Roberts-Smith trial to resume in November

The judge in Ben Roberts-Smith's defamation trial has fixed November 1 for it to resume.
The judge in Ben Roberts-Smith's defamation trial has fixed November 1 for it to resume.

Victoria Cross recipient Ben Roberts-Smith's high-profile defamation trial against three newspapers won't resume for three months in locked-down Sydney due to COVID-19.

Justice Anthony Besanko ordered the case to proceed from November 1 allowing for stay-at-home orders until the end of August and for the reasonable chance they may be extended.

"Even after the stay-at-home orders cease to operate, it is necessary to build in a period before interstate borders are opened," he said in the Federal Court on Monday.

The media organisations propose to call up to 24 witnesses with 19 located interstate, while Mr Roberts-Smith's defence has indicated it could call 19 witnesses to "reply to the defence of justification," he said.

The 42-year-old is suing The Age, The Sydney Morning Herald and The Canberra Times over articles from 2018 that he says depict 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 accusations against him while the newspapers are defending them at the trial on the basis of truth.

The trial was adjourned in June for four weeks due to difficulties with witnesses attending Sydney during lockdown but resumed temporarily last week to hear evidence from three Afghan men.

Their evidence centres around a controversial SAS mission during which local man Ali Jan was allegedly handcuffed and kicked 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 big soldier kick the villager down into a river bed.

Ali Jan was described as a labourer who kept animals and sold wood, with no connections to the Taliban.

Mr Roberts-Smith says the man was a Taliban spotter shot in a cornfield, while his defence claimed one witness account was a "complete fabrication".

Barrister Arthur Moses SC on Monday sought to tender WhatsApp phone messages which he says shows credibility issues regarding one of those witnesses amidst claims of compensation.

The respondents' barrister, Nicholas Owens SC, opposed this evidence on the grounds of "hearsay," while the judge will make a ruling on the admissibility of those messages at a later date.

Mr Roberts-Smith's legal team had earlier asked the court to order Australian witnesses served with a subpoena before September 24 to officially apply if they wished to be excused due to hardship.

But Justice Besanko said he would not make a ruling in such unpredictable circumstances and set down a case management hearing in October to deal with any issues that arise.

The judge also dismissed an application to fix February 2022 dates for both parties to make closing submissions, saying it was "too early".

"The trial has not reached the point where sound and sensible decisions can be made about those matters."

In addition to the Afghan witnesses, the trial has so far heard evidence from Mr Roberts-Smith and former Liberal politician Brendan Nelson.

It is yet to hear testimonial evidence from 21 current and former SAS members including federal MP Andrew Hastie, and the war hero's ex-wife Emma Roberts.

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