwitting henchmen in Canberra.
Lt-Col Collins wrote to Capt Fernandes again on 8 July 1999.
On 29 July 1999 Lt-Col Collins again sent an electronic message to a number of persons commenting on a DIO assessment. The message has been redacted substantially. He stated that the DIO assessment of East Timor was “surprising in what it [did] not say”.
On 27 July 1999 the plaintiff took up his position as Director of DIO. At about this time, Mr Robinson who, as I have previously said, was described as “Director, Indonesia”, spoke to the plaintiff and showed him some of Lt-Col Collins’ commentaries on DIO product. The plaintiff told Mr Robinson to contact Lt‑Col Collins and advise him that he was not proceeding in the way he should and that he should contact the DIO if he had suggestions or comments. On 29 July 1999 Mr Robinson, Director, Indonesia, wrote to Lt-Col Collins and said, among other things:
Lance,
I am finding your posted-to-all-the-world commentaries on DIO product tiresome. I note that you have never raised any of your concerns directly with me or any of my analysts.
If you had, you would find many of the points you raise agreed with (repeat, agreed with) and are covered in product you are plainly not seeing.
On 19 August 1999 the plaintiff replied to a message from Mr Paul Varsanyi, who was an officer within the DIO about what was said to be Lt-Col Collins’ “indiscretions”. He advised him that he had spoken to Col Mike Norris about Lt‑Col Collins’ method of operation and that Col Norris had agreed to speak to Lt‑Col Collins.
On 10 September 1999 Lt-Col Collins prepared a paper entitled “Beyond Credulity: Strategic Intelligence – the Intellectual Basis of a Strategic Reverse”. The aim of the paper was said to be to analyse a few of the assessments of the DIO’s Indonesian section in an attempt to evaluate their accuracy. It was said in the paper that much of its contents was drawn from a paper written by Capt Fernandes in July 1999. The paper contained a statement that by 9 September 1999 Australia’s apparent strategy for East Timor was “in collapse” along with that of the United Nations. Lt-Col Collins expressed the opinion that the DIO’s Indonesian section had been “notoriously wrong at predicting vital events”. He expressed the opinion that the DIO’s Indonesian section produced intelligence by narrative based on what was said or done. He expressed the opinion that the intelligence was “notoriously vulnerable to mis-information or being led along by any coherent strategy relying on the indirect approach including deception”. He expressed the opinion that the DIO’s Indonesian section was particularly hostile to criticism. He gave examples of what he said were analytical mistakes. In his conclusions Lt‑Col Collins stated:
This short paper, there is simply not time for a more exhaustive analysis here, highlights very serious deficiences [sic] in the assessment of DIO’s ID section … More serious still is the obviously orchestrated attempt to muffle dissenting voices in the intelligence community.
The plaintiff saw this paper in the latter half of 1999 and, although he could not be certain, he thought that he did so before Australian troops were deployed to East Timor on 20 September 1999.
On 16 September 1999 Lt-Col Collins sent an electronic message to another person containing criticisms of the work of the DIO.
As I have said, Australian troops were deployed to East Timor in September 1999. At about that time, the defendant published two articles in its magazine which were written by Mr John Lyons and which were highly critical of the Australian Government and its relations with the Indonesian Government and in particular in relation to events which occurred in East Timor. It is said in the articles that there was evidence that the Indonesian military was running the “feared” militia. The articles are critical of the Australian Government’s attitude to peacekeepers in East Timor and its failure to confront the Indonesian Government.
The edition containing the first of the two articles was published on 6 October 1999 and was dated 12 October 1999. The article by Mr Lyons was entitled The Secret Timor Dossier. It is clear that DIO product had been leaked and was in the possession of Mr Lyons. There were direct quotes from the material. For example,
On March 4, a DIO assessment is grim: ‘ABRI in East Timor are clearly protecting, and in some instances operating with, militants who have threatened Australian lives … ABRI could apprehend or easily control pro-Indonesia militants but has chosen not to … [Wiranto] is at least turning a blind eye.”
The edition containing the second of these articles was published on 24 November 1999 and was dated 30 November 1999. In addition to Mr Lyons’ article entitled The Timor Truth Gap there is a note from the Editor-in-chief, Mr Max Walsh. The Australian Government and, in particular, certain Ministers of the Government are criticised for not being truthful to the Australian people in that (so it was said) they did not disclose the truth about events in East Timor to the Australian people. The article represented that the truth was set out in, among other sources of information, DIO product. The points made in the first article were made even more forcefully by both Mr Walsh and Mr Lyons in his second article. For example, Mr Walsh said:
Our National Affairs Editor John Lyons reports on the content of briefing papers prepared for the senior levels of government by the Defence Intelligence Organisation (DIO). The normally very limited circulation of these documents as well as their source, means that they are couched in direct, even blunt, terms. There is no diplomatic obfuscation.
…
The DIO reports leave no question that the violence that occurred in East Timor was not only condoned but also orchestrated by the Indonesian military. Furthermore, DIO identifies the former commander-in-chief General Wiranto as the ringmaster.
…
Significantly, the DIO analysis concludes that Wiranto’s actions in East Timor were conceived as part of a wider ranging and more extended strategy that would see him emerge as the political leader of Indonesia.
Of course this is speculation. It is quite legitimate for DIO to do this, in fact, central to its charter. Furthermore, the plausibility of what DIO is suggesting is reinforced by its track record during the East Timor crisis.
As Lyons points out, Foreign Minister Alexander Downer’s public statements concerning the nature of the violence in East Timor were not consistent with what the government was being told by DIO.
The minister’s statements have in fact left the impression that Australia suffered from a failure at the military intelligence level. Any reading of Lyons’ article will confirm that that was not the case.
However, the implications of the gap between what the government knew and what it told the electorate raise even more serious and difficult issues as we go forward.
Mr Lyons’ article was to similar effect as his first article. The Australian Government and its Ministers were criticised for not being frank with the Australian people. It was said that they had not passed on to the Australian people accurate information it had from a range of sources including leaked DIO product. In addition to the DIO assessment dated 4 March 1999 referred to in the first article, there was reference to DIO assessments dated 6 January, 3 September, 4 September, mid-September and mid-October 1999 and some of these were quoted at considerable length. In fact the plaintiff said in his evidence that he recognised an assessment quoted in the article as one he wrote or edited.
As will become clear, the two articles published in 1999 and their contents are relevant to the defendant’s state of mind at the time of the first and second publications in 2004. Mr Lyons won a Walkley Award in 1999 for articles he wrote in the defendant’s magazine, including one or both of the articles referred to above.
In the latter half of 1999 the plaintiff was irritated by the fact that Lt-Col Collins was conveying his criticisms of DIO product to a range of people outside the DIO.
Lt-Col Collins was part of the InterFET operation and he was in the intelligence section. On 20 December 1999 the InterFET operation lost its access to the database. Access was regained the following day. The defendant challenged the version of events on this topic. I will deal with those challenges below (at [123]-[124]). For present purposes, it is sufficient for me to say that I accept the plaintiff’s version of events and that version is as follows. The plaintiff, as the Director of DIO, was informed of the loss of access to the database on the morning of 21 December 1999. That occurred during a meeting with other management officers of the DIO, being the Deputy Director of DIO (Dr D Kean), one Col S Meekin and one of Col Meekin’s staff, Mr Ian Bowen. Prior to the meeting on 21 December 1999, the plaintiff did not direct or authorise a suspension of access; in fact, he was not aware of the fact that the InterFET operation had access to the database. At the meeting on 21 December 1999 the plaintiff was told that access to the database had been lost for technical reasons. He was concerned about the recent leaks of DIO product, but received strong advice from Dr Kean and Col Meekin that access should be restored as soon as possible. The plaintiff asked whether access could be restored on a restricted basis, that is to say, restricted to those who needed to examine DIO product. He asked Col Meekin to contact Lt-Col Collins and advise him that the suggestion made in one electronic message that the Director had ordered access to be cut was wrong and that he, the Director, was tired of Lt-Col Collins reporting on matters beyond his area of employment. Later that day after the plaintiff had been advised that it was not possible, at least in the short term, for access to the database to be restored on a restricted basis, access to the database by the InterFET operation was restored.
