FEDERAL COURT OF AUSTRALIA

Roberts-Smith v Fairfax Media Publications Pty Limited (No 3) [2020] FCA 2

ORDERS

THE COURT ORDERS THAT:

1.    Paragraphs 1, 2 and 3 of the Interlocutory application dated 11 November 2019 be dismissed with costs.

2.    Paragraph 4 of the Interlocutory application dated 11 November 2019 be adjourned to a date to be fixed and the parties be given the opportunity to agree an appropriate order.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    These reasons address three identical interlocutory applications issued in three defamation proceedings in the Court involving Mr Ben Roberts-Smith as applicant, and various media companies and journalists as respondents. The media companies differ in the case of each proceeding, but the three journalists are the same in each proceeding. The three defamation proceedings have to date been heard together and the trial of all three has been fixed to commence on the same date.

2    The central issue raised by each application is the scope and application of the journalist privilege in s 126K of the Evidence Act 1995 (Cth).

3    The interlocutory application in each proceeding was issued on 11 November 2019 and by the application, the applicant sought four substantive orders. One of the substantive orders which relates to interrogatories is no longer sought by the applicant.

4    The orders which the applicant seeks are as follows:

1.    An order pursuant to r.20.32 and/or r.20.35 of the Federal Court Rules that the Respondents produce to the Court the documents over which a claim for privilege is made under s.126K of the Evidence Act 1995 (Cth).

2.    An order pursuant to r.20.32 and/or r.20.35 of the Rules that the Applicant have access to such of those documents which:

a.    are not properly the subject of a claim for privilege under s.126K; and/or

b.    are connected to a source the identity of who has already been disclosed.

  3.    …

4.    Directions as to the future case management of the proceedings including, in particular, a direction that the Respondents’ solicitors inform the Applicant’s solicitor on or before19 [sic] December 2019 of the following matters:

a.    which of the persons whose Outlines of Evidence have been served on behalf of the Respondents have authorised or approved the Outline of Evidence served on behalf of each such person; and

b.    to the extent that any such Outline of Evidence is not based on information provided directly by the person whose Outline of Evidence it purports to be, the name or names of the persons who supplied information upon which the Outline of Evidence was based or the source of such information.

5    I have set the proceedings down for trial and they are listed for a six week hearing commencing on Monday, 15 June 2020.

6    The applicant is a former soldier and a member of the Special Air Service Regiment (SASR) who was deployed to Afghanistan on multiple occasions. In 2018, a number of newspaper articles were published dealing with the applicant’s conduct and activities as a member of the SASR. There is also reference in some of the articles to the applicant’s treatment of a woman in the Hotel Realm in Canberra.

7    It is convenient to identify and resolve the issues by reference to one of the actions because it is not suggested that, as far as the interlocutory applications are concerned, there are any material differences between the three actions. In NSD 1485 of 2018, the respondents are Fairfax Media Publications Pty Limited, Nick McKenzie, Chris Masters and David Wroe.

8    The publications which are identified in the Statement of Claim contain six matters which are complained of by the applicant. The first, second, third and fourth matters complained of relate to the applicant’s conduct and activities as a member of the SASR. The imputations alleged to arise from the publications are serious. The imputations alleged to arise from the first and second matters complained of are identical and are as follows.

(a)    The Applicant while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him;

(b)    The Applicant broke the legal and moral rules of military engagement and is therefore a criminal;

(c)    The Applicant disgraced his country Australia and the Australian Army by his conduct as a member of the SASR in Afghanistan.

9    The imputations alleged to arise from the third and fourth matters complained of are identical and are as follows:

(a)    The Applicant while a member of the SASR committed murder by pressuring a newly deployed and inexperienced SASR officer to execute an elderly, unarmed afghan in order to “blood the rookie”;

(b)    The Applicant while a member of the SASR, committed murder by machine gunning a man with a prosthetic leg;

(c)    The Applicant while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring soldiers under his command to shoot him;

(d)    The Applicant having committed murder by machine gunning a man in Afghanistan with a prosthetic leg, is so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel.

10    The fifth and sixth matters complained of in the publications are alleged to give rise to imputations that, among other things, the applicant committed an act of domestic violence. The imputations are serious and are as follows:

(a)    The Applicant committed an act of domestic violence against a woman in the Hotel Realm in Canberra;

(b)    The Applicant is a hypocrite who publicly supported Rosie Batty, a domestic violence campaigner, when in private he abused a woman;

(c)    The Applicant as deputy commander of a 2009 SASR patrol, authorised the execution of an unarmed Afghan by a junior trooper in his patrol;

(d)    The Applicant during the course of his 2010 deployment to Afghanistan, bashed an unarmed Afghan in the face with his fists and in the stomach with his knee and in so doing alarmed two patrol commanders to the extent that they ordered him to back off;

(e)     The Applicant as Patrol Commander in 2012 authorised the assault of an unarmed Afghan, who was being held in custody and posed no threat;

(f)    The Applicant engaged in a campaign of bullying against a small and quiet soldier called Trooper M which included threats of violence;

(g)    The applicant threatened to report Trooper J to the International Criminal Court for firing at civilians, unless he provide an account of a friendly fire incident that was consistent with the Applicant’s;

(h)    The applicant assaulted an unarmed Afghan in 2012.

11    The relevant publications are annexures to the Statement of Claim and the parts or particulars of the matters complained of by the applicant are set out in Schedules which are also annexures to the Statement of Claim.

12    The respondents’ Defence pleads a number of matters, including justification under s 25 of the Defamation Act 2005 (NSW) (Defamation Act) and contextual truth under s 26 of the Defamation Act. The Particulars of Truth refer to a number of persons said to be involved in relevant events by number, rather than by name. A confidential annexure to the Defence identifies those parties by name. I have made orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) prohibiting the disclosure, by publication or otherwise, of information that identifies, or tends to identify, the persons referred to in the confidential annexure. The orders which I made do not prevent the disclosure of information that identifies, or tends to identify, the persons to the parties to the proceedings.

