Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 10) [2021] FCA 317

ORDERS

THE COURT ORDERS THAT:

1.    The respondents lodge within seven days draft minutes of order reflecting the conclusions in these reasons.

2.    The respondents’ interlocutory application dated 11 February 2021 be adjourned to a date to be fixed.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an interlocutory application brought by the respondents in three defamation proceedings before the Court. Mr Ben Roberts-Smith is the applicant in each proceeding and Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe are the individual respondents in each proceeding. Fairfax Media Publications Pty Ltd is the first respondent in NSD 1485 of 2018, The Age Company Pty Ltd is the first respondent in NSD 1486 of 2018, and The Federal Capital Press of Australia Pty Ltd is the first respondent in NSD 1487 of 2018.

2    There have been a number of interlocutory applications in these proceedings and I have delivered substantial reasons in relation to a number of those applications. Two decisions are of particular importance to the present application. They are Roberts-Smith v Fairfax Media Publications Pty Ltd (No 4) [2020] FCA 614; (2020) 277 FCR 337 (Roberts-Smith (No 4)) and Roberts-Smith v Fairfax Media Publications Pty Ltd (No 5) [2020] FCA 1067 (Roberts-Smith (No 5)).

3    The trial of the three proceedings is listed to commence on 7 June 2021 and the time allocated for the trial is six to eight weeks. The trial will take place in Sydney, New South Wales.

4    By an interlocutory application in each proceeding, the respondents seek the following orders:

1.    Pursuant to section 47A(1) of the Federal Court of Australia Act 1976 (Cth) the following persons be permitted to give evidence at the hearing of these proceedings by audio-visual link:

(a)    Person 62;

(b)    Person 63;

(c)    Person 64;

(d)    Person 65;

(e)    Person 21.

2.    Such further or other order as the Court thinks fit.

5    The persons listed are witnesses the respondents propose to call at the trial and, in the case of each witness, the respondents have filed and served an outline of evidence. Person 21’s name is suppressed. Persons 62, 63, 64 and 65 reside in villages in Afghanistan and the respondents claim that they are able to give evidence relevant to the issues in the proceeding. Their names were suppressed, but the suppression order expired on 11 September 2020 when no further application for the suppression of their names was made by the respondents. Nevertheless, in the submissions they were referred to by their original designations and, for convenience, I will take that approach. I will refer to them collectively as the Afghan witnesses.

6    In support of their application, the respondents rely on two affidavits of Mr Peter Llewellyn Bartlett sworn on 11 February 2021 and 4 March 2021 respectively. Mr Bartlett is a partner of MinterEllison and he is the lawyer for the respondents in the proceedings. Mr Bartlett’s first affidavit outlines the steps the respondents have undertaken to enable the Afghan witnesses to give evidence in these proceedings, the steps undertaken to enable those witnesses to give evidence by Audio-Visual Link (AVL) and the reasons for the respondents’ application in the case of Person 21. In his second affidavit, in addition to providing details of further steps taken by the respondents regarding identity documents and visa applications for the Afghan witnesses, Mr Bartlett identifies the limited nature of the material where orders under the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (the NSI Act) may preclude the material being put to the Afghan witnesses, advice the respondents have received that there is no Afghan law which prohibits an Afghan giving testimony in foreign court proceedings by AVL or other means, and communications which have passed between the respondents and the Department of Foreign Affairs and Trade (the DFAT). The respondents also rely on an email from the Australian Government Solicitor dated 2 February 2021 which indicates the Commonwealth’s opposition to the disclosure of national security information by AVL and identifies that part of Person 21’s outline of evidence, which discloses national security information, and emails from the DFAT, including an email dated 3 March 2021. The applicant relies on an affidavit of Mr Bartlett sworn on 15 May 2020 and emails from the respondents’ solicitors, including an email dated 25 March 2020 and emails from the respondents’ solicitors, including an email dated 26 March 2020.

7    On 31 March 2020, the Attorney-General of the Commonwealth served a notice under s 6A of the NSI Act that that Act applies to each proceeding. The Commonwealth of Australia has been represented by counsel before this Court at a number of hearings and made submissions relevant to issues arising from the application of the NSI Act. On 15 July 2020, I made a number of orders under ss 19(3A) and 38B of the NSI Act for the protection of national security information. On 3 March 2021, the Commonwealth applied for orders amending the previous orders made under ss 19(3A) and 38B of the NSI Act, in essence, to address the issues in relation to national security information that it is anticipated will or may arise during the trial.

8    The Commonwealth’s application came on for hearing on the same day as the respondents’ interlocutory application. The orders sought by the Commonwealth were not opposed by either the applicant or the respondents and I made the orders which the Commonwealth sought. I then heard the respondents’ interlocutory application which was opposed by the applicant.

9    Person 21 has been posted by the Australian Defence Force to Dili in Timor-Leste, where he is expected to be for about two years. There is no substantial dispute about the respondents’ application with respect to Person 21 and, subject to conditions, it will be allowed. The substance of the dispute between the applicant and the respondents concerns whether the Afghan witnesses should be allowed to give evidence by AVL assuming they cannot come to Australia. I have decided that that application should be allowed.

The Relevant Legislative Provisions.

10    The giving of evidence by AVL in this Court is governed by ss 47A, 47C and 47D of the Federal Court of Australia Act 1976 (Cth) (the Act). Those sections provide as follows:

47A Testimony by video link, audio link or other appropriate means

(1)    The Court or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means.

Note:    See also section 47C.

 (2)    The testimony must be given on oath or affirmation unless:

(a)    the person giving the testimony is in a foreign country; and

(b)    either:

(i)    the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceeding; or

(ii)    the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceeding; and

(c)    the Court or the Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.

