War veteran Ben Roberts-Smith’s barrister has complained to the Federal Court that his client is being used like a “human piñata” by The Age and The Sydney Morning Herald during his defamation action against the mastheads.
At a scheduling hearing on Wednesday, the former soldier’s barrister, Arthur Moses, SC, said the defamation trial, which has been delayed by an extended lockdown in Greater Sydney, needed to proceed as soon as possible to bring on a “day of reckoning” in the case.
Ben Roberts-Smith and his barrister Arthur Moses, SC, leaving the Federal Court on Monday.Credit:Dominic Lorrimer
The trial resumed temporarily on Monday for the limited purpose of hearing urgent evidence from four Afghan witnesses in Kabul, amid fears of a Taliban-led terrorist attack in the city. The witnesses are giving evidence via audiovisual link with the aid of a translator in Canada.
But the pandemic and travel restrictions linked to NSW’s outbreak are wreaking havoc with the timetabling of the trial. Mr Roberts-Smith’s legal team had previously suggested the trial might be relocated from Sydney to Canberra or Adelaide, but Justice Anthony Besanko has not agreed to this course.
Mr Moses told Justice Besanko on Wednesday that allegations against his client had been thrown around “like confetti”, and the matter “cannot keep dragging on”.
“My client suffers prejudice every day ... because the respondents continue publishing articles, as late as yesterday, making all sorts of assertions against him. He cannot continue a situation where he’s being used as a human piñata by the respondents.”
The original photo (left) of Ben Roberts-Smith displaying a Crusader’s cross on his uniform while on duty in Afghanistan. The evidence was later edited out (right) in the official photo released by Defence.Credit:ADF
Mr Moses appears to be referring to an article published in The Age and The Sydney Morning Herald revealing that the Department of Defence had altered an image of Mr Roberts-Smith, taken in combat in Afghanistan, in which he is pictured wearing a Crusader’s cross emblem on his uniform. A defence expert and a spokesman for Australia’s Muslim community described a soldier wearing that symbol in a war in a Muslim majority country as “dumb,” “offensive,” “counterproductive” and “wrong morally”.
Mr Moses said the trial should resume by November 1 to hear from witnesses located in Australia.
But Nicholas Owens, SC, acting for the newspapers, said that if some of their witnesses could not give evidence in November it might prevent his clients from being afforded a fair trial.
“That’s an argument for another time,” he said.
Mr Roberts-Smith is suing The Age, the Herald and The Canberra Times over a series of stories starting in June 2018 that he alleges accuse him of war crimes and an act of domestic violence against a woman with whom he was having an extramarital affair. He denies all wrongdoing. The media outlets are seeking to rely on a defence of truth.
Michaela Whitbourn is a legal affairs reporter at The Sydney Morning Herald.
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2021-07-28 02:07:20Z
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