SAS trial: Ben Roberts-Smith‘s defamation case in disarray after WA’s shock border change
The defamation trial of the century, launched by SAS soldier Ben Roberts-Smith, is once again up in the air after WA Premier Mark McGowan‘s shock border announcement.
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Ben Roberts-Smith‘s defamation trial has been thrown into disarray after WA Premier Mark McGowan’s shock border announcement on the other side of the country.
Mr Roberts-Smith is suing Nine newspapers and its journalists saying they falsely claimed he had committed war crimes, including murder, while deployed in Afghanistan with the SAS.
The highly decorated former soldier has denied he ever killed anyone outside of the legal rules of engagement and says Nine defamed him in their articles - Nine insists the allegations are true.
The defamation trial of the century, as the case is known, was being held in Sydney‘s Federal Court but the city’s first Delta outbreak forced the case to stop in the middle of 2021.
The shifting sands of the pandemic have wrought havoc on the best laid plans of barristers and judges in the case but February 2 was set down as the date to finally resume the trial.
Nine was expected, next month, to open their defence with current and former SAS witnesses who would travel from their homes in Perth to testify against Mr Roberts-Smith in Sydney.
Some were even expected to incriminate themselves for war crimes including murder in their evidence, the court has heard.
Then, on Thursday evening, Premier McGowan indefinitely delayed the reopening of his state in a bid to keep Covid-19 patients from filling WA‘s badly under-resourced hospitals.
Four of the newspaper‘s six crucial SAS witnesses are based in WA, the court heard on Friday, and the border changes would affect their ability to return home if they travelled to Sydney.
Lawyers for Nine told Justice Anthony Besanko they were working to find a solution as quickly as possible and said they hoped to call the two non-WA based witnesses on February 2.
The lawyers are looking at whether the four WA witnesses can get travel exemptions under the new rules - and Nine may even apply to move the trial to Perth.
The court previously considered moving to Adelaide to take advantage of South Australia‘s soft border with WA.
But Justice Besanko decided against the move because it would have taken months to get Adelaide‘s court facilities secure enough for sensitive military evidence.
The court must be extremely secure with separate lifts, privacy screens and digital security because the SAS witnesses are expected to give evidence, often behind closed doors, on heavily classified missions and subjects.
Only Sydney‘s court rooms are, at present, equipped to handle and protect the SAS evidence.
Mr Roberts-Smith‘s barrister, Arthur Moses SC, told the court the “ship has passed” when it came to moving the trial.
Mr Moses said the court should expect that any witness who wants to withdraw from the case should file a sworn statement explaining why they cannot give evidence.
“We always expected something like this would happen,” he said.
The court will resume next week to hear whether the February 2 date will stand.
Originally published as SAS trial: Ben Roberts-Smith‘s defamation case in disarray after WA’s shock border change
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