Federal Court of Australia
Roberts-Smith v Fairfax Media Publications Pty Limited (No 28)  FCA 115
REASONS FOR JUDGMENT
NSD 1486 of 2018
THE AGE COMPANY PTY LIMITED (ACN 004 262 702) (and others named in the Schedule)
NSD 1487 of 2018
THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED (ACN 008 394 063) (and others named in the Schedule)
1 These reasons relate to four rulings I have made in the course of the evidence. The first ruling relates to the production of a document by the respondents and arose in the course of evidence given by Person 41. The other three rulings relate to objections to questions asked of Person 14 during his cross-examination.
The Production of a Document during the Cross-Examination of Person 41
2 During the cross-examination of Person 41 by counsel for the applicant, the following exchange occurred:
Now, can I just go back, if I can, to the evidence that you gave his Honour this morning in relation to 12 April 2009. Prior to coming here to give your evidence to his Honour, did you read a document to refresh your memory to give your evidence today?---Yes.
What did you read?---My statement that I had previously given.
3 Subsequent evidence from Person 41 revealed that the statement was a statement of Person 41 prepared by the respondents’ legal representatives in June or July 2021 after they had interviewed Person 41. Person 41 was asked whether there were any other documents that he used to refresh his memory before giving evidence and he said that there were no such documents. The applicant called for the production of the statement and the respondents resisted production. The respondents contended that the document was protected by legal professional privilege. It is not in dispute that the Court has the power to give a direction with respect to documents or things used by a witness out of court to try to revive his or her memory (see s 34(1) of the Evidence Act 1995 (Cth)).
4 The respondents did not dispute the proposition established by the authorities that there is a waiver of privilege if a witness has refreshed or revived his or her memory from a privileged document for the purposes of giving evidence (Mancorp Pty Ltd v Baulderstone Pty Ltd (1991) 57 SASR 87 at 90–91 per Debelle J; see s 122(2) of the Evidence Act). Rather, the respondents submitted that the evidence elicited from Person 41 was not sufficient to establish that he had used the statement to refresh his memory. That was because (so the respondents submitted) the question which was put to Person 41 was a rolled up question involving two aspects: first, whether he had read a document before giving evidence; and second, whether that had been done for a particular purpose, which has a legal significance. The submission was that the question was not, or may not have been, formulated in a way which brought to the witness’ attention the precise significance of the concept of refreshing memory.
5 The respondents went on to submit that what needed to be established is that there was some deficiency in the witness’ memory and that the witness had recourse to the document for the purpose of overcoming that deficiency. The respondents had not found any authority on the meaning of “refresh” in this context, but submitted that the concept involves some deficiency in the witness’ recollection and the witness reading the statement for the purpose of curing that deficiency.
6 For his part, the applicant relied on his written submissions and referred to two authorities in which an order had been made for the production of a statement in similar circumstances and on the basis of a question and answer in cross-examination similar to the question and answer in the case of the evidence of Person 41 (Spalding v Radio Canberra Pty Ltd  ACTSC 26; (2009) 166 ACTR 14 at ; MGICA (1992) Limited v Kenny & Good Pty Limited  FCA 1222; (1996) 61 FCR 236 at 237).
7 In my opinion, the question asked of Person 41 and the answer he gave were sufficient to establish that Person 41 had used the statement to refresh his memory and, in those circumstances, the appropriate order was that the statement be produced to the applicant.
The Issues of Journalist Privilege and Self-Incrimination which arose in the course of the Cross-Examination of Person 14
8 During cross-examination of Person 14 on Monday, 7 February 2022, he was asked the following question by counsel for the applicant:
Prior to 2019, have you spoken to any journalist about your period of service with the Special Air Service Regiment in Afghanistan concerning Ben Roberts-Smith?
Counsel for the respondents, who had called Person 14 as a witness in their case, objected to this question. After hearing submissions from both the respondents and the applicant, I ruled that the question be allowed.