(3)    If the testimony is given:

   (a)    otherwise than on oath or affirmation; and

(b)    in proceedings where there is not a jury;

the Court or the Judge is to give the testimony such weight as the Court or the Judge thinks fit in the circumstances.

Note:    In proceedings where there is a jury, the Judge may warn the jury about the testimony (see section 165 of the Evidence Act 1995).

(4)    The power conferred on the Court or a Judge by subsection (1) may be exercised:

(a)    on the application of a party to the proceedings; or

(b)    on the Court’s or Judge’s own initiative.

(5)    This section applies whether the person giving testimony is in or outside Australia, but does not apply if the person giving testimony is in New Zealand.

Note:    See Part 6 of the Trans Tasman Proceedings Act 2010.

47C Conditions for use of video links, audio links or other appropriate means

Video link

(1)    The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to a video link unless the Court or the Judge is satisfied that the following conditions are met in relation to the video link:

(a)    the courtroom or other place where the Court or the Judge is sitting is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom or place to see and hear the person (the remote person) who is:

(i)    giving the testimony; or

(ii)    appearing; or

(iii)    making the submission;

by way of the video link;

(b)    the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting;

(c)    such other conditions (if any) as are prescribed by the Rules of Court in relation to the video link;

  (d)    such other conditions (if any) as are imposed by the Court or the Judge.

(2)    The conditions that may be prescribed by the Rules of Court in accordance with paragraph (1)(c) include conditions relating to:

(a)    the form of the video link; and

(b)    the equipment, or class of equipment, used to establish the link; and

(c)    the layout of cameras; and

(d)    the standard of transmission; and

(e)    the speed of transmission; and

(f)    the quality of communication.

Audio link

(3)    The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to an audio link unless the Court or the Judge is satisfied that the following conditions are met in relation to the audio link:

(a)    the courtroom or other place where the Court or the Judge is sitting is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that courtroom or place to hear the person (the remote person) who is:

(i)    giving the testimony; or

(ii)    appearing; or

(iii)    making the submission;

by way of the audio link;

(b)    the place at which the remote person is located is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting;

(c)    such other conditions (if any) as are prescribed by the Rules of Court in relation to the audio link;

   (d)    such other conditions (if any) as are imposed by the Court or the Judge.

(4)    The conditions that may be prescribed by the Rules of Court in accordance with paragraph (3)(c) include conditions relating to:

  (a)    the form of the audio link; and

  (b)    the equipment, or class of equipment, used to establish the audio link; and

  (c)    the standard of transmission; and

  (d)    the speed of transmission; and

  (e)    the quality of communication.

Other appropriate means

(5)    The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to an appropriate means other than video link or audio link unless the Court or the Judge is satisfied that the following conditions are met in relation to that means:

(a)    the conditions (if any) as are prescribed by the Rules of Court in relation to that means;

   (b)    such other conditions (if any) as are imposed by the Court or the Judge.

Eligible persons

(6)    For the purposes of the application of this section to a particular proceeding, eligible persons are such persons as the Court or a Judge considers should be treated as eligible persons for the purposes of that proceeding.

47D Putting documents to a person by video link, audio link or other appropriate means

If, in the course of an examination or appearance of a person by video link, audio link or other appropriate means in accordance with this Part, it is necessary to put a document to the person, the Court or a Judge may direct or allow the document to be put to the person:

(a)    if the document is physically present in the courtroom or other place where the Court or the Judge is sitting:

(i)    by causing a copy of the document to be transmitted to the place where the person is located; and

   (ii)    by causing the transmitted copy to be put to the person; or

(b)    if the document is physically present in the place where the person is located:

   (i)    by causing the document to be put to the person; and

(ii)    by causing a copy of the document to be transmitted to the courtroom or other place where the Court or the Judge is sitting.

The Afghan Witnesses

11    In Roberts-Smith (No 5), I considered an application by the respondents for a number of orders which included, relevantly, orders for leave pursuant to r 16.53 of the Federal Court Rules 2011 (Cth) to amend the Defence to add new allegations and to amend existing allegations, and an extension of the time fixed by orders of the Court in which to file and serve new outlines of evidence and supplementary outlines of evidence.

12    With respect to the respondents’ application to amend one group of particulars of truth in the existing Defence under the heading “Murder of Ali Jan”, I set out the existing particulars and the proposed amendments. Those reasons should be read with these reasons. I refer, in particular, to [30]–[59] of Roberts-Smith (No 5).

13    With respect to the respondents’ application for an extension of time to file and serve outlines of evidence of the Afghan witnesses, I refer to [144]–[161] of Roberts-Smith (No 5). The outlines of evidence of the Afghan witnesses were relevant to the existing particulars concerning the “Murder of Ali Jan” as well as the amendments. In dealing with the proposed amendments to those particulars, I briefly summarised the evidence of the Afghan witnesses as set out in their outlines of evidence (at [59]–[64]):

59    … They also seek to rely on the outlines of evidence of four Afghan witnesses (Persons 62, 63, 64 and 65) in respect of whom they seek an extension of the time fixed by order of the Court for the filing and serving of outlines of evidence.

60    Unlike the other outlines of evidence for which an extension of time is sought, the outlines of the Afghan witnesses are relevant to the existing particulars as well as the amendments. I address the application for an extension of time in relation to their outlines later in these reasons. I have decided that an extension of time should be granted in relation to the outlines of evidence of the Afghan witnesses. A summary of their evidence is as follows.

61    Person 62 claims that he is Ali Jan’s nephew. He lived in Darwan in September 2012 and still lives there. He claims to have been detained with Ali Jan and Person 63 on 11 September 2012 and to have been interrogated by Australian soldiers. He claims he saw the applicant kick Ali Jan off the small cliff. He claims that Ali Jan was then taken to a cornfield by two soldiers who were short in stature. He claims Ali Jan was shot by a soldier, although it is not actually clear from his outline that he saw this happen. He claims that when he saw Ali Jan’s body, he noticed he had been shot in the face.

