Ben Roberts-Smith’s defamation action should be moved to a new city, his lawyers say, lest it become like “waiting for Godot”, as the high-profile trial faces another long delay.
After a week of dramatic evidence from Afghanistan in August, the New South Wales trial was abruptly halted when witnesses could not be brought to Sydney from interstate because of Covid-19 restrictions on their travel.
The court was told it would take between two and three months to relocate the trial to another city and, given the security-sensitive nature of the evidence, the court was not willing to entertain having witnesses appear by video link.
The case was adjourned until 1 November, but there is almost no chance the case will restart then: it appears set to be delayed until at least February next year.
Roberts-Smith is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of reports published in 2018 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 several murders.
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.
Roberts-Smith’s barrister, Arthur Moses SC, said the opportunity for Roberts-Smith, a former SAS corporal and winner of the Victoria Cross, to receive a fair trial was being hampered by delays. Roberts-Smith has spent 12 days in the witness box, including seven days of cross-examination, during which allegations of war crimes that have not yet been tested were put to him in open court.
The only other witnesses have been two character witnesses, and the evidence of three Afghan nationals from the village of Darwan, the site of one of the allegations of murder made against Roberts-Smith. Many of the witnesses to come – called by the newspapers – are fellow former members of the SAS who served alongside Roberts-Smith.
Pointing out that the case was first brought in 2018, Moses said the court should actively consider relocating the trial, suggesting Adelaide. South Australia has – at the moment – few Covid cases and lighter restrictions than other states.
“No lawyer can stand here and tell you this trial will resume in February [in NSW],” Moses told Justice Anthony Besanko. “It’s a mirage.”
He said the defamation action “has to be brought to an end one way or another”.
“We need to have a solution, not just keep raising problems. Otherwise we will truly be ‘waiting for Godot’, waiting for this to finish.”
Nicholas Owens SC, for the newspapers, told the court the majority of witnesses for the remainder of the trial were based in Western Australia. Under the current travel restrictions regime, those witnesses would not be allowed to return to WA after giving evidence.
Owens said both sides agreed that the trial could not restart on 1 November, but proposed for the trial be rescheduled to 28 February next year.
He said the Western Australian premier, Mark McGowan, had indicated border and travel restrictions would be relaxed in the months after the state reached 80% double-dose vaccination rate, likely in “February-March-April” of 2022.
But Moses said declarations from state premiers were unreliable.
“One can’t rely on the public statements of any politician” for the setting of court dates, he said.
Besanko has reserved his decision.