9 The question was then put again with the addition at the end of the question of “in 2009 and 2012”. This addition is immaterial to the present issue. Person 14 responded by claiming the privilege against self-incrimination. That raised an issue as to the scope and application of s 128 of the Evidence Act and, as I will explain, in particular, subsection (4)(a) and (b). I heard submissions from counsel for Person 14, who was given leave to appear, and counsel for the applicant. I ruled that I was not satisfied of the matter in s 128(4)(b) and that, in the circumstances, Person 14 would not be required to answer the question.
10 During cross-examination on Wednesday, 9 February 2022, Person 14 was asked this question:
Did you receive any communication from Mr Masters subsequent to your conversation with Person 6 that you’ve relayed to his Honour?
Counsel for the respondents objected to this question on the same grounds on which he had objected to the earlier question. I overruled the objection for the same reasons (see below at –).
11 Person 14 then claimed the privilege against self-incrimination. On this occasion, I was satisfied of both matters in s 128(4) and I required Person 14 to answer the question. My reasons are set out below.
The Respondents’ Objection
12 The possibility of a witness being asked a question of the nature of the questions asked of Person 14 was referred to in my decision in Roberts-Smith v Fairfax Media Publications Pty Limited (No 3)  FCA 2 (at ) and again in my recent decision dealing with the respondents’ application to set aside two Notices to produce served by the applicant (Roberts-Smith v Fairfax Media Publications Pty Limited (No 27)  FCA 79 at –).
13 As I have said, counsel for the respondents objected to the question. His first ground of objection was relevance. I rejected that ground of objection on the basis that a question which, with follow-up questions, might establish a prior statement by the witness about the serious events the subject of his evidence-in-chief, is relevant. The evidence-in-chief of Person 14 was directed to establishing the applicant’s involvement in two murders or unlawful killings.
14 The respondents’ second ground of objection to the question was that the question could only be relevant to Person 14’s credibility and it was barred by the credibility rule in the Evidence Act. The credibility rule is that credibility evidence is not admissible (s 102), subject to, relevant in this case, an exception of evidence adduced in the cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness (s 103 and see s 101A and the Dictionary to the Evidence Act for the definition of “credibility evidence”). The difficulty with the respondents’ submission is that the evidence had not proceeded far enough to determine whether there was an infringement of the credibility rule.
15 Counsel for the respondents then moved to his main ground of objection to the question which was that the question was not permissible, having regard to the terms of s 126K of the Evidence Act. Section 126K(1) of the Evidence Act is in the following terms:
(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.
16 There is power in the Court to order that subsection (1) of s 126K not apply. Section 126K(2) provides as follows:
(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.
The applicant does not make (and has never made) an application under s 126K(2) for an order that subsection (1) of s 126K does not apply.
17 It was clear from the submissions made by the parties and, in particular, the submissions made by the applicant, that the purpose of the question was to establish a basis which might ultimately lead to evidence of out of court versions of the relevant events by the witness being revealed (see transcript p 1480). So if, for example, the witness identifies himself as a source, then the applicant will seek an order for the production of notes or other documents recording communications between Person 14 and the journalist with a view to examining these documents and possible cross-examination of Person 14 about any prior account of the events which were the subject of his evidence-in-chief.
18 The respondents submit that their privilege under s 126K(1) means that Court processes cannot be used in any way which has the effect of revealing the identity of their confidential sources, either directly or by a process of elimination. The privilege in s 126K(1) cannot be “outflanked” (as it was put by counsel for the respondents) by a question asked about prior communications with a journalist.
19 The respondents submit that the only purpose of the questions could be to ascertain whether or not the witness was one of the respondents’ sources, and/or to enable the applicant to identify other sources through a process of elimination. They submit that in all likelihood the applicant would then seek to use the answer to support another application for disclosure of documents in respect of which the respondents assert privilege on the basis that the source is no longer confidential. They submit that it is improper and illegitimate for cross-examination to be utilised to seek to subvert the respondents’ privilege, particularly given the potential for the consequences to extend beyond the witness being questioned. They submit that such an outcome would bring about unjustified vexation, oppression or unfairness to the respondents, particularly at this point in the proceeding. They further submit that enabling an established privilege, which is founded upon important public interest considerations, to be obviated in this way would bring the administration of justice into disrepute. They submit that the appropriate qualification on the privilege is the power in s 126K(2) where the Court must take into account public interest considerations which is the matter which underpins the existence of the privilege. The respondents also made a powerful submission to the effect that to permit the question having the effect of identifying a source or of narrowing the pool of persons would substantially undermine the privilege in the case of a source who is subsequently a witness in support of a defence of justification.