62    Person 63 claims that he is a distant cousin of Ali Jan. He lives next door to Person 62 in Darwan and he lived there in September 2012. The village in which Ali Jan lived is about three hours away on foot. He claims to have been detained with Ali Jan and Person 62 on 11 September 2012 and to have been interrogated by Australian soldiers. He claims to have heard shots and when he saw Ali Jan’s body, he believed that Ali Jan had been shot in the face.

63    Person 64 claims that Ali Jan is his wife’s brother. He has lived in Darwan for all of his life. He is the father of Person 62 with whom he lives. He claims that he saw a big soldier kick Ali Jan off a cliff. He claims that a short time later he heard gun shots. He claims that he saw Ali Jan’s dead body with a gunshot(s) wound to the face.

64    Person 65 lives in Afghanistan. She lived in Darwan until two years ago. She claims that she saw a person she was told was Ali Jan kicked off a cliff by a soldier. Shortly afterwards she heard gunshots.

14    In his first affidavit, Mr Bartlett states that it is the respondents’ preference for the Afghan witnesses to give evidence in person, although the respondents are conscious of the fact that this may not be possible. In those circumstances, the respondents make their application in the event that it is not possible for one or more of the Afghan witnesses to travel to Australia to give evidence. Mr Bartlett sets out details of the efforts made by the respondents’ solicitors to enable the Afghan witnesses to travel to Australia.

15    As at the date of the hearing of the respondents’ application, the position with respect to each of the Afghan witnesses as deposed to by Mr Bartlett is as follows. Each of Persons 62 and 63 has local or paper identity documents, a nationally certified translation of a paper identity document, a passport, and electronic national identity documents. Person 64 is in the same position, except that he has commenced an application for electronic documents, but has not yet completed that application due in part to system failures within the relevant government office. Each of Persons 62, 63 and 64 are being assisted by a solicitor, registered migration agent, and member of the MinterEllison Migration Services Practice, to prepare an application for an Australian visa. Person 65 does not possess current identity documents and has not yet applied for identity documents or a passport. Person 65 currently resides in a remote village in a mountainous area approximately seven hours from Kandahar in Afghanistan.

16    A solicitor, registered migrant agent and the leader of the MinterEllison Migration Services Practice has advised the respondents that the prospects of obtaining visas for the Afghan witnesses to travel to Australia remained low. The written advice is to the following effect:

Based on our experience, the prospects of success are low, in particular due to the fact that Afghanistan is a high risk country, is in the top 10 countries for refugee application lodgements and grants, and the associated risk of overstay for applicants from these countries is likely to be considered by the Department of Home Affairs to be very high (the risk profile is unfortunately not publicly available). Both the visa application criteria and the travel ban exemption request are discretionary – we won’t know whether the applicants will be successful unless they give the process a try. However, the ‘wild card’ factors are the high profile nature of the trial and other stakeholders involved.

Mr Bartlett states that the respondents intend to continue their efforts to bring the Afghan witnesses to Australia.

17    I asked the respondents’ counsel during the course of her oral submissions to explain the extent to which the respondents were putting their application on the basis that the Afghan witnesses will not be able to attend the trial in June 2021, and the extent to which the respondents were putting their application on the basis that the Afghan witnesses will not be able to come to Australia whenever the trial is held. Counsel provided the following response:

MS BARNETT: Your Honour, I think the evidence about that is really Ms Aaron’s affidavit [sic Ms Arend’s advice], which indicates that the problems with the witnesses coming to Australia, or that the matters that tend against them in getting a visa are, firstly, the boarder [sic] closures due to COVID, which will remain in place in June. So certainly, so far as the trial proceeds in June, which is everyone’s anticipation, there’s that. Secondly, Ms Aaron [sic] refers to the fact that they are from a high-risk country. This is on page 15 of the affidavit. The fact that Afghanistan is a high-risk country, in the top ten countries for refugee application lodgements and grants and the associated risk of overstay, so, in my submission, this application doesn’t really turn on timing, because it’s brought on the basis that whenever the trial is, on the advice we have, it’s unlikely that these witnesses will be granted a visa …

18    Mr Bartlett deposes to the steps the respondents have taken to facilitate the Afghan witnesses giving their evidence by AVL in the event that it is not possible for them to travel to Australia. The respondents have made inquiries about the availability of commercial AVL facilities in Kabul and have not been able to locate any such facilities. The respondents’ solicitors have confirmed with Kakar Advocates LLC, a law firm in Kabul that the respondents have engaged in relation to these proceedings, that they have or can obtain suitable facilities at their offices to enable the Afghan witnesses to give evidence by AVL from those offices. Mr Bartlett produces correspondence from Kakar Advocates LLC in which they have indicated that they are able to guarantee, in accordance with the Court’s requirements, the following:

i.    A stable internet connection of up to 16Mbps dedicated bandwidth.

ii.    An IP address.

iii.    Microsoft Teams, Zoom and Skype videoconference platforms.

iv.    Private and secure conference rooms of a sufficient size and appropriate layout to comfortably accommodate the witnesses and other participants.

v.    Audio-visual equipment in these rooms suitable for cross-examination including television, webcam, backup speakerphone, and uninterruptible power supply. A document camera is, however, not currently available at the offices of Kakar Advocates.

vi.    Religious text upon which an oath may be sworn.

vii.    An Information Technology contact that can assist with any further questions or requirements.

