Ben Roberts-Smith defamation trial may be moved out of NSW due to Covid-19 outbreak
Ben Roberts-Smith’s high-profile defamation trial might need to be moved out of New South Wales because of Sydney’s widespread Covid outbreak, or risk being delayed for months and potentially jeopardising the safety of witnesses, the federal court has heard.
During a hearing on Wednesday morning, the former soldier’s barrister, Bruce McClintock SC, said the public health regime imposed across Sydney, and the health risk posed by the Delta variant of the coronavirus, meant the hearing almost certainly faced further delays beyond the end of July.
“It may be necessary … to reconsider the venue of these proceedings at some point, depending on what happens. If, say, Sydney is in lockdown for another two months, your honour may wish to consider the possibility of either Adelaide or Perth,” he told Justice Anthony Besanko.
“If we want to keep this case going, it may be necessary to consider those things.”
Most of the witnesses to be called in the case are former or serving SAS soldiers, based in Western Australia, traditionally the slowest state to open up its borders to Covid-affected areas. Justice Besanko is usually based in Adelaide and South Australia currently has fewer than 20 active cases, and few restrictions on movement.
The trial is one of the most high-profile defamation actions in Australian legal history.
Victoria Cross recipient Roberts-Smith, one of the most decorated soldiers in the Australian military, is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of reports he alleges are defamatory and portray him as someone who “broke the moral and legal rules of military engagement” and committed war crimes including murder.
The 42-year-old has consistently denied the allegations, saying they are “false”, “baseless” and “completely without any foundation in truth”. The newspapers are defending their reporting as true.
The newspapers had wanted to call four Afghan witnesses by videolink beginning on 26 July. There are increasing concerns for the safety of those witnesses, who are currently in a safehouse in the Afghan capital, Kabul.
With the withdrawal of coalition forces from Afghanistan, there are increasing concerns over its rapidly deteriorating security situation. A resurgent and emboldened Taliban has seized control of districts and cities across the country. More than 1,000 government soldiers have fled the Taliban across Afghanistan’s border, and hundreds more have handed over weapons and equipment to the Taliban in mass surrenders.
“The security situation in Afghanistan is deteriorating rapidly in advance of the withdrawal of coalition forces on September 11,” barrister Nicholas Owens SC, for the newspapers, told an earlier hearing. “In light of the deteriorating security situation we are concerned to hear their evidence as soon as possible. They are presently in Kabul and able to give evidence.”
The court heard at least one of those witnesses is expected to give evidence that they witnessed Roberts-Smith murder an unarmed civilian – a farmer named Ali Jan – in the village of Darwan in 2012.
Lawyers for Roberts-Smith said it was impractical to call the Afghan witnesses on 26 July.
Because of the sensitive nature of their evidence, and the potential national security implications, their evidence would require an “in-person hearing in closed court” and at least 20 people to be physically present in the courtroom.
“That carries real risk,” McClintock said. “If just one person has been exposed to the virus it will mean ultimately that everyone has to isolate and the continuation of the hearing would be impractical.”
“The particular strain around now, the Delta strain, is very serious, indeed, life-threatening.”
McClintock said Roberts-Smith accepted the Afghan witnesses would testify, and that he “had no fear of that”. But, McClintock said, Kabul is not believed to be under imminent threat from Taliban assault.
The case will return to court – by online hearing – on Monday 19 July for further directions.