On 21 December 1999 Col Meekin prepared a draft memorandum to Lt-Col Collins in which he stated that the Director of DIO had not directed the removal of the feed although he was concerned about the scope and level of reporting and assessment being produced by Lt-Col Collins and his staff on the events that were outside the InterFET area of operation. He set out certain conditions for the restoration of the feed. This memorandum was not sent because the plaintiff was not happy with it and he prepared his own memorandum. The plaintiff’s memorandum, which is dated 22 December 1999, was sent to Lt-Col Collins and a copy of it was sent to then Maj‑Gen Cosgrove. In the memorandum the plaintiff stated that full service to the database had been restored. He stated that although he did not direct the removal of access, he did authorise a short delay in its restoration “until certain issues had been clarified”. Those issues concerned access on a need-to-know basis and protection of the material accessed and respective responsibilities for the production of intelligence. Those issues were then discussed in detail in the memorandum.
On 12 September 2000 a magistrate in and for the Australian Capital Territory issued a search warrant under s 3E of the Crimes Act 1914 (Cth) (“Crimes Act”). A constable within the meaning of the Crimes Act was named as the executing officer in relation to the warrant. The warrant authorised the executing officer to enter and search premises identified in the warrant and to seize any evidential material to which the warrant related. The premises identified in the warrant were those of Capt Fernandes. The evidential material which was the subject of the warrant needed to satisfy three conditions and those conditions related to the nature of the things, to whom or what they related, and their potential to give rise to reasonable grounds for suspecting that they would afford evidence as to the commission of certain offences against the laws of the Commonwealth. Those offences were alleged to be offences against ss 70, 79(3) and 79(6) of the Crimes Act. Lt-Col Collins’ name appeared on the list of persons or bodies to which the things may relate. He and other individuals were named on the list as were a number of organisations including the Australian Defence Force, the Department of Defence, the Defence Signals Directorate, and media publications such as The Bulletin magazine and The Age newspaper.
The execution of the search warrant gave rise to publicity, including an article in The Sydney Morning Herald on 21 September 2000. The article mentioned Lt-Col Collins and the fact that he was named in the warrant. It contained the following passage:
A number of other intelligence officers were also mentioned on the warrant, including a highly regarded expert on East Timor and Indonesia, Lieutenant-Colonel Lance Collins. There has been no suggestion that he is a suspect in the investigation.
The Herald has learnt that he was the senior intelligence officer on the staff of Lieutenant-General Peter Cosgrove last year at the Joint Deployable Force Headquarters in Brisbane. This unit took command of the Australian-led peacekeeping mission to East Timor in September.
Early last year, Colonel Collins was closely involved in the intelligence assessments that described the Indonesian military’s role in co-ordinating the militia violence and correctly predicted a bloodbath if the East Timorese voted for independence.
He had maintained close links with East Timorese groups and apparently had developed reliable sources on developments in East Timor.
“He is a very, very capable operator at the working level,” a senior officer said yesterday.
“Defence sources said General Cosgrove was so impressed with the briefings he was given about the situation in East Timor early last year that he sent Colonel Collins to Sydney to brief the then Land Commander, Major-General John Hartley”.
On 6 December 2000 Lt-Col Collins wrote a letter to the Minister for Defence in the Australian Government. In his letter, Lt-Col Collins set out certain concerns he had about the Australian defence intelligence system, and he asked the Minister to direct or request the Inspector-General of Intelligence and Security to investigate the matters he identified in his letter. They may be summarised as follows:
1. The DIO and the International Policy Division “quashed” the warnings of a problem developing in East Timor in Lt-Col Collins’ estimate dated July 1998.
2. In August or September 1998 a senior Australian Defence Force officer said to Lt-Col Collins that “we’ve got a plan with the Indonesians to keep everybody else out of East Timor”.
3. There was inappropriate conduct by the Defence Security Branch in relation to the Merv Jenkins’ affair.
4. Throughout 1999, officers of the DIO “maintained a line of assessment that was relatively soft on Indonesians and continued the suppression of dissenting views within the Australian intelligence community”.
5. The DIO had cut access to a particular database by InterFET forces in Dili.
6. There was evidence that the DIO continued to suppress dissenting views and Lt-Col Collins had been told by two officers on his return from East Timor in March 2000 that he should “watch his back”.
On 20 December 2000 the Minister for Defence asked Mr WJ Blick, Inspector-General of Intelligence and Security, to investigate the issues and concerns raised by Lt-Col Collins pursuant to s 8 of the Inspector-General ofIntelligence and Security Act 1986 (Cth). I will refer to the inquiry subsequently conducted by Mr Blick as the “Blick inquiry” and the report prepared by Mr Blick as the “Blick report”.
On 4 May 2001 the plaintiff made a written representation to Mr Blick in relation to the issues and concerns raised by Lt-Col Collins. The plaintiff said that DIO had done nothing to “quash” the views set out in Lt-Col Collins’ estimate dated July 1998. The plaintiff denied that DIO’s assessments of the circumstances in Indonesia were unbalanced. The plaintiff said that the cut to the database did not occur as a result of any instruction from him although he did organise a short delay in its resumption as this provided DIO with an opportunity to seek systems changes to address security concerns. The plaintiff criticised Lt-Col Collins’ style of operation and said that there were a number of instances of “divisive and unprofessional conduct”.
On 30 August 2001 Lt-Col Collins wrote to the Minister for Defence complaining about the time it was taking for the matters he had raised to be dealt with. He asked that the issues he had raised be referred to what he called “a properly constituted Parliamentary Inquiry”.
The plaintiff had directed Mr Keith Winsor, an officer within the DIO, to deal with the matters raised by the Blick Inquiry. In other words, for the purposes of the Blick Inquiry, Mr Winsor was the contact officer within the DIO. Mr Winsor investigated the cut to the database and the reasons for it. There was a meeting between the plaintiff, Mr Winsor and a Mr Steve Hansson on 5 December 2001. Mr Hansson was the senior IT person at the DIO at the relevant time. According to Mr Winsor, at the meeting Mr Hansson said the following:
Steve was saying “I think we cut it” and then Frank was saying “well that’s not what you told me at the time, … are you sure of this?” He said “Oh”. He tended to waver on whether it was or was not …
The plaintiff cannot remember Mr Hansson saying the above but in his evidence he said that he was prepared to accept that he did. The plaintiff also accepts that he should have told Mr Blick of this statement by Mr Hansson, but he does not accept that as a result of Mr Hansson’s statement he (the plaintiff) should have conducted his own inquiries as to the reasons for the loss of access, bearing in mind that Mr Blick was carrying out an inquiry. For reasons I will give, I accept the plaintiff’s evidence about the loss of access to the database and I reject the suggestion made by the defendant that there was a “cover-up” by DIO and a deliberate decision by the organisation not to tell Mr Blick the truth.
A number of DIO officers, including the plaintiff and Mr Hansson, completed statutory declarations and they were provided to the Blick inquiry. In his statutory declaration Mr Hansson stated that the failure of access resulted from technical problems.
