Ben Roberts-Smith: Afghan civilians to testify via video link in former soldier's defamation case

Fairfax Media’s case bolstered after court agrees witnesses would have little hope of travelling to Australia to give evidence

Afghan civilian witnesses will be allowed to give evidence via remote link in the Ben Roberts-Smith war crimes defamation proceedings against the Age and Sydney Morning Herald, a judge has ruled.

The ruling is a win for the old Fairfax newspapers, allowing them to rely on alleged eye-witnesses as they fight allegations they defamed Roberts-Smith, a Victoria Cross winner and special forces veteran, by suggesting he committed war crimes.

The newspapers published a series of reports about Roberts-Smith’s actions between 2009 and 2012, including an allegation he kicked an Afghan civilian named Ali Jan off a cliff while he was bound. Jan was later shot.

Roberts-Smith has vehemently denied the allegations and is suing in the federal court.

The newspapers have been attempting to bolster their defence by introducing new evidence about Roberts-Smith’s alleged actions during deployment.

That has included evidence from five witnesses, including four Afghan civilians, who are unable to travel to Australia to appear in the federal court. The civilians include relatives of Ali Jan and witnesses to the alleged crime, the court heard.

One of the witnesses, known as person 62, was captured by Australian forces alongside Ali Jan. Person 62 says he was watching through a doorway when he saw a “big soldier” kick Ali Jan down a hill.

“Person 62 then moved from the door way to the outside,” the court said. “He then saw Ali Jan being taken from the dry creek bed below the slope/hill to the cornfield, ‘which was approximately 30 metres away’ by two soldiers.”

“Person 62 states that Ali Jan was then shot multiple times. After the soldiers had left in the helicopters, Person 62 saw Ali Jan’s body in the cornfields. He saw that he had been shot in the face, body and his arm.”

The court heard the witnesses had low prospects of travelling to Australia to give evidence, including because they would be unlikely to obtain visas.

Roberts-Smith’s lawyers opposed them giving evidence via video link from Afghanistan, saying it was “simply unworkable”. The witnesses would need to be shown photographs, maps and other representations of the landscape, structures and the persons involved, they argued. The secrecy restrictions governing the trial forbid the sharing of such sensitive documents via video-link, they said.

The evidence was also at odds with the testimony of other witnesses, his lawyers argued, meaning it needed to be led with precision on distance, proximity and location. That was said to be not possible via video-link and would be further complicated by the use of interpreters.

But in a decision on Thursday, Justice Anthony Besanko ruled it was permissible for the witnesses to give evidence from Afghanistan.

He said the evidence of the witnesses, if accepted as identifying Roberts-Smith, was “evidence of very serious misconduct” and was an “important aspect of the respondents’ case”.

Besanko said there was some risk of disadvantage to Roberts-Smith by the use of the video link. But he said two principles favoured allowing the witnesses to give evidence remotely.

“First, the application is based on the assumption that if the Afghan witnesses are not permitted to give evidence by [audio-visual link], then they will not give evidence in the proceedings,” he said. “The respondents have said that they will continue their efforts to bring the Afghan witnesses to Australia for the trial, but the assumption underlying the application is that that will not be possible and, absent an order that permits them to give evidence by AVL, they will not give evidence at the trial.”

“Secondly, I am satisfied that the respondents have made all reasonable efforts to bring the Afghan witnesses to Australia. Those efforts are likely to be unsuccessful.”

Nick McKenzie, the award-winning investigative reporter who authored the stories, described the decision as landmark and said it would be the first time Afghans would testify in an Australian case about an alleged war crime.

“The world will be watching,” he tweeted.


Christopher Knaus

The GuardianTramp

Related Content

Article image
Ben Roberts-Smith defamation trial to resume to hear from four Afghan witnesses
The court has heard at least one witness expected to say they saw the Australian soldier murder a farmer by kicking the handcuffed man off a cliff and then ordering him shot, an allegation Roberts-Smith denies

Ben Doherty

19, Jul, 2021 @4:06 AM

Article image
Ben Roberts-Smith was targeted after being awarded Victoria Cross, his barrister tells court
Closing submissions begin in the former SAS soldier’s long-running defamation trial against three newspapers

Ben Doherty

18, Jul, 2022 @7:51 AM

Article image
Missing witness and a change of government: the latest delays in Ben Roberts-Smith’s defamation case
Trial held up due to Covid and fall of Kabul now waits for evidence release by new attorney general and reappearance of Person 27

Ben Doherty

27, May, 2022 @2:57 AM

Article image
Chris Gayle wins defamation case against Fairfax Media
Supreme court jury finds the cricketer did not expose himself to a masseuse, nor did he indecently proposition her

Amanda Meade

30, Oct, 2017 @3:53 AM

Article image
Dwayne Smith accused of lying at Chris Gayle defamation trial
West Indies cricketer denies he saw Gayle pull up his towel and expose himself to Leanne Russell

Amanda Meade

24, Oct, 2017 @4:38 AM

Article image
Ben Roberts-Smith defamation trial: woman who war veteran had affair with to give evidence
Person 17, who is at the centre of an allegation of domestic violence, which Ben Roberts-Smith denies, will enter the witness box

Ben Doherty

21, Mar, 2022 @9:15 PM

Article image
Witness called by Ben Roberts-Smith in defamation trial investigated for alleged war crime, court hears
Soldier has told court allegation he unlawfully killed a man on SAS raid on Darwan village ‘is a lie’

Ben Doherty

29, Apr, 2022 @5:27 AM

Article image
Ben Roberts-Smith tells defamation trial that Victoria Cross ‘put a target on my back’
The former SAS soldier says attitudes of other soldiers changed after he received his military honour and he was ‘white-anted’

Ben Doherty

11, Jun, 2021 @3:12 AM

Article image
‘Even if I die I will tell the truth’: witness speaks out at Ben Roberts-Smith defamation trial
Even by the standards of this extraordinary case, this was a remarkable week

Ben Doherty

31, Jul, 2021 @8:00 PM

Article image
Nine ordered to pay more than $1m in legal costs in Joe Aston defamation case
Judge says the AFR should have taken up earlier offer by venture capitalist Elaine Stead to settle for $190,000 in costs

Amanda Meade

08, Feb, 2021 @12:56 AM