Roberts-Smith may have ‘colluded’ with witnesses in defamation case, court told

Three newspapers defending a defamation suit brought against them by war veteran Ben Roberts-Smith have alleged the decorated former soldier and four of his prospective witnesses appear to have colluded to give false evidence in the case.

The allegation prompted a furious response from Mr Roberts-Smith’s barrister, Arthur Moses, SC, who told the Federal Court on Friday it was baseless and may prejudice the court and the public by suggesting the witnesses were involved in a conspiracy. He accused the newspapers of “throwing allegations around like confetti”.

Ben Roberts-Smith outside the Federal Court earlier this week.Credit: Flavio Brancaleone

Mr Roberts-Smith is suing The Age, The Sydney Morning Herald and The Canberra Times for defamation over a series of articles in 2018 that he says portray him as a war criminal who was involved in the unlawful killing of Afghan prisoners.

The newspapers are seeking to rely on a defence of truth. They applied on Friday for access to documents related to the preparation of written outlines of evidence anticipated to be given in court by Mr Roberts-Smith, who appeared in the witness box last year, and four witnesses expected to be called by his legal team this year.

Mr Roberts-Smith’s lawyers say the documents are covered by legal professional privilege and cannot be produced. But Nicholas Owens, SC, acting for the news outlets, said the documents may shed light on an alleged fraud or impropriety, and the court should order that the material be produced.

Mr Owens said the five outlines contained “a highly specific, and we will say false, account of a material matter” in the case, which provided a “negative alibi” for a soldier in the Afghan partner force dubbed Person 12.

The newspapers allege Mr Roberts-Smith directed Person 12, via an interpreter, to order one of his subordinates in the Afghan partner force to shoot an unarmed prisoner in October 2012. The rules of engagement provide a killing in those circumstances is murder.

Mr Roberts-Smith denies the allegation and had said in his outline of evidence that Person 12 was not on the mission because he had been stood down from the Afghan National Army earlier that year for wounding a soldier by shooting at a dog.

The proposed evidence about Person 12 was offered as a “knockout blow” to the newspapers’ allegation, Mr Owens said.

But Mr Roberts-Smith conceded in court on June 11 last year that his explanation about Person 12 being stood down was wrong, based on material produced by the Defence Department on the eve of the trial. He maintained the Afghan soldier was not there.

Mr Owens said each of the other four witnesses proposed to be called by Mr Roberts-Smith gave a similar account in their written outlines of evidence about Person 12 being removed from the Afghan National Army.

He said there was “no explanation” for the similarity in the proposed evidence that was “consistent with coincidence or innocent mistake”, and it raised a prima facie case of impropriety. Mr Owens said the lawyers in the case were not accused of wrongdoing.

“The concept of fraud in this case is not the traditional, specific concept of fraud; it’s a broader concept,” he said.

“We say it’s easily wide enough to encompass the situation of multiple witnesses colluding together.”

Mr Moses said witnesses may have the same “innocently mistaken” recollection, and it did not mean they were “perjurers or are lying”.

“Behind every tree there is a dark shadow, according to the [newspapers], so they think the worst,” Mr Moses said.

He said the newspapers had “pulled the trigger prematurely” and should have waited to put the allegation to the witnesses in court. The allegation had not been put to Mr Roberts-Smith last year, Mr Moses said.

Justice Wendy Abraham is considering the application for access to documents, rather than the trial judge, Anthony Besanko. Mr Moses said it will be up to Justice Besanko to determine if Person 12 was in fact present on the mission in question.

Mr Owens said it could be accepted that one person might have a faulty memory but it was “utterly inconceivable” that five people would make the same “highly specific and demonstrably wrong error” about Person 12.

He said the newspapers did not need to prove fraud or illegality to be granted access to documents that would otherwise be covered by legal professional privilege, and only needed to establish a prima facie case.

“We don’t have to exclude innocent mistake,” he said.

Mr Owens said Mr Roberts-Smith’s legal team had not suggested the evidence proposed to be given by the other witnesses would differ from their written outlines, and there had been no indication of any additional evidence.

He said Mr Roberts-Smith’s barrister, Bruce McClintock, SC, also said in his opening address to the court last year that Person 12 was not on the mission in question.

Justice Abraham will deliver her decision on the newspapers’ application at a later date.

“The parties will be notified when I am in a position to deliver judgment,” she said.

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