The extraordinary security measures for Roberts-Smith appeal

Each judge hearing Ben Roberts-Smith’s appeal against his devastating defamation loss will be given a safe to protect national security information and a separate computer for writing parts of the judgment based on closed-court submissions, the Federal Court has heard.

The former soldier’s appeal will be heard in February next year over 10 days, Federal Court Justice Nye Perram said at a preliminary hearing in Sydney on Thursday. A precise date has yet to be set.

Ben Roberts-Smith outside the offices of a bankruptcy lawyer in June.Credit: Nine

In a historic decision on June 1, Federal Court Justice Anthony Besanko dismissed Roberts-Smith’s multimillion-dollar defamation case against The Sydney Morning Herald and The Age.

Besanko found the newspapers had proven to the civil standard – on the balance of probabilities – that Roberts-Smith was a war criminal who was complicit in the murder of four unarmed prisoners in Afghanistan. He also found the news outlets had proven the former Special Air Service corporal had bullied a fellow soldier.

Roberts-Smith’s lawyers filed a notice of appeal in the Federal Court in July. The former soldier is appealing against the whole of Besanko’s judgment, and is seeking in particular to overturn damning findings that he murdered unarmed prisoners in Afghanistan.

Parts of the trial before Besanko were conducted in closed court to protect national security information.

In addition to a publicly available written judgment, Besanko produced closed-court reasons for his decision that have not been released publicly.

At a preliminary hearing in Sydney on Thursday, Jennifer Single, SC, acting for the Commonwealth, said the Commonwealth was “here to assist in the logistics of the appeal” relating to national security information.

A separate closed courtroom will be required for those parts of the hearing, as was the case during the trial, and the Commonwealth will provide transcripts of those hearings.

“Judges will require a safe in their chambers to be able to hold the closed-court appeal books in their chambers,” Single said. “Computers will obviously be organised as well.”

Presiding judges and their associates were “automatically authorised persons” under existing national security orders, Single said, but “any executive assistants who may be assisting, even insofar as opening the safe, getting documents out of the safe, would have to become authorised persons”.

“The closed section [of the judgment] will have to be typed on a different computer,” Single said.

Perram asked if a judge’s associate would be permitted to proofread that part of the judgment.

“So long as the requirements of the orders are complied with,” Single said. “There’ll be briefings given in relation to how that’s to be done.”

Nicholas Owens, SC, is acting for the newspapers.Credit: Kate Geraghty

Nicholas Owens, SC, acting for the newspapers, said, “there’s a lot of strictures that go along with managing this material” and the closed courtroom “can’t have windows, I think”.

“Sometimes there are rules like you’ve got to have your blinds shut when you’re looking at things in case there are people with drones or something,” he said.

The court heard that the Nine-owned newspapers had been corresponding with Roberts-Smith’s lawyers about whether he would provide security for the costs of the appeal.

This would involve a sum of money being paid into court by Roberts-Smith or his backers to cover the newspapers’ legal costs in the event he loses the appeal.

“It looks like, subject to a debate about dollars, if there is a dispute it will only be about how many dollars,” Owens said.

The newspapers are separately seeking a Federal Court order requiring Roberts-Smith’s wealthy backers – chiefly Seven West Media chairman Kerry Stokes’ private company – to pay the costs of the litigation up to Besanko’s judgment.

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