Roberts-Smith’s case to resume in February
Ben Roberts-Smith’s defamation trial will resume in Sydney on February 2 after months of delays caused by COVID-19 lockdowns and border closures.
His lawsuit against The Age, The Sydney Morning Herald and The Canberra Times over alleged war crimes in Afghanistan was halted in August.
The November resumption date was later vacated by Justice Anthony Besanko who also rejected a suggestion the trial be relocated to South Australia.
In the Federal Court on Friday, the newspapers’ barrister Nicholas Owens SC applied for the trial to resume on February 14 to enable the attendance of proposed witnesses from Western Australia.
He cited Premier Mark McGowan saying the state’s hardline border measures will be eased when 90 per cent of its 12-plus population is double-dosed, expected between late January and early February.
To be on the “cautious side”, Mr Owens proposed the February 14 start.
But the Victoria Cross recipient’s barrister Arthur Moses SC suggested February 1, saying there was no commitment about when people from WA could travel.
The court “cannot be held hostage” to the whims of decisions made by a premier with the matter having been repeatedly delayed based on those statements.
“It has been three-and-a-half years since the proceedings commenced,” he said.
By February, it will be nine months since Mr Roberts-Smith had ceased work, seven months since he gave evidence and six months since the Afghan witnesses testified.
He said the defence could resume the hearing with four Queensland witnesses, also noting some of those subpoenaed from WA may apply not to give evidence.
But Mr Owens said there was nothing known to his client about WA witnesses not wishing to turn up, bar the possibility of one person making an application.
Justice Besanko fixed the hearing to resume on February 2.
Any witnesses who wished to set aside their subpoena to attend must apply before January 28.
Mr Roberts-Smith is suing the news outlets over articles from 2018 that he says paint him as a criminal who broke the moral and legal rules of military engagement during his deployments in Afghanistan with the SAS.