13    On 13 February 2019, I made orders that the applicant file and serve Outlines of Evidence upon which he proposes to rely in respect of his case in chief by 27 March 2019, and that the respondents file and serve any Outline of Evidence upon which they proposed to rely in respect of their defences, and any matters in answer to the applicant’s evidence by 8 May 2019. I also made an order that the applicant file and serve any Outlines of Evidence upon which he proposes to rely in reply to the respondents’ evidence by 19 June 2019.

14    The respondents have filed Outlines of Evidence of Persons 1, 2, 4, 7, 10, 13, 14, 16, 17, 18, 19, 20, 21 and 22.

The Evidence on the application

15    Each party relied on affidavits. None of the deponents of the affidavits were required for cross-examination.

The Applicant

16    The applicant relied upon two affidavits sworn by Ms Monica Helen Allen on 11 November 2019 and 9 December 2019 respectively. Ms Allen is a solicitor employed by the firm of solicitors acting for the applicant. On 2 August 2019, I made a number of orders, including an order that, absent a dispute, the parties give verified discovery in respect of agreed categories and produce copies of discovery documents by 4 October 2019. The parties subsequently agreed to extend the time to 25 October 2019. Agreed category 1, with respect to the discovery to be provided by the respondents, was as follows:

All documents relating to and/ or concerning:

(a)    the allegations that the Applicant has engaged in war crimes, bullying conduct, domestic violence and/or any of the Applicant’s other conduct particularised by the Respondents in paragraphs 17 to 138 of their Defence;

(b)    the allegations that the Applicant has engaged in war crimes, bullying conduct, domestic violence and/or any of the Applicant’s other conduct as referred to in the Respondents’ Outlines;

(c)    the Applicant’s alleged bad reputation as particularised in the said Defence and/or as referred to in the Respondents’ Outlines of Evidence as filed in the proceedings; and

(d)    the incident on 31 July 2012 in which Sergeant Jamie was wounded referred to at page 483 of the Third Respondent’s book “No Front Line”.

including but not limited to notes, recordings, emails, text messages, Facebook, WhatsApp, Telegram or other social media messages, statements, photographs, reports and other documents.

17    On 25 October 2019, the respondents filed and served a combined List of Documents on behalf of all four respondents in the proceeding verified by “editorial counsel for the Respondents”. The respondents also served copies of the discovered documents in their possession, other than the documents in respect of which privilege is claimed. The respondents’ List of Documents is divided into two parts. Part 2 includes documents in the control of the respondents for which privilege from production is claimed. The category of documents numbered 83 is described as follows:

Various documents recording conversations with confidential sources and/or various documents provided by confidential sources.

The dates of the document are described as “Various”. The ground of privilege is said to be as follows:

The production of the documents would disclose the identity of a confidential source, the disclosure of which would cause the author of the matter complained of to disclose the confidential source’s identity and/or enable their identity to be ascertained and would breach ethical duties under the Journalist Code of Ethics.

18    On 30 October 2019, the applicant’s solicitors wrote to the respondents’ solicitors raising a number of matters with respect to the respondents’ List of Documents. The letter included the following passage:

The Respondents have served 13 Outlines of Evidence from named current and former Special Air Service Regiment soldiers in support of the allegations made in the matters complained of. Having regard to the contents of those Outlines, the identity of many of the sources quoted or otherwise relied upon in the matters complained of is readily apparent. As such, it would appear that any privilege that may have otherwise been afforded over the identity of those individuals has been waived by reason of the service of the Outlines of Evidence and we assume that the Respondents do not seek to maintain a claim for privilege over any documents relating to or concerning the allegations made by individuals on whose behalf an Outline has been served.

19    Ms Allen identified four examples of an Outline of Evidence served on behalf of the respondents which appears to identify a source when considered with the publications and the pleadings. I will return to discuss these examples.

20    On 6 November 2019, the solicitors for the respondents replied to the letter from the applicant’s solicitors. The reply contained the following passage:

Consistently with section 126K of the Evidence Act, the Respondents will not provide to you any documents or evidence that may tend to disclose the identity of confidential sources.

The suggestion that serving Outlines of Evidence for witnesses somehow waives the privilege that may have otherwise protected the identity of those individuals, is misguided. Such a suggestion erroneously assumes that the individuals for whom Outlines of Evidence have been served were the sources for the articles prior to publication and prior to institution of these proceedings. Respectfully, your letter conflates anticipated witnesses with confidential sources/informants.

21    Ms Allen states that the respondents have filed an Outline of Evidence for Person 22 and that the applicant, in his reply Outlines, has also filed an Outline of Evidence for Person 22. Person 22 told her that he has had no contact with the respondents’ solicitors.

22    In her second affidavit, Ms Allen produces the response of the respondents’ solicitors to the request for further and better particulars by the applicant’s solicitors and the Outlines of Evidence for Persons 4 and 14 filed and served by the respondents.

