Eyewitnesses have detailed to investigators how Victoria Cross recipient Ben Roberts-Smith allegedly committed a violent war crime that is currently being investigated by the Australian Federal Police (AFP), the Federal Court has heard.

Key points:

  • Ben Roberts-Smith is suing Nine newspapers over reports linking him to war crimes
  • The newspapers are seeking access to documents they say will assist their defence
  • The court has heard the AFP has eyewitness accounts alleging Mr Roberts-Smith was involved in war crimes against an Afghan man

Mr Roberts-Smith is pursuing a defamation claim against three newspapers — The Sydney Morning Herald, The Age and The Canberra Times — over a series of articles in 2018 alleging he had committed war crimes while in Afghanistan.

Central to the allegations against the decorated former soldier is a claim that while in Uruzgan Province in September 2012, he was involved in the murder of a handcuffed Afghan civilian named Ali Jan, who he kicked off a cliff.

The Afghanistan veteran has strenuously denied what he calls “false allegations” made about him, which he says have “compounded” the defamation of him and are “completely without any foundation in truth”.

The inspector-general of the Australian Defence Force (IGADF) is nearing completion of a landmark inquiry into allegations of war crimes against Australian Special Forces in Afghanistan, while the AFP is conducting its own probes into the claims.

Lawyers for Mr Roberts-Smith, the three newspapers, and the IGADF are locked in pre-trial arguments about access to key documents relating to the case.

Sandy Dawson SC, who is representing the media outlets, told the Federal Court on Tuesday the AFP had written to Mr Roberts-Smith last December, advising his lawyers he had been under investigation since June 2018.

Mr Roberts-Smith is suing Nine newspapers for defamation.(AFP: Anthony Devlin)

“He’s informed that the AFP investigation commenced following a referral by the then chief of the ADF, Air Chief Marshal Mark Binskin AC,” Mr Dawson told Justice Craig Colvin.

“Mr Roberts-Smith is told through his lawyer that the AFP has obtained contemporaneous ADF reporting and associated documentation in relation to this ADF [Special Operations Taskforce Group] operation.

“The AFP has conducted inquiries in Afghanistan and obtained statements from a number of current and former ADF personnel.

“He’s also told … that the basis for the AFP’s conclusion as to suspicion of Mr Roberts-Smith’s involvement is predicated on the fact that Mr Roberts-Smith has contended … that Ali Jan was a spotter and was therefore legitimately killed, whereas the information in the possession of the AFP, which includes eyewitness accounts to the contrary, implicates Mr Roberts-Smith in the conduct with which he’s alleged — namely the two war crimes.”

Mr Dawson said the two war crimes allegations against Mr Roberts-Smith were of the “cruel treatment” of Ali Jan, and his murder.

ADF argues investigations should remain secret

The three newspapers have issued subpoenas for documents from the IGADF’s inquiry relating to Mr Roberts-Smith to assist with their defence of the defamation claim — namely any “potentially affected person” or PAP notice issued against him.

The notices are issued to notify an individual in the event the inquiry is considering making a finding relating to them.

Anna Mitchelmore SC, representing the IGADF, called on Justice Colvin to block that request on the basis it would undermine the integrity of the probe’s broader inquiries.

She argued the IGADF had the power to operate in relative secrecy, and that should be upheld.

Ms Mitchelmore said there was no guarantee the IGADF’s final report would ever be released publicly, either in full or in part.

Mr Dawson responded, accusing Ms Mitchelmore of conflating the ideas of releasing documents to him and his legal team as part of their defence, and broader distribution in the public.

The hearing continues.

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