War crimes investigators to monitor Ben Roberts-Smith defamation trial

Investigators probing alleged war crimes by Australian soldiers in Afghanistan will monitor the defamation case brought by Victoria Cross recipient Ben Roberts-Smith against The Age and The Sydney Morning Herald for any material that might assist in a potential criminal prosecution against the war hero.

Mr Roberts-Smith, a former Special Air Service Regiment soldier, is suing the media outlets over reports that he says accused him of murder during his 2009 to 2012 tour of Afghanistan. The trial is due to begin on Monday.

Former soldier Ben Roberts-Smith.Credit: Getty Images

The Australian Federal Police and the Office of the Special Investigator, which was established in January to examine the findings of the Brereton inquiry into allegations of war crimes, discussed the benefits and disadvantages of the defamation trial going ahead, according to sources who were not permitted to comment publicly.

They formed the view that the defamation trial could yield invaluable evidence for any future criminal prosecution against Mr Roberts-Smith or any other soldier, the sources said.

In late May 2018 the federal police launched two separate war crimes investigations into Mr Roberts-Smith, both of which have submitted briefs of evidence to the Commonwealth Director of Public Prosecutions, who will decide whether charges should be laid.

The Brereton inquiry was a fact-finding exercise that gave witnesses immunity in that their testimony could not be used against them in a criminal trial but could be used against others.

Sources who are not authorised to speak publicly said this meant that some of the evidence from the Brereton inquiry was inadmissable, but the Federal Court defamation trial could be plumbed for first-hand witnesses to alleged war crimes and evidence not otherwise available to the Office of the Special Investigator.

Investigations are likely to be impeded by the closure of the Australian embassy in Kabul. OSI director-general Chris Moraitis told a Senate estimates hearing last week that the decision to close the embassy made it more difficult to gain access to witnesses in Afghanistan while preparing the brief of evidence.

Several witnesses appearing for Mr Roberts-Smith have been served “potentially affected persons” notices to indicate that they are under investigation, raising the prospect they might incriminate themselves by giving evidence.

They will have the opportunity to ask for a certificate as they appear to prevent their evidence being used against them in any future criminal proceedings. A certificate would be granted at the discretion of the judge.

But the witnesses need to assert that their own evidence may tend to prove that they have committed an offence, otherwise they will have no reason to ask for a certificate. The AFP and the Special Investigator will then be able to use the statements given by those soldiers in the Federal Court to inform future investigations.

The AFP and the Special Investigator will also be able to consider any discrepancies between what witnesses told the Brereton inquiry and what they told the Federal Court, and if they exist, potentially charge people with perjury.

Civil trials are often stayed in order to avoid prejudicing upcoming criminal trials. Actor Craig McLachlan’s defamation action against the ABC, Fairfax (now Nine) and an actor was stayed in 2019 until the completion of criminal proceedings against him. He was found not guilty last year.

In a separate Victorian case this year, a man involved in criminal proceedings appealed his conviction on the basis that part of the case against him had been taken from the evidence he gave in civil proceedings, which he would not have given had he known he was under investigation.

Mr Roberts-Smith launched his defamation action in April 2018, more than two years before the Special Investigator was appointed and before an investigation into allegations that he intimidated war crimes victims had begun.

He is unlikely to apply for an immunity certificate because he brought the defamation action and he denies having committed a criminal offence.

A spokesperson for the Office of the Special Investigator said the defamation proceedings were a private matter between the parties.

The AFP declined to comment.