The Respondents

23    The respondents relied on two affidavits. The first is an affidavit of the second respondent, Mr Nicholas David McKenzie, affirmed on 4 December 2019. Mr McKenzie is an investigative journalist employed by Fairfax Media Publications Pty Limited. He and the third and fourth respondents wrote the articles which are the subject of the proceedings. He states that the investigations were primarily conducted by Mr Chris Masters and himself. He details his qualifications and experience as a journalist. He has considerable experience as a journalist and has been acknowledged with awards by his profession. He describes his investigations with Mr Masters. In particular, he describes his communications with sources. He states that the articles are based in substantial part upon information provided to him over the period since 2017 on a confidential basis by his sources, corroborated where possible by other information which can be attributed or which is derived from information in the public domain. He states that the protection of sources to whom promises of anonymity have been made is at the heart of the work of investigative journalists like himself. He states that he believes more generally that if any investigative journalist were to disclose the identities of any confidential source, his or her career as an investigative journalist would likely become untenable and that no potential source would entrust information to an investigative journalist who did not keep the source’s identity secret. He states that if an investigative journalist, or indeed any journalist, were to disclose the identity of a confidential source, even under compulsion of law, the reality is that his or her career as a journalist would almost certainly be over. He states that if he was compelled to reveal any of his confidential sources, he believes that would have an immediate effect of stopping the future flow of information to journalists from his media outlets, and perhaps others, on matters of public importance. Mr McKenzie states that over the years he has built up relationships of trust with many persons working in the Defence Force community and the Commonwealth, including serving and former officials. He states that on every occasion he meets with any person in any government agency or allied profession, he assures that person that their identity will remain confidential. He states that if he were to reveal the identity of any such source, even under compulsion of law, he believes the reality is that he would never again be entrusted with any information by any source from within the public service and it would undermine the ability of journalists at The Age and The Sydney Morning Herald to build trusting relationships with sources.

24    Mr McKenzie produced the Code of Conduct of the Media Entertainment & Arts Alliance, although in the result, this was barely referred to during the course of submissions.

25    Mr McKenzie then addresses promises of confidentiality to particular sources. He states that as a matter of course and practice, whenever he speaks with or meets with a source who he knows or believes wants to remain anonymous, he expressly sets the conditions of the conversation. He states that it is his practice to say words to each of them to the following effect:

Anything you say to me is strictly off the record. I will not use this information in any way could reveal you as a source. I will go to jail before I reveal you as a source.

26    Mr McKenzie then refers to each of his sources. There are 18 of them and he identifies the promise he made to each of them that they would not be revealed as the source of information. Most of the sources (and those of Mr Masters) express a reason(s) for seeking confidentiality. I am not going to go through them one by one. It is sufficient to say that the reasons range across the following matters: (1) fear of retribution, including in one case a reference to personal harm, by the applicant or the applicant and his supporters; (2) fear of being sued by the applicant; (3) fear of being ostracised by colleagues; and (4) damage to career. Mr McKenzie produces and describes 49 documents over which the respondents claim journalist privilege. He states that he has carefully examined each document. He expresses the opinion that seven of the documents which he describes as his notes of his discussions with many of the confidential sources, including compilations of notes and information obtained from various confidential sources, could not be provided to the applicant even if the document was to be redacted. The basis for his belief is that the document is “so imbued” with the personal details of his confidential sources as to make their identities readily apparent to the applicant from the contents of the document. He states that this includes not only personal and professional details, but also unique vocabulary choices, slang, phrases or perspectives which would enable the applicant to ascertain the identity of each confidential source.

27    With respect to three of the remaining four categories of documents, Mr McKenzie describes them as recordings of conversations with confidential sources, which include references to facts, experiences and relationships unique to those sources. He believes that disclosure of each of the documents, including its contents as a whole, would make the identities of the sources apparent to the applicant.

28    With respect to the final category of documents, Mr McKenzie expresses the opinion that their disclosure would disclose the identity of the confidential source or enable their identity to be ascertained. Mr McKenzie believes that the applicant would be able to ascertain the identity of his confidential sources because the documents are only likely to be in the possession of very few individuals. He states that the applicant would know who would be in possession of such documents and could therefore easily ascertain the source of the documents.

29    Mr McKenzie believes that the applicant would be capable of ascertaining the identity of his confidential sources from the documents over which privilege is claimed. He has formed this view by reference to the applicant’s background and connections. He states that the applicant was present when many of the incidents being discussed occurred and would be aware who else was present during these incidents, where these other individuals were located and who was in a position to observe particular aspects of the incidents which are the subject of the articles.

30    Mr Masters is a very experienced journalist who has received a number of awards. He describes the circumstances in which he became interested in reporting on the applicant and alleged misconduct in Afghanistan committed by Australian soldiers.

31    Mr Masters, like Mr McKenzie, referred to the need for an investigative journalist to protect his or her sources. He states that there is widespread industry acceptance that a journalist must not disclose the identity of a confidential source because to do so destroys the relationship with that source, the reputation of the journalist, and depletes regard for the industry. Mr Masters expresses the opinion that if he were to give up a source, there would be no prospect of a source ever trusting him again. He states that over the course of his career he has never given up a confidential source’s identity. Mr Masters states that whenever he meets a source who requests confidentiality, he says words to the following effect:

Your identity as a source will always remain unattributable. That means that I can use the information imparted by you to me, but I will ensure that I do not in any way link it to you. In a worst-case scenario, I would go to jail rather than reveal you as a source. However, good faith must apply. You must deal with me honestly and must not deliberately mislead me.

32    Like Mr McKenzie, Mr Masters refers to his sources and the promises he made to each one of them. He also refers to the 49 documents over which journalist privilege is asserted. He identifies four categories of documents and, with respect to three of those categories, he expresses the opinion that the documents would disclose the identity of his confidential sources, or enable their identity to be ascertained by the applicant. He expresses this opinion because his notes and emails are replete with references to his confidential sources, “including specific information about their professional and personal life, experiences, background, location and relationships (including relationship to the Applicant)”. Mr Masters expresses the opinion that the references and the information recorded in his notes and the emails are to such an extent that the documents could not be provided to the applicant, even in redacted form, without the identities of his confidential sources being clear to the applicant.