19    Mr Bartlett deposes that the respondents propose to ensure that there is an interpreter present in the location where the witnesses are giving evidence, or in the Court, or both, “subject to the Court’s preference”.

20    In his second affidavit, Mr Bartlett deposes to a request made by the respondents’ solicitors to Mr Thomas Kraemer, a senior counsel at Kakar Advocates LLC, to advise on “whether there is any law in Afghanistan that forbids the Afghan witnesses from giving evidence in the defamation proceedings by audio-visual link from Afghanistan”. Mr Kraemer has provided short advice in which he indicates that “there is no prohibition under Afghan law on an Afghan giving testimony in a foreign court proceeding whether by video link or any other means”. Mr Bartlett annexes to his affidavit the correspondence and Mr Kraemer’s curriculum vitae.

Analysis

21    The applicant advanced seven reasons why the proposal put forward by the respondents in respect of the Afghan witnesses is, to use his words, “simply unworkable”. These are the relevant matters and it is convenient to organise my analysis by reference to these matters.

22    First, the applicant submits that it is apparent from the outlines of evidence of the Afghan witnesses that their evidence will deal with what they observed in Darwan on the day in question. The applicant submits that it will be critical for them to be shown contemporaneous photographs, maps and other representations of the landscape, structures and the persons involved. The applicant submits that those documents have been produced by the Department of Defence under subpoena and are subject to the regime under s 38B of the NSI Act. The applicant submits that the regime will explicitly forbid the sharing of information in that manner unless the Commonwealth provides a prior notification that such information is not sensitive. That matter cannot be assured. The consequence of these matters is, according to the applicant, that if the Afghan witnesses are able to give evidence by AVL, the applicant’s legal team will not be able to put critical documents to them. That will interfere with the forensic cross-examination of the Afghan witnesses. These circumstances will affect the weight to be attached to the evidence of the Afghan witnesses, such that it will be minimal and valueless in determining the relevant issues. The applicant submits that its probative value to the Court could not outweigh the unfairness to the applicant in permitting it to be given when cross-examination on behalf of the applicant will be so substantially impaired.

23    Mr Bartlett addresses this alleged disadvantage in his second affidavit. He deposes to the fact that the orders under s 38B of the NSI Act (s 38B orders) dealing with the trial phase of the proceedings classify the documents in three tiers: Sensitive Documents, Non-Publication Order Documents (NPO Documents) and Non-Sensitive Documents. The orders forbid an Authorised Person from disclosing a Sensitive Document to another person who is not an Authorised Person during the hearing of the proceedings. The Afghan witnesses are not Authorised Persons. Mr Bartlett deposes to the fact that a review by the respondents of the Commonwealth’s indication as to what will be Sensitive Documents for the purposes of the s 38B orders has identified four documents which relate to the Darwan mission. He identifies the four documents by their description and notes that the final two documents are not expressly identified by the Commonwealth as Sensitive Documents, but contain aerial imagery and would, therefore, be classified as Sensitive Documents. Mr Bartlett is informed that the review by the respondents’ solicitors of the four Sensitive Documents reveals that the only information within those documents that is relevant to the evidence of the Afghan witnesses is the aerial imagery of the location where the Darwan mission occurred.

24    Mr Bartlett also deposes to the fact that there are 47 other documents relating to the Darwan mission which have been produced by the Department of Defence under subpoena which the Commonwealth has indicated will not be classified as Sensitive Documents for the purposes of the s 38B orders. These photographs include photographs of deceased Afghan nationals and photographs of Darwan village. As these documents are not Sensitive Documents, the applicant will be able to put these documents to the Afghan witnesses in the course of cross-examination. In addition, Mr Bartlett deposes that the applicant can source contemporaneous aerial imagery of the location of the Darwan mission from commercial providers should he wish to put such material to the Afghan witnesses. He produces a screenshot from the website of a company named DigitalGlobe which is a vendor of aerial imagery. The screenshot shows the village of Darwan.

25    The respondents’ submissions provide a substantial answer to the applicant’s first reason. As far as Sensitive Documents are concerned, the s 38B orders prevent the applicant from showing those documents to the Afghan witnesses whether the latter give evidence in person or by AVL. The applicant consented to the making of those orders. Further, only four documents are likely to be deemed Sensitive Documents and there are commercial providers of aerial imagery. It is likely other documents, such as photographs of deceased Afghan nationals and of Darwan village, will be available to the applicant to put to the Afghan witnesses. As to information as distinct from documents, it is most unlikely that the Afghan witnesses will have any national security information such that they will be asked about it or will need to disclose it.

26    Second, the applicant submits that the proposed venue at Kakar Advocates LLC is not satisfactory and that, on the evidence, the Court cannot have confidence that a law firm in Afghanistan, as opposed to an Embassy or a proper commercial AVL facility, being a country where the security situation is notoriously uncertain, will provide adequate security for each of the witnesses and the integrity of the process.

27    Subject to my analysis of the third reason, I think that the arrangements are adequate and that matters, such as who is in the room where a witness is giving evidence, can be the subject of submissions and orders of the Court.

28    Third, and closely related to the second reason, the applicant submits that the proposed technology is unsatisfactory because there is no separate screen for documents, or a document camera. The applicant submits that the proposal seems to be for the documents to be viewed by the video conferencing platform’s share screen facility. He submits that this is not an adequate arrangement given the gravity of the evidence apparently to be given by the Afghan witnesses and the substantial disputes about the movement of persons through Darwan at particular times during that day.

29    Although it would be better if the witness could be shown documents by the use of a document camera, the absence of a document camera is not, in my view, an insurmountable problem. Relevant documents can be emailed to Kakar Advocates LLC prior to or during the cross-examination of the witness, printed by a lawyer at that firm and then shown to the witness. This procedure is expressly contemplated by the provisions of s 47D of the Act.

