Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 36) [2022] FCA 578

REASONS FOR JUDGMENT

BESANKO J:

1    These are my reasons for a ruling which I made in the course of the trial. The applicant brings three defamation proceedings against the respondents. The respondents have pleaded defences of justification and contextual truth (see ss 25 and 26 of the Defamation Act 2005 (NSW)).

2    On 25 May 2021, I made an order as to the course of the trial which was in the following terms, relevantly:

4.    The trial proceed as follows:

a.    The Applicant’s Counsel will open his case.

b.    The Applicant will give evidence-in-chief and be cross-examined on all issues joined on the pleadings, including the defences of justification, section 25 of the Defamation Act 2005 (NSW), and contextual truth, section 26 of the Defamation Act 2005 (NSW).

c.    The Applicant will call such other witnesses as he proposes to call on all issues joined on the pleadings other than justification and contextual truth.

d.    The Respondents will present their case.

e.    The Applicant will then call such other witnesses as he proposes to call (not being any of the witnesses he has called at the third stage identified above) with respect to the defences of justification and contextual truth.

f.    Should the Applicant himself wish to give further evidence, it will be limited to evidence in reply.

(See Roberts-Smith v Fairfax Media Publications Pty Limited (No 13) [2021] FCA 549 at [31]–[58]).

3    In accordance with this order, the respondents have adduced their evidence relevant to the two defences. An important element of the defences is the events during a mission to a compound code-named Whiskey 108 on 12 April 2009. A number of the witnesses called by the respondents took part in that mission and they gave, to varying degrees, detailed evidence about their movements, the people they were with and what they saw and heard at various points in time during the mission. Each of the respondents’ witnesses was cross-examined at length by counsel for the applicant and challenged on a number of aspects of their evidence.

4    The applicant then began calling his other evidence with respect to the defences. His first witness was Person 5. Person 5 was a patrol commander on the mission to Whiskey 108 and the applicant was a member of his patrol. Person 5’s patrol was one of the assault patrols involved in the clearance of Whiskey 108. He gave evidence of the assault on Whiskey 108 and his movements and the movements of others. He gave evidence of his observations of various events before the compound was declared secure and thereafter. During Person 5’s evidence on the morning of 19 April 2022, the respondents’ counsel objected to the evidence on the basis that a number of matters about which Person 5 gave and was giving evidence had not been put to the respondents’ witnesses as required by the principles laid down in Browne v Dunn (1893) 6 R 67 (HL) (Browne v Dunn). Counsel for the respondents made the suggestion that a point might have been reached, or would be reached, at which the evidence should be excluded. The evidence continued until the luncheon adjournment as I wished to consider various authorities, including Reid v Kerr (1974) 9 SASR 367 (Reid v Kerr).

5    After the luncheon adjournment, counsel for the respondents gave a number of examples of matters not put to the respondents’ witnesses by the applicant. He accepted that to exclude evidence on the basis that the principles in Browne v Dunn had not been complied with would be an extreme course, but he submitted that this was a case in which such a course was appropriate. As I understood the argument, it was that the usual ways of dealing with a failure to comply with the principles laid down in Browne v Dunn were either the recall of the relevant witnesses or a direction to the jury that there is no justification for rejecting the evidence of the witness which has not been challenged or the Court itself having no justification for rejecting the unchallenged evidence. The respondents submitted that the recall of their witnesses is not a realistic option in the circumstances of this case. Furthermore, they submitted that in the absence of an explanation, it should be inferred that the applicant made a deliberate forensic decision not to challenge the respondents’ witnesses and, in those circumstances, the respondents should not be required to apply to recall their own witnesses. The respondents submitted that if the other way of dealing with a failure was adopted, then an acceptance of the unchallenged evidence of the respondents’ witnesses was inevitable and it was only adding to the costs and delay in the finalisation of this trial to hear contradictory evidence from witnesses such as Person 5. The respondents submitted that, in the circumstances, the evidence should be excluded.

6    As a good deal of the evidence had already been given and I doubted that exclusion of the evidence was appropriate, I deferred consideration of the objection until Person 5 had completed his evidence-in-chief.

7    At the conclusion of Person 5’s evidence-in-chief, counsel for the respondents provided another example of the applicant’s failure to comply with the principles laid down in Browne v Dunn. He also suggested that there was an “intermediate” course between exclusion of the evidence and leaving the matter to be dealt with in final submissions and that was for the Court to order that the applicant provide precise particulars of his case.

8    For the reasons given below, I decided that it would not be correct to exclude the evidence. Furthermore, I did not consider it appropriate on the objection to the admissibility of evidence to make an order for the provision of particulars by the applicant.

9    The applicant did not accept that there had been a failure to comply with the principles laid down in Browne v Dunn. He did not respond to each of the respondents’ examples. His focus was on whether, even assuming there had been a failure to comply, it would be appropriate to exclude the evidence. He submitted that the order sought by the respondents was unprecedented and not justified. He submitted that the proper course was to examine the Browne v Dunn issues and any failure to comply with the principles at the end of the evidence and not at this stage of the trial. He submitted that it would be open to both parties to debate at that point whether there had or had not been a failure to comply with the principles laid down in Browne v Dunn.