33    With respect to the final category of document he describes, which is a document he obtained from a confidential source, Mr Masters expresses the opinion that the disclosure of the document would disclose the identity of the confidential source, or enable their identity to be ascertained. He has formed this view because the document is of a kind that would only be in possession of such a small class of people that disclosure would enable the applicant to ascertain the identity of the individual who was the source of the document. He states that he has consulted with the confidential source with respect to this category of document and he has confirmed that he believes disclosure of the document would clearly identify him to the applicant as the source of the document. Mr Masters expresses the belief that the applicant, by virtue of his relationships, experience and knowledge, would, if provided access to the document, be able to ascertain the identity of the confidential source.

Relevant Legislative Provisions and Rules of Court

34    Section 126K of the Evidence Act provides as follows:

(1)    If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained.

(2)    The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs:

(a)    any likely adverse effect of the disclosure on the informant or any other person; and

(b)    the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.

(3)    An order under subsection (2) may be made subject to such terms and conditions (if any) as the court thinks fit.

35    Section 126J defines three terms for the purposes of s 126K and is in the following terms:

informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium.

journalist means a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium.

news medium means any medium for the dissemination to the public or a section of the public of news and observations on news.

36    There is no dispute that each of the sources referred to by Messrs McKenzie and Masters were “informants” within the definition of that term in s 126J of the Evidence Act. Nor is there any dispute that Messrs McKenzie and Martin were “journalists” within the definition of journalist in s 126J and that the publications fall within the definition of “news medium” within that section.

37    The other section in the Evidence Act which was referred to in the course of submissions is s 133. That section is in the following terms:

If a question arises under this Part relating to a document, the court may order that the document be produced to it and may inspect the document for the purposes of determining the question.

38    Sections 126K and 133 both appear in Part 3.10 of the Evidence Act.

39    Rule 20.35 of the Federal Court Rules 2011 (Cth) provides that a party may apply to the Court for an order that another party produce to the Court a document in the party’s control relating to an issue in the proceeding, and that the Court may inspect a document to decide the validity of an objection to production, including a claim that the document is privileged from production.

40    Rule 20.32 of the Rules gives the Court the power to order that a party produce for inspection any document that is included in the second party’s list of documents and that is in that party’s control.

Preliminary matters

41    There are two preliminary matters.

42    First, there are three orders sought in the interlocutory application. The first is that the documents over which privilege is claimed be produced to the Court. The precise purpose of such an order is not made clear in the interlocutory application and I will return to this point. The Rule of Court upon which the applicant relies is r 20.35 which empowers the Court to inspect a document to decide the validity of an objection to production, including a claim that the document is privileged from production. The respondents submitted that the Court could not make an order under r 20.35 in the face of the statutory direction that in the circumstances described in s 126K(1), the journalist or his or her employer cannot be compelled to produce any document. That included, so the respondents submitted, production to the Court. The applicant sought to meet this argument by relying on s 133 of the Evidence Act to which the respondents replied by submitting that the power in s 133 is subject to the statutory direction in s 126K. I do not need to address these arguments for the reasons which follow.

43    The requirements of s 126K(1) are satisfied with respect to the documents in an unredacted form. As I have said, there is no dispute that the definitions of “journalist”, “informant” and “news medium” are satisfied and there is no dispute that promises not to disclose the informants’ identities have been given by Messrs McKenzie and Masters. That leaves then the applicant’s principal argument that the publications themselves, together with the Outlines of Evidence filed and served and the pleadings disclose the informants’ identities at least to those, including the applicant, who are aware of the names of those persons referred to in the Outlines of Evidence. I address that argument below. The point at this stage relates to inspection of the documents by the Court. The Court would not inspect the documents for the purpose of determining or confirming whether or not there has been disclosure. There has either been disclosure or not and that must be determined by reference to material other than the documents over which privilege is claimed.

44    The only other reason it was suggested the Court might inspect the documents is to determine whether some part of particular documents can and should be disclosed without infringing s 126K(1). It is not clear to me that that can be done under s 126K(1) and the Court’s general powers. Even assuming that it can be done, there are two reasons why it should not be done in this case. The first reason is that both Mr McKenzie and Mr Masters have sworn that disclosure of the documents, even with names redacted, would disclose the identity of the informants. There is nothing before me that suggests that this is not the case. Secondly, even if I was minded to inspect the documents, I am not at all confident that I could determine what information would disclose the identity of the informants and what information would not. The case is quite different from one in which the Court inspects documents with a view to determining a claim for legal professional privilege where, in the ordinary case at least, a judge clearly has the required level of expertise.

45    Secondly, the applicant does not make an application in the interlocutory application for an order under s 126K(2) of the Evidence Act, although he made submissions in support of such an order. Initially, I was disposed to think that even so I could and should consider whether to make an order under s 126K(2). However, on further reflection I have reached the view that I should not consider whether to make an order under s 126K(2) in the absence of an application for such an order in the interlocutory application. I am satisfied that had such an order been sought, the respondents may well have adduced evidence as to likely adverse effects of the disclosure on the informants (see s 126K(2)(a)).

Analysis

46    I start with a brief summary of the submissions of the parties.

47    The applicant submits that the “critical issue” is whether the respondents’ claim for journalist privilege under s 126K of the Evidence Act is valid. This issue, in turn, involves three sub-issues. The first is whether a privilege exists at all in relation to those sources whose identity is no longer confidential, because the Outlines of Evidence served by the respondents as a practical matter disclose the identity of those sources. The second is whether the privilege extends to protect all documents provided by a source, even where the substance of the documents has been disclosed already and/or disclosure of the document does not disclose the identity of the source. The third is whether, even if the privilege exists, the Court should nonetheless order production under s 126K(2) on the basis that the public interest favours disclosure of relevant discovered documents to the applicant. As I have said, I do not propose to consider this third sub-issue because it is not part of the application.

