Ben Roberts-Smith’s defamation trial will temporarily resume on Monday with the war veteran’s barrister telling a court the mental health of military witnesses was declining because of the trial’s delay.
- Ben Roberts-Smith is suing three newspaper titles over a series of 2018 stories
- The trial was temporarily halted last month as Sydney’s COVID-19 cases grew
- Witnesses will be heard via video link when the trial resumes next Monday
The case was paused last month as Sydney’s COVID-19 outbreak worsened but will temporarily resume on Monday to hear from a group of Afghan civilian witnesses on a video link from Kabul.
The judge has also been asked to consider moving the proceedings to South Australia to avoid the uncertainty of restrictions in NSW.
Mr Roberts-Smith is suing The Sydney Morning Herald, The Age and The Canberra Times over 2018 stories that reported serious allegations, including bullying of colleagues and war crimes in Afghanistan.
Many of the witnesses will be current or former members of the Special Air Service Regiment who served with Mr Roberts-Smith.
However, one of those, referred to as “Person 70”, will no longer participate because they are in “too bad a psychological condition” partly as a result of their service, the Federal Court was told.
“There are many of the witnesses on both sides who are in a similar position, and their mental health is declining,” barrister Bruce McClintock SC said today.
“It is imperative, we would say, to get this case on as soon as possible as can be done consistently with the public health position in NSW and the other states.”
Mr McClintock has now asked Justice Anthony Besanko to consider moving the trial to Adelaide, noting all members of the legal teams would need to quarantine before resuming.
“The alternative of letting the case go off into limbo is extremely concerning,” he said.
Mr McClintock said Canberra may also be a possibility.
He said his client’s life was “in effect on hold” until the case is over.
Nicholas Owens SC, the barrister for two of the papers, said the court should take the evidence of the Afghan witnesses as planned next week because they are situated in the “dangerous environment” of Kabul, where there are credible terrorist threats.
“We’re not going to get an orderly two-week notice period that the Taliban is going to attack Kabul,” he said.
“If things change, they’re going to change very quickly.”
There was already a threat to the electricity supply, Mr Owens added, which could become “an almost insurmountable problem” for video links.
Additionally, the witnesses may simply decide to no longer participate, because the trial is “not their fight”, the barrister said.
“There is, as the evidence shows, an understandable position they might take as things get worse in Afghanistan that it’s not worth their while to participate in a foreign Western country’s court processes for reasons that don’t produce any direct benefit to them.”
Justice Besanko ordered the trial should temporarily resume on Monday to hear from the Afghan witnesses.
When the trial was halted, Mr Roberts-Smith had just finished being cross-examined about a range of allegations contained within the 2018 newspaper articles.
Mr Roberts-Smith has denied all of the allegations, including unlawful killings, while the newspapers are relying on a truth defence.