Mr Winsor provided a report to Mr Blick on 10 January 2002. The report was seen by the plaintiff and approved by him. Mr Winsor’s report contained the following conclusion:
I can report that I have found no evidence to support the allegation (or speculation) that the failure […] was the result of a policy decision taken by DIO management or any indication that CTF 645 suffered a real denial of intelligence as a result of the […] outage. I could not find any evidence to support unilateral action taken by DIOIT staff to cut support. The provision […] to CTF 645 was not as critical as Lt-Col Collins claims given the redundancies that were in place to ensure CTF 645 had all necessary intelligence support as stipulated in the ISP.
(The words in brackets have been redacted from the report.)
As part of his inquiry Mr Blick organised a meeting between himself, Lt-Col Collins and the plaintiff and such a meeting was held on 12 September 2002. Mr Neville Bryan was also present and he took notes of the meeting. Subsequently, those notes were put into typewritten form.
Lt-Col Collins did not consider that the Blick inquiry was proceeding in the way in which it should and, on 1 May 2003, he lodged an application for redress of grievances with his commanding officer, Lt-Col B Carey. The grievances were outlined in an attached letter dated 30 April 2003. Lt‑Col Collins stated that he had received a very favourable report on his performance by the then Maj-Gen Cosgrove. However, he said on his return to Australia from East Timor in about February 2000 he was warned that the Director of DIO and others were out to get him and that was in response to the estimate he wrote in July 1998 and his subsequent comments on the “efficacy” of strategic intelligence. He stated that what occurred was “organisational reaction against criticism, which took the form of a personal attack on [him] rather than an objective response to what [he] was saying”. Lt-Col Collins referred to the Blick inquiry. He claimed that his lawyer was barred from the meeting between the plaintiff and himself and that Mr Blick’s account of the meeting was deficient. He claimed that the plaintiff made a comment at the meeting which was proof of the plaintiff’s malice towards him. He claimed that the plaintiff’s statements at the meeting confirmed that there was “an abuse of power by senior defence personnel adversely directed at [him]”. Lt-Col Collins claimed that the campaign against him included the fact that he was named in the search warrant issued in 2000 and the fact that what he interpreted as unfavourable comments were made about him in his performance review for 2000. Lt-Col Collins claimed that he was poorly treated after he returned from East Timor and, more specifically, in relation to the search warrant. He claimed that he was denied procedural fairness in relation to the search warrant, that the Army did not advise him of the warrant after it had been made public and that he was not warned of the imminent media coverage. He was not given any personal support, nor was any support offered to his wife. He claimed that the Army had done nothing to clarify his position in relation to the search warrant. In addition, he claimed he had not received any performance reports for the years 2001 and 2002.
On 14 May 2003 Lt-Col Carey, as commanding officer, appointed Capt Martin John Toohey RANR as the person “to investigate and report into” Lt-Col Collins’ application for redress of grievance. In doing that Lt-Col Carey was exercising the power in reg 70A of the Defence (Inquiry) Regulations 1985. The instrument of appointment refers to the matters which were to be the subject of the investigation and identified areas in respect of which the investigating officer was asked to make recommendations. The regulations specifically provided that the inquiry to be conducted by Capt Toohey was not to be conducted in public and he was not to take evidence on oath or affirmation: regs 72 and 73. As part of his investigation Capt Toohey conducted a number of interviews including interviews with Lt‑Col Collins (14 May 2003), Mr Blick (30 May 2003), Gen Cosgrove (11 June 2003), and the plaintiff (13 June 2003) and each of the transcripts of those interviews is marked “Transcript-in-Confidence”.
In May 2003, Mr Blick was finalising his investigation and he sent a draft of his report to the plaintiff and asked the plaintiff for his comments. The plaintiff provided his comments in a letter dated 28 May 2003. Mr Blick then provided his final report which is dated May 2003. Mr Blick rejected the contention that DIO quashed or attempted to quash Lt-Col Collins’ assessment. Mr Blick reviewed DIO product in relation to East Timor for the period from mid-1998 to late 1999. He rejected the contention that the assessments revealed an institutional bias of the nature alleged by Lt-Col Collins. As far as the loss of access to the database was concerned, Mr Blick concluded that there was no policy decision to withdraw access.
On 7 September 2003 Capt Toohey delivered his report to Lt-Col B Carey. I will refer to the report as the Toohey report. Capt Toohey stated that for the purposes of the investigation he had interviewed 22 uniformed and defence civilian officers and he stated that he had the following documents:
LTCOL L Collins letter to the Hon Peter Reith dated 30 August 2001
Senator the Hon Robert Hill letter dated 22 July covering the Inquiry into Concerns raised about DIO by LTCOL L Collins
Search Warrant issued within the ambit of the Crimes Act (Com) 1914 s 3E
Supplementary Statement of CAPT C Fernandes dated 20 July 2003
Extract from Hansard – Senate Legal and Constitutional Committee, 22 Nov 2000, pages 89 to 98 incl
Extract from Hansard - Foreign Affairs, Defence and Trade Legislation Committee of 23 November 2000, pages 80 to 98 incl
Extracts from Defence Instructions (Army) PERS 47-1 – Career Management of Australian Regular Army Officers, dated 8 December 1998 and 4 December 2001 respectively
E-mail from AFP Special Agent C McDevitt and extract from Crimes Act (Cth) 1914
In his report, Capt Toohey set out a summary of Lt-Col Collins’ grievances and of the redress sought by him and he then summarised what he considered to be the relevant evidence in relation to each area of complaint. He then set out 18 conclusions or findings of fact and nine recommendations. Having regard to the issues in this case it is necessary to set out all of Capt Toohey’s conclusions or findings of fact and his recommendations:
Conclusions/Findings of Fact
130. I find as a fact that LTCOL Collins, arguably the Army’s most skilled intelligence analyst, engaged in organisational, albeit constructive and accurate criticism of Defence and associated intelligence organisations, with particular emphasis on DIO and DFAT but in so doing at times exceeded his remit of restraining his assessments to operational and tactical areas.
131. I find as a fact this criticism was resented by the Director of DIO, the Director of SIP Division and the Assistant Secretary – Defence Security, who formed a strong dislike for LTCOL Collins, accused the officer of encroaching into the strategic areas of intelligence assessment and ultimately caused his details to be passed, in tandem with Defence Security Branch, to the AFP resulting in him being unnecessarily named on an AFP search warrant.
132. I find as a matter of fact that the Director of DIO became so frustrated with the activities of LTCOL Collins during INTERFET that he caused the flow of intelligence to East Timor to be suspended for approximately 24 hours and that further, he wrote to the INTERFET Commander in a [sic] an attempt to muzzle LTCOL Collins.
133. I find as a matter of fact that the Director of DIO, by his refusal to attend a meeting between IGIS, LTCOL Collins and a scribe, indirectly caused LTCOL Collins to take part in the meeting without legal representation and therefore placed LTCOL Collins at a disadvantage in presenting his point of view regarding intelligence deficiencies.
134. Whilst grateful for the Director of DIO in granting me an interview, I find as a fact his dislike of LTCOL [sic] inhibits him from reacting in an objective manner to LTCOL Collins’ criticisms of DIO.
135. I find as a of [sic] fact that a pro-Jakarta lobby exists in DIO, which distorts intelligence estimates to the extent those estimates are heavily driven by Government policy which overlooks (or attributes the blame to other factions), atrocities and terrorist activities committed by the TNI – in other words DIO reports what the government wants to hear.