48    The applicant submits that the Journalists Code of Ethics by itself would not provide any legal basis for refusing disclosure and, in those circumstances, he notes that on or about 14 November 2019, the respondents served amended Lists of Documents confirming that they rely upon s 126K of the Evidence Act. The applicant submits that the respondents’ evidence discloses four categories of documents alleged to be covered by the confidential source privilege, namely:

(1)    notes of discussions with confidential sources, or compilations of those notes;

(2)    documents obtained from confidential sources;

(3)    transcripts or recordings of interviews with confidential sources; and

(4)    email exchanges between Mr Masters and a confidential source, later forwarded to Mr McKenzie.

49    The applicant accepts that the affidavits of Messrs McKenzie and Masters establish, for the purposes of the application, that each of the respondents’ confidential sources was given the relevant “promise” for the purposes of s 126K(1).

50    The applicant referred to Ashby v Commonwealth of Australia (No 2) [2012] FCA 766; (2012) 203 FCR 440 (Ashby v Commonwealth) and, in particular, the following passage at [32]:

… Section 126H(1) assumes that the identity of the informant, as the source of the particular information that the journalist published, is not already known at the time that the privilege is claimed. That is, there is still a secret or confidence to protect. Thus, s 126H(1) deliberately uses the conditional “would” to indicate that the privilege is limited to a disclosure or act that changes the position of the informant from his or her then current state of being unknown as the source of the particular information. Once the informant has been revealed as the source of that information, the source’s identity as such is no longer confidential. Thus, there is no point in protecting his or her identity or permitting the journalist to assert that the identity is confidential to the journalist, so that he or she is not compellable to produce a document or give evidence that merely confirms that identity.

51    Section 126H(1) was in materially similar terms to s 126K.

52    In essence, the applicant’s argument on the application is that the privilege no longer subsists in the relevant documents because the identity of the various sources has been revealed. The applicant put two arguments, a broad argument and a more confined argument. The broad argument was that the privilege came to an end when the Outlines of Evidence were filed and served. I reject that argument. There is no reason to conclude that the mere filing of the Outlines of Evidence without further analysis destroyed the privilege. The more confined argument is that by reference to the publications, the respondents’ Defence and the Outlines of Evidence there has been disclosure of the identity of certain persons. I consider that argument below by reference to the “Examples” advanced by the applicant.

53    The applicant submits that a relevant contextual matter is the orders made under s 37AF of the Federal Court of Australia Act. The Court and the parties are aware of the identity of the persons, the subject of the 14 Outlines of Evidence, which have been filed and served by the respondents. Another contextual matter is that the applicant is seeking documents to enable him properly to meet the evidence that has been put against him. In this respect, the applicant’s submission is as follows:

It is submitted that it is obvious that the Applicant would seek documents which, for example, might comprise earlier versions or accounts from the Respondents’ proposed witnesses, or documents those witnesses might have supplied to the Respondents to support their accounts, or which might otherwise impact upon the credit of the witnesses. In this process, the fact that one or more of the witnesses may also have been a source for the matters complained of (although it may give rise to a claim for privilege) is beside the point — it is irrelevant to any issue in the case.

54    The applicant submits that the inference is obvious that some of the respondents’ proposed witnesses were the sources for the matters complained. The applicant submits that, having regard to the pseudonym orders and the implied undertaking, he and his legal advisers have no right publicly to divulge the identity of the witnesses nor, for that matter, their status as sources for the matters complained of. The applicant further submits that neither of those matters is a matter which would be expected to emerge as part of the proceedings, including the trial, having regard to the pseudonym orders. The applicant states that he did not object to the proper redaction of the documents sought if that can protect the identity of any particular person as a confidential source for the articles so long as the redaction does not prevent the applicant linking the documents to particular witnesses the respondents anticipate calling (where that would otherwise be apparent from the discovery).

55    Before leaving this summary of the applicant’s submissions, I should mention a matter counsel for the applicant raised at the outset of his submissions. It is a matter which had occurred to me on reading the written submissions. It is whether the privilege, whatever its present status, would be destroyed at trial upon a source being called as a witness at trial and identified by a few simple questions as a source. The argument would be that the documents are relevant (they have been discovered) and should be produced. The potential for the disruption to the orderly progress of the trial should this occur is obvious. As I understood the respondents’ reply to that submission, it was that no assumptions should be made as to what might occur at trial and, as far as the period before trial is concerned, if this potential for disruption is relevant, it can only be relevant as a public interest consideration on application under s 126K(2) of the Evidence Act. It seems to me that the fact that there may be disclosure of identity as an informant at trial cannot affect the determination of the privilege issue at this stage. The fact that as at the present time that may happen, or is likely to happen, at trial may be relevant to an application under s 126K(2), but, as I have said, thus far no such application has been made.

56    The respondents accept that the issue of whether there had been disclosure of information that identifies the informants or information from which those identities could be ascertained is to be determined on the balance of probabilities. They submit that the onus is on the applicant to establish that fact and that the Court should reject the argument that it is somehow incumbent on them to adduce evidence that none of the persons who are the subject of Outlines of Evidence were confidential sources as referred to in the respondents’ List of Documents.

57    The respondents submit that the applicant’s argument that one can infer the identity of a source by simply comparing the contents of the publications with the Outlines of Evidence is fundamentally flawed because it overlooks “the possibility of some other way the journalist was given that information, either by a hearsay informant or by a document or by other people who had been told by that person what occurred and had been able to pass it on, where that has been able to be corroborated”. The respondents submit that the applicant’s argument conflates the identity of a witness with the identity of an informant. Furthermore, the respondents submit that it is important to distinguish between eyewitnesses, informants and trial witnesses. They submit that there are a number of ways in which the account of an eyewitness may find its way to a journalist. The respondents submit that it “maybe” reasonable speculation that persons who are the subject of Outlines of Evidence are informants, but it is not a reasonable inference to be drawn over other inferences.