10    I turn now to identify in summary form the examples given by the respondents of the applicant’s failure with respect to Person 5’s evidence to comply with the principles laid down in Browne v Dunn. I did not need to determine if these examples, or some of them, are established because even if they are, I would not rule the relevant aspects of Person 5’s evidence inadmissible at this stage.

11    First, Person 5 gave evidence that the assault patrols entered Whiskey 108 at the southern end of the compound. The respondents’ witnesses who were able to recall the entry point gave evidence that it was on the western side of Whiskey 108. Person 14 said that it was about halfway down the western side and, according to the respondents, he was not challenged by the applicant on that point. That had an additional significance in terms of the position where Person 6’s patrol formed a cordon and Person 14’s position and that of Persons 24 and 73. It was said that Person 14 was not challenged on his position and, to the extent Person 24 was challenged, it was put to him that he was in the position identified by Person 14. Person 18 gave evidence about the entry point which was consistent with Person 14’s evidence and Person 18 also gave evidence about the position of Person 6’s patrol and it was said that he was not challenged about either of those matters. Person 42’s evidence about the entry point to Whiskey 108 was also consistent with that of Person 14. Person 41 gave evidence that only Person 29’s patrol entered at or about the point Person 5 identified and it was said that he was not challenged on that evidence.

12    Second, Person 5 said that Person 18 was with him throughout the earlier and later stages of the clearance of Whiskey 108. Person 18 said that he was with Person 4 and it was said by the respondents that he was not challenged by the applicant on that evidence.

13    Third, Person 5 gave evidence that after his patrol made entry to the Whiskey 108 compound, he moved to the area he marked “G” on Exhibit A194, being a room on the south-eastern corner of the compound and he said that Person 18 was with him at that point. Person 5 said that there was a family inside that room. Persons 40 and 42 gave evidence that there were women in the tunnel courtyard who were agitated. The respondents contend that Person 40 was not challenged on that evidence and, although Person 42 was challenged about that, it was not put to him that there were women who were agitated in another part of the compound.

14    Fourth, Person 5 said that the tunnel was found before the Whiskey 108 compound was declared secure. This was before what is known as the “reorg phase”. Persons 18 and 40 said that the tunnel was found after Whiskey 108 had been declared secure and during the reorg phase and the respondents contend that they were not challenged by the applicant on that evidence. Person 43 gave evidence which, it is said, is to similar effect.

15    Fifth, Person 5 said that an Afghan Partner Force member who was near him identified the location where the tunnel was discovered and that he and the Afghan Partner Force member uncovered the tunnel and that Person 18 was with him around that time. The other persons who came over when the tunnel was uncovered were the applicant and Persons 35, 29 and 18. Person 5 said that he then went to a building with archways where he had a conversation with Person 42 about whether he had finished clearing that circuit of the compound clearance he, Person 42, was undertaking. Person 5 said that he then went back to the tunnel area. The respondents contend that it was not put to any witness who said Person 35 found the tunnel that he was wrong; it was not put to Person 42 that he was not where he said he was or that he had a conversation with Person 5 or to Person 18 in relation to his account of hearing about the tunnel over the radio or that he was present when the tunnel was discovered.

16    Sixth, Person 5 said that he was at the patrol commanders’ rendezvous when he heard shots and that he left the meeting for a time. Person 43 was a patrol commander and he gave evidence that he was present during the patrol commanders’ rendezvous. The shots and Person 5 leaving the meeting and then rejoining the meeting, were not put by the applicant to Person 43.

17    Finally, Person 5’s evidence as to his position or location when Person 41 said he saw the applicant shoot the man with the prosthetic leg was not put to Person 41.

18    The reasons for the principles laid down in Browne v Dunn were explained by Lord Herschell LC as follows (at 70–71):

Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.

Lord Halsbury said (at 76–77):

My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to. …

19    In addition, compliance with the principles laid down in Browne v Dunn avoids the defect of two substantial bodies of evidence not being brought into direct opposition and serenely passing one another by “like two trains in the night” (Reid v Kerr at 374 per Wells J).

20    Determining whether there has been a failure to comply with the principles laid down in Browne v Dunn may be a simple exercise or one of considerable complexity depending on the circumstances of the case. An example of the former might be a material conversation which it is clear has not been put. This case falls near the other end of the spectrum.

21    Whether there has been a failure to comply with the principles laid down in Browne v Dunn in the respects identified by the respondents — and counsel for the respondents made it clear that his examples were not exhaustive — was likely to involve a considerable interruption in the evidence of Person 5 while a close analysis of the existing evidence, not only express evidence, but also what might be inferred, is undertaken. In practical terms, such an interruption in the flow of evidence is not desirable. Another practical difficulty is that after any failures are identified, there is then an issue as to the parts of Person 5’s evidence which ought to be excluded. Is it all of Person 5’s evidence with respect to Whiskey 108 to be excluded or only those parts that contradict unchallenged evidence of the respondents’ witnesses and, if the latter, what is to be done if there is a resulting lack of coherence in the evidence of Person 5 which is left?

