A former soldier scheduled to present proof in opposition to SAS veteran Ben Roberts-Smith is looking for to drag out, prompting claims in courtroom that Roberts-Smith’s barrister spoke to a senior lawyer who then contacted the key witness.
In a dramatic flip within the case on Wednesday morning, attorneys for the newspapers defending a defamation declare from Roberts-Smith informed the federal courtroom two important witnesses had been contacted by attorneys, allegedly after Roberts-Smith’s barrister Arthur Moses SC contacted one other senior barrister to specific considerations the witnesses’ pursuits weren’t being correctly protected. The witnesses – former troopers identified in courtroom paperwork as Particular person 56 and Particular person 66 – had agreed to present proof for 9 newspapers.
Particular person 56 has an software earlier than the courtroom to be excused from a subpoena to present proof, citing medical grounds.
Nicholas Owens SC, performing for 9 newspapers, on Wednesday stated “by way of means unknown” the 2 SAS troopers had been “positioned in touch” with new attorneys after Moses contacted one other Sydney lawyer.
Owens informed the courtroom: “We’ve got turn into conscious that lately Mr Moses has made contact with Mr Phillip Boulten … and we perceive that Mr Moses expressed to Mr Boulten considerations that the pursuits of Particular person 56 and likewise 66 will not be being correctly protected in relation to [them] being subpoenaed to present proof in these proceedings.”
Owens raised the problem of how the witnesses’ identities turned identified to the brand new attorneys. He informed the courtroom “there may be, after all, a prohibition on the true id of Particular person 56 and Particular person 66 being made identified to anybody” aside from authorised authorized representatives. The brand new attorneys, Owens stated, weren’t authorised representatives.
“There was an settlement by Particular person 56 to each converse to us and never oppose any software by us to name him to present proof within the proceedings,” Owens stated. However he stated after contact from these attorneys “Particular person 56’s place has modified”.
Owens stated the preliminary contact with the witnesses occurred “with out the information of … [the soldiers’] retained defence-approved attorneys”, who had been solely subsequently made conscious of the contact.
Owens informed the courtroom on Wednesday morning: “Mr Boulten and Mr Hodges are assembly with Particular person 66 as we speak.”
Attorneys for the newspapers sought, and had been granted, depart to file subpoenas to 2 attorneys, Phillip Boulten SC and Peter Hodges, looking for paperwork regarding any contact with the soldier witnesses. Roberts-Smith has been issued with a discover to supply “proof of communications between these teams of individuals and these two witnesses about their participation within the proceedings”. They’re required to reply by Thursday afternoon.
Neither Boulten nor Hodges responded to queries from the Guardian. It’s not steered they’ve engaged in any wrongdoing.
Roberts-Smith is suing the Age, the Sydney Morning Herald and the Canberra Instances for defamation over a collection of reviews he alleges are defamatory and painting him as committing conflict crimes, together with homicide. The newspapers are pleading a defence of fact. Roberts-Smith denies all wrongdoing.
In response to the newspapers’ defence, Particular person 66 was an SAS soldier on Roberts-Smith’s patrol throughout an operation in Syachow in 2012. He had not killed an individual in fight previous to the mission.
The defence alleges that through the mission, two captive and unarmed Afghan males – referred to in courtroom paperwork as “PUCs” (individuals beneath management) – had been taken out of the compound the place they had been being held and delivered to a close-by discipline. There Roberts-Smith allegedly ordered Particular person 66 to shoot them: an order with which Particular person 66 complied.
The our bodies of the 2 males had been then allegedly photographed with “throw-downs” – weapons and navy paraphernalia positioned on the our bodies – to present the looks the lads had been killed lawfully in fight.
The defence claims Roberts-Smith later allegedly informed different troopers he had “blooded” the rookie soldier. He denies the allegation.
The defence says Particular person 56 was a member of Roberts-Smith’s SAS patrol throughout a mission within the village of Darwan in Uruzgan province, on 11 September 2012.
It’s alleged that on that day Roberts-Smith took a handcuffed non-combatant, a farmer named Ali Jan, and compelled him to kneel on the sting of a ten metre cliff, earlier than kicking him off. Ali Jan was then shot lifeless and his physique dumped in a discipline, the newspapers say.
Roberts-Smith has constantly denied the newspaper’s account of Ali Jan’s loss of life, telling the courtroom the person presupposed to be Ali Jan was a “spotter” – a ahead scout who reviews troopers’ actions to insurgents – who was shot after being found hiding in a cornfield. He says the person was in possession of a radio and was a reputable navy goal.
In courtroom, Roberts-Smith’s attorneys have beforehand opposed Particular person 56 being allowed to testify, suggesting the soldier had finished a cope with the newspapers to solely discuss particular points. The newspapers deny any such deal however say they anticipate the witness to object if requested about issues apart from Darwan.
Soldier witnesses have constantly utilized for, and been granted, certificates of immunity in opposition to self-incrimination through the trial.
A still-serving SAS soldier, Particular person 14, at present being cross-examined, informed the courtroom he met with journalist Chris Masters in Canberra in 2018 and mentioned his navy service, together with a 2009 operation on a compound referred to as Whiskey 108, the positioning of one of many central allegations in opposition to Roberts-Smith.
He additionally informed the courtroom he spoke with Masters and fellow journalist Nick McKenzie at a subsequent assembly in 2018. He informed the courtroom he doesn’t recall any of their dialogue in that assembly.
Moses referred to as in courtroom for the journalists to supply any notes or recordings of these conferences.
Particular person 14 was accused by Moses of fabricating proof to the courtroom that Roberts-Smith acted exterior the legal guidelines of conflict throughout their deployments in Afghanistan.
“You’re making this up aren’t you?” Moses stated.
“No,” the witness replied.
The trial, earlier than Justice Anthony Besanko, continues.