Security doubt delays Ben Roberts-Smith’s defamation suit
The defamation trial brought by VC recipient Ben Roberts-Smith has suffered another delay after the commonwealth sought more time to examine new evidence.
The Federal Court defamation trial brought by Victoria Cross recipient Ben Roberts-Smith against The Sydney Morning Herald and The Age newspapers suffered another delay after the commonwealth sought more time to examine new evidence it said could prejudice national security.
In a brief hearing on Wednesday, Peter Melican, a lawyer for the Australian Government Solicitor, said the commonwealth had only just that morning received notification potentially sensitive evidence was to be aired.
“The commonwealth simply seeks an opportunity to address the potential national security issues that fall from those outlines of evidence,’’ he said.
Mr Roberts-Smith is suing the newspapers, now owned by Nine Entertainment, over a series of articles he claimed portrayed him as a war criminal, a bully and an abuser of women.
The newspapers alleged Mr Roberts-Smith kicked a bound Afghan prisoner named Ali Jan over a cliff during a mission in the village of Darwan in September 2012.
Mr Roberts-Smith, then a patrol commander with the SASR, is alleged to have directed an Afghan National Army officer, referred to in court documents as “Person 12’’, to execute Ali Jan, which the newspapers claim he subsequently did.
Mr Roberts-Smith denies any wrongdoing and has said Ali Jan was a Taliban spotter who was lawfully killed by another member of his patrol.
Mr Roberts-Smith’s lawyer, Bruce McClintock SC, accused the newspapers of a “crucial’’ error in their reporting of the alleged war crime. He said the incident could not have occurred as reported because Person 12 had been dropped from the coalition some months earlier and had not been on the Darwan mission.
The alleged incident in Darwan is also the subject of a criminal investigation by the Australian Federal Police.
The Attorney-General has taken the unprecedented step of invoking the National Security Information Act over the trial to protect potentially sensitive information. It is the first time the NSI Act has been used in a civil case. The act grants the commonwealth extraordinary power in determining what can and cannot be heard in open court.
Mr Melican said some of the material Nine intended to use in its application to amend its defence appeared to be sensitive.
“I am informed that the Attorney, or the commonwealth perhaps more accurately, has concerns that some of that material does include national security information,’’ he said.
Sandy Dawson SC, who is acting for Nine Entertainment, said his side had complied with the rules in the NSI Act.
The matter is adjourned until June 2.
