Four Afghan witnesses will testify in the Ben Roberts-Smith trial for defamation next week as the security situation deteriorates in their war-torn country.
The witnesses, who are all in Kabul, will have to be ready to testify through an interpreter in Canada from 4:45 a.m. local time.
Nine newspapers will call Afghans to back up their claims that Roberts-Smith committed war crimes during his deployment in Australia’s longest war.
The Federal Court heard that the rest of the trial could be postponed up to two months due to Covid-19 and eventually have to be moved to Adelaide or Canberra.
Barrister Bruce McClintock SC, on behalf of Mr Roberts-Smith, said “real damage” was done to his client while the trial was adjourned.
Roberts-Smith, 42, is suing nine newspapers at Sydney federal court trial over media reports alleging he was involved in war crimes, murders and harassment in Afghanistan
Many of Nine’s – and some of Mr Roberts-Smith’s – witnesses will be from Perth, where the Special Air Service is based. Mr Roberts-Smith is pictured in Afghanistan
“The stress for my client and the anxiety this causes is very, very great,” Mr McClintock told Judge Anthony Besanko.
“His life will stand still until this case is over.”
Mr McClintock said many of the former Australian soldiers called up by both sides had their own “personal problems” because of their service in Afghanistan.
“Their mental health is deteriorating,” he said. “It is imperative that we say that we deal with this matter as soon as possible.”
Australia’s most decorated soldier is suing nine newspapers over charges of committing war crimes, including murder, while serving with the Special Air Service in Afghanistan.
The trial was adjourned on June 29 after a month of hearing due to the COVID-19 lockdown in Sydney and the inability of interstate witnesses to testify.
Last week, Mr McClintock raised the possibility that the trial could be moved from Sydney to Adelaide or Perth if Covid-19 lockdowns and border restrictions continued.
On Monday, he suggested Canberra and Adelaide as possible locations, but a Commonwealth lawyer said such a move could take two months.
Mr Roberts-Smith is pictured receiving his Victoria Cross for gallantry in 2011 from then Governor-General Dame Quentin Bryce. He also holds the Medal of Bravery
McClintock said last week that he expected 20 people would have to be physically present in the Sydney courtroom to hear the evidence from the Afghans.
“These people are accusing my client – or at least one of them – of murder,” said Mr. McClintock.
Mr McClintock had told Justice Besanko it would be safe to place 20 people in a Sydney courtroom under social distancing rules.
“There’s a real risk there, Your Honor,” said Mr. McClintock. If one person in the hearing were exposed to the virus, everyone else would have to self-isolate.
Nine have issued an affidavit outlining deteriorating conditions in Afghanistan as United States-led coalition forces withdraw from the country.
The trial has previously been told Nine will summon evidence from 21 current and former SAS members, as well as several Afghan villagers. Other notable witnesses who will testify include Mr Roberts-Smith’s ex-wife Emma Roberts. The former couple is in the photo together
McClintock said on July 14 that it seemed unlikely that Taliban insurgents would launch an attack on the country’s capital anytime soon and that “Kabul appears relatively safe for now.”
Many of Nine’s – and some of Mr Roberts-Smith’s – witnesses will be from Perth, where the Special Air Service is based.
Mr McClintock said Western Australia has been “traditionally” slow in opening its borders to other states that had been in lockdown.
Roberts-Smith is suing three newspapers over media reports that he was involved in war crimes and harassment in Afghanistan.
The 42-year-old is also suing the media over allegations that he assaulted his mistress, a woman known as Person 17, in a hotel room in Canberra.
According to the papers, Roberts-Smith was complicit in and responsible for the murder of six unarmed Afghans.
Nine allege that Mr. Roberts-Smith killed insurgents who had been captured and that none of the killings resulted from decisions made in the heat of battle.
The former SAS corporal’s legal team says their client is the victim of a lying campaign by journalists and failed soldiers who are jealous of his stellar military career and Victoria Cross
Roberts-Smith is suing newspapers including the Sydney Morning Herald which led this front-page investigation into allegations of war crimes committed in Afghanistan over the weekend of June 9-10, 2018.
The historic trial was in its fourth week when it was interrupted shortly after Roberts-Smith stepped off the witness stand.
Before Nine could open his defense case, attorney Nicholas Owens SC noted that crucial SAS witnesses were unavailable due to border regulations in Western Australia, Queensland and Victoria.
The trial has previously been told Nine will elicit evidence from 21 current and former SAS members, as well as four Afghan villagers.
Notable witnesses to testify for Nine include federal Liberal MP Andrew Hastie, a former SAS captain and the ex-wife of Mr Roberts-Smith, Emma Roberts.
The trial was expected to last 10 weeks before the COVID-19 disruption complicated things.
Mr Roberts-Smith denies all allegations against him while the news media defends them on the basis of truth.
The former SAS corporal’s legal team claims their client is the victim of a lying campaign by journalists and failed soldiers who are jealous of his stellar military career and Victoria Cross.
Mr Roberts-Smith’s trial was expected to last 10 weeks before the COVID-19 disruption complicated things. He is pictured on duty in Afghanistan