136. I find as a fact that the abridged report of the inquiry conducted by Mr Bill Blick at the behest of the Minister fails to adequately address LTCOL Collins’ concerns regarding a plan to with [sic] the Indonesians to keep everyone else out of East Timor and the conduct of the Merv Jenkins Inquiry. …
137. I find as a fact that LTCOL Collins’ 2000 PR19 was raised but never received at DOCM for reasons unable to be determined and that its fate remains unknown.
138. I find as a fact that PR19s for LTCOL Collins for the reporting years 2001 and 2002 were not raised by HQTC-A, by either - incompetence or omission.
139. I find as a fact that LTCOL Collins was not, and still has not been, informed of the results of an investigation into him by Defence and Australian Federal Police; his initial notification of the event being a telephone call from his [sic] five days after execution of the warrant when she saw media reports of the investigation which named the complainant.
140. I find as a fact that LTCOL Collins’ standing in the intelligence community has been greatly diminished following his public naming on the search warrant, to the point of him being ostracised and/or held up as a laughing stock in some quarters.
141. I find as a fact that LTCOL Collins’ standing in the intelligence community was not helped by his close professional association with CAPT C Fernandes. I find as a fact that LTCOL Collins was not nominated for an honour or award by any of the relevant Chiefs of Staff whilst serving with INTERFET despite being described in the highest terms by MAJGEN Cosgrove – I am unable to reach any conclusion as to why this omission occurred.
142. I find as fact that the DCO did not provide support of any kind to the complainant or his spouse – the reasons for this being twofold: no request for assistance was sought by LTCOL Collins and DCO failed, on their own initiative to be sufficiently proactive in recognising a potential family crisis following publication of the complainant’s name (connected to a search warrant) in the national media.
143. I find as a fact that LTCOL Collins, [sic] career profile declined following his 1999 PR19, firstly due to his 2000 PR19 not being received by DOCM and his 2001 and 2002 PR19s never being raised by HQTC-A.
144. I find as a fact there are systemic issues in the Defence intelligence community arising from my investigation of this ROG. …
145. I find as a fact, that the Defence Security Branch, (activated, on the balance of probabilities) by malice, at the material time failed to inform LTCOL Collins as soon as practicable after the execution of the AFP search warrant of the fact that he was not, and never had been under investigation, causing a lack of closure which remains extant almost three years after the event.
146. I find as a fact that the incident could have been prevented by the Assistant Secretary – Defence Secretary Mr Jason Browne advising LTCOL Collins, in a timely manner, of the complainant’s complete lack of involvement in the security investigation, thereby bringing about an early closure.
147. I find as a fact that the deleterious effects of the incident on LTCOL Collins could have been minimised by the DCO being more proactive in inquiring as to whether the family required assistance.
Recommendations
148. The incident could have been prevented in the context of the following recommendations: [original emphasis]
a.I recommend DIO become more receptive to constructive criticism of its product, rather than being hypersensitive and absorbed with discrediting and “shooting and [sic] the messenger”, notwithstanding that the “messenger’s” assessments, although invariably accurate may have strayed into strategic rather than operational and tactical areas;
b.I recommend DIO reform its recruiting practices with the object of employing career professional intelligence analysts rather than uniformed or civilian officers with no intelligence background, thereby allowing professionals such as LTCOL Collins to concentrate on their core duties rather than attempting to remedy a defective product and becoming increasingly frustrated; and
c.I recommend in the above context, that Defence intelligence agencies show more objectivity in their assessments rather than attempting to report what those agencies think DFAT and the Government of the day wants to hear.
d.I recommend that DIO’s product be randomly audited by a committee of recently retired and suitably cleared Defence force officers of a minimum of two-star prior service experience.
149. I recommend that the Defence Force respond to this ROG by:
a.The Chief of the Defence Force awarding a retrospective Commendation to LTCOL Collins for his efforts during INTERFET, or in lieu, writing a testimonial letter along the above lines.
b.The Head - Defence Security Authority writing to LTCOL Collins expressing regret for the long interval taken to bring this matter to a closure, advise him that he is not and never was, the subject of a security investigation in the strict sense of the term and, having communicated with the AFP, expand on Special Agent Jakiwczyk’s lack of malice combined with his investigational methodology in naming him on the search warrant;
c.LTCOL Collins being encouraged to approach either the Military Compensation Scheme or a Reserve legal officer, with the object of lodging a claim under that scheme or at common law, for mental anguish suffered over a period of just under three years;
d.Seeking early Ministerial approval for the release of the contents of this Report to the complainant;
e.LTCOL Collins returning to an Intelligence Corps position commensurate with his seniority and experience, at the earliest opportunity;
f.Seeking early Ministerial approval for release of the Report prepared by IGIS to LTCOL Collins, in its entirety; and
g.DCO inquiring as to whether LTCOL Collins requires assistance for any residual domestic difficulties he may be experiencing;
h.In order to prevent a repetition of this nature I recommend that the Defence Security Agency put in place a mechanism to ensure that person(s) named in security investigations and ultimately cleared of any involvement, be informed of their status in writing and in a timely manner;
In the above context, it follows that the incident could have been prevented by the Assistant Secretary – Defence Security, Mr Jason Browne notifying LTCOL Collins of his status in the security investigation as soon as it became evident he was not under investigation.
150. I recommend, with the greatest respect to the incumbent Head – Defence Security Agency, that Service Police re-examine the Arbite Report and associated files to ascertain whether the passing of LTCOL Collins’ name to the AFP was activated by malice.
151. I recommend that the entire intelligence-gathering process, embracing ALL agencies (subject to national security caveats) be referred to the Senate Foreign Affairs and Trade Committee, to ensure objectivity, professionalism and the timely provision of assessments to Governments, without fear or favour.
152. I recommend that an audit be undertaken within HQTC-A with the object of ensuring administrative procedures are in place to ensure that PARs are rendered by Commands on the due date, in accordance with Defence Instructions (Army) PERS 47-1 dated 4 DECEMBER 2001.
153. I recommend that LTCOL […] be required to show cause as to why he should not be censured for failing to take adequate steps to ensure that PARS were raised on LTCOL Collins, regardless of the officer’s promotion prospects, ambivalent attitude or the state of disarray in the administration of HQTC-A.
154. I recommend that the introduction of electronic rendition of PARS be expedited.
155. I recommend that DOCM implement a system to ensure that individual dossiers placed before PAC members are complete in every detail.
156. I recommend that no further action other than that particularised above be undertaken.
Capt Toohey did not ask either the plaintiff or, to the plaintiff’s knowledge, any other person within the DIO for DIO product to examine. He did not ask the plaintiff to provide him with any documents.
The Toohey report was sent to Col R A Brown for a report and Col Brown provided a report to Lt-Col B Carey, as the appointing authority. Col Brown referred to Capt Toohey’s findings of fact and he concluded that all were supported by the evidence gathered by Capt Toohey during his investigation. Furthermore, he concluded that Capt Toohey’s findings clearly demonstrated that Lt‑Col Collins was denied the opportunity of presenting intelligence work without fear of repercussions for failing to adopt the predominant view. Col Brown said that it was open to the appointing authority on the evidence to find that Lt-Col Collins’ complaints were substantiated. Col Brown set out Capt Toohey’s nine recommendations. He concluded that Capt Toohey’s inquiry was in accordance with his terms of reference and that it involved “a matter concerning a part of the Defence Force” so as to come within reg 69(1) of the Defence (Inquiry) Regulations. Col Brown expressed the view that the instrument of appointment complied with reg 70A and, in accordance with reg 70B, empowered Capt Toohey to make recommendations, which he had clearly done. Col Brown noted that recommendations 148 and 151 could not be implemented within the Army or even within the Australian Defence Force. He noted that the implications associated with these recommendations were much broader and that they “had considerable political sensitivity”. He noted that they were firmly supported on the evidence and that they should be forwarded to CDF through CRA. Col Brown strongly supported recommendation 149(d). Col Brown said that recommendation 150 was “problematical” and could not be supported. Col Brown noted that the remaining recommendations fell within the authority of the ADF to remedy but, with the possible exception of recommendations 152 and 153, none of the other recommendations appeared to be recommendations the appointing authority could implement. He suggested that the appointing authority refer those recommendations to the most appropriate higher authority. Col Brown made certain observations in relation to recommendation 153 but it is not necessary for me to set out those observations.
