The news outlets being sued by Ben Roberts-Smith have lost their bid to include in a defamation trial evidence of new allegations of serious criminal conduct against the former SAS soldier over his conduct in Afghanistan.
But a Federal Court judge on Friday granted The Age and The Sydney Morning Herald permission to use new evidence of eight Australian soldiers who are expected to detail Mr Roberts-Smith’s involvement in several incidents including the alleged murders of two Afghan men in 2009, to bolster the news outlets’ truth defence.
Former soldier Ben Roberts-Smith.Credit:Getty Images
Mr Roberts-Smith, a highly decorated former soldier and Victoria Cross recipient, is suing The Age and The Sydney Morning Herald over reports he allegedly committed murder during deployments to Afghanistan between 2009 and 2012, and that he also allegedly punched his mistress in the face in Canberra in 2018.
Mr Roberts-Smith denies the allegations and says the reports are defamatory because they portray him as a criminal.
The media will defend the claim using a truth defence at a trial to start on June 7.
The news outlets this month applied to Justice Anthony Besanko to amend their defence to include evidence of two more incidents of what they called “very serious criminal conduct” on top of Mr Roberts-Smith’s alleged involvement in six unlawful killings as an Australian soldier in Afghanistan.
Ben Roberts-Smith and the prosthetic leg of a dead Taliban fighter.
Justice Besanko on Friday refused the media’s application, but granted the news outlets’ lawyers the right to call on a group of Australian soldiers to give evidence about what they saw and knew about several incidents including the deaths of two Afghan men allegedly unlawfully killed on Easter Sunday 2009.
The judge said he was not yet ready to provide reasons for his decisions because of potential national security concerns.
Justice Besanko will next week hear arguments on whether the news outlets can include evidence from Mr Roberts-Smith’s former wife, Emma, one of her friends and a man who claims the former soldier attempted to intimidate a witness in an investigation into alleged war crimes.
The judge will also next week hear argument on which side presents its case first at trial.
Nicholas Owens, SC, for the publishers, said on Friday that it was agreed the news outlets would present their case first given they made the serious allegations, although Mr Roberts-Smith wanted to be the first witness.
Mr Owens said the “hybrid model” of Mr Roberts-Smith giving evidence during the media’s case was unworkable.
But Bruce McClintock, SC, for Mr Roberts-Smith, said it was his client’s “right” to be the first witness and rejected the suggestion the parties had agreed on a running order.
“The plaintiff [Mr Roberts-Smith] brings these proceedings. He wants to get into the witness box first and give his side of the story,” Mr McClintock said.
“My client wants to get into the witness box and say what happened in Afghanistan and face cross-examination. It’s something he actually looks forward to.”
Mr Roberts-Smith bore the onus of proving he was the soldier identified in the contentious media reports that did not name him and that they caused him damage to his reputation, his barrister said.
The Australian Federal Police is investigating the 2012 death of Afghan farmer Ali Jan, who was allegedly kicked off a cliff before he was shot dead, and considers Mr Roberts-Smith a suspect, the court has heard. No charges have been laid.
The Age and The Sydney Morning Herald this month reported that the AFP was also in possession of material that was stored on USB devices and allegedly buried in Mr Roberts-Smith’s backyard.
That material allegedly included Department of Defence drone videos of military operations in Afghanistan and photographs of Australian and American soldiers drinking out of the prosthetic leg of a dead Afghan man at a party in 2012.
Mr Roberts-Smith has denied he hid the material or failed to disclose it to the military probe into the conduct of Australian soldiers in Afghanistan, and said he co-operated with the inquiry.
Mr McClintock on Friday said his client knew “nothing” about a possible investigation into the latest allegations. On Thursday, another of the former soldier’s lawyers claimed the news outlets should have raised the material with the Commonwealth before publishing the allegations, and alleged their actions were “potentially unlawful”.
But Mr Owens on Friday said the AFP had assured the news outlets and their lawyers they were not in breach of any national security laws.
Justice Besanko also formally gave the media lawyers permission for some of their witnesses, including four Afghan villagers who allege they saw Mr Roberts-Smith kick Mr Jan off the cliff, to give evidence from their homeland.
Mr Roberts-Smith’s lawyers also want three of their witnesses to give evidence remotely because they are based overseas. Among the witnesses expected to give evidence in person for the former soldier is former governor-general Quentin Bryce, the court has heard.
If you are a current or former ADF member, or a relative, and need counselling or support, contact the Defence All-Hours Support Line on 1800 628 036 or Open Arms on 1800 011 046.
Start your day informed
Our Morning Edition newsletter is a curated guide to the most important and interesting stories, analysis and insights. Sign up here.
Most Viewed in National
From our partners
Source: Read Full Article