Sydney’s Covid-19 outbreak has derailed Ben Roberts-Smith’s war crimes defamation trial by at least a month – and possibly longer – with concerns raised for the safety of four Afghan witnesses waiting in Kabul to give evidence, amid a rapidly deteriorating security situation in Afghanistan.
The four Afghan witnesses from the village of Darwan – two of whom were detained by Australian troops in 2012, allegedly alongside farmer Ali Jan who was later slain – are in a safehouse in Kabul. But, with the Taliban resurgent ahead of the withdrawal of foreign forces from Afghanistan, there are fears for their safety.
“The security situation in Afghanistan is deteriorating rapidly in advance of the withdrawal of coalition forces on September 11,” barrister Nicholas Owens SC told the federal court on Tuesday. “In light of the deteriorating security situation we are concerned to hear their evidence as soon as possible. They are presently in Kabul and able to give evidence.”
The witnesses will give evidence about one the most critical allegations made against Roberts-Smith, that the soldier kicked Ali Jan – an unarmed, handcuffed civilian prisoner – off a cliff before ordering him shot during a mission in 2012.
Roberts-Smith, one of the most decorated soldiers in Australian military history, is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of reports he alleges are defamatory and portray him as committing war crimes, including murder.
But Sydney’s Covid-19 lockdown has thrown the progress of Roberts-Smith’s defamation trial into disarray. Already delayed by months because of Australia’s initial Covid outbreak, the trial was adjourned by Justice Anthony Besanko on Tuesday until the morning of 19 July for mention, with the aim of resuming the trial a week later.
Sydney’s stay-at-home orders are set to expire on 9 July.
Roberts-Smith has closed his case, and the newspapers are due to begin calling their witnesses.
A majority of the witnesses to be called by the newspapers are outside of Sydney and New South Wales. If they came to Sydney now, they would not be able to return to their home states, or would be subjected to quarantine.
At least 21 former and serving SAS members will be called by the newspapers, most of whom are in Western Australia. With their sensitive evidence likely to go to issues of national security, the anonymised SAS soldiers are not allowed to give testimony via videolink from their home states.
The federal court building has been transformed to accommodate the secretive military witnesses – entire floors have been sealed off, windows blacked out to prevent spying from outside, and phones and smartwatches banned from closed court sessions. Some witnesses will also be brought into the building through alternative entrances so they cannot be seen – including by each other – and give their evidence while screened from public view.
Owens, for the newspapers, argued before the court that the Afghan witnesses should be called to give their evidence as soon as possible, given Afghanistan’s worsening security situation. But their evidence is also being delayed because of documents, not yet declassified by the commonwealth, that Roberts-Smith’s legal team wish to put before them.
Their evidence is considered critical to one of the central allegations against Roberts-Smith: that on 11 September 2012, in the village of Darwan in Uruzgan province, Afghanistan, he murdered the unarmed civilian Ali Jan – visiting Darwan to buy flour – after he was captured and handcuffed by the soldiers.
According to the newspapers, after Ali Jan laughed twice at Roberts-Smith while being interrogated, Roberts-Smith is alleged to have marched him to the edge of a small cliff where he forced Ali Jan to kneel and then “kicked him hard in the midriff, causing him to fall back over the cliff and land in the dry creek bed below”.
“The impact of the fall to the dry creek below was so significant that it knocked Ali Jan’s teeth out of his mouth,” the newspapers’ defence states.
Ali Jan was then shot on Roberts-Smith’s orders, the newspapers allege.
Roberts-Smith has vociferously denied this account, telling the court the man purported to be Ali Jan was a “spotter” – a forward scout who reports soldiers’ movements back to insurgents – discovered hiding in a cornfield by another solider, anonymised in court documents as Person 11, as he climbed an embankment from a dry creek bed, immediately opening fire upon the insurgent.
Roberts-Smith said he climbed the embankment to assist Person 11 in the firefight and also fired at the man, who was about two metres away.
The man was killed and, Roberts-Smith said, found to be in possession of a radio. Roberts-Smith said the man killed was clearly an insurgent and a legitimate military target who could be killed within the laws of war.
The court has heard evidence that a photograph of Ali Jan, taken after his death, showed his arm and wrist covered in blood, except for a thin “stripe” of clear skin where there was no blood. This was alleged to be evidence he was in handcuffs when shot. Roberts-Smith has denied this.
The four Darwan witnesses will give evidence by videolink from a solicitor’s office in the capital Kabul, where they are currently being housed, waiting to appear in the trial.
A resurgent Taliban has been violently seizing control of districts across Afghanistan, particularly in rural parts of the country where government influence has always been weak and ineffective. The Taliban spokesman Suhail Shaheen said “more than 80% of the territory [is] held by our forces”, but analysts argue the group probably controls about half of the country. However, its areas of control are rapidly increasing.
The Taliban has posted videos online showing its soldiers capturing districts across the country, as well as government soldiers defecting and joining their ranks. “There’s really no denying the size and the speed of the kind of territorial losses the government has suffered,” Andrew Watkins of the International Crisis Group said.
And while Kabul remains under the control of government forces, it is not immune from targeted and more generalised terrorist attacks. Afghans with links to foreign nations, particularly those involved in the Afghan conflict against the Taliban, such as interpreters and security guards, have been made particular targets for Taliban violence.
But the coordination of the four Afghans’ evidence has been complicated beyond Kabul’s precarious security situation and the timezones that will see them appear in the very early hours of the morning to accommodate the Australian court’s sitting time. There is no interpreter in Australia who has both the sufficient translating qualifications and security clearance to act as intermediary. The interpreting will be done by an interpreter in Canada.
Roberts-Smith is suing the the three newspapers over a series of reports that he alleges are defamatory because they portray him as someone who “broke the moral and legal rules of military engagement” and committed war crimes including murder.
The 42-year-old has consistently denied the allegations, saying they are “false”, “baseless” and “completely without any foundation in truth”. The newspapers are defending their reporting as true.