58    The respondents sought to bolster their argument by reference to the following matters. First, they submit that there are a large number of references in the publications that support the conclusion that there are a number of possible sources for the information. Secondly, they submit that because of the solemn promises the journalists gave to their sources, the Court should be slow to infer that they have disclosed their sources. In fact, the respondents submit that it is clear that the journalists have chosen their words carefully so as to avoid disclosing their sources. Thirdly, the respondents submit that the approach of Rares J in Ashby v Commonwealth provides appropriate guidance in terms of the evidence required to satisfy the Court that the identity of an informant had been disclosed. That case was, the respondents submit, a much stronger case for a conclusion of disclosure than the present and yet his Honour found that there had not been disclosure (see, for example [11]). His Honour said (at [28]):

There is evidence that Mr Lewis and Mr Ashby communicated about articles that Mr Lewis published shortly before these proceedings commenced, and that those articles may have had some relation to the document that is the subject of the current claim. However, I am not persuaded that the evidence establishes that Mr Ashby was the source or that the information, whatever it is, in the document is information that is now in the public domain or associates him as having provided it to Mr Lewis.

59    In this case there is no evidence of any communications before the publications between the journalists and any of the witnesses who are the subject of Outlines of Evidence.

60    The applicant developed his submissions by reference to examples which he contended established disclosure of the identity of the informants. There were five examples in his written submissions and the first two of these were the subject of detailed oral submissions.

61    The first example concerns the alleged murder of Ali Jan on 11 September 2012 in or about the village of Darwan.

62    The first matter complained of concerned articles published in The Sydney Morning Herald newspaper and entitled “SAS’s day of shame” and “Troops kept ‘kill board’: SAS’s day of shame” on 9 June 2018.

63    The article refers to a respected and experienced operator who heard the applicant relay a message that a spotter had been killed in action, and who a short time later, observed from a helicopter what looked like a body at the bottom of a cliff.

64    The article refers to a junior soldier who witnessed the applicant kick a detainee off the edge of a 10 metre high cliff and who also told his superiors that the injured man was executed. The article refers to a second witness serving with the SASR who says he saw the applicant kicking a detainee who was then summarily executed in some scrub out of the view of the other detainees and most of the other soldiers. The article refers to the fact that, although stories differ about the precise sequence of events, both witnesses (i.e., the junior soldier and the person serving with the SASR) said that the applicant was party to the decision to put the detainee “out of his misery”. A similar claim is made in the article published on 10 June 2018.

65    In the Defence and letter of particulars, it is alleged that the applicant kicked a detainee off a cliff and then directed Person 12, a member of the Afghan Partner Force, to shoot him. The particulars again expressly allege the applicant committed murder.

66    Three of the Outlines of Evidence served by the respondents deal with this incident, or some aspect of it. The Outlines are those of Persons 4, 7 and 13.

67    Person 4 deals with it in paragraphs 22 to 25 of his Outline of Evidence. He states that the applicant took the man (that is, a man being detained by Australian soldiers) to the edge of a small cliff. The man was handcuffed. The applicant placed the man onto his knees facing away from the cliff and towards the applicant. The applicant took a small run up and kicked the man in his chest. The man fell over the edge of the cliff. Person 4 saw the man’s face hit the side of the cliff and his teeth fly out of his mouth. The man was lying on the dry creek bed below and Person 4 saw the applicant and Person 11 walk down to the bottom of the creek bed and confer with each other. When Person 4 went to the bottom of the small cliff, he saw that the man had been shot dead. He used a digital camera to take a photograph of the man showing him deceased, including the injuries to his face. Person 4 then states that he, the applicant and Person 11 concocted a story to cover up the assault and execution of the man.

68    Person 13 was deployed to Afghanistan as a translator with the United States armed forces in 2012. He saw the applicant standing at the top of a small cliff with his patrol and approximate to where detainees were being held. Person 13 was standing at the bottom of a small cliff with Person 12 who was a commander within the Afghan Partner Force. Person 13 then observed the applicant take a handcuffed detainee to the edge of a small cliff. The applicant placed the detainee on his knees at the edge of the cliff. The applicant took a few steps back and kicked the detainee extremely hard in his midriff off the cliff. Person 13 observed that the detainee was seriously hurt and his face was badly injured. The applicant then directed Person 12 to execute the detainee. The applicant explained to Person 13 and Person 12 that the detainee should be executed because he was suspicious. Person 13 translated the applicant’s directive to Person 12. Person 12 and Person 13 then picked the detainee up off the ground where he was lying and walked him to nearby bushes to execute him as they did not want the remainder of the detainees to witness the execution. Person 12 then shot the detainee.

69    Person 7 describes the incident so far as he was involved. He heard the applicant report over the radio that they had engaged a spotter and that he was an enemy killed in action (EKIA). Person 7 said that he had not seen any person that could have been deemed to be a spotter. Person 7 said that when he was in the helicopter on the way out of Darwan, he looked downwards towards the village as he was wondering how the incident may have occurred and he saw, what he believes, was the body of the individual who had been killed.

70    In his Outline of Evidence, the applicant denies that any such event took place. He states that at the time, he and Person 11 engaged and killed a spotter in a corn field. He states that a Sensitive Site Exploitation (SSE) was undertaken and a photograph was taken of the body. He states that Person 12 was not in Darwan on the mission at that time and, in fact, had been stood down at the end of July 2012. He also states that Person 13 (the interpreter) was not with his patrol at any time during the Darwan mission and that on that day the only contact his patrol had with an interpreter was at an early stage.

