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The high-profile defamation lawsuit of Victoria Cross recipient Ben Roberts-Smith against three newspapers will not resume for three months in the locked city of Sydney due to COVID-19.
Judge Anthony Besanko has ordered the case to continue from November 1, allowing stay-at-home orders until the end of August and the reasonable possibility that they can be extended.
“Even after the end of stay-at-home orders, it is necessary to provide a period before the opening of interstate borders,” he told the Federal Court on Monday.
The media is offering to call up to 24 witnesses, 19 of which are interstate, while Mr. Roberts-Smith’s defense has indicated it may call 19 witnesses to “respond to the show cause defense,” a- he declared.
The 42-year-old is suing The Age, The Sydney Morning Herald and The Canberra Times for articles from 2018 which he says describe him as a criminal who broke the moral and legal rules of military engagement during his deployments in Afghanistan with the SAS.
The former special operator denies all charges against him as newspapers defend them at trial based on the truth.
The trial was adjourned in June for four weeks due to difficulties with witnesses in Sydney during the lockdown, but resumed temporarily last week to hear testimony from three Afghan men.
Their evidence centers on a controversial SAS mission in which a local man, Ali Jan, was reportedly handcuffed and thrown off a cliff in the village of Darwan, Uruzgan province, in September 2012 .
Two of the Afghan men testifying via audio-visual link from Kabul told the trial that they saw a large soldier kick the villager in a river bed.
Ali Jan has been described as a laborer who tended animals and sold wood, with no connection to the Taliban.
Mr Roberts-Smith said the man was a Taliban observer shot dead in a cornfield, while his defense claimed that one testimony was a “complete fabrication”.
Lawyer Arthur Moses SC on Monday sought to submit WhatsApp phone messages that he said show credibility issues regarding one of those witnesses amid claims for compensation.
Respondents’ counsel, Nicholas Owens SC, objected to this evidence on the basis of “hearsayâ€, while the judge will rule on the admissibility of these messages at a later date.
Mr Roberts-Smith’s legal team had previously asked the court to order Australian witnesses who signed a subpoena before September 24 to formally submit a request if they wished to be excused due to difficulties.
But Judge Besanko said he would not make a ruling under such unforeseeable circumstances and held a case management hearing in October to address any issues that arose.
The judge also rejected a request to set February 2022 dates for both sides to make concluding observations, saying it was “too early”.
“The trial has not reached the point where sound and sensible decisions can be made on these issues.”
In addition to Afghan witnesses, the trial has so far heard testimony from Mr. Roberts-Smith and former Liberal politician Brendan Nelson.
It remains to hear the testimonies of 21 current and former members of the SAS, including MP Andrew Hastie and the ex-wife of war hero Emma Roberts.
Associated Australian Press
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