22    It is important to remember that the only question at this stage is whether there has been a failure to comply with the principles laid down in Browne v Dunn and, if so, whether as a result, the evidence of Person 5 identified by the respondents should be ruled inadmissible and excluded. I am not considering at this stage the other mechanisms that may be adopted in response to a failure to comply with the principles laid down in Browne v Dunn.

23    The source of the Court’s power to exclude evidence because it would contradict earlier evidence which has not been challenged in accordance with the principles laid down in Browne v Dunn was not identified by the respondents by reference to a provision in the Evidence Act 1995 (Cth). The evidence of Person 5 is not said to be irrelevant and, on the face of it, the evidence is admissible (s 56). Whether such a power might be contained in s 135(a) or (c) of the Evidence Act was not the subject of submissions. For such an argument to be accepted, it would have to be accepted that the probative value of later evidence was substantially diminished because earlier evidence had not been challenged in accordance with the principles laid down in Browne v Dunn.

24    The respondents accepted that following a failure to comply with the principles laid down in Browne v Dunn, it was open to the Court to adopt one of a number of courses, including allowing or requiring the respondents’ witnesses to be recalled so that the relevant matters can be put to them for their comment or to entertain and, in appropriate circumstances, accept a submission that the evidence of the witnesses who had not been challenged on that evidence in cross-examination, should be accepted. The respondents submitted that a further option, in addition to the two main ones to which I have referred, is for the Court to exclude the evidence. They accepted that that is an extreme remedy for a breach of the principles laid down in Browne v Dunn, but submitted that it was appropriate in the particular circumstances of this case.

25    Neither the researches of counsel or my own have revealed a civil case where a failure to comply with the principles laid down in Browne v Dunn have led to the exclusion of evidence before, at or shortly after the point at which it is given. There is one criminal case involving a trial by jury where on appeal a Court held that a trial judge who refused to allow certain witnesses to give evidence impeaching the evidence of Crown witnesses in circumstances where the principles in Browne v Dunn had not been complied with, had not erred: R v Schneidas (No 2) (1981) 4 A Crim R 101 at 110–111. Nevertheless, assuming for present purposes that there is power to exclude evidence before, at or shortly after the point at which it is given, the power in a civil case without a jury is a very limited one and must be exercised with caution and only in extreme cases: Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 225 per Glass JA (with whom Reynolds JA agreed); Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 16ff per Hunt J; Crosthwaite v Corporation of the City of Elizabeth (1989) 51 SASR 105 at 111 per Olsson J.

26    The respondents submitted that this was an extreme case and the circumstances justified the exclusion of the evidence for the following reasons. First, the option of the respondents being required to apply to recall what counsel said would be half of their witnesses would be “inconceivable”, particularly as the situation where that was being considered was of the applicant’s making or, in other words, he was responsible for it. Counsel for the respondents made it clear that he was not at this stage making an application for the recall of any of the respondents’ witnesses. Secondly, as I have said, the respondents submitted that if witnesses are not to be recalled and the point is reached where, because of a failure to comply with the principles laid down in Browne v Dunn, the relevant evidence of the respondents is to be accepted, then the contradictory evidence of Person 5 has no purpose in the trial and will only delay the trial and add to the expense of it.

27    I am sitting without a jury in a civil proceeding for defamation. The issue relating to whether the principles laid down in Browne v Dunn have been complied with can and should be dealt with at the conclusion of the evidence or in closing submissions when I will have an opportunity to consider carefully all the evidence in light of the submissions. The respondents will suffer no prejudice if I adopt that course other than possibly a longer trial. On the other hand, the respondents’ approach means that I would rule evidence out in advance which, if I were wrong, would make a retrial almost inevitable. In other words, if the main advantage is the saving of time and cost because the evidence would not be given, the corresponding disadvantage is that should my ruling be wrong, a retrial would seem to be inevitable.

28    None of this is to say that there might not be cases where evidence may be excluded because the evidence is of a discrete act or conversation, the failure to comply is accepted or undeniable, no explanation for the failure is provided and there is no debate about a lack of coherence caused by exclusion. Even in these cases, the importance or otherwise of the evidence is likely to be relevant and there may be other relevant factors.

29    As I understood the respondents’ “intermediate” position should their primary submission fail, it was based on the proposition that the usual “notice” a party is given by the other party’s cross-examination of the first party’s witnesses has not been forthcoming in this case and the applicant should be ordered to provide particulars.

30    The respondents did not provide the Court with details of the particulars they sought from the applicant. They did point to two examples where they submitted that as a result of Person 5’s evidence, they were now uncertain of the applicant’s case and they were as follows: (1) the location of the shooting of the older Afghan male and whether his body was later moved; and (2) the colour of the camouflage paint used by Person 5’s patrol which included the applicant. I do not need to discuss the relevance of these examples. The provision of particulars at this point in the case is not an intermediate position in relation to the respondents’ primary submission. It is a separate application which should be raised after notice and with a list of the precise topics upon which particulars are sought.

Associate:    

Dated:    19 May 2022

SCHEDULE OF PARTIES