71    The applicant has filed and served an Outline of Evidence on behalf of Person 11 and he denies that an incident occurred as has been described by the respondents. Furthermore, Person 12 was not present for any part of the Darwan mission, and Person 13 was not with the applicant’s patrol during that mission. The only interpreter the patrol had contact with had earlier been escorted to the rear.

72    The applicant submits that it is obvious that the soldier source referred to in Particulars 99 and 101–102 accompanying the Statement of Claim was Person 7. The applicant submits that the second person referred to in Particular 106 can only be Person 13 and that the junior soldier referred to in Particular 103 can only be Person 4.

73    The applicant submits that any documents and information supplied by Persons 4, 7 and 13 will be critical. He asks the Court to bear in mind the circumstance that he denies the event took place. In fact, the man he supposedly ordered to shoot Ali Jan on 11 September 2012, being Person 12, had been stood down in July 2012. The applicant’s evidence will be that Person 13 was also not with his patrol at any time during the Darwan mission. He has no proper opportunity to prepare to meet the allegation of murder which is being made against him and discovery of documents and information provided by the sources is, according to the applicant, critical.

74    The second example concerns the alleged execution of an Afghan Male in 2009: “blooding the rookie”.

75    In an article published on 10 June 2018, there are statements to the effect that an SASR trooper on his first deployment to Afghanistan was pressured to execute an elderly, unarmed detainee by fellow higher-ranking soldiers as part of a “blooding ritual” according to defence insiders who were witnesses at the scene. The execution is said to have taken place on Easter Sunday in 2009. The victim was a suspected Taliban member, but at the time presented no threat to Australian soldiers. The article contained statements to the effect that the newly deployed soldier allegedly shot the man after being prompted by two more senior soldiers, one of whom was earlier overheard proclaiming a need to “blood the rookie”. One of the sources said that the killing was less abhorrent than the pressuring.

76    The incident is referred to in paragraph 46 of the Particulars to the Defence. The allegation is that in the presence of the applicant, Person 5 ordered Person 4 to execute a person described as an Afghan Male 1. Pursuant to that order, Person 4 placed Afghan Male 1 on his knees and shot him in the back of the head. Person 4 was ordered to execute the Afghan male so that he could be “bloodied”. The applicant did not say or do anything to encourage Person 5 to withdraw the order or to stop Person 4 following the order. The allegation is that, in those circumstances, it may be inferred that the applicant was complicit in and approved of the order. It is further alleged that by his conduct with respect to Afghan Male 1, the applicant was complicit in and responsible for murder.

77    The respondents have filed an Outline of Evidence from Person 4. In that Outline, it is said that Person 5 directed Person 4 to execute one of the Afghan men. The applicant was present when this directive was given. Person 4 removed the Afghan male to a nearby location, placed him on his knees and executed him.

78    The only other Outline filed and served by the respondents in which the incident is referred to is the Outline of Evidence filed on behalf of Person 14. In Person 14’s Outline, it is said that after the mission, Person 5 came out of “Whiskey 108” (a compound given that code name) and said: “I finally bloodied the rookie” (referring to Person 4).

79    The applicant denies that any such incident occurred. He states that Person 4 had already killed an insurgent approximately one month before this time and that the expression “blooding the rookie” was not used in the SASR. Person 5 denies that any such execution occurred. Person 29 states that there were no fighting aged males detained within the compound so that the incident could not have happened. He also said that the phrase “blooding the rookie” was not used in the SASR. Person 35 gives evidence to similar effect to that of Person 29. Person 27 also states in his Outline that the terminology of “blooding the rookie” was not known in the SASR at the time.

80    The applicant submits that the only participants or witnesses to the incident were the applicant, Person 5 and Person 4. Given the statements made by the applicant and Person 5, the source of the information about the incident must be Person 4. The applicant submits that insofar as Person 14 provides corroborative evidence, his identity is also not confidential. The applicant submits that he simply cannot prepare fairly to meet the allegation without seeing the documents and information provided by the source.

81    In my opinion, it must be quite clear that there is information available which discloses the informant’s identity, or enables the identity to be ascertained, before the journalist’s privilege in s 126K(1) is displaced. The publisher or journalist carries the onus of establishing the elements of the section, but does not carry the onus of negating a claim that disclosure of identity has already taken place. The onus of establishing that is on the person who claims that the privilege has been displaced. There is a broad analogy between the circumstances of prior disclosure sufficient to displace journalist privilege and waiver of legal professional privilege in that the person who asserts displacement or waiver must establish it and the evidence establishing such displacement or waiver must be quite clear.

82    It is important to bear in mind that the person whose identity is protected is an informant, that is to say, a person who gives information to a journalist. That person is not necessarily an eyewitness or a person whose information would be admissible evidence in a court.

83    The articles themselves make it clear that not only has there been a detailed investigation by the journalists (over months and involving interviews with dozens of current and former soldiers and senior officials, the hiring of an Afghan journalist) (Particulars of First Matter complained of, para 44), but also a Defence Force Inquiry in 2016 and a Confidential Report (Particulars of First Matter complained of, paras 8 and 9), and detailed testimony of first-hand witnesses (First Matter complained of, para 7), and finally, the entire culture and command structure of Australia’s most renowned and trusted fighting force being under scrutiny in a manner unprecedented in Australian military history (First matter complained of, para 46). It is also true that there are examples of reports of statements being made by first-hand witnesses or witnesses, but no express statement that the statements were made to the journalists themselves (First Matter complained of, paras 7 and 27).

84    I have considered all of the above matters and, bearing in mind the range of possible sources in this case, I am not satisfied that there has been a disclosure such as to displace the journalist privilege.

85    The first two examples are the applicant’s strongest examples and as he has failed with respect to those examples, he must fail as to his other examples. I will describe those other examples for the sake of completeness.

