Nine loses a ‘path to victory’ in Ben Roberts-Smith defamation trial
Nine has lost a major battle in the Ben Roberts-Smith defamation trial after the court made a significant ruling on a key witness.
Nine newspapers have lost one key “path to victory” against Ben Roberts-Smith‘s lawsuit after a court refused to compel an SAS soldier to testify about an alleged war crime murder.
The unnamed soldier, known only as Person 66, had warned he faced potential war crime prosecutions if the court forced him to testify against Australia‘s most famed veteran.
Mr Roberts-Smith is suing Nine newspapers and journalists over a series of articles claiming he was involved in the killing of multiple detained Afghans, known in military slang as PUCs.
The Victoria Cross recipient denies each allegation and Nine insists their articles are true.
The newspapers called Person 66 to testify about a mission in the Afghan region of Syahchow where he was deployed under the command of Mr Roberts-Smith in 2012.
Nine claims Mr Roberts-Smith forced Person 66 to shoot a PUC in a field at Syachow so the SAS soldier could be “blooded”.
Person 66 objected to answering questions about his missions in 2012 on the grounds of self-incrimination.
Nine’s barrister, Nicholas Owens SC, asked Justice Anthony Besanko to compel the soldier to answer his question.
“We are seeking to have this witness compelled to confess to murder,” Mr Owens said on Tuesday.
But Justice Anthony Besanko, after a day of deliberations, ruled it would not be in the interest of justice to force Person 66 to answer the questions about Syahchow.
Mr Owens, on Wednesday, could only put the crucial questions to Person 66 knowing they would go unanswered.
“On a mission in October 2012… did Mr Roberts-Smith direct you to shoot a PUC?” Mr Owens asked.
“I object, your honour,” Person 66 responded.
Person 66 was sent home without answering the question minutes later.
His lawyer, Jack Tracey, had earlier spelled out just how “grave” it would have been for the SAS soldier to answer.
“The particular evidence is of a nature that, if it were given, it would involve self incrimination of the gravest kind,” Mr Tracey said, explaining his client had PTSD.
Mr Tracey told the court Person 66, if he confessed to murder, could be liable for investigation and even prosecution by Australian or international war crime investigators.
“The effect of having him give evidence would put his well being and, indeed, his life at risk,“ he said.
The Australian Federal Police, currently, are investigating the allegations of war crimes made against the SAS after an inquiry found “credible information” about 39 alleged extrajudicial killings.
Nine had argued Person 66’s evidence could be a “path to victory” because the soldier was the sole eyewitness, aside from Mr Roberts-Smith, of the alleged killing at Syahchow.
If Nine satisfied the court that Mr Roberts-Smith had ordered a war crime killing during that mission then their case would, ultimately, succeed.
Person 66’s silence in the witness box likely means the newspapers will need to satisfy Justice Besanko other illegal killings involving Mr Roberts-Smith to make out their truth defence.
Federal MP Andrew Hastie, who served as a Captain in the SAS, was also at Syahchow that day.
He told the court he locked eyes with an anxious looking Person 66 who was normally a happy-go-lucky, classic, country Aussie.
Mr Hastie told the court he saw a dead body and heard radio chatter about “EKIAs” - enemies killed in action at Syahchow but did not witness an execution.
He claimed Mr Roberts-Smith walked past him and said “just a couple more dead c***s”.
Mr Roberts-Smith denies Mr Hastie‘s evidence.
The trial continues.