The appointing authority, now Lt-Col M J Abrahams, received the Toohey report and the Instrument of Appointment and Terms of Reference. He accepted the findings made by Capt Toohey and in his report dated 15 October 2003 he set out the manner in which various recommendations made by Capt Toohey were to be implemented. He said that upon his examination of the transcripts of interviews he was “compelled to concur with [Capt Toohey’s] assessment … that the ‘Army’s treatment of this officer over the last three years [was] nothing short of disgraceful’”.
It seems that CRA advised that recommendations outside the authority of the CO and TC-A should be progressed through the chain of command to the Chief of the Defence Force (“CDF”). On 5 December 2003 Lt-Gen P F Leahy referred the Toohey report together with Col Brown’s report and the decision of the appointing authority to Mr P Benson of DDAL. Mr Benson prepared a minute dated 18 December 2003.
In December 2003 Gen Cosgrove decided to refer the Toohey report and other documents to Col R R Tracey RFD QC for a report. That was done, according to the letter of instructions to Col Tracey, because TDLS had reservations about the investigation and the Toohey report and recommended to the CDF and CDF directed, that a further independent and complete legal review of the investigation and report be undertaken.
Col Tracey prepared a report, which is dated 4 February 2004. He reached the conclusion that the appointing authority exceeded his powers under reg 70A of the Defence (Inquiry) Regulations 1985 by requiring the investigating officer to investigate matters which were not matters concerning HQ TC-A. He also said that the use of terms such as “Defence Intelligence Community” and “standing in the intelligence community” in the instrument of appointment were “extremely vague and ill defined and apt to lead the investigating officer into areas falling outside the proper scope of an investigation” conducted under the Defence (Inquiry) Regulations 1985. He concluded that in fact that was what occurred.
Col Tracey concluded that the Toohey report was deficient in a number of respects. First, he criticised the overall structure of the report and said that it was not possible to link the findings Capt Toohey made to evidence summarised earlier in the report. Furthermore, it was not possible to link recommendations to particular findings. Secondly, Col Tracey said that his principal concern was to advise as to the legal efficacy of the findings of fact which underpinned the recommendations, which had been referred to the Chief of the Defence Force for action and his legal authority to act on those recommendations. Col Tracey discussed the various findings and he concluded that in some cases there was no objective basis for the finding in the material considered by Capt Toohey. In some cases an allegation involving the plaintiff was not put to him in the course of his interview, or in some other way. Two examples from Col Tracey’s report will suffice. As to finding of fact number 131, Col Tracey said that there was no evidence that the three named officers had a strong dislike of Lt-Col Collins, or that they caused his details to be passed to the AFP. He also made the point that there appeared to be no material before Capt Toohey which would justify the conclusion that Lt-Col Collins’ name was unnecessarily included on the warrant. As to finding of fact number 135, Col Tracey found that this was a very general and pejorative finding. It was non-specific and it was not “responsive” to any term of reference.
Col Tracey considered each of the recommendations made by Capt Toohey. He expressed his conclusions in the following way:
For the reasons given I consider that the inquiry process into LTCOL Collins’ ROG has miscarried insofar as it has purported to deal with matters which did not fall under the command and control of the appointing authority, insofar as it has led to an investigation of bodies external to the ADF and insofar as it has led to recommendations for action by you which you could not, lawfully, take. Of the recommendations referred to you for consideration only the recommendations e, i, q and r raise matters which require your consideration. Whether or not you choose to act on them is a matter for you.
On 18 March 2004 Lt-Col Collins wrote to the Prime Minister of Australia. He advised the Prime Minister that in his opinion there had been a failure of institutional controls over the Australian intelligence system. He referred to his letter in December 2000 to the Minister for Defence and to Mr Blick’s conclusions. He criticised Mr Blick’s conclusions, and he referred to the search warrant issued in 2000. He asserted that Mr Blick had been guilty of procedural unfairness in the conduct of his inquiry and he asserted that Mr Blick and the plaintiff had “colluded” in refusing to hold the meeting with him with his security-cleared lawyer present. He referred to Capt Toohey’s investigation and to the Toohey report. He asked the Prime Minister to appoint what he called “an impartial, open and wide-ranging Royal Commission into Intelligence and the influences on it”.
On 8 April 2004 Gen Cosgrove concluded that a number of findings made by Capt Toohey were not supported by the evidence.
On 12 April 2004 Capt Toohey wrote to the head of the Defence Security Authority to report a possible security breach involving restricted material, namely, his report. Capt Toohey said that on 11 April 2004 he was approached in a hotel by Mr John Lyons, executive producer of a current affairs program known as Sunday. Mr Lyons had a copy of the Toohey report. Mr Lyons bought Capt Toohey a drink as he read the document. Capt Toohey confirmed that the document was identical to the report that he had handed in to HQ Army Training Command in about September 2003. Capt Toohey asked Mr Lyons how he had obtained the document and Mr Lyons said “we have our ways”. Capt Toohey told Mr Lyons that assuming the report was a true copy it was “Classified Department of Defence Property”. On being informed of this, Mr Lyons replaced the document inside a newspaper and, according to Capt Toohey, “made a rapid departure from the hotel”.
I have come to the point in the chronology when the first publication was made. The plaintiff gave particulars of the defamatory matter it relied upon to give rise to the alleged imputations. Those particulars referred to the article as a whole and then some particular passages. I do not propose to set out the article as a whole. I have set out in Annexure 1 the particular passages the plaintiff relies upon.
It is convenient at this point to note the following features of the first publication. First, the article is presented in strong and at times sensational and emotional terms. On the front cover there is reference to it being an “Exclusive”, to there being a “Defence Scandal”, to matters being “Revealed” and those including “Our Intelligence Failures”. Part of Lt-Col Collins’ letter to the Prime Minister is shown on the front cover. The contents page again refers to a “Defence Scandal” and to an “explosive report” which has “damned” Australia’s intelligence services. Mr Lyons’ article is entitled “Rotten to the Corps”. Again, there is reference to an “explosive” report which has “damned Australia’s intelligence services”.
Mr Lyons says that Lt-Col Collins’ appraisal of Australia’s intelligence services is “certain to shake the foundations of the defence establishment”. Lt‑Col Collins is referred to as an “army hero” and part of his letter to the Prime Minister is quoted, viz, “… to do otherwise would merely cultivate an artificial scab over the putrefaction beneath”.
The Toohey report is said to support Lt-Col Collins’ claims “that there is a cancer in the heart of our intelligence system”. Capt Toohey is described as a “distinguished naval barrister” and it is said that by his report, he delivered a “blistering attack”. In connection with one of Capt Toohey’s findings it is said that it is certain to spark debate.
It is said that the Toohey report provides a “rare” view into the secretive world of military intelligence and what it “reveals” -
… is an atmosphere of political intrigue, personal character assassination and growing evidence of an intelligence bureaucracy more intent on serving its political masters than fulfilling its duty to protect the Australian national interest.
