Covid-19 could force Ben Roberts-Smith trial out of Sydney as judge makes evidence decision

Australian Defence Force investigators will hand over interviews with three SAS soldiers expected to testify for Ben Roberts-Smith after collusion allegations.

Defence investigators will be required to produce documents which could show three SAS soldiers, allied to Ben Roberts-Smith, “colluded” when they gave evidence about war crimes, a judge has ruled.

It comes as the same judge hears Mr Roberts-Smith‘s defamation trial of the century is at risk of permanently leaving Sydney because of the coronavirus outbreak.

Mr Roberts-Smith is suing Nine for defamation, saying they falsely accused him of war crimes in Afghanistan. Nine argues their allegations are true.

Nine has issued multiple subpoenas to the Inspector General of the Australian Defence Force, a body that found credible information 39 Afghans were unlawfully murdered by Australian troops.

Nine had asked the IGADF to hand over parts of interviews between three SAS soldiers known as Person 5, 11 and 35.

Those soldiers are expected to testify for Mr Roberts-Smith to stack up his version of events that every killing he was involved with in Afghanistan was lawful.

Nine specifically wanted the IGADF to produce parts of the interviews with the three soldiers that could shed light on whether they spoke with anyone else about their evidence.

The three soldiers asked Justice Besanko to stop the subpoena saying Nine were trying to “impugn the credit of each of them and to provide evidence of collusion”.

The village of Darwan, Afghanistan, is central to Nine’s war crime allegations against Mr Roberts-Smith. PICTURE: FEDERAL COURT via NCA NewsWire,

Nine argued information had emerged in the trial that Mr Roberts-Smith may have spoken with the soldiers about their evidence to the IGADF.

Nine‘s barrister Nicholas Owens SC had accused Mr Roberts-Smith of speaking with the men to get their story straight.

Nine claims the soldiers, who were deployed with Mr Roberts-Smith, were present when he carried out war crimes.

Both parties agree that Person 11, for example, was in the village of Darwan in 2012 when Mr Roberts-Smith allegedly kicked unarmed farmer Ali Jan off a cliff and had him executed.

Mr Roberts-Smith denies that. He said the only killing he could recall in that area was when Person 11 engaged with a Taliban spotter in a cornfield.

Mr Roberts-Smith said he helped Person 11 shoot the spotter dead and the SAS troop inspected and photographed the body.

He insists it was all done within international laws.

Justice Besanko noted that, unlike with previous subpoenas, the IGADF was no longer arguing for public interest immunity over the information Nine was seeking.

He refused to throw out the subpoena, meaning the IGADF will now produce any information about the soldiers speaking to one another.

An official war crime investigation has been subpoenaed by Nine who want to find out if three soldiers “colluded” about their evidence. Photo by Petty Officer Damian Pawlenko

Earlier, the court heard the trial may permanently leave Sydney as the coronavirus outbreak threatens to prevent crucial witnesses giving evidence from Afghanistan.

The Brisbane-based veteran has been staying in Sydney for his lawsuit but the case was postponed last month as the Deltra strain emerged in the city’s east.

The trial was expected to resume later this month to hear from four Afghan witnesses who were to give evidence from the capital, Kabul, via videolink.

But Mr Roberts-Smith’s barrister, Bruce McClintock SC, has warned that would require at least 20 lawyers, interpreters and judicial staff in Sydney’s Federal Court.

“The social distancing is impossible – it carries real risk,” he told Justice Besanko on Wednesday.

“If one among those 20 people has been exposed to the virus it would mean everyone would have to isolate and the continuation of the hearing would be impracticable.

“The particular strain around now is very serious and indeed life-threatening.”

Mr Roberts-Smith’s barrister, Bruce McClintock SC, warns the virus is threatening to further derail the trial. Picture: Nikki Short / NCA NewsWire

NSW Premier Gladys Berejiklian, minutes later, announced the lockdown would extend at least until July 30, past the date the trial was set to resume.

The barrister said Justice Besanko may need to consider moving the trial completely to Perth or Adelaide.

He told the court he had not been instructed and was not applying to do so, but it may be necessary to keep the trial moving.

The court has previously been told that Mr Roberts-Smith’s home state of Western Australia is posing the biggest logistical problem for the trial, as many of the SAS witnesses live there.

National security concerns mean they cannot give evidence over videolink, but WA’s strict border means they cannot travel to or return from Sydney to give evidence in person.

The court was previously told that the Afghan witnesses, in part, would testify about the death in Darwan.

Mr Roberts-Smith has denied committing war crimes in Afghanistan and is suing Nine for defamation over the allegations. Picture: Nikki Short / NCA NewsWire

The Afghan witnesses travelled to the capital to give evidence against the backdrop of a worsening situation in their own country.

The Taliban is loudly retaking territory as the coalition quietly exits before September 11, the US deadline for complete withdrawal.

Nine newspapers, who are calling on the Afghans, have warned the deterioration of security in Afghanistan means their evidence should be called as soon as possible.

Mr McClintock, on Tuesday, said a lawyer working with the Afghans in Kabul had assured that the city was not under threat and was not expected to be attacked by the Taliban.

The court will consider whether it can resume to hear from the Afghans in the coming week.