Documents related to a witness for Ben Roberts-Smith will be unsealed

There’s been a setback for one of Ben Roberts-Smith’s witnesses just days until the decorated soldier’s high stakes defamation trial begins.

A former SAS soldier who will give evidence for Ben Roberts-Smith in his upcoming defamation trial has lost a court bid to keep his service documents sealed.

Mr Roberts-Smith is suing Nine’s newspapers alleging they defamed him with reports he committed war crimes in Afghanistan and punched a woman in the face. He denies all wrongdoing and his lawsuit will start on Monday.

Three SAS soldiers fought Nine’s attempt to get the Inspector General of the Australian Defence Force to hand over their files about their deployment in Afghanistan.

Nine alleged one soldier was “intimately involved” in crimes.

Justice Wendy Abraham, on Tuesday, refused his request to strike out Nine’s subpoena and found he could not establish “public interest immunity” over the documents held by the IGDAF.

Ben Roberts-Smith’s defamation trial will begin next week. Picture: Department of Defence

The barrister for Mr Roberts-Smith, previously, said soldiers called by their client deserved to know what allegations would be put against them by Nine.

“Many witnesses on our side are accused of serious wrongdoing,” Bruce McClintock SC told the court in late April.

“The consequences for those men could be of extraordinary gravity just by giving evidence in chief.”

Two other soldiers have also opposed the release of information by the IGDAF about their time in Afghanistan.

One of those soldiers, Nine claimed, was involved in the infamous story of an Afghan farmer Ali Jan being kicked off a cliff and shot.

Tuesday’s judgement, Justice Abraham said, followed orders published on May 28 that saw a similar result for defence documents related to “the Afghan witnesses”.

The Afghan witnesses are expected to voluntarily take the stand from Kabul to recite what they remember about the alleged killing of Ali Jan on September 11, 2012.

The IGADF opposed releasing their interviews, which were conducted at the Australian embassy in Kabul in 2019, telling the court its investigations into war crime allegations were deliberately clandestine.

“The Afghanistan Inquiry was conducted in circumstances of strict confidentiality,” Justice Abraham wrote, summarising the IGDAF position last week.

“Information was tightly held, and was not shared with the Australian Defence Force chain of command, the Secretary of the Department of Defence or the Defence Minister; and a deliberate policy of not providing comments to the media.”

Ben Roberts-Smith is suing Nine’s newspapers alleging they defamed him with false reports he committed war crimes. Pictures: 60 Minutes

But she found the documents should be released by the IGADF, consistent with previous orders made in the case.

The Australian Federal Police escaped the same subpoena saying the release of documents - if they exist - would “impede or frustrate the AFP’s ongoing investigations into war crimes allegedly committed by ADF members in Afghanistan”.

Justice Abraham concluded that the difference between the IGADF and the AFP was that the police were still investigating war crime allegations which could result in criminal charges while the ADF’s report has already been released.

The defamation trial will begin on Monday.

Originally published as Documents related to a witness for Ben Roberts-Smith will be unsealed