Roberts-Smith trial delayed: caught between rising Covid, Taliban threats

The Taliban insurgency was Ben Roberts-Smith’s foe in Afghanistan and now their resurgent power could cause problems in his lawsuit against Nine newspapers.

SYDNEY, AUSTRALIA - NewsWire Photos JUNE 28, 2021: Ben Roberts-Smith decorated SAS veteran is seen leaving the Federal Court today during the continuing defamation trial with Nine in Sydney Australia. Picture: NCA NewsWire / Gaye Gerard

The trial of Ben Roberts-Smith has been delayed by a month at least and key witnesses are caught between the dual rising threats of Covid-19 in Sydney and the Taliban resurgence in Afghanistan.

Mr Roberts-Smith’s barrister, Bruce McClintock SC, closed his case for the elite soldier on Monday effectively handing the reins of the trial to Nine’s barrister Nicholas Owens SC.

But Mr Owens told the court Sydney’s escalating coronavirus cluster had made it either impossible or overly burdensome to get his witnesses in and out of the city.

Many of the SAS veterans who were preparing to testify for Nine, against Mr Roberts-Smith, live interstate and would either not be able to get to Sydney or not be able to return to their homes without weeks of quarantine.

As a result Mr Owens said he would likely request an indefinite adjournment rather than start his case for Nine’s newspapers.

The trial was expected to be adjourned on Tuesday morning but Mr Owens urged Justice Anthony Besanko to hear evidence from six witnesses in Afghanistan as soon as possible.

“The security situation in Afghanistan is deteriorating rapidly in advance of the withdrawal of Coalition forces on September 11,” he told the court.

“In light of the deteriorating security situation we are concerned to have them heard as soon as possible. They are presently in Kabul and able to give evidence.”

The trial of Ben Roberts-Smith is hamstrung between Covid-19 in Sydney and the rising Taliban in Afghanistan. Picture: Defence

Mr Roberts-Smith has given weeks of testimony about his battles with the Taliban, and Nine claims he killed six prisoners taken during or after encounters with the insurgency.

Mr Roberts-Smith denies all allegations of war crimes and murder, saying every Taliban insurgent he killed was engaged lawfully.

Nine’s most confronting allegation is that Mr Roberts-Smith kicked an unarmed shepherd named Ali Jan off a cliff, into a creek bed.

Ali Jan was then allegedly shot dead by a member of the Afghan Partner Force on Mr Roberts-Smith’s command.

Two of the Afghan witnesses, according to court documents, were detained alongside Ali Jan in the village of Darwan on that day in 2012.

Mr Roberts-Smith’s barrister said there were inconsistencies in their evidence.

“(The Afghan witnesses) place a number of soldiers at the site of the compound and the riverbed that are improbably high - probably impossible,” Mr McClintock told the court at the start of the trial, ahead of their evidence.

“None of them claims to have actually witnessed any form of execution.”

Ben Roberts-Smith’s trial has been delayed at least a month because of the Sydney outbreak. Picture: NCA NewsWire / Gaye Gerard

Justice Besanko was told the Afghan witnesses could be heard in July.

Commonwealth government lawyers warned the court that was “best case scenario” because the Afghan witnesses needed to be shown classified, national security documents over videolink and that required approval.

“There is a good deal of uncertainty associated with when evidence from the Afghan witnesses can be heard,” Justice Besanko concluded.

“I am not persuaded that a potential stop-start approach to (Nine’s) case is appropriate or desirable… I will adjourn the trial at this point.”

SAS squadmates of Ben Roberts-Smith are expected to give evidence both for and against him but border closures have locked them out of Sydney. Picture: Defence

At the start of the war, the Taliban leadership in Afghanistan were crushed by aerial bombardment and forced out of power within months.

Two decades on, the resurgent group are taking back control of vast swathes of territory that was won at the expense of thousands of Coalition lives and many tens of thousands of Afghan lives.

Millions more were displaced and forced to flee into neighbouring nations.

Mr Owens made mention of the September 11 deadline which is when the final Coalition troops are expected to withdraw on US President Joe Biden’s orders.

Earlier this week it was reported the Coalition military command will withdraw by July 4.

Some troops will remain in Kabul, where the Afghan witnesses will give evidence from, until September.

The court had previously heard the Afghan witnesses would travel to Kabul from other areas of Afghanistan to give their evidence against Mr Roberts-Smith.

Justice Besanko set the case down for a mention on July 19 hoping to begin hearing it again a week later but noted “only time will tell” what Covid restrictions will be in place.

Originally published as Roberts-Smith trial delayed: caught between rising Covid, Taliban threats