20 I reject these submissions. The force of the submissions may be acknowledged, but, in my opinion, the terms of the section are quite clear. If the elements of the section are made out, then neither the journalist nor his or her employer is compellable to answer any question or produce any document which would have the effect identified. The present question is not being asked of a journalist. The present question is being asked of a witness in the trial. It seems to me that a witness can be asked whether he or she has spoken to a journalist about the events which are the subject of his or her evidence-in-chief. An affirmative answer to the question would strongly suggest that the witness has provided information about the events in issue on a prior occasion. It seems to me that that is a legitimate forensic line of inquiry.
21 The respondents’ counsel also made reference to s 135 of the Evidence Act and the Court’s power to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might cause or result in an undue waste of time. He pointed to the speculative nature of the forensic line of inquiry. I reject this as a basis for disallowing the question, especially having regard to the importance in this case of the evidence of what the witness saw and heard.
22 It was for these reasons that I ruled that the respondents’ objection to the two questions should be rejected and the questions allowed.
The Privilege against Self-Incrimination
23 Section 128 of the Evidence Act relevantly provides:
(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:
(a) has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b) is liable to a civil penalty.
(2) The court must determine whether or not there are reasonable grounds for the objection.
(3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness:
(a) that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b) that the court will give a certificate under this section if:
(i) the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii) the witness gives the evidence after being required to do so under subsection (4); and
(c) of the effect of such a certificate.
(4) The court may require the witness to give the evidence if the court is satisfied that:
(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b) the interests of justice require that the witness give the evidence.
(7) In any proceeding in an Australian court:
(a) evidence given by a person in respect of which a certificate under this section has been given; and
(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. …
24 Section 128(7) refers to an Australian court. That term is defined in the Dictionary to the Evidence Act as follows:
Australian court means:
(a) the High Court; or
(b) a court exercising federal jurisdiction; or
(c) a court of a State or Territory; or
(d) a judge, justice or arbitrator under an Australian law; or
(e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or
(f) a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence.
25 In relation to both questions, Person 14’s counsel submitted that, as he put it, both limbs of s 128(1) were engaged. Person 14’s counsel relied on the following as bringing the case within s 128(1) and (2): (1) s 60(1) (defence member doing an act likely to bring discredit on the Defence Force) and s 29 (defence member failing to comply with a lawful general order which applies to the defence member) of the Defence Force Discipline Act 1982 (Cth); (2) s 70(1) of the Crimes Act 1914 (Cth) (disclosure by a Commonwealth officer of information received as an officer which the officer is under a duty not to disclose); and (3) s 122.4 of the Schedule to the Criminal Code Act 1995 (Cth) (unauthorised disclosure of information by Commonwealth officers). As to s 29(1) of the Defence Force Discipline Act, counsel for Person 14 referred to the Media and Communication Policy dated 15 July 2019 (clauses 3.2, 3.4, 3.5, 3.8, 4.6, 4.10, 4.11, 4.13, 5.12, 5.13 and 5.20) and Defence Instructions (General) dated 5 October 2007 (now cancelled) (clauses 12, 24 and 33).
26 The assessment of whether there are reasonable grounds for the objection is to be made having regard to all the circumstances. The witness is not required to disclose the material which the witness contends is incriminatory. In Ross v Internet Wines Pty Ltd  NSWCA 195; (2004) 60 NSWLR 436, Giles JA (with whom Spigelman CJ and McColl JA agreed) said (at –):
101 In my opinion, the appellant’s position should be upheld. The appellant was obliged to deliver a disclosure affidavit to the judge’s associate, and it would be “inspected” by the judge at a hearing. I will assume, without deciding, that the appellant would thereby be a witness for the purposes of s 128(1). But by compliance with the obligation his fundamental common law right would already be infringed. In order to have his claim to privilege determined, he would have to disclose the material which he said was incriminatory and should not be disclosed. There would be offence to the principle underlying the observation of Lord Denning MR in Rio Tinto Zinc Corporation v Westinghouse Electric Corporation  AC 547 at 574, that a witness “should not be compelled to go into detail — because that may involve his disclosing the very matter to which he takes objection”. See also Accident Insurance Mutual Holdings Ltd v McFadden (at 447  supra) stating that the court will determine a claim to privilege “without requiring the witness fully to explain how the effect would be produced, for if it were necessary, the protection which the rule is designed to afford the witness would be annihilated”.
