Federal Court of Australia Roberts-Smith v Fairfax Media Publications Pty Limited (No 37) [2022] FCA 580 File numbers: NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018 Judgment of: BESANKO J Date of judgment: 17 May 2022 Date of publication of reasons: 20 May 2022 Catchwords: PRACTICE AND PROCEDURE — Interlocutory application by applicant for orders that two witnesses, Person 9 and Person 33, be permitted to give evidence at trial by audio-visual link (AVL) — where existing orders made pursuant to ss 19(3A) and 38B of National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) prevent communication of Sensitive Information other than in closed Court — where available AVL facilities not sufficiently secure to replicate features of closed Court — amended outlines of evidence of Person 9 and Person 33 served by applicant — where paragraph 8 of original outline of evidence of Person 9 states Person 9 has "no recollection" of alleged "mock execution" by applicant — amended outline of evidence of Person 9 containing clarification of paragraph 8 to effect that Person 9's evidence will be incident did not happen and could not have happened — possibility that respondents would seek to put Sensitive Information to Person 9 in cross-examination in relation to anticipated evidence that incident did not happen and could not have happened — application granted insofar as it concerns Person 33 and refused insofar as it concerns Person 9 Legislation: Federal Court of Australia Act 1976 (Cth) s 47A National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ss 19(3A), 38B Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 13 Dates of hearing: 9 & 17 May 2022 Counsel for the Applicant: Mr M Richardson SC with Mr P Sharp Solicitor for the Applicant: Mark O'Brien Legal Counsel for the Respondents: Ms L Barnett Solicitor for the Respondents: MinterEllison Counsel for the Commonwealth of Australia: Ms J Single SC with Mr J Edwards Solicitor for the Commonwealth of Australia: Australian Government Solicitor ORDERS NSD 1485 of 2018 BETWEEN: BEN ROBERTS-SMITH Applicant AND: FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720) (and others named in the Schedule) First Respondent NSD 1486 of 2018 BETWEEN: BEN ROBERTS-SMITH Applicant AND: THE AGE COMPANY PTY LIMITED (ACN 004 262 702) (and others named in the Schedule) First Respondent NSD 1487 of 2018 BETWEEN: BEN ROBERTS-SMITH Applicant AND: THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED (ACN 008 394 063) (and others named in the Schedule) First Respondent order made by: besanko J DATE OF ORDER: 17 MAY 2022 THE COURT ORDERS THAT: 1. The applicant's Interlocutory application dated 30 April 2021 be granted insofar as it concerns Person 33 and be refused insofar as it concerns Person 9. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BESANKO J: 1 This is an application by the applicant in which he seeks an order pursuant to s 47A(1) of the Federal Court of Australia Act 1976 (Cth) that Person 9 and Person 33 be permitted to give evidence at the trial by audio-visual link (AVL). On 17 May 2022, I allowed the application insofar as it related to Person 33. I disallowed the application insofar as it related to Person 9. These are my reasons for those decisions. 2 It is necessary to mention two important matters at the outset. First, part of the material relevant in this case comprises "Sensitive Information" and related concepts within the meaning of orders made by the Court under ss 19(3A) and 38B of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (the s 38B Orders). Such information can only be referred to in closed Court (see paragraph 8(b)(vi) of Annexure A to the s 38B Orders). Secondly, the AVL facility is not sufficiently secure to replicate the security features of closed Court. It follows that a party's attitude to a witness giving evidence by AVL will be influenced by whether that party's cross-examination of the witness will need to be carried out, in part at least, in closed Court. 3 The applicant filed outlines of evidence in respect of Persons 9 and 33 respectively. In order to assess the risk of needing to ask the Court to move into closed Court, the respondents requested that the applicant provide signed statements of their evidence in an attempt to minimise the risk that the witnesses' evidence would travel beyond the topics in their respective outlines of evidence. The applicant declined to provide signed statements and the application came on before me on 9 May 2022. 4 As a result of matters raised in the course of argument and the fact that, in the case of Person 9, the applicant sought to have Person 9 deal with other issues, the applicant was given the opportunity to file, in effect, more detailed outlines of evidence in an attempt to better assess the possibility of part of the cross-examination needing to be carried out in closed Court. 5 A more detailed outline of evidence has been filed for Person 33, and the respondents have assessed the risk that they will be required to cross-examine Person 33 in closed Court as "small". In those circumstances, they did not oppose the applicant's application while noting that if difficulties arise, they are capable of being dealt with. 6 The position in relation to Person 9 is different. 