Nine drops Ben Roberts-Smith murder claim ahead of trial

Just a week-and-a-half out from the landmark defamation case, Nine’s legal team said it will no longer be alleging murder.

Just days before the start of a landmark defamation case lawyers for Nine have sensationally backed down from one of the murder allegations against former SAS soldier Ben Roberts-Smith.

Nine’s lawyers have written to lawyers for the Vic­toria Cross recipient to advise they will no longer be “pressing the allegations” in relation to the death of an Afghan man on the banks of the Helmand River.

Mr Roberts-Smith is suing Nine, and its journalists Nick McKenzie, Chris Masters and David Wroe, over a series of articles he claims portrayed him as a murderer and war criminal.

Lawyers for Nine media have admitted they cannot prove one of the murders it claimed Ben Roberts-Smith carried out on the banks of the Helmand River. Picture: Department of Defence

The media giant alleged the Victoria Cross recipient had swum across the river in the Afghanistan village of Darwan on September 11, 2012, and hunted down an “unarmed” Afghan, who fled a compound during a coal­ition mission.

At the time, SASR troops were desperately searching for Hekmatullah, an Afghan soldier who killed three Australian soldiers in a green-on-blue attack.

Mr Roberts-Smith believed the man may have been Hekmatullah and so he swam across the river, chased him into a cave and shot him. Mr Roberts-Smith’s lawyers have previously said the man was found with an AK-47 and bomb detonators.

In four paragraphs of its amended defence after outlining the shooting, Nine ­alleged “the Applicant’s (Mr Roberts-Smith) conduct … constituted murder”.

However, Nine now “do not press the allegations contained in paragraphs 98-101 … in (the) amended defence”, the lawyer’s letter states.

A Nine spokesman said: “Those four paragraphs are not necessary for our truth defence.”

The defamation trial between Mr Roberts-Smith and Nine begins before Justice Anthony Besanko on June 7. Picture: Toby Zerna

On the same day that Mr Roberts-Smith swam across the raging river and killed the Afghan man, Nine all­eges he murdered farmer Ali Jan – just moments after kicking him off a cliff.

Nine is standing by this and other murder claims, including the death of a man in the back of a Hilux in 2012.

Former Victorian Sup­reme Court Justice Mark Weinberg was appointed Special Investigator last ­December to investigate the possibility of laying criminal charges against Mr Roberts-Smith and other soldiers, following the release of the Brereton Report.

Earlier this year Nine’s lawyers also wrote to the ­Office of the Special Investigator to say they would not oppose him stepping in to “stay” the defamation proceedings.

Ben Roberts-Smith during his time in Afghanistan. Picture: Department of Defence

The move could have seen defamation proceedings set aside, potentially permanently.

Nine’s letter raised the possibility that the court battle between it and Mr Roberts-Smith could prejudice any future proceedings, should charges be laid against the war hero or other SASR soldiers.

In a statement, a spokesman for the Office of the Special Investigator said: “The defamation proceedings are a private matter to be resolved ­between the parties”.

“The Office of the Special Investigator is not, at this stage, in a position to form a view as to whether, or in what specific ways, the proceedings might impact on ­future investigations.”

Nine has also removed a former soldier from its witness list as a result of “his difficult life circumstances”.

The man was expected to give limited evidence at the upcoming trial.