86    The third example concerns the alleged murder of a man identified as Afghan Male 2 with a prosthetic leg in 2009.

87    The article published on 10 June 2018 refers to an Afghan man whose right leg is a prosthetic who was killed in 2009. It is said that his prosthetic leg was taken back to the Perth headquarters of the SAS as a “trophy”. The article states that the SASR are the “sources” and claim that the man with the prosthetic leg was machine gunned by the applicant. This allegation is picked up in the Defence where it is alleged that the applicant carried an Afghan male with a prosthetic leg outside the compound and threw him on the ground. He then shot Afghan Male 2 approximately 10 to 15 times with a light machine gun. It is alleged that Afghan Male 2 was a person under control who posed no immediate threat, particularly given that he was impaired and the applicant was able to carry him outside of the compound and throw him to the ground. The allegations include an allegation that the applicant’s conduct with respect to Afghan Male 2 constituted murder. This is alleged to have occurred on Easter Sunday, 2009.

88    The applicant submits that the only Outline of Evidence served by the respondents which deal with this incident is an Outline of Person 14. In Person 14’s Outline he states that he saw movement in his right peripheral vision at the entry point of Whiskey 108. He observed an Australian soldier throw a dark object from shoulder height onto the ground near the entry of the compound. The Australian soldier then shot the object approximately 10–15 times. From the sound of the weapon, Person 14 could tell that the weapon was a light machine gun (F89 LSW). Person 14 described the soldier as tall and thick in the upper body.

89    The applicant submits that there is no other person in the respondents’ Outlines of Evidence that refer to this incident. So far as the applicant is aware, the allegation of murder rests only on this account.

90    The applicant agrees that he engaged and killed an insurgent who was armed with a rifle outside Whiskey 108 after it had been secured. He agrees that after this occurred, he noticed that the insurgent had a prosthetic leg. The applicant recovered a bolt action rifle from the body and took a photograph during the SSE. The applicant claims that the incident as recorded by Person 14 could not have occurred for the following reasons: (1) Person 14 could not have seen him given their respective positions at this time; (2) the applicant could not have carried an insurgent outside of the compound given his equipment load of webbing, body armour, a helmet and machine gun; and (3) 10–15 rounds from a machine gun would show significant trauma on the body. The applicant only shot the insurgent once or twice. The applicant submits that a number of witnesses will corroborate his account (Persons 27, 29, 35, and 38).

91    The applicant submits that Person 14 is the sole support for the allegation of murder reported in the article and that Person 14 is no longer a confidential source. The applicant submits that it is obvious that any documents or information provided by Person 14 in respect of this allegation will be critical and the applicant cannot fairly prepare to meet this allegation of murder without access to those documents and information.

92    The fourth example concerns an unlawful assault of a man identified as Afghan Male 3 in March 2012, Rotation 12.

93    In the article published on 11 and 12 August 2018, there is a reference to one experienced SAS soldier describing intervening to stop the applicant bashing an unarmed Afghan whom patrol commanders were seeking to arrest in 2012. There is reference to the detainee being in a foetal position when the applicant entered the room wearing Kevlar gloves and to the applicant pummelling the detainee in the face with his fists and in the stomach with his knees. The source said “Whoa whoa whoa. Back off mate. We have this under control”. This allegation is referred to in the Defence. The Defence records Persons 7 and 8 being present when the applicant wearing Kevlar gloves assaulted the detainee by hitting his face and stomach. The Defence records Person 7 as making the comment “Whoa, whoa, whoa what you doing? Get out of here we are looking after this”. Person 7’s Outline of Evidence records an incident in these terms. The applicant submits that the source for this allegation in the manner complained of is clearly Person 7. Even if, which seems unlikely, Person 8 is also a source, that would not affect the position of Person 7.

94    The final example concerns a mock execution in May 2012.

95    In the article published on 11 and 12 August 2018, there is reference to an incident during a training exercise in Perth where the applicant ordered a soldier to shoot a detainee. The source is said to be an SAS solider who claims to have witnessed the event. He describes the applicant as saying “F–ing kill him, f–ing him” and after the mock execution had been simulated, the applicant saying “You good with that?”. It is also stated that two patrol commanders challenged the applicant telling him to “pull his head in”.

96    This incident is referred in the Defence.

97    There are two Outlines of Evidence which deal with it. There is the Outline of Person 7. In the Outline, Person 7 states that he approached the applicant and said words to the effect of “Wake up to yourself and pull your bloody head in”. It would seem that he was the patrol commander who reprimanded the applicant after the incident. Person 10 also refers to the incident. He is identified as the trainee ordered to perform the mock execution.

98    The applicant submits that there is no confidentiality in Person 7 and 10 being the sources for this incident or any information pertaining to the incident. This is the case whether or not other persons (irrespective of whether they were confidential sources) witnessed the incident.

99    As I have said, the above three examples rise no higher than the first two examples and they do not lead to the displacement of the journalist privilege for the reasons given in relation to those examples.

The Order Sought with Respect to the Outlines of Evidence

100    With respect to the order sought in relation to the Outlines of Evidence, there is no specific Rule of Court which empowers the Court to make such orders. During submissions, both parties indicated that they would be content with an order that at some point prior to the trial, each party indicate whether they intend to call all of the witnesses who are identified in the Outlines of Evidence. This would need to be some time before trial to achieve its intended beneficial effect. I will give the parties the opportunity to see whether they can agree an appropriate order.

Conclusion

101    Paragraphs 1, 2 and 3 of the Interlocutory application must be dismissed with costs. Paragraph 4 will be adjourned to a date to be fixed and the parties will be given the opportunity to agree an appropriate order.

Associate:    

Dated:    6 January 2020

SCHEDULE OF PARTIES