30    Mr Bartlett gives evidence that the respondents are making inquiries about the possibility of the Afghan witnesses giving evidence from the Australian Embassy in the United Arab Emirates. The applicant sought to use this as an indication of how uncertain and unstable the respondents’ application is at this stage. I do not accept this submission. It seems to me that the respondents are correct when they say that they are seeking the most appropriate venue and the fact that three of the Afghan witnesses have recently been offered passports had opened up the possibility of the Afghan witnesses travelling to other countries to give evidence by AVL.

31    Fourth, the applicant submits that I should not make an order under s 47A of the Act because there is an unresolved question as to the legality of the whole arrangement. In this context, he refers to an email from the DFAT dated 2 April 2020 in which the DFAT states that there are no formal treaty arrangements for the taking of evidence between the two jurisdictions (i.e., Australia and Afghanistan) and “it may be open to Afghanistan to consider a proposal to take evidence by commercial AVL facilities as a matter of comity”. He submits that whatever permissions are required have not been obtained. He submits that it is the view of the DFAT, at least, that the taking of evidence by commercial video link ought not proceed without the permission of the Afghan government. He submits that the correspondence with the DFAT raises the possibility that the giving of evidence in the manner proposed is forbidden in Afghanistan unless prior consent is obtained. He submits that absent evidence on this issue, the Court should not make an order under s 47A of the Act and, in this context, he refers to the decision of the Full Court in Joyce v Sunland Waterfront (BVI) Ltd [2011] FCAFC 95; (2011) 195 FCR 213 (Joyce v Sunland) at [62].

32    In response to this submission, the respondents point to the evidence of Mr Kraemer and asks me to find that there is no law forbidding an Afghan giving testimony in foreign court proceedings whether by AVL or any other means. I am prepared to make that finding on the basis of the evidence before me.

33    In Joyce v Sunland, the Full Court said (at [61]):

Of course, if the law of a foreign state prohibits a person within its borders from participating in such a process, then problems might arise. That is not the present case. The only evidence is that there is no restriction upon giving evidence, either to a Judge or examiner sitting in the UAE, or by way of video link to another country. It is true that some evidence suggests that the UAE will not agree to the giving of evidence by video link, but it is not clear whether that represents the UAE’s attitude to the provision of facilities and assistance or to the actual giving of evidence. Even if the government of the UAE is, notwithstanding the absence of any legal basis for such opposition, indicating its own unwillingness to agree to evidence being taken by video link, it does not follow that to do so would impinge upon state sovereignty. A person in Australia might be willing to give evidence by video link to a foreign court, notwithstanding the Australian government’s wish that he or she not do so. In the absence of any law prohibiting such action, the Australian government would be powerless to prevent the person from giving the evidence. We see no reason to believe that the position is otherwise in the UAE.

(see also at [60]).

In light of my finding and these observations of the Full Court, the applicant’s fourth reason is rejected.

34    Fifth, the applicant submits that Person 65, who has no identity papers, cannot give evidence by AVL from a foreign country because in this situation there is no way for the parties or the Court to have any confidence about the identity of the person giving evidence. Furthermore, the applicant submits that, for reasons which are not satisfactorily explained, the respondents have dealt with this issue belatedly. They have had ample time to organise identity papers for Person 65.

35    There is no substance in this point. The applicant did not point to statutory or common law rule that a person without identity papers was not competent to give evidence. Person 65 is competent to give evidence (s 12 Evidence Act 1995 (Cth)). Of course, the Court would need to be satisfied that she is who she claims to be, but that might be established in a variety of ways. This is a matter to be addressed at the trial. As to the allegation of delay in relation to Person 65, I accept the respondents’ explanation that Person 65’s particular circumstances have made it difficult to provide assistance to her.

36    Sixth, the applicant submits that there are particular circumstances in this case which warrant careful and close consideration of the respondents’ application. They are as follows. The respondents, in effect, allege that the applicant committed murder at Darwan during a military engagement more than eight years ago. The witnesses in question are said to be eye-witnesses to at least some of the events constituting the murder. The applicant submits that there are questions of identity involved and the Afghan witnesses apparently identify the applicant by his size and height. The applicant puts this particular matter in the following way:

Such evidence cannot be satisfactorily dealt with by video link. Interpreters will be involved, probably at both ends of the audio-visual link. This will only aggravate the difficulties. The need for an interpreter has been a material, dissuasive consideration in applications for AVL evidence under s 47A.

(footnotes omitted.)

37    The applicant also points to the fact that the evidence of the Afghan witnesses is contentious. It is directly at odds with the accounts provided by the applicant and Person 11 and the contemporaneous reporting of what occurred during the Darwan mission. The applicant submits that a review of the outlines of evidence shows that there are inconsistencies among the Afghan witnesses as to what occurred. The applicant further submits that the questions of distance, proximity and location are critical and such evidence needs to be led with reasonable precision. As the applicant put it, this cannot be done via solicitors’ computers using a video conferencing platform’s split screen function. Further, the applicant again refers to the fact that he will not be able to use contemporaneous documents. Finally, with respect to this sixth reason, the applicant points to the fact that none of the Afghan witnesses have provided an affidavit or a signed statement in these proceedings. The absence of either, in circumstances where the evidence is contentious and potentially critical to a material issue, has been an important consideration against the granting of an application under s 47A of the Act.

