Afghan civilian witnesses will be allowed to give evidence via remote link in the Ben Roberts-Smith war crimes defamation proceedings against the Age and Sydney Morning Herald, a judge has ruled.
The ruling is a win for the old Fairfax newspapers, allowing them to rely on alleged eye-witnesses as they fight allegations they defamed Roberts-Smith, a Victoria Cross winner and special forces veteran, by suggesting he committed war crimes.
The newspapers published a series of reports about Roberts-Smith’s actions between 2009 and 2012, including an allegation he kicked an Afghan civilian named Ali Jan off a cliff while he was bound. Jan was later shot.
Roberts-Smith has vehemently denied the allegations and is suing in the federal court.
The newspapers have been attempting to bolster their defence by introducing new evidence about Roberts-Smith’s alleged actions during deployment.
That has included evidence from five witnesses, including four Afghan civilians, who are unable to travel to Australia to appear in the federal court. The civilians include relatives of Ali Jan and witnesses to the alleged crime, the court heard.
One of the witnesses, known as person 62, was captured by Australian forces alongside Ali Jan. Person 62 says he was watching through a doorway when he saw a “big soldier” kick Ali Jan down a hill.
“Person 62 then moved from the door way to the outside,” the court said. “He then saw Ali Jan being taken from the dry creek bed below the slope/hill to the cornfield, ‘which was approximately 30 metres away’ by two soldiers.”
“Person 62 states that Ali Jan was then shot multiple times. After the soldiers had left in the helicopters, Person 62 saw Ali Jan’s body in the cornfields. He saw that he had been shot in the face, body and his arm.”
The court heard the witnesses had low prospects of travelling to Australia to give evidence, including because they would be unlikely to obtain visas.
Roberts-Smith’s lawyers opposed them giving evidence via video link from Afghanistan, saying it was “simply unworkable”. The witnesses would need to be shown photographs, maps and other representations of the landscape, structures and the persons involved, they argued. The secrecy restrictions governing the trial forbid the sharing of such sensitive documents via video-link, they said.
The evidence was also at odds with the testimony of other witnesses, his lawyers argued, meaning it needed to be led with precision on distance, proximity and location. That was said to be not possible via video-link and would be further complicated by the use of interpreters.
But in a decision on Thursday, Justice Anthony Besanko ruled it was permissible for the witnesses to give evidence from Afghanistan.
He said the evidence of the witnesses, if accepted as identifying Roberts-Smith, was “evidence of very serious misconduct” and was an “important aspect of the respondents’ case”.
Besanko said there was some risk of disadvantage to Roberts-Smith by the use of the video link. But he said two principles favoured allowing the witnesses to give evidence remotely.
“First, the application is based on the assumption that if the Afghan witnesses are not permitted to give evidence by [audio-visual link], then they will not give evidence in the proceedings,” he said. “The respondents have said that they will continue their efforts to bring the Afghan witnesses to Australia for the trial, but the assumption underlying the application is that that will not be possible and, absent an order that permits them to give evidence by AVL, they will not give evidence at the trial.”
“Secondly, I am satisfied that the respondents have made all reasonable efforts to bring the Afghan witnesses to Australia. Those efforts are likely to be unsuccessful.”
Nick McKenzie, the award-winning investigative reporter who authored the stories, described the decision as landmark and said it would be the first time Afghans would testify in an Australian case about an alleged war crime.
“The world will be watching,” he tweeted.