102 If the information in the disclosure affidavit tended to incriminate the appellant, he was imperilled because he had brought into existence an incriminatory document: the respondents’ acceptance of infringement if it had been found that whatever was in the disclosure affidavit would infringe the appellant’s privilege recognised the peril. The respondents submitted that the appellant was no more imperilled than a person who was ordered by subpoena to produce a document at court, the order being good and the claim to privilege being made at the time appointed for production. But that is different. The appellant was compelled to make a document which did not previously exist, and no longer had control of the document after its delivery to the judge’s associate: all this without any s 128 certificate.
(See also Field v Kingston  FamCAFC 145; (2018) 337 FLR 1 at .)
27 I was satisfied that there were reasonable grounds for Person 14’s objection.
28 I then provided the information in s 128(3) to the witness and the witness indicated that he was not willing to give the evidence.
29 The applicant indicated that he pressed the question and ultimately he accepted that he had the onus of establishing the matters in s 128(4). That is correct (Gedeon v The Queen  NSWCCA 257; (2013) 280 FLR 275 (Gedeon) at  per Bathurst CJ). I heard submissions on s 128(4) and determined that, although satisfied of the matter in s 128(4)(a), that is to say, that the evidence did not tend to prove that Person 14 had committed an offence against or arising under, or was liable to a civil penalty under, a law of a foreign country, I was not satisfied that the interests of justice required that the witness give the evidence within s 128(4)(b). As to s 128(4)(a), the alleged offences or acts giving rise to a civil penalty were, if committed, committed in Australia, involved Australian law and related to Australian Defence Force members or Commonwealth officers.
30 Before addressing s 128(4)(b), I should make it clear that there are two aspects or stages of the evidence that must be recognised. First, there is the effect on the Court’s assessment of Person 14’s credibility and reliability of the incriminating evidence, that is, evidence that tends to prove that he has committed an offence against or arising under an Australian law or is liable to a civil penalty. This is the effect of the incriminating conduct on credibility. Although it was not treated as irrelevant by the applicant in his submissions in relation to the first question, it was not the main focus of his submissions. The main focus of the applicant’s submissions in terms of his case as to the importance of the evidence (one of the factors relevant to whether I am satisfied that the interests of justice require that the witness give the evidence) was that the evidence of Person 14 will or may lead to a situation where the applicant is able to test Person 14’s account in Court with an account or accounts he has given previously to journalists. As will by now be clear, this identification of the importance of the evidence intersects with circumstances relevant to the respondents’ objection based on s 126K of the Evidence Act.
31 Section 128(4)(b) requires the Court to be satisfied that the interests of justice require that the witness give the evidence. This is a high standard and higher than if the paragraph had provided that the interests of justice favour that the witness give the evidence. This was noted by Bathurst CJ in Gedeon as follows (at ):
Second, the requisite standard provided for in s 128(4)(b) of the Evidence Act is that the interests of justice require admission of the evidence. It is not enough that the evidence be relevant and in this case satisfy the exception to the credibility rule in s 103 of the Evidence Act. This relatively high standard of satisfaction is consistent with the fact that the legislation to a significant extent abrogates a basic common law right.
32 In Cureton v Blackshaw Services Pty Ltd  NSWCA 187, Sheller JA (with whom Meagher JA and Beazley JA agreed) said (at ):
I find it unusual and troubling that the cross-examination of Mr Hicks should have been stopped. S128 enabled the Judge to require the witness to give evidence if he was satisfied that the interests of justice required that the witness do so even if the evidence might tend to incriminate the witness under Australian law. He was further empowered to cause the witness to be given a certificate in respect of the evidence. The interests of justice in this context should be construed broadly and would permit questions to be put going to credit, particularly where credit was important and where the credit of the chief witness on the other side was to be impugned for conduct similar to that to be tested in cross-examination.