7 In Person 9's original outline, the substance of his evidence related to what has been called the alleged "mock execution". This alleged incident is described in paragraph 65 of the respondents' Particulars of Truth as follows: In or about May 2012 the Applicant and the troop of which he was a member engaged in a training exercise at the Lancelin Defence Training Area, Perth. At about the conclusion of that training exercise the exercise involved a scenario that a compound had been cleared and a detainee had been taken. The detainee, being played by Person 9, was squatted in a corner of the compound with handcuffs on. The Applicant then walked to the other end of the room, grabbed Person 10, who was preparing for his first deployment, and brought him back to where the detainee was squatting. The Applicant said to Person 10, in substance, "kill him". Person 10 looked taken aback, however he complied with the order and jokingly simulated killing the detainee by gesturing and saying "bang" to indicate he had shot the detainee. The Applicant then grabbed Person 10 by the shoulder and said in substance "You good with that? Because that's how it's gonna be when we get over there." 8 In his original outline of evidence, Person 9 said the following as to this alleged incident: 7. I am advised that the Respondents have alleged that during the training exercises, while I was playing a detainee in a training scenario, the Applicant allegedly brought Person 10 to where I was squatting and said: "kill him", following which the Applicant then allegedly said to Person 10: "You good with that? Because that is how it is going to be when we get over there." 8. I have no recollection of the training scenario as referred to in the preceding paragraph as having taken place. 9 In his amended outline, Person 9 states as follows: Clarification of Paragraph 8 15. To clarify, in paragraph 8 above, when I said that I have no recollection of the training scenario as referred to in paragraph 7 as having taken place, I meant that I have no recollection in that I believe would not have happened [sic]. In particular, I say that: a) I do not recall the alleged incident; b) I do not recall playing a detainee or a PUC at that time at all; c) For part of my career I worked as a dog handler and would have played the role of decoy on occasion, but even that would not have meant that I was playing a detainee; d) If the alleged incident had happened, I believe I would have remembered it, but I do not; e) I read a media report of these proceedings where another witness reportedly gave evidence suggesting that the alleged incident took place at Lancelin. I do not believe that the alleged incident as described could have taken place there because of the particular facilities there as opposed to other places where training took place. 10 It is clear from the clarification of paragraph 8 that the statement in Person 9's original outline that he had no recollection of the training scenario referred to in paragraph 7 taking place was more than a "neutral" observation that he did not know one way or the other. The clarification of paragraph 8 is to the effect that Person 9, who was, in fact, the subject of the incident on the respondents' case, believes he would have remembered it if it had happened and that as he does not remember it, it did not happen. Furthermore, it seems that Person 9 will say that the alleged incident could not have happened at Lancelin because of the particular facilities at that place. The respondents contend that this is a new allegation which was not raised by the applicant in his evidence or put to the witnesses called by the respondents who gave evidence about the alleged incident. 11 I was referred in closed Court to material potentially relevant to Person 9 and his cross-examination. Although the document cannot be put to Person 9 under the current regime, the respondents are able to use the document to put propositions to the witness. However, that can only be done in closed Court. 12 Person 9 has informed the applicant's solicitors as follows: (1) he continues to be a current member of the Special Air Service Regiment and continues to be on a long-term military posting to the United Kingdom; (2) he is presently in the United Kingdom; and (3) the unit he is still with is on short notice to move and he cannot be released to travel to Australia because of his role. These matters support the applicant's application as does the fact that, relative to other witnesses, Person 9's evidence is quite confined. 13 In my opinion, there is a more than reasonable chance that the respondents will ask the Court to move into closed Court for part of the cross-examination of Person 9. If an order for Person 9 to give evidence by AVL is made, that will not be possible and the respondents will be denied an opportunity they would otherwise have where the witness appears in person, that is, to put relevant material to a witness in order to challenge that witness. In my opinion, that is a sufficient reason to refuse the application. The prospect of a closed Court hearing is sufficiently strong to reject the "wait and see" approach advanced by the applicant. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko. Associate: Dated: 20 May 2022 SCHEDULE OF PARTIES NSD 1485 of 2018 NSD 1486 of 2018 NSD 1487 of 2018 Respondents Second Respondent: NICK MCKENZIE Third Respondent: CHRIS MASTERS Fourth Respondent: DAVID WROE