38    In Roberts-Smith (No 4), I considered whether the first trial date of 15 June 2020 should be vacated. I decided that it should because, for two independent reasons, an “in-person” trial is necessary in this case. I said (at [22]):

In my opinion, an in-person trial is necessary for two independent reasons. The first reason is that such a trial is necessary to deal with the issues relating to, or arising from, the disclosure of national security information. I accept the Commonwealth’s submission about that matter. The second reason is that this is a trial where the credibility or reliability of the key witnesses may well be crucial in circumstances where the alleged imputations arising from the matters complained of are, as I have said, very serious indeed. I have no doubt that some of the witnesses could give their evidence by audio-visual link, but I consider from my own knowledge of the issues that the position of both of the parties to the proceedings that the key witnesses should give evidence in person in order that the parties have a proper and fair opportunity to present their respective cases is reasonable.

39    The background to the first reason is contained in [15] where I said:

It seems to me that the notice under the NSI Act in each proceeding has two consequences for the hearing of the trial in these proceedings. They are as follows:

(1)    If an arrangement between the parties and the Commonwealth under s 38B is not reached, or there is delay in reaching such an arrangement, then that has the real potential to affect the commencement date of the trial;

(2)    As I understood the submission of counsel for the Commonwealth, the prospect of the trial involving national security information means that the hearing could not take place other than in open court with the parties and their witnesses physically present. For convenience only, I will call such a mode of trial an “in-person” trial. Counsel for the Commonwealth said that this was the position because, as she was instructed, Microsoft Teams, which is the software the Court has been using, is not a suitable platform for communicating national security information. She also told me that the Commonwealth is not aware of any other similar platform that would be suitable for conducting a substantive hearing in this type of matter involving the information in question.

40    The applicant referred to and relied on my statement in [22] in Roberts-Smith (No 4) that the position of both parties that the key witnesses should give evidence in person in order that the parties have a proper and fair opportunity to present their respective cases is reasonable. I make two observations about that statement. First, other than the applicant (see at [18]), the particular key witnesses were not identified or the subject of detailed submissions. Secondly, the focus at the time of Roberts-Smith (No 4) was the timing of the trial and whether it could proceed electronically and not as it is on this application, whether certain witnesses who will not otherwise be able to give evidence, should be permitted to give their evidence by AVL.

41    As I said earlier, the respondents’ preference is that the Afghan witnesses give evidence in the courtroom in Australia and, even if this application is granted, they will continue to pursue their efforts to bring the Afghan witnesses to Australia.

42    It is necessary to examine aspects of the outlines of evidence of the Afghan witnesses in more detail in order to identify the issues that arise, or may arise, and the difficulties the applicant may face in dealing with their evidence.

43    Persons 62, 63 and 64 live in Darwan, Uruzgan Province, Afghanistan. Persons 62 and 63 are farmers. The occupation of Person 64 is not stated, although he states in his outline of evidence that he has lived in Darwan his whole life. Persons 62, 63 and 64 were in Darwan on 11 September 2012. Person 65 is a female and she lived in Darwan in September 2012. Person 65 now lives in Kandahar, Afghanistan.

44    None of the Afghan witnesses appear to have any educational qualifications beyond perhaps a basic education reflecting the place in which they live and their circumstances. The details are not set out in the outlines of evidence. None of the Afghan witnesses speak English and an interpreter in Afghanistan will be required if this application is granted. The respondents accept that it may also be necessary to have an interpreter in the courtroom in Sydney and I proceed on the basis that that can be arranged if I reach the view it is necessary.

45    Person 62 provides a detailed outline of evidence. He refers to the arrival of helicopters and a number of soldiers in Darwan on 11 September 2012. He refers to having his hands tied up by the soldiers. Ali Jan was also tied up. Person 62 observed a soldier who was “an extremely tall man” in the vicinity of where he and Ali Jan were being kept. An interrogation then took place and during that he observed “the tall soldier”. He and Ali Jan were taken to a slope which went down to the riverbed. The “big and tall soldier” came to stand in front of Person 62 and Ali Jan. Person 62 was then removed to another structure “just inside the entrance” where he was interrogated by “the big soldier” with a translator. Person 62 refers to the colour of the big soldier’s eyes and the fact that he had a sharp, handsome face structure. Person 62 claims that he was assaulted by the big soldier and that he was then left in the structure “near the door way”. He could not see any of the soldiers or the translator, “except the big soldier”.

46    Person 62 was able to see through the door way the big soldier leave the place and approach Ali Jan. It is not necessary, for present purposes, to mention every detail, but the essence is that from the door way Person 62 states the he saw the big solider kick Ali Jan hard in the abdomen area and that Ali Jan tumbled down the “slope/hill”. Person 62 then moved from the door way to the outside. He then saw Ali Jan being taken from the dry creek bed below the slope/hill to the cornfield, “which was approximately 30 metres away” by two soldiers “(who Person 62 observed were short in height)”. Person 62 states that Ali Jan was then shot multiple times. After the soldiers had left in the helicopters, Person 62 saw Ali Jan’s body in the cornfields. He saw that he had been shot in the face, body and his arm.

47    Persons 63 and 64 also give reasonably detailed outlines of evidence. Person 63 is a neighbour of Person 62. With respect to his outline of evidence, it is sufficient to record the following. His hands were tied and he was interrogated. During his interrogation he saw a “big soldier” standing nearby; “he could not believe how big he was”. He was punched in the back forcefully by the big soldier. He cannot remember precisely what the big soldier looked like “other than that he was extremely tall and had big shoes”. He heard shots, but did not know what was happening. He later saw Ali Jan’s body in the cornfield and it was covered in blood. Person 64 outlines the events he saw and makes a number of references to the “big soldier” and at one point refers to the colour of his eyes and the fact that he had a “long face/chin”. He saw the big soldier kick Ali Jan “off the cliff”. Significantly, for present purposes, he refers to a number of man-made structures, for example, a hut, and their location in relation to the natural features of the terrain, for example, a cliff.

