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 Roberts-Smith’s defamation case – first filed in 2018 – has borne delays for Covid and national security concerns, been rearranged because of the fall of Kabul, and now, in its final days of evidence, has been further stalled by a change of government and witnesses who can’t be found.

The nearly year-long trial, has only two witnesses left to appear – both subpoenaed by Roberts-Smith: two serving SAS members, anonymised as Person 27 and Person 81.

Roberts-Smith, a Victoria Cross recipient, is suing three newspapers for defamation over a series of reports he alleges portray him as committing war crimes, including murder.

The newspapers are pleading a defence of truth. Roberts-Smith denies any wrongdoing.

Person 27 has already given evidence in this trial, but is being recalled to be re-cross-examined over alleged inconsistencies in his evidence.

But efforts to find him have thus far proven fruitless.

The court heard Friday morning it was believed he was “out of the jurisdiction … that is overseas” on military service, “but we haven’t been able to confirm that,” the barrister for Roberts-Smith, Arthur Moses SC, told the court.

The appearance of the final witness has been delayed by Australia’s change of government at the weekend. Person 81 is a serving member of the SAS, and a senior officer in the regiment.

About 30 defence documents relating to his evidence need to be released by the government, requiring the commonwealth attorney general to sign off because of national security concerns.

With the change in government after last weekend’s election result, that signoff has been delayed. ACT Senator Katy Gallagher has been sworn in as interim attorney general and is expected to make a decision on whether to release the documents early next week.

It is expected that the final two witnesses will give evidence next week. After a break, the trial will then hear closing submissions, before Justice Anthony Besanko retires to make a ruling and deliver his judgment.

Roberts-Smith’s defamation action was filed in 2018, but the trial did not begin hearing evidence until the middle of 2021.

The evidence of three Afghan witnesses was brought forward in July that year due to deteriorating security conditions in Afghanistan. In a brutal and swift coup, Kabul fell back under the control of the Taliban a month later.

The trial was then delayed by Sydney’s Covid-19 delta outbreak and the closure of some of Australia’s internal borders. Many of the SAS witnesses in Perth were unable to attend court in Sydney without becoming stranded because of Western Australia’s strict Covid restrictions. Given the sensitive nature of their evidence relating to national security, they could not appear by video link.

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Lawyers for Roberts-Smith told the court he was being disadvantaged by the constant delays in the trial, and argued hearings should be moved to a new city, lest it become indefinitely delayed. Lawyers for the commonwealth argued against moving, citing the extraordinary and costly national security protocols that had been put in place in Sydney to run the trial.

The trial was kept in Sydney, but was put on hiatus for nearly six months, before resuming in February this year.

The last weeks of evidence have been slowed by scheduling issues around witnesses, including one soldier who was forbidden from giving evidence at the last minute by the foreign military with which he now serves.

The trial will resume next week, with evidence expected to be completed by the end of the week. A judgment could be months, even up to a year, away.


Ben Doherty

The GuardianTramp

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