Major twist in Ben Roberts-Smith defamation case

Four Afghan witnesses will be able to testify in the defamation trial brought by Ben Roberts-Smith against Nine newspapers.

Ben Roberts-Smith is suing news outlets for defamation over a series of reports that he claims falsely painted him as a murderous war criminal.

Four villagers who allege they saw or heard Australian soldiers kick an unarmed farmer off a cliff in Afghanistan before the man was shot dead will be able to testify from overseas in the defamation trial brought by Victoria Cross recipient Ben Roberts-Smith against The Age and The Sydney Morning Herald.

Mr Roberts-Smith is suing news outlets for defamation over a series of reports that he claims falsely painted him as a murderous war criminal during his time as a Special Air Service soldier in Afghanistan between 2009 and 2012. He strenuously denies any wrongdoing.

The newspapers allege Mr Roberts-Smith was directly involved in the death of farmer Ali Jan, an Afghan man who was allegedly kicked off a cliff while handcuffed and then shot dead in Darwan in September 2012.

In a judgment on Thursday, Federal Court Justice Anthony Besanko said three of the civilians had provided “detailed” evidence about the events that proceeded Mr Jan’s death on 11 September, 2012.

“The evidence of the Afghan witnesses if accepted as identifying the applicant, and if accepted generally, is evidence of very serious misconduct by the applicant and is an important aspect of the respondents’ case,” Justice Besanko said. “In my opinion, the respondents’ application should be allowed.”

The Australian Federal Police is investigating Mr Jan’s death and, the court has heard, considers Mr Roberts-Smith a suspect. No charges have been laid. The news outlets will defend the claim using a truth defence.

Justice Besanko said one witness was expected to give evidence that he saw his uncle, Mr Jan, get kicked off a cliff by Mr Roberts-Smith, whom he described as a “big and tall soldier” with a “sharp, handsome face.”

“He claims that Ali Jan was then taken to a cornfield by two soldiers who were short in stature. He claims Ali Jan was shot by a soldier, although it is not actually clear from his outline that he saw this happen. He claims that when he saw Ali Jan’s body, he noticed he had been shot in the face,” Justice Besanko said.

Three other witnesses who also lived in Darwan at the time, including Mr Jan’s distant cousin, are expected to give evidence that they saw or heard the alleged incident unfold on September 11, 2012.

The court also ruled that an Australian soldier who is serving in Timor-Leste could give evidence remotely so as not to have to undergo quarantine. The soldier is expected to allege he saw Mr Roberts-Smith bully a colleague.

Lawyers for Mr Roberts-Smith had argued it would be “simply unworkable” for the witnesses to give evidence remotely from a Kabul law firm or the Australian embassy in Dubai because of national security information.

While Justice Besanko said Afghanistan was a country where the security situation is “notoriously uncertain,” he ultimately found the arrangements were “adequate.”