48    Person 65 saw a soldier kick a person identified to her by her son-in-law as Ali Jan “off the cliff”. Her outline of evidence contains a number of references to man-made structures and features of the natural terrain and what she could and could not see and what she could hear as various events unfolded.

49    The applicant did engage and kill a spotter on that day, but he denies that the events which are the subject of the outlines of evidence of the Afghan witnesses took place. There is other evidence of the events on 11 September 2012 in and around the village of Darwan, but it is not necessary for me to set out the details.

50    Two further points must be noted.

51    First, the seriousness of the allegations made by the respondents will be readily apparent. After setting out the details of the applicant’s conduct, they plead the following in their Defence:

(114)    In the circumstances, by his conduct with respect to Ali Jan, the Applicant breached Common Article 3 in that his conduct constituted violence, cruel treatment and murder.

(115)    …

(116)    In the circumstances, the Applicant’s conduct with respect to Ali Jan constituted murder.

(117)    Alternatively, by his conduct with respect to Ali Jan the Applicant was complicit in and responsible for murder.

52    Secondly, in Roberts-Smith (No 5) I noted that, on the face of a number of the outlines of evidence, including those of the Afghan witnesses, there appeared to be some inconsistencies in the evidence to be advanced by the respondents about the events in Darwan on 11 September 2012. I said (at [72]):

Other inconsistencies or uncertainties identified by the applicant are as follows: (1) the amendments do not contain a statement identifying the place where Ali Jan was shot and the outlines of evidence are inconsistent (Person 4: the dry creek bed below the cliff; Person 13: in the bushes nearby; Person 62: pulled or dragged by two soldiers short in stature from the creek bed to the cornfield and not known to Person 62 whether at the time Ali Jan was dead or alive; Person 63: Ali Jan’s dead body lying in the cornfield; Person 64: Ali Jan’s dead body found under a berry tree); and (2) the statement by the respondents’ solicitors on 24 June 2019 that Person 4’s outline of evidence should not be construed as suggesting that Person 11 executed Ali Jan (see [41] above).

53    The evidence of the Afghan witnesses if accepted as identifying the applicant, and if accepted generally, is evidence of very serious misconduct by the applicant and is an important aspect of the respondents’ case. The conduct is denied by the applicant and, on this application, it is appropriate to assume that it will be the subject of a very vigorous challenge. It is appropriate to assume that credit and reliability will be in issue in cross-examination. There may well be objections to the evidence-in-chief of the Afghan witnesses and cross-examination is likely to range over the nature and location of man-made structures, the features of the natural terrain, the identification of the applicant, the position of the witnesses at particular times, what the witnesses could see and hear, any inconsistencies between the witnesses as well as other matters which I may not be able to foresee at this point in time. The applicant submits that, in these circumstances, he and the Court will be at a disadvantage if the Afghan witnesses are permitted to give their evidence by AVL and those difficulties will be exacerbated by the need to use an interpreter or interpreters (Mastipour v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2004] FCA 1571; (2004) 140 FCR 137).

54    The respondents referred to cases decided during the current pandemic in which the Court has addressed its ability to assess the evidence of witnesses who give evidence by AVL and of other difficulties which may arise in the course of giving evidence in this way in the context of applications to adjourn the trial. I was referred to the following observations of Perram J in Capic v Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486 at [19]):

… I accept the Respondent’s submission that there are many authorities in this Court which underscore the unsatisfactory nature of cross-examination by video-link: see, eg, Hanson-Young v Leyonhjelm (No 3) [2019] FCA 645 at [2]; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306; 181 FCR 152 at 171 [78]. However, those statements were not made in the present climate, nor were they made with the benefit of seeing cross-examination on platforms such as Microsoft Teams,Zoom or Webex. My impression of those platforms has been that I am staring at the witness from about one metre away and my perception of the witness’ facial expressions is much greater than it is in Court. What is different—and significant—is that the video-link technology tends to reduce the chemistry which may develop between counsel and the witness. This is allied with the general sense that there has been a reduction in formality in the proceedings. This is certainly so and is undesirable. To those problems may be added the difficulties that can arise when dealing with objections.

55    I was also referred to the following observations of Lee J in Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 (at [25]):

First, if I was presently satisfied that the arrangements that could be put in place to hear this matter would mean the trial was “second-rate” or substandard, then I would not proceed. Central to my analysis is the accumulating experience of the Court in the use of the Microsoft Teams technology to hear cases. Currently, a native title case is proceeding before Justice Jagot using that technology, which I am informed involves some 33 witnesses giving oral evidence. For my own part, I have now conducted a number of interlocutory hearings, and a complex defamation trial involving extensive cross examination and reference to documents. The hearings were successful (at least from my perspective). Indeed, as someone who was quite sceptical about how the trial could be conducted in the present circumstances, I was pleasantly surprised. Speaking generally (and this case does have particular aspects to which I will make more reference below), the process of receiving both evidence, including evidence adduced in cross examination, and submissions, although sub-optimal, was not impaired to such an extent that I considered that there was anything second-rate about the experiences that I have had with the Microsoft Teams technology.

56    With respect, although I take these observations into account in a general way, the fact is that they were made in particular contexts which seem to me to be some distance away from the present context.

57    In my opinion, there is the potential for the applicant to be disadvantaged in his cross-examination of the Afghan witnesses if they are permitted to give evidence by AVL and of the Court not being in as good a position to assess their evidence as it would be if they were to give evidence in person in the courtroom. As against that, I take into account the following matters: (1) as the respondents point out, if it is apparent that evidence should be given little weight because of the medium through which it is given, then it is open to the Court to proceed in that way; (2) if the Afghan witnesses do not give evidence by AVL, they will not, as things presently stand, give evidence at all; (3) the respondents can be ordered to file affidavits or signed statements of their evidence-in-chief; (4) an interpreter can be available in the courtroom in Sydney as well as in Afghanistan; and (5) if at or about the time the evidence is to be given or is given, circumstances not presently foreseeable mean that there is the potential for real injustice, then an application to revoke the order may be made. Another possibility, and I put it no higher than that because it was not debated before me, is that particular evidence might be excluded under provisions in the Evidence Act. In my opinion, the potential disadvantages in the Afghan witnesses giving evidence by AVL are unlikely to arise, or can be eliminated, having regard to the matters I have identified.