In his note, editor-in-chief, Mr Garry Linnell, refers to the “disturbing” findings of the Toohey report and “alarming” questions about the manner in which Australia receives and interprets its intelligence. Mr Linnell calls for a Royal Commission to be established.
Mr Lyons in his article and in a breakout section describes Lt-Col Collins in highly complimentary terms referring to him as “the all-Australian boy who became a shining light of the Australian Army”, to have been chosen by Gen Cosgrove to be “his eyes and ears”. It is said that he led a strike force to locate and protect Xanana Gusmão. There is reference to the fact that Lt-Col Collins would not be “silenced”. It is suggested that his refusal to provide information tailored to suit the political doctrine of the day appeared to have cost him his career which is elsewhere described as being “in tatters”. It is said that he has a new mission “to cleanse the system and salvage and restore the credibility of Australia’s intelligence community”.
Secondly, the first publication (other than the Toohey report) proceeds on the basis that the Toohey report is correct. Put another way, it adopts the Toohey report. That follows, it seems to me, from the following:
(a) a number of Capt Toohey’s findings are quoted and they are not questioned in any way;
(b) the language used, such as “Scandal”, “Revealed” and “damned” conveys the meaning that Capt Toohey’s findings are correct. They are woven into the article such that they are adopted.
(c) Capt Toohey to a large extent relied on Lt-Col Collins. The latter is, to use the word used by the plaintiff’s counsel, “lionised” in the article. Furthermore, Capt Toohey and his inquiry is referred to in complimentary terms.
(d) Mr Lyons refers to a number of matters beyond the Toohey report in a way that reinforces the adoption of Capt Toohey’s report. Further details of this conclusion are set out in the third point made below.
Thirdly, Mr Lyons refers to Lt-Col Collins’ letter to the Prime Minister. He tells the reader that Australia’s intelligence services were under increasing attack for appearing to tailor their reports to suit government policy. He tells the reader that Lt‑Col Collins’ letter was “unprecedented” and, as I have previously said, refers to Lt‑Col Collins in highly complimentary terms. Mr Lyons tells the reader that Lt‑Col Collins was wrongly accused of leaking confidential material and that the Toohey report cleared him of any wrongdoing. He refers to Capt Toohey’s qualifications in glowing terms. Mr Lyons tells the reader of conduct by “Defence Department officials” relating to Lt-Col Collins’ security clearance. He tells the reader of certain events after the Toohey report. At one point he appears to misquote one of Capt Toohey’s findings about the plaintiff’s reasons for attempting to “muzzle” Lt-Col Collins. Mr Lyons states that “all key parties” accept that Lt-Col Collins’ name was wrongly placed on the search warrant; the source of that assertion is unclear.
Mr Lyons states as fact what the Toohey report found. He states as fact that it amounts to one of “the most comprehensive inquiries into how Australia’s military intelligence operates”. Mr Lyons tells the reader that many of Lt-Col Collins’ claims had been borne out by the Iraq conflict and by the findings of the Toohey report. Mr Lyons tells the reader of the effects of Lt-Col Collins’ conduct on his career, marriage and health.
Fourthly, although I will discuss in due course whether the imputations conveyed by the first publication were correct, I think it appropriate to note at this point that a number of statements in the first publication were incorrect. The plaintiff identified the inaccuracies in the course of his oral submissions. I will not set out all of them; some examples will suffice. Gen Cosgrove did not choose or turn to Lt-Col Collins and it is simply wrong to say that Lt-Col Collins led a strike force to locate and protect Xanana Gusmão.
The Toohey report which has the word “Restricted” on the top and bottom of each page was inserted in the middle of the first publication. Two parts of the Toohey report which was in the possession of the defendant were not included: some introductory pages and the two annexures to the report. The defendant did not publish a “List of Contents” page, a page dealing with an extension of time being granted to Capt Toohey and a page dealing with a variation to Capt Toohey’s terms of reference. In addition, the defendant did not publish Annexures A and B to the Toohey report. Annexure A is entitled “Comments on the Government Response to Certain Issues raised with the Minister of Defence in December 2000” and, speaking generally, deals with the Blick inquiry and Mr Blick’s report. Annexure B is entitled “Systemic Issues in the Defence Intelligence Community arising directly from the Incident complained of” and deals with so-called systemic issues of the type identified in the Title.
The first publication was distributed in each State and Territory in the Commonwealth of Australia.
The plaintiff administered interrogatories on the defendant with a view to ascertaining information as to the printing, distribution, sale and readership of those editions of its magazine containing the first and second publications respectively. In its answers, the defendant gave certain figures as to printing, distribution and sale but said it could provide not information as to readership. The plaintiff tendered a number of the answers to interrogatories.
While preparing my reasons for judgment it appeared to me that the figures for printing, distribution and sale of the relevant editions could not be correct. The parties were contacted and invited to make further submissions. The defendant has put forward amended figures and it is agreed between the parties that these are to be treated as if the answers to interrogatories had been amended.
As far as the first publication is concerned, a total of 85,758 copies were printed and of this number 83,937 were distributed. Of the latter figure 2,269 copies were distributed overseas or as promotional copies (400 copies). The distribution and sales figures in relation to the remaining 81,668 copies were as follows:
State or Territory Distributed Sold New South Wales 32,363 18,455 Queensland 14,494 10,690 Victoria 17,137 10,436 Australian Capital Territory 1,523
plus subscriptions1,285
plus subscriptionsSouth Australia 5,004 3,398 Northern Territory 1,138 1,023 Western Australia 8,590 4,985 Tasmania 1,419 1,209 81,668
51,481
The defendant is not able to specify the number of subscription copies distributed in the ACT or paid subscriptions in the ACT and the number is included in the NSW distribution figures and sales figures respectively. The difference between the two figures comprises unsold copies, free distributions and other.
My invitation to the parties seems to have set off a debate between the parties as to whether the defendant had properly answered the question in the interrogatories as to the readership of the editions containing the first and second publications respectively.
Eventually, that was resolved by consent by the plaintiff putting forward two Roy Morgan Readership Results (which I will receive and mark “P28”) and the defendant making brief written submissions as to their significance.
The Roy Morgan Readership Results are for the year ending March 2004 and the year ending June 2004 and show a readership of the defendant’s magazine of approximately 300,000. The limitations on the use which may be made of these results are, as the defendant pointed out in its written submissions, obvious. They are not surveys of the sale of the particular editions containing the first and second publications respectively, and there is no evidence of the fluctuations in readership which may occur within a particular survey period. Obviously enough, there are a number of factors which might lead to such fluctuations. I do not think I can put any real weight on the figures although it is appropriate that I proceed on the basis that the number of people who read the relevant editions is likely to have been a number of times greater than the number who purchased them. That is likely to have been the case particularly in the Australian Capital Territory where the stories would have been of special interest.
The defendant’s objection to the tender was based on the hearsay rule. The evidence was obviously hearsay evidence and the plaintiff, who sought to tender it, was required to establish that it fell within an exception to the rule.
The plaintiff submitted that the document came within the exception to the hearsay rule involving business records: s 69 Evidence Act 1995 (Cth). The plaintiff submitted that s 69 applied to the Gates letter in two alternative ways. The first way was in relation to the representation made by Mr Gates that Mr Lyons discussed the Toohey report with his managing editor and lawyers approximately two weeks prior to 11 April 2004 (“the Gates representation”). The second way was in relation to an alleged representation by Mr Lyons to Mr Gates that he discussed the Toohey Report with his managing editor and lawyers approximately two weeks prior to 11 April 2004 (“the Lyons representation”), which representation was recorded (not made: see s 6, Part 2 of the Dictionary) in the Gates letter.
