Roberts-Smith’s barrister asks newspapers about alleged ‘deal’ with witness

The legal team acting for three newspapers in the defamation case brought by war veteran Ben Roberts-Smith told a former soldier that if he agreed to be a witness in the case they would not seek to have him compelled to answer questions about his own involvement in an alleged killing, the Federal Court has heard.

The Age, The Sydney Morning Herald and The Canberra Times are seeking to call a former Special Air Service soldier dubbed Person 56 to give evidence about alleged events involving Mr Roberts-Smith in Darwan, Afghanistan, in September 2012. His name cannot be revealed for national security reasons.

Ben Roberts-Smith outside the Federal Court earlier this week.Credit: James Alcock

The court heard on Friday that Person 56 was also present with Mr Roberts-Smith during a separate mission in Fasil in November 2012, which is relevant to the trial, but the newspapers had received information suggesting Person 56 was himself involved in an alleged killing at that time.

Minter Ellison partner Peter Bartlett, the lead lawyer acting for the mastheads, was cross-examined in the case on Friday by one of Mr Roberts-Smith’s barristers, Arthur Moses, SC, about communications with a barrister for Person 56 about the former soldier’s potential involvement in the case as a witness.

Mr Moses alleged that a “deal” or “agreement” had been struck for the newspapers to avoid asking Person 56 about issues that might incriminate him.

Mr Bartlett told the court that “Person 56 was a member of ... [Mr Roberts-Smith’s] patrol on two crucial missions” and “we have always taken the view that he would be in possession of information which would be to the benefit of this court”.

Mr Bartlett said the newspapers’ lawyers had been telling the barrister for Person 56 for two years that they were “very anxious” to speak to him directly or indirectly, and they were open to discussions about what he would discuss.

Person 56 did not want to give evidence in the proceedings at all and was under significant stress, the court heard.

Nicholas Owens, SC, acting for the news outlets, said on Friday that Person 56 had at one point “agreed to speak to us about Darwan only, and he did not agree to speak to us about Fasil or any other aspect of his Afghanistan service”.

“We didn’t agree not to ask him questions about anything in court. What he indicated was that an objection would be taken to any questioning on any topic other than Darwan on the grounds of [potential] self-incrimination.”

Mr Owens said “we accepted that he would not talk to us about that privately, and we’ve accepted that he would not willingly give that evidence”.

“We accept that he has a reasonable basis for anticipating that that evidence would incriminate him. We accepted that we would not apply to have him compelled to give that evidence over his objection,” Mr Owens said.

Mr Owens said “we were willing to take what we could get” from Person 56 as a witness.

“There is at least an insinuation of some impropriety in this,” Mr Owens said. “All it is is a forensic decision by me as to what questions I will ask, and I have said I will ask all questions, but then what posture will I take in the event that the witness [objects to answering certain questions on the basis of potential self-incrimination].”

Justice Anthony Besanko responded that it was “fairly unusual, though. Isn’t it?”

Mr Owens said that “these are unusual circumstances” and “I have never encountered this situation before”.

“It is a situation where a witness who could give evidence about two matters is, for reasons that are obvious, very unwilling to give evidence about the second of the matters.”

Mr Owens said that he was not proposing to avoid asking Person 56 about alleged events in Fasil, but would not submit to the court that the former soldier should be compelled to answer the question over any objection by him.

He said Mr Moses would not be limited in any way about the questions he asked Person 56.

Person 56’s barrister, Sean Richter, urged Justice Besanko on Friday not to give the newspapers leave to issue a subpoena requiring the former soldier to give evidence in court. Justice Besanko reserved his decision.

Mr Roberts-Smith launched defamation proceedings in 2018 against The Age, The Sydney Morning Herald and The Canberra Times over a series of articles that he says accuse him of being a war criminal, among other claims.

He denies all wrongdoing. The media outlets are seeking to rely on a defence of truth and allege Mr Roberts-Smith committed or was involved in six murders of Afghans under the control of Australian troops, when they cannot be killed under the rules of engagement.

The hearing continues.

The Morning Edition newsletter is our guide to the day’s most important and interesting stories, analysis and insights. Sign up here.