58    Seventh, the applicant submits that the Court is “on notice” of the respondents’ concerns regarding the personal safety of the Afghan witnesses travelling to Kabul lest it become known that they will be giving evidence in the proceedings. He submits that the Court will not exercise its discretion to facilitate the giving of evidence via AVL from Kabul without some assurance that such an arrangement will not place those witnesses at risk of harm. The applicant submits that the Court will not sanction an arrangement for taking evidence in a particular manner if that may place those witnesses at risk of harm in circumstances where the risk is known.

59    Both parties accept that Afghanistan can be a dangerous place. It appears from Mr Bartlett’s first affidavit that the respondents’ intermediary with the Afghan witnesses had concerns for the safety of Persons 62 and 63 between about mid-August 2020 to December 2020. Those concerns appear to have abated. Security issues with respect to the Afghan witnesses may arise again in the future and, if they do, it will be incumbent on the respondents to address those issues, including, if appropriate, raising those issues with the Court.

60    The two principal reasons for allowing this application are as follows. First, the application is based on the assumption that if the Afghan witnesses are not permitted to give evidence by AVL, then they will not give evidence in the proceedings. The respondents have said that they will continue their efforts to bring the Afghan witnesses to Australia for the trial, but the assumption underlying the application is that that will not be possible and, absent an order that permits them to give evidence by AVL, they will not give evidence at the trial. Secondly, I am satisfied that the respondents have made all reasonable efforts to bring the Afghan witnesses to Australia. Those efforts are likely to be unsuccessful. I might say that, in this context, the applicant referred to the respondents’ application as “belated”. I reject that characterisation of the application. There was certainly delay in the respondents obtaining the outlines of evidence of the Afghan witnesses and that delay was a relevant consideration in the determination of whether the respondents should be granted an extension of time within which to file and serve the outlines of evidence of the Afghan witnesses. That question was the subject of my decision in Roberts-Smith (No 5) and the delay, in particular, is referred to in [146]–[161]. It was in that context that delay was relevant and, in the end, it was not sufficient to persuade me that I should not grant an extension of time within which to file and serve the outlines of evidence of the Afghan witnesses. In any event, even had there been delay which was relevant to this application, I cannot see that it has caused any prejudice to the applicant. I did not understand the applicant to suggest any in the course of his submissions.

61    I have considered and drawn conclusions with respect to the seven matters raised by the applicant. I do not consider that the conclusions, either individually or collectively, warrant the refusal of the respondents’ application.

Person 21

62    Person 21 has indicated to the respondents’ solicitors that he considers it unlikely he would return to Australia during the hearing to give evidence in person.

63    Person 21 has informed the respondents’ solicitors that he could make arrangements with the Department of Defence and/or the Australian Embassy in Timor-Leste to provide evidence via AVL utilising a video conferencing platform such as Microsoft Teams or equivalent software.

64    The Commonwealth has previously indicated that paragraph 1 of the outline of evidence of Person 21 contains national security information. The respondents do not intend to adduce the evidence in that paragraph and do not anticipate any other evidence touching on any national security information

65    The Commonwealth has advised as follows.

In the circumstances, we are instructed that while the Commonwealth would not oppose an AVL application being made in respect of Person 21, the Commonwealth would object to any national security information being disclosed during the course of that AVL connection. We are also instructed that there are presently not any ‘secure AVL’ facilities that could be made available at the Federal Court, such that the Commonwealth is not in a position to ‘provide’ such facilities. This means that, at present, it would not be possible from the Commonwealth’s perspective for Person 21 to give evidence touching on any national security information via AVL.

We also note that, notwithstanding the content of their evidence, Person 21 is a Sensitive Witness within the meaning of the s 38B orders. This means that, if Person 21 were to give evidence via AVL, it would need to be done in such a way as to ensure compliance with Part G of the s 38B orders, in particular order 66. Whether the AVL could be established in such a way that allows Authorised Persons and Sensitive Witnesses to see and hear the witness, while allowing others only to hear them may depend upon the technical capabilities of the Court’s AVL system. It may be that it will only be possible to establish an audio link in those circumstances.

66    The respondents submit that the evidence they seek to adduce from Person 21 relates only to the applicant’s reputation and the allegation that he bullied Person 1.

67    The applicant submits that he does not oppose, in principle, the application on behalf of Person 21 on condition that the AVL is to be organised by the Department of Defence or the Australian Embassy in Timor-Leste. The applicant submits that ultimately, it is a matter for the Court whether an order under s 47A of the Act should be made in respect of Person 21.

68    I will grant the respondents’ application with respect to Person 21. The place from which he will give his evidence will need to be determined.

Conclusions

69    In my opinion, the respondents’ application should be allowed. The respondents should lodge within seven days draft minutes of order reflecting the conclusions in these reasons and both parties will need to consider the extent to which the orders should reflect the details of the respondents’ application. There should be an order or direction that there be an interpreter in the courtroom in Sydney during the evidence of the Afghan witnesses at the trial and there should be an order that the respondents’ file and serve affidavits or signed statements (and I will hear the parties if necessary as to which) containing the evidence-in-chief of the Afghan witnesses.

Associate:    

Dated:    1 April 2021

SCHEDULE OF PARTIES