The questions which fell to be answered were these:
(a) Did the document satisfy s 69(1)(a)?
(b) Did the Gates representation satisfy ss 69(1)(b) and 69(2)?
(c) Did the Lyons representation satisfy s 69(1)(b) and 69(2)?
(d) Did the relevant representation fall within the terms of s 69(3)?
Questions (a) and (b) or, alternatively, questions (a) and (c) had to be answered affirmatively, and question (d) answered negatively, if the exception involving business records was to apply.
(a)Did the document satisfy section 69(1)(a)?
The definition of “document” is wide and inclusive and plainly encompasses the Gates letter. The defendant raised, but did not develop, a submission that the Gates letter, though a document, was not a business record. Neither party called any evidence on this point. In the circumstances, I was required to draw an inference as to the status of the document from the document itself. In the absence of evidence to the contrary, it seemed clear to me that the letter formed part of, or at some time did form a part of, the records kept by Gates Lawyers in the course of their business and therefore came within the terms of s 69(1)(a).
(b)Did the Gates representation satisfy sections 69(1)(b) and 69(2)?
It was not contested that the Gates representation was a previous representation (within the meaning of the Evidence Act 1995 (Cth)) made in the Gates letter, in the course of the business. Therefore, subs (1)(b) was satisfied.
The more difficult issue was whether the Gates representation could be brought within the terms of sub-s (2), which provides:
(2)The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
The asserted fact in this case was that Mr Lyons had the Toohey report approximately two weeks prior to 11 April 2004. The Gates representation was one made by Mr Gates. Clearly, Mr Gates could not have had personal knowledge of the represented fact, so the plaintiff must bring the Gates representation within paragraph (b).
There was no evidence before me as to how Mr Gates came to believe that Mr Lyons would tell Ms Storen (as asserted in the Gates letter) that he discussed the report in detail with his managing editor and lawyers approximately two weeks prior to 11 April 2004. The plaintiff invited me to infer from the Gates letter itself that Mr Gates arrived at this understanding on the basis of information supplied by Mr Lyons, who, it cannot be doubted, had personal knowledge of the represented fact. That inference was clearly not the only one open to me. The defendant submitted that there were four possible ways that Mr Gates had come to this understanding. First, Mr Gates might have made it up. Counsel for the defendant properly conceded that this inference was not open on the evidence and should not be drawn. Secondly, Capt Toohey might have instructed Mr Gates that Mr Lyons would confirm the represented fact on the basis of communications between Capt Toohey and Mr Lyons. Counsel for the defendant submitted that this was the most probable explanation. Thirdly, Mr Lyons himself might have informed Mr Gates. Counsel for the defendant conceded that this would bring the Gates representation within s 69(2)(b) and that this inference was open on the evidence, but he submitted it could not be established on the balance of probabilities having regard to the second possibility. Fourthly, an unidentified person (such as a colleague or subordinate of Mr Lyons) might have passed the information on to Mr Gates. I express no view on whether these possibilities were exhaustive; probably, they were not.
It was unnecessary for me to make a finding as to how Mr Gates arrived at the understanding expressed in the Gates representation. It suffices to say that I am satisfied that the Gates representation was made on the basis of information supplied at least indirectly by Mr Lyons. Indeed, even adopting the defendant’s second possibility – that Capt Toohey told Mr Gates, by way of giving instructions, what Mr Lyons would say – which was submitted by the defendant to be the most likely of the possibilities, then the information has been supplied by Mr Lyons, albeit indirectly via Captain Toohey. That said, I am inclined to agree with the plaintiff’s submission that the language of the letter does not readily invite the conclusion that Mr Gates was conveying his instructions. Rather, the absence of reference to instructions and the use of the personal voice seem more likely to convey that the information was supplied directly by Mr Lyons to Mr Gates. Either way, subs 69(2)(b) was satisfied.
(c)Did the Lyons Representation satisfy sections 69(1)(b) and 69(2)?
It was strictly unnecessary to decide whether the Lyons representation satisfied either subss (1)(b) or (2). This is because I concluded that the Gates representation satisfied those sub-sections and (as will become apparent in the next section of these reasons) the Gates representation did not fall within subs (3). I will refrain from expressing any concluded view on the matter since it appears to me that important questions of interpretation arise in relation to representations “recorded” in documents and the application in such cases of subs (2), which turns on the knowledge of the person who “made” the representation. In particular, the plaintiff submitted that the Lyons representation was “recorded in the document”, bringing the Gates letter within subs (1), and that the Lyons representation, being “made by” Mr Lyons, was “made by a person who had … personal knowledge of the asserted fact” within subs (2). That submission, if accepted, gives a very wide operation to the exception involving business records. The correctness of such a submission should be decided only after full and detailed argument in a case the facts of which render it necessary to do so. Since the argument was not developed in the present case and since it is not necessary to resolve the issue, I express no concluded view.
(d)Did the relevant representation fall within the terms of section 69(3)?
Subsection (3) operates as an exception to subs (2) and provides:
(3) Subsection (2) does not apply if the representation:
(a)was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or
(b)was made in connection with an investigation relating or leading to a criminal proceeding.
The subsection refers to the representation itself, rather than the document containing the representation. The defendant’s submissions with respect to subs 69(3) related to the Gates representation only. Since I concluded that the Gates representation was not excluded by subs (3), it was unnecessary to consider whether or not the Lyons representation would be excluded by the subsection.
The phrase “Australian or overseas proceeding” is defined in the Dictionary and means “a proceeding (however described) in an Australian court or a foreign court”. Although a range of kinds of proceeding is encompassed, it is clear that they must be proceedings before a court. Plainly, the investigation being conducted by DSA-SIU into the unauthorised disclosure of the Toohey report was not itself an Australian or overseas proceeding.
The defendant made two principal submissions. First, it submitted that Mr Gates contemplated proceedings, such as to enliven subs (3)(a). Secondly, it submitted that the DSA-SIU investigation was related or was leading to a criminal proceeding, such as to enliven subs (3)(b). The defendant tendered two documents on the voir dire in support of these submissions. The first document was a Briefing for Chief of Defence Force from DSA (“Exhibit A”). The second was letter from the Acting Head of DSA to Mr Gates in response to the Gates letter (“Exhibit B”).
In relation to Exhibit B, the following passage was relied upon:
Thank you for your letter to Ms Storen of 21 April 2004 in which you provide additional detail on behalf of CAPT Toohey to assist the Department of Defence in its investigation into the unauthorised disclosure of CAPT Toohey’s report into the Redress of Grievance of LTCOL Collins.
I accept that this letter confirms the existence of an investigation into the disclosure of the Toohey report, but that investigation was not a proceeding, and the letter does not otherwise shed any light on the issue of whether proceedings were contemplated, or whether the investigation was related to a criminal proceeding. For those reasons, Exhibit B did not assist me in determining the admissibility of the Gates letter.
Exhibit A is a briefing to the Chief of Defence Force, the purpose of which is:
To advise on the options available to Defence relating to the security investigation undertaken by the Defence Security Authority – Security Investigation Unit (DSA-SIU) involving the alleged disclosure to The Bulletin Magazine by Captain (CAPT) Martin Toohey (Royal Australian Naval Reserve).
The briefing provides background information on the defendant’s publications and publication of the Toohey report and the appointment of DSA-SIU to investigate the disclosure. The briefing then sets out the options potentially available to Defence. These include criminal action, Defence Force Discipline Act 1982 (Cth) action, administrative action, common law action and no action. It was submitted that Exhibit A showed that proceedings were contemplated.
