‘Anguished’ Ben Roberts-Smith calls for trial to resume

Ben Roberts-Smith’s defamation case against Nine will resume next week, as concerns mount over the impact of the delay on the war veteran’s mental health.

Ben Roberts-Smith leaves the Federal Court in Sydney last month. Picture: Gaye Gerard

Ben Roberts-Smith’s defamation case against Nine newspapers will briefly resume next week to hear evidence from four Afghan witnesses who are sheltering in a safe house in Kabul, as concerns mount over the impact of the trial’s pandemic-induced delay on the Victoria Cross recipient’s mental health.

Barrister Nicholas Owens, SC, acting for Nine, urged the Federal Court on Monday to resume the trial on July 26, warning there was an “ongoing risk” of a Taliban attack in Kabul.

“There is credible reports of imminent terrorist attacks in Kabul, it’s a dangerous environment,” Mr Owens said. “The relevant point there is that we are not going to get an orderly two-week notice period that the Taliban is going to attack Kabul. If things change, they are going to change very quickly,” he said.

On Monday, Justice Anthony Besanko agreed to briefly resume the trial on July 26, but only so the court could hear evidence from the four Afghan witnesses. It comes after the trial was adjourned last month in the wake of the unfolding Covid-19 outbreak in Sydney.

Barrister Bruce McClintock, SC, acting for Mr Roberts-Smith, said it was “imperative” the trial resume, renewing a call last week to relocate the case to Adelaide or Canberra.

“The stress on my client and the anguish it’s causing him is very, very great,” Mr McClintock said. “He’s now separated from his children and can’t see them. He’s stood down from his job to deal with this case.”

“He has come from Queensland, his parents have come from Perth and they are in Sydney for this case. His life is in effect on hold until this case is over.”

Mr Roberts-Smith, 42, is suing The Sydney Morning Herald, The Age and The Canberra Times, now under separate ownership, over reports published in 2018 that alleged he committed murder during deployments to Afghanistan. He denies the allegations and says the reports portray him as a war criminal.

He is also suing over reports alleging he assaulted a woman — a key witness in the defamation proceedings — at a Canberra hotel in March 2018.

As part of its truth defence, the newspapers allege that Mr Roberts-Smith committed or was complicit in six unlawful killings in Afghanistan, including their “centrepiece” allegation — the murder of Afghan Ali Jan.

Last month, Mr McClintock told the court that “if someone called Ali Jan did die” in Afghanistan, it was because he was a Taliban spotter who was killed by Australian soldiers within the rules of engagement.

The villagers, however, allege they saw Mr Roberts-Smith kick Ali Jan, allegedly an unarmed farmer, off a cliff while handcuffed in Darwan in 2012. He was then allegedly shot dead by Australian soldiers. A fourth Afghan witness is also expected to provide evidence about Jan being held in custody by Australian soldiers.

Given the risk of a Taliban-led terrorist attack in Kabul, Mr Owens on Monday said the Afghan witnesses may decide that “this isn’t their fight” and that it would not be “worth their while to participate in a foreign western countries court processes for reasons that don’t produce any direct benefit to them.”

“None of the witnesses reside permanently in Kabul, so if the matter were to be put off, there is a question about getting people back to Kabul in the future.”

Mr Owens said travel back to Kabul would involve entering “regional areas in Afghanistan which tend to be more heavily dominated by the Taliban”.