Alleged war crime investigation “overlaps” with Ben Roberts-Smith’s proceedings, court told

A court has been told there is an overlap between the subject matter of war crime investigations and the subject matter of the Ben Roberts-Smith’s defamation proceedings.

The judge who dismissed Ben Roberts-Smith’s multimillion-dollar defamation trial won’t be overseeing an application by the Commonwealth, as the country’s war crime prosecutor continues to investigate alleged crimes which “overlap” with the former soldier’s proceedings.

Earlier this year, Federal Court Justice Anthony Besanko ruled some of the imputations against Mr Roberts-Smith put forward across six articles by The Sydney Morning Herald, The Age and The Canberra Times were substantially true and dismissed the case.

The newspapers had accused Mr Roberts-Smith of war crimes, with the case expecting to have cost more than $25m in legal fees.

The Commonwealth has remained involved in the case throughout its entirety, with extensive special orders made by the Federal Court in 2020 to protect national security information.

On Friday, Justice Besanko ruled he would not be presiding over an application by the Commonwealth to alter the orders and have access to court documents due to apprehended bias, after an application by Mr Roberts-Smith’s lawyers.

The Federal Court told has been told investigations into alleged war crimes “overlap” with Ben Roberts-Smith’s defamation proceedings. Picture: NCA NewsWire / Dylan Coker

The application to amend the orders were supported by an affidavit by the Director of the Investigations of the Office of the Special Investigator (OSI).

“It is sufficient to say (the amended orders) give the Australian Federal Police (the AFP) and the OSI the right to apply for access to a Sensitive Court File Document or Sensitive Court File Information and, if granted, to engage in specified permitted communications, dealings with documents and permitted creation and preparation of documents,” Justice Besanko wrote in his judgment on Friday.

In his affidavit, Mr Barnett deposes the OSI is “currently conducting a number of joint investigations with the AFP into the alleged commission of criminal offences” related to breaches by members of the defence force in Afghanistan from 2005 to 2016.

The joint investigations are collectively known as Operation Emerald and consist of 40 investigations. Mr Roberts-Smith has consistently denied any wrongdoing.

While all investigations are active, the level of investigative focus varies, Justice Besanko wrote in his judgment.

“Mr Barnett deposes that his ability to disclose the details of the investigations in an open and unclassified affidavit is limited, but that he is able to say that there is an overlap between the subject matter of the investigations and the subject matter of the defamation proceedings,” the judge said.

The former soldier is appealing Justice Anthony Besanko’s judgment. Picture NCA Newswire/ Gaye Gerard

Justice Besanko disqualified himself from hearing the Commonwealth’s application, saying he made a “number of serious findings” on fact and credit against Mr Roberts-Smith.

He said hearing the application will “interfere, or seriously risk interference, with the administration of justice”.

“The force of the applicant’s argument is that the hypothetical reasonable observer would see that I have made a number of very serious findings against the applicant and such a person would consider that an ordinary right thinking member of the community would consider (strongly) that such matters should be the subject of a criminal investigation,” Justice Besanko said in his judgment.

“That is enough to give rise to apprehended bias and, in those somewhat unusual circumstances, the issue is not resolved by the characterisation or fine analysis of the likely steps in the decision-making process.”

The matter will return to court on September 1 in front of Justice Besanko for a fight over subpoenas.

Meanwhile, the former soldier has since launched an appeal against Justice Besanko’s judgment in the defamation suit.

Mr Roberts-Smith’s lawyers argue that Justice Besanko “erred in his findings” that Mr Roberts-Smith was involved in four murders of unarmed prisoners in Afghanistan between 2009 and 2012.