Two things can be said about that submission. First, Exhibit A does not show that proceedings were ‘contemplated’ within the meaning of subs (3). In ACCC v Advanced Medical Institute Pty Ltd (No 2) (2005) 147 FCR 235, Lindgren J considered the meaning of the phrase “in contemplation of”. After reviewing the authorities, Lindgren J concluded (at 241 [43]):
The question to be asked is whether the person who “prepared” or “obtained” the representation contained in the document, prepared or obtained it having in mind that legal proceedings were likely or reasonably probable, not merely one possibility.
I respectfully agree. It is not enough for the defendant to show that proceedings were possible; it must show that they were reasonably probable or likely. No proceeding was identified as probable or likely and, in fact, Exhibit A presented the various proceedings as possibilities alongside the possibility of “No action”. I was not satisfied that Gates made the representation in the Gates letter in contemplation of an Australian or overseas proceeding.
The second thing that can be said about the defendant’s submissions as to Exhibit A is this. Since subs (3)(a) requires that regard be had to the contemplation of the person who prepared or obtained the representation (ACCC v Advanced Medical Institute Pty Ltd (No 2) (2005) 147 FCR at 238 [23] per Lindgren J), in this case Mr Gates, it is necessary for the defendant to show that proceedings were contemplated at the time the representation was prepared or obtained. Even if, contrary to my reasons above, Exhibit A did show the contemplation of proceedings, it cannot show such contemplation at the relevant time. Although the briefing is undated, it refers to the contents of the defendant’s magazine dated 4 May 2004. Even allowing for the fact that editions of the defendant’s magazine appear six or seven days prior to the date on the issue, the earliest possible date for the preparation of the briefing was 27 April 2004. The Gates representation was prepared no later than 21 April 2004. For that reason, Exhibit A could be of little, if any, assistance in deciding this issue.
I should mention briefly that in the Gates letter itself, Mr Gates writes:
My client is concerned that his name continues to be referred to in media reports and that his professional and personal reputation is now being damaged. Accordingly, it may be necessary for him to take some steps in order to protect his reputation ...
Although this raised the possibility of a proceeding (say, for defamation) that proceeding cannot be said to have been thought likely or reasonably probable.
For these reasons, I was not satisfied that subs (3)(a) applied so as to render subs (2) inapplicable.
In relation to the submission that subs (3)(b) applied, I am prepared to accept that the representation was made in connection with the investigation by DSA-SIU. The important issue is whether that investigation is one “relating or leading to a criminal proceeding”, as the terms of subs (3)(b) require. Where, as in this case, no criminal proceeding ever eventuates, it makes little sense to describe an investigation as relating or leading to a criminal proceeding. That said, having regard to the purpose of the section, it may be unduly restrictive to require there to have been an actual criminal proceeding. The purpose of this exception to the business records exception is to exclude representations made in business records which might have a self-serving motivation such as to undermine their reliability. One can imagine circumstances where such a self-serving motivation exists in connection with an investigation, though the investigation never in fact leads to a criminal proceeding. But if an investigation does not in fact relate or lead to a criminal proceeding, it must be of a type such as to relate or lead, in the ordinary course of events, to a criminal proceeding. Police investigations would fall within this, but the investigation in the present case did not.
It is not sufficient to show of an investigation that a criminal proceeding was one possible outcome. In Nye v State of New South Wales (2002) 134 A Crim R 245 the court had to consider the admissibility of certain representations made by a witness at a Royal Commission. The court held that the investigation by the Royal Commission was not relating or leading to a criminal investigation, since the Royal Commission could only recommend that consideration be given to criminal proceedings (at [18]). Similarly, in the present case, it is apparent that DSA-SIU could only recommend that consideration be given to criminal proceedings, the final decision to institute proceedings resting with Defence (as Exhibit A tended to suggest). Thus, the investigation could not itself lead to a criminal proceeding.
For these reasons, I was not satisfied that subs (3)(b) applied so as to render subs (2) inapplicable.
Returning to the four questions which I identified at the commencement of my reasons on the exception involving business records, questions (a) and (b) have been answered affirmatively and question (d) has been answered negatively. It was unnecessary to answer question (c). Therefore, the exception involving business records applies to the Gates letter.
General discretion to exclude evidence
Finally, the defendant asked me to exercise the court’s general discretion in s 135 of the Evidence Act 1995 to refuse to admit evidence. That section is in the following terms:
135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
There is a heavy onus on the party asking the court to exercise the discretion since the probative value must be substantially outweighed by one or more of the listed dangers. The discretion will be exercised only in a clear case. I was not satisfied that any of the dangers listed in s 135 arose in the present case.
Evidence is not to be considered ‘unfairly prejudicial’ by virtue only of the fact that it tends to undermine one party’s case (See Papakosmas v The Queen (1999) 196 CLR 297 at 325 [91] per McHugh J). The relevant prejudice is the risk that the trier of fact will misuse the evidence in an unfair way. I did not understand the defendant to submit that there was a risk that I, as judge alone, would misuse the evidence. Nor did the defendant point to any procedural disadvantage, which admission of the evidence would occasion (see the issue left unresolved in Ainsworth v Burden [2005] NSWCA 174 at [105]).
The second danger – that the evidence might be misleading or confusing – will usually arise only in a jury trial. The present case was not one of a kind where it is appropriate for me, as judge alone, to exclude the evidence on that basis. The fact that it is hearsay evidence, when it comes within one of the statutory exceptions to the hearsay rule, was not a proper basis on which to decide that it was apt to mislead or confuse, as the defendant submitted.
The third danger – that the evidence might cause or result in undue waste of time – was not the subject of any developed submission by the defendant, though it was initially pressed. I saw no reason why admission of the Gates letter would cause any waste of time.
I was not satisfied that the probative value of the Gates letter was substantially outweighed by any one or more of the dangers listed in s 135. I declined to exercise my discretion to refuse to admit the evidence.
Conclusion on admissibility of MFI-P22
It was for these reasons that I concluded that the Gates letter was relevant and came within an exception to the hearsay rule. Therefore, it was admissible and there was no reason to refuse to admit it.
ADMISSIBILITY OF MFI-P19 AND MFI-P18
In my opinion, the plaintiff failed to show that MFI-P18 and MFI-P19 were relevant in the proceeding and in those circumstances they were not admissible.
The plaintiff submitted that MFI-P18 and MFI-P19 were evidence of the fact that Lt‑Col Collins was prepared to make “outlandish” and “wild” assertions. It was not suggested that the assertions were made to the defendant or that the defendant otherwise became aware that they had been made. Furthermore, the assertions were made in documents prepared well after the first and second publications were published. It was submitted that Capt Toohey and the defendant made findings or stated facts which went beyond Lt-Col Collins’ assertions to them. There was no direct evidence of the assertions Lt-Col Collins made to the defendant; at least some of the assertions Lt-Col Collins made to Capt Toohey were known by reason of his redress of grievance and the transcript of interview between Lt‑Col Collins and Capt Toohey. As I understood the plaintiff’s submission it was that MFI-P18 and MFI-P19 should lead me to find that Lt-Col Collins was a man prepared to make outlandish and wild assertions, and the fact (so it was said) that Capt Toohey and the defendant went beyond his assertions made their conduct all the more open to criticism.
Section 55 of the Evidence Act 1995 (Cth) provides, relevantly:
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
I could not see how MFI-P18 and MFI-P19, which it had not been shown were known to the defendant at any relevant time, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact relevant to the conduct of either Capt Toohey or the defendant. Neither MFI-P18 nor MFI-P19 were relevant and therefore both were inadmissible.
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