33 The factors which are relevant to the application of the criterion in s 128(4)(b) as identified in the cases are conveniently listed in Odgers S, Uniform Evidence Law (16th ed, Lawbook Co, 2021) (at pp 1178–1179) and counsel for Person 14 referred me to that list.
34 The focus of the submissions of the applicant and Person 14 was, respectively, the importance of the evidence in the proceeding and effects on the witness not ameliorated by the provision of a certificate should the witness be required to give evidence. That this second matter is a relevant consideration was confirmed in Gedeon (at  per Bathurst CJ). In R v Lodhi  NSWSC 638; (2006) 199 FLR 328, Whealy J said the following (at ):
But the certificate does not give absolute protection. There are, for example, the indefinable but no doubt real prejudices that may result where a witness has given evidence of the kind dealt with in s 128 which may as a consequence bring him into disfavour with some sections of the community or people who have previously held the witness in high regard. Secondly, the protection may not extend to the consequences that may be involved in disciplinary proceedings instituted against professional persons or even, at a wider level, against members of the general community. In the present case, particularly, there is the subtle but real damage that can be done to the rights of Ul-Haque if the entirety of the Crown case against him, in effect, becomes the material evidence he is required to give against the accused. The position is made the worse, I consider, in the particular circumstances where he is seeking to overturn those very records of interview and have them excluded from his trial. It is not inconceivable that a successful cross-examination by Mr Boulten SC in the present matter may disrupt and indeed, shatter the professional bond of confidence existing between Ul-Haque and his counsel of choice. The very substance of the questioning envisaged by Mr Boulten SC might well lead to a question whether the matters to be put to Ul-Haque fall into the category of material that is “oppressive and unjust” in the sense mentioned by Toohey J in Hamilton’s case.
35 In this case, counsel for Person 14 submitted that there may be adverse consequences to the witness if he is required to give the evidence in terms of his security classification. He referred to two paragraphs in the Media and Communication Policy, clauses 5.13 and 5.20. He also referred to the reputational consequences for the witness.
36 In relation to the first question, I was not satisfied that the interests of justice required that Person 14 give the evidence. On the one hand, s 128(4)(b) sets a high standard and it is not merely a matter of balancing the interests of justice; the Court must be satisfied that the interests of justice require that the witness give the evidence. In addition, there are, or may well be, reputational consequences should the witness be required to give the evidence and I am prepared to accept the submissions of his counsel that his security clearance may be affected even with the protection of a certificate. On the other hand, the emphasis in the applicant’s submissions on the first question was on the second aspect or stage of evidence which may or may not be given and which may or may not give rise to possible inconsistencies in the witness’ account of the events which were the subject of his evidence-in-chief.
37 The second question raised similar issues to the first. As I have said, I overruled the respondents’ objection to the second question on the same grounds which formed the basis of my decision in relation to the respondents’ objection to the first question.
38 The position in relation to the privilege against self-incrimination was different. In relation to the second question, I was given by the applicant in closed court one important piece of information which had not been provided at the time of my ruling in relation to the first question. That information was contained in a sensitive document. The document may have a substantial affect on Person 14’s credibility. I say “may” because it is not my task at this stage to determine Person 14’s credibility. I am determining on this application one question and one question only and that is whether the interests of justice having regard to all the circumstances required the taking of the evidence. The additional information put forward by the applicant went to the first aspect or stage of the evidence as I have described that in  above and that is the important difference. That first aspect or stage was, as I have said, not emphasised in the applicant’s submissions with respect to the first question and what was emphasised was possible inconsistencies in terms of any account given by Person 14 to journalists. In view of these circumstances, I was satisfied that the interests of justice required the taking of the evidence and I ruled accordingly.
NSD 1485 of 2018
NSD 1486 of 2018
NSD 1487 of 2018