Ben Roberts-Smith trial on hold for three weeks
Ben Roberts-Smith’s defamation trial has been delayed for up to a month due to Covid-19 restrictions disrupting witnesses including his ex-wife.
Ben Roberts-Smith’s defamation trial has been delayed for up to a month due to Sydney’s Covid lockdown disrupting plans for witnesses to fly in from interstate and testify at the Federal Court.
The trial was adjourned until July 19 for mention, with the possibility of resuming hearings a week later, on July 26.
Justice Anthony Besanko was forced to adjourn the case after it emerged that Covid-19 border restrictions and quarantine requirements affect dozens of the trial’s witnesses.
Four Afghan villagers, who will testify via audio visual link from Kabul in Afghanistan are among the few defence witnesses unaffected by the Australian Covid-19 arrangements.
However, their testimony will be complicated by the fact a Pashto language interpreter will be translating for them from Canada.
Mr Owens told the court that rapidly deteriorating security in Afghanistan ahead of the Coalition forces’ September 11 withdrawal from the country made it desirable to hear their testimony as soon as possible.
The quandary for the trial judge came after Mr Roberts-Smith’s lawyers closed his side of the case on Monday afternoon and Nine’s media defence lawyer admitted covid had thrown his witness plan into disarray.
Interstate witnesses include Mr Roberts-Smith’s ex-wife Emma Roberts, who lives in Queensland, and Person 17, the woman with whom Mr Roberts-Smith had an affair and who he denies punching.
Up to 21 former or current SAS soldiers who live mostly in Western Australia are not prepared to risk being marooned in NSW.
Nicholas Owens SC, for Nine newspapers, said due to the NSW covid lockdown, “with much regret, quarantine requirements and border closures, I am not in a position to call witnesses”.
He said the WA witnesses were subjected to their state’s “hard border” and therefore a “prohibition on them going home”.
Queensland or Victorian witnesses would need to undergo a two-week quarantine on their return, which would place “a very great burden on them”.
Mr Roberts-Smith’s lawyer, Bruce McClintock SC, said the situation was a “tragedy”, but he wanted the opportunity to cross-examine all the witnesses in person.
In re-examination of his client on Monday, Mr McClintock had Mr Roberts-Smith read a further text message from a woman known as Person 17 which had not been included in Nine’s cross examination.
Nine alleges and Mr Roberts-Smith vehemently denies that he assaulted Person 17 after a 2018 prime ministerial function at which she fell down stairs.
Nine media barrister Nicholas Owens SC accused Mr Roberts-Smith during cross-examination of trying to cover up the attack and of allegedly making the woman feel guilty.
Mr Owens cited a text message exchange between the ex-soldier and Person 17 following the alleged assault.
But Mr McClintock said a further text had not been included in the cross-examination and only produced into the case on Monday.
This text, from Person 17, began: “Please don’t punish me. I’m already hurting physically and mentally.
“I know it’s my fault, I hate that I can’t change what happened. I really need to know what you’re thinking and where we stand.”
Asked how he felt that the text was not included during last week’s cross-examination by Nine, Mr Roberts-Smith said he had been made to feel like he was covering up.
“I was made to feel like I was concocting a story or trying to cover some act of violence that didn’t happen,” he said.
“It’s extremely disappointing that next paragraph was omitted because it puts a lot of context around what took place.”
In testimony earlier on Monday, Mr Roberts-Smith snapped back at the journalists who wrote articles about him and his slain comrade Sergeant Matt Locke, saying it was “utterly disgusting” they had profited from the late soldier.
The war hero said he found it “reprehensible” that stories attacking the two soldiers’ actions on one Afghan mission continued to be available and described the “pain” of Sgt Locke’s family.
And at the start of the fourth week of Mr Roberts-Smith’s defamation trial, former Federal Opposition Leader Dr Brendan Nelson expressed his anger over the stories allegedly defaming the ex-soldier.
He said Mr Roberts-Smith had once had “reverential mobs … fall into his arms”.
He also said that as a strong supporter of the war hero, he had been “cautioned” by an unnamed individual “serving in a very senior position in government”.
The one-time director of the Australia War Memorial (AWM) told Mr Roberts-Smith’s defamation trial – his voice occasionally breaking with emotion – how the war hero’s reputation had been destroyed.
“Ben Roberts-Smith, VC, MG was the most respected, admired and revered Australian soldier in more than half a century since Keith Payne, VC, in the Vietnam War,” he said.
“Wherever he went … he was the subject and the object of what I would regard as reverential mobs.
“Men and women wanted to be with him, shake his hand, perhaps have a photograph.
“I saw people fall into his arms very emotionally and describe their experiences and their families’ (experiences) in war.”
Referring to the practice which had begun in the British army of officers saluting Victoria Cross winners, Dr Nelson said “senior officers would salute him”.
Dr Nelson said two months after Mr Roberts-Smith’s commemorative address at the 2018 Anzac Day Dawn Service at the AWM, people’s attitude to the VC winner had begun to change.
This was when the publication of articles over which Mr Roberts-Smith is suing Nine newspapers and three journalists began being published.
Mr Roberts-Smith described as “utterly disgusting” that journalist Chris Masters had “profited” over claims about his dead comrade, Sergeant Matt Locke.
Sergeant Locke and Mr Roberts-Smith fought alongside one another in a 2006 “overlook” operation in the Chora Valley in Afghanistan which led to the latter winning a Medal of Gallantry.
In cross-examination last week, Nicholas Owens SC, for Nine newspapers, suggested that Sgt Locke and Mr Roberts-Smith had murdered an unarmed Afghan boy in that operation.
Sgt Locke was killed in action in the Chora Valley the following year.
Mr Roberts-Smith told the court that the newspapers he was suing had so far in the trial “changed their story” and there seemed to be “amendments left, right and centre”.
Speaking about Sgt Locke, who was Mr Roberts-Smith’s friend, he said: “they see fit to destroy the reputation of a man who is an Australian hero”.
“Every day those articles are not answered, the Locke family … feel their pain and their hurt,” he said.
“They didn’t deserve this. They have sacrificed enough.
“He did give his life. It is utterly disgusting it is put in those terms.”
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