Lawyers for Australia’s most decorated living war veteran claim their opponents defending newspaper reports that accused him of committing war crimes in Afghanistan did not verify a key allegation for which he had a “cast-iron alibi”.
Ben Roberts-Smith is suing Nine Newspapers for defamation over a series of articles published in The Age, Sydney Morning Herald and Canberra Times in 2018 that included allegations he kicked a bound Afghani villager off a cliff and executed an unarmed civilian.
A trial date has been set down for June 7, 2021, with the proceedings expected to take up to eight weeks.
Roberts-Smith, who the Federal Court heard last week was subject to an investigation by the Australian Federal Police, strenuously denies the allegations.
On Monday the SAS hero’s barrister Michael McClintock, SC, told the Federal Court that Nine’s lawyers had known for more than a year the stories had nominated the wrong date for one of the alleged war crimes, which is alleged to have taken place during what he referred to as the “HiLux Mission”.
In one of the articles it was alleged the Victoria Cross recipient murdered an adolescent Afghani male, one of four males detained for questioning after the corporal and his troop intercepted a Toyota HiLux.
It was alleged Roberts-Smith later told a source known as Person 16 he had “pulled out my 9mm and shot him in the head”.
It was first reported the incident took place on or about October 21, 2012.
However, lawyers for Nine have since amended the date of the allegation in documents before the court to November 5, 2012.
That came after it was revealed in July 2019 Roberts-Smith had been on another mission at the time originally stated, for which he received an official commendation, Mr McClintock said.
“It’s obvious from the affidavit (filed last month) that the respondent’s representatives had not spoken to Person 16,” he told Justice Anthony Besanko.
“The point is Your Honour they were on notice for over a year that my client had … a cast-iron alibi. They did nothing about checking that with the person they apparently relied on (for the allegation) up until August 2020.”
Mr McClintock said Nine’s representatives had attributed the delay in changing the date to “lawyer’s error”.
“Your Honour this is an allegation of murder, and it is simply unsatisfactory that the respondent should deal with it in this way,” he said.
“It is rather extraordinary that an assumption was made as to the date when they had the means of checking with Person 16.”
The court heard Roberts-Smith had preferred an earlier trial date of March 2021, as reports carrying the allegations continued to be published and that caused him “hurt and damage”.
The matter will return to court on November 2.