Ben Roberts-Smith trial hears Nine yet to speak to key witness

The Federal Court heard that Nine is yet to speak with a key witness in the Ben Roberts-Smith defamation trial, despite previously saying he would testify against the VC recipient.

A key witness for Nine in its defamation defence against Victoria Cross recipient Ben Roberts-Smith says he has never spoken to the media giant and had no idea they were relying on his evidence.

Person 4 is a former SAS soldier who Nine alleged in a June 2018 newspaper article was present when Mr Roberts-Smith ordered members of his squad to kill a shepherd named Ali Jan.

Nine alleged the order came in September 2012 after Mr Roberts-Smith kicked Ali Jan off a cliff. He was then ­allegedly shot.

Mr Roberts-Smith is suing Nine and its journalists Nick McKenzie, Chris Masters and David Wroe, over a series of newspaper articles in which they alleged he committed and sanctioned war crimes.

Lawyers for Ben Roberts-Smith have revealed in court that a vital witness for Nine in the upcoming defamation trial has never spoken to the media giant. Photo Lachie Millard.

Nine is defending the defamation claim. A trial is due to begin before Justice Besanko in the Federal Court in Sydney on June 7.

Nine originally nominated Person 4 as one of several military witnesses in the case. But on Friday, in a surprise revelation, the Federal Court heard that Nine has yet to speak with Person 4.

This is despite them filing in May 2019 an outline of evidence — a basic rundown of what the witness is expected to say in court — in which they claimed the ex-soldier would testify that he had been ordered by Mr Roberts-Smith to help murder Ali Jan, who lay injured at the bottom of the cliff.

Arthur Moses SC, who is the barrister representing Mr Roberts-Smith, told the court on Friday the “extraordinary” revelation was made during recent discussions between his team and Person 4’s lawyers.

Mr Roberts-Smith was accused by Nine of ordering Person 4, a fellow SAS soldier, to murder an Afghani farmer Ali Jan. Mr Roberts-Smith denies the claims and is expected to testify at trial that the killings were lawful. Picture: Supplied.

“We were informed rec­ently by Person 4’s lawyers that Person 4 has never ­spoken to the respondents,” Mr Moses said.

“And the outline of evidence, that was represented as being an outline of evidence that he would give at trial, that in effect he committed a murder at the direction of the applicant, was not the subject of anything he told the respondents’ lawyers or the respondent.

“So we’re not sure where they got that from, whether it was made up by them, whether  they were sold a pup by somebody or whether they received information unlawfully.

“That will be dealt with in due course as to how they will come to explain what they did by serving that outline.”

Mr Roberts Smith has ­denied all wrongdoing and is expected to testify that the killings were lawful.

Ben Roberts-Smith serving in Afghanistan.

The letters between Mr Roberts-Smith’s legal team and the lawyer for Person 4 were marked as an exhibit for the upcoming court battle.

Nine had initially intended Person 4 and Person 13, an interpreter used to translate between coalition and Afghani forces, would both testify that Mr Roberts-Smith had ord­ered them to kill Ali Jan.

Person 13 is no longer giving evidence in the trial.

In response to the claims by Mr Moses, Nine’s barrister Christopher Mitchell said they rejected any suggestion Person 4’s outline of evidence was “made up”.

The children of Afghan man Ali Jan, who None Newspapers alleges was pushed off a cliff and shot by Mr Roberts-Smith. Picture: Channel 9

“The outline of evidence reflects the respondent’s genuine expectation of what Person 4 is going to say,” he said. “We have never represented that that outline contained information based on direct contact with him. Your Honour would hardly expect my clients to put on an outline making serious allegations without carefully satisfying themselves that there was a proper basis for doing so.

“There has been a suggestion made in open court that we don’t have a proper basis for making that or for providing that outline, and I want to put on the record openly that we say there was a proper basis for doing so.”

In response, Justice Wendy Abraham said: “One might think … a witness outline, the obvious inference is it comes from the witness.”

The court battle between Mr Roberts-Smith and Nine — dubbed the defamation trial of the century — is expected to run for eight weeks.