A vigilant Commonwealth keeps watchful eyes on the Roberts-Smith case

There’s an elephant in the courtroom in the Ben Roberts-Smith defamation case, rarely alluded to in the media coverage.

It’s the Commonwealth government, which has been keeping a vigilant eye on proceedings from day one.

It has its own team of two, sometimes three barristers, sitting every day behind the front row reserved for Roberts-Smith’s senior counsel and the barristers for The Sydney Morning Herald and The Age.

And every so often, the court is reminded of the elephant’s presence, when the quietly spoken lead barrister for the Commonwealth, Kristina Stern, SC, gets to her feet, asking presiding Justice Anthony Besanko to suppress the accidentally mentioned name of a soldier (whose identities are meant to be kept secret), or to steer the evidence away from sensitive national security information.

There’s a third topic the Commonwealth has declared off-limits: any question to military witnesses about what they might or might not have told the government’s secretive war crimes investigation teams.

Those investigations are being conducted well out of public view, by a little-known body called the Office of the Special Investigator, of which more shortly.

Private investigator John McLeod told the Federal Court about the collapse of his longstanding friendship with Ben Roberts-Smith.Credit: Peter Rae

The media outlets have chosen to mount a defence of truth in the case, alleging Roberts-Smith committed or was party to six unlawful killings of Afghan males who were unarmed or “persons under control” (that is, not posing a threat) at the time of their deaths.

Roberts-Smith has strongly denied this, saying the deaths occurred in combat and were lawful under Australian army rules of engagement. Such are the basic dynamics that have led to a defamation case, conducted in a civil court, morphing into what many consider to be a de facto war crimes trial.

It’s an unprecedented spectacle, says Dr Melanie O’Brien, an international law specialist from the University of Western Australia.

“This has made news around the world” she tells this masthead. “It’s absolutely extraordinary to see this playing out in a defamation trial. Those of us in this field in academia are just watching it with our mouths agape because we just can’t believe that so much is being said so openly in this kind of [civil] case.”

There are, of course, other dimensions to the Roberts-Smith trial that have nothing to do with the fate of Afghan detainees. There are the accusations of bullying and intimidation against some other SAS soldiers, and Roberts-Smith’s alleged striking of his former lover, all of which he has forcefully denied.

Another facet of the case was drawn into the light on Wednesday, as the court heard evidence from private investigator, John McLeod, once a trusted gofer for Roberts-Smith, about envelopes he says the Victoria Cross recipient asked him to post. Unbeknown to McLeod (he says), the envelopes contained threatening letters to at least one other SAS member. Roberts-Smith has denied any knowledge of the missives.

But it’s the alleged events in Afghanistan that have generated the most headlines.

Thus far, the court has heard from half-a-dozen soldiers, called as witnesses by the media outlets. There are a dozen more to come. Soldiers giving evidence for Roberts-Smith will start to be heard from mid-March.

There have been vivid descriptions of battles, SAS operating procedures, tactics and feats of endurance, and the laying bare of rivalries and grievances between soldiers.

The federal agencies keeping closest watch are the Defence Department, the Australian Federal Police, the Attorney-General and the new body, the Office of the Special Investigator.

The Office of the Special Investigator had its roots in the report of Justice Paul Brereton, released after a four-and-a-half year inquiry in November 2020 conducted under the auspices of the Inspector-General of the Australian Defence Force.

Justice Paul Brereton’s war crimes report was issued in November 2020 after a four-and-a-half year inquiry.

The Brereton report rocked the country with its conclusion that there was “credible information” of serious war crimes having been committed by up to 25 current or former ADF personnel, though none of the suspects were named.

But because Brereton’s findings were the result of an inquiry conducted as part of the military justice system, not a criminal investigation, there was a limit on how they could be used.

Specifically, some information had been compelled from soldiers who were given protection from self-incrimination, meaning portions of it were never going to be admissible in criminal proceedings.

The Office of the Special Investigator was set up in January last year in part to try to resolve this problem, or, as its Director-General Chris Moraitis put it, to “triage” the work of the Brereton inquiry.

It has since spent 14 months quietly building up some of the most formidable investigation teams in the country, drawing on 54 specialist investigators and analysts — 16 seconded from the AFP and 36 from state police forces — led by two commanders.

If ever there are to be criminal prosecutions of Australian soldiers for misdeeds in Afghanistan, it will be because of the work of the Office of the Special Investigator.

Its leadership team is highly experienced, comprising Moraitis, who is a former head of the Attorney-General’s Department, and Special Investigator Mark Weinberg, QC, a former judge and onetime Commonwealth director of public prosecutions.

Rounding out the leadership team is Ross Barnett, a former deputy commissioner of the Queensland Police Service. Together with 25 support staff, the agency now has a total of 84 people working for it, with a budget of just over $40 million.

O’Brien says the creation of the Office of the Special Investigator makes Australia unique among its allies, and that no other nations which served alongside in Afghanistan have launched similar inquiries.

“We really are a pack leader in terms of probing whether our own soldiers have committed such crimes,” she says.

Office of the Special Investigator Director-General Chris Moraitis says his organisation is operating in a “complex legal landscape”. Credit: Alex Ellinghausen

“It’s a highly effective way of doing it, taking it outside the military to ensure that it is independent. The reason the government has created a separate office is because of the complexity of war crimes investigations, the complexity of the situations in which they occur, and also the sheer amount of evidence that is required to prove these kinds of crimes.”

The authorities have known this trial was coming for 3½ years and could have asked the Federal Court to delay the defamation case while their investigations are under way. But no application was ever made, leaving the newspapers to call more than 20 soldiers as witnesses to defend their stories about the Brereton inquiry.

Moraitis says his organisation is operating in a “complex legal landscape”. He has also damped down expectations that its processes will be quick, warning “we must take the time to get this right”.

That means, he warns, a “measured, methodical and precautionary” approach, delivering potential suspects “all the protections provided by the Australian criminal justice system” while ensuring “the integrity and robustness of our investigations and any future prosecutions”.

In other words, it could be years before the work of the Office of the Special Investigator lands any soldiers in court, says O’Brien.

“These would be serious charges. You don’t want to go to trial with insufficient evidence and find that, if someone has committed a war crime, they get away with it because the case was not put together well enough,” O’Brien says.

As for the relevance, if any, of the Roberts-Smith defamation case, the Office of the Special Investigator is remaining silent.

“The defamation action brought by Mr Ben Roberts-Smith in the Federal Court of Australia is a civil matter between the parties and it would not be appropriate to comment further,” a spokesperson told this masthead.

In Senate committee hearings a week ago, Moraitis told MPs that the case is “a private matter … [and] to date, we don’t think that it has impacted adversely on our work”.

But O’Brien says: “I have no doubt they will be keeping a very close eye on the Roberts-Smith defamation trial.”

A judgment won’t be reached in the case until at least the end of this year. Then there could be an appeal, from whichever side is the loser. A long road remains ahead in this high-stakes legal contest.