Ben Roberts-Smith: Virus wreaks havoc on VC hero trial

The Covid-19 outbreak in Sydney has led to an adjournment in the defamation case between Ben Roberts-Smith and Nine newspapers.

Ben Roberts-Smith seen leaving the Federal Court during the continuing defamation trial with Nine in Sydney Australia. Picture: NCA NewsWire/Gaye Gerard

Uncertainty surrounding the unfolding Covid-19 outbreak in Sydney has led to a three-week adjournment in the high-stakes defamation battle between Victoria Cross recipient Ben Roberts-Smith and Nine newspapers.

On Tuesday, Federal Court Justice Anthony Besanko reluctantly paused the case after Covid-19 “flared in NSW” and border barriers were thrown up in response to the outbreak, up-ending the 10-week trial’s timetable.

“I will adjourn the trial at this point,” Justice Besanko said. “The stay at home orders in Sydney are due to expire on Friday the 9th of July 2021, only time will tell whether they expire then or are extended.”

Justice Besanko adjourned the court until July 19 for mention, indicating that the trial could be resumed on July 26 if border restrictions are eased which would allow key interstate witnesses to travel to NSW.

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.

Mr Roberts-Smith is also suing over reports alleging he assaulted a woman – a key witness in the defamation proceedings – at a Canberra hotel in March 2018.

On Tuesday, Nicholas Owens, SC, for Nine, said the media outlets were still in a position to question three Afghan villagers over audio visual link from Kabul. The villagers allege they saw Mr Roberts-Smith kick unarmed farmer Ali Jan off a cliff in Afghanistan 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 Mr Jan being held in custody by Australian soldiers, the court has previously heard.

“The security situation in Afghanistan is deteriorating rapidly in advance of the withdrawal of coalition forces on the 11th of September,” Mr Owens said. “In light of that deteriorating security situation we are concerned to have their evidence heard as soon as possible.”

After a brief adjournment, Justice Anthony Besanko returned to court on Tuesday and said: “I am not persuaded that a potential stop start approach to the respondents case is necessary or desirable. It may be that that becomes unavoidable but I am not satisfied that that point as yet been reached.”

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 Ali Jan.

On Monday, Mr Roberts-Smith’s case was formally closed and Nine was due to begin their case on Tuesday. As part of their truth defence, the media company plans to call 30 witnesses, many of whom are former or current serving special forces soldiers that live in Western Australia, Queensland and Victoria.

Among the interstate witnesses expected to be called to give evidence for Nine, are Mr Roberts-Smith’s estranged former wife Emma Roberts and Assistant Defence Minister and Afghanistan veteran Andrew Hastie.

The “blooding” of Person 66 is expected to be the subject of Mr Hastie’s evidence next month. According to court documents, Mr Roberts-Smith allegedly stood behind a junior soldier — given the pseudonym Person 66 — and ordered him to execute one of two Afghan prisoners in a field in Syahchow in October 2012.

The court heard a subpoena has also been issued at the request of Mr Roberts-Smith’s legal team to Greenslopes Hospital in Brisbane. Earlier this month, Mr Roberts-Smith said he hired a private investigator to follow a woman — a key witness for Nine in the defamation proceedings — to Greenslopes Hospital because he believed she had lied about undergoing an abortion at the clinic in an effort to prolong their relationship.

Nine claims the woman – person 17 – was allegedly assaulted by Mr Roberts-Smith in a Canberra Hotel room after a dinner at Parliament House in March 2018. Earlier this month, Mr Roberts-Smith said: “That particular allegation, I feel, coupled with (accusations of me being) a war criminal, ruined my life.”

The matter will return to court on July 19.