Ben Roberts-Smith’s appeal against his landmark defamation loss to the Age, the Sydney Morning Herald, and the Canberra Times will be heard by the full bench of the federal court next February amid a repeat of the extraordinary security of his trial, a Sydney court has heard.
The 110-day trial, which concluded in June, attracted elaborate security measures, given the protected status of dozens of special forces witnesses, and the sensitivities of the national security information discussed.
Sydney’s federal court building was transformed to accommodate anonymised military witnesses – entire floors were sealed off, windows blacked out to prevent spying from outside, and phones banned from closed court sessions. Some witnesses were brought into the building through secret entrances so they could not be seen – including by one other – and gave their evidence screened from public view.
The federal court heard details on Thursday of the security procedures required to hear the appeal, including: dedicated encoded safes installed in judges’ chambers; special secure computers for drafting closed court decisions; additional secure courtrooms; a requirement for blinds to be drawn and windows covered when classified documents were being examined; and even the removal of smartwatches from judges’ wrists in closed court.
“Not quite handcuffed briefcases,” Nicholas Owens, the barrister for the newspapers, quipped to the judge, but “there’s a lot of strictures that go along with managing this material”.
For the commonwealth, Jennifer Single SC, said the government stood ready “to assist in the logistics of the appeal”.
“Judges will require a safe in their chambers to be able to hold the closed-court appeal books in their chambers,” Single said.
“The closed section [of the judges’ appeal judgments] will have to be typed on a different computer,” Single said.
The appeal would be set down for 10 days, the federal court justice Nye Perram said at a preliminary hearing in Sydney on Thursday, but an exact date, and the composition of the three-judge bench, had not yet been determined.
In June, Justice Anthony Besanko dismissed in its entirety Roberts-Smith’s defamation action against the Age, the SMH and the Canberra Times.
Roberts-Smith, Australia’s most decorated Afghan veteran and a recipient of the Victoria Cross, alleged a series of 2018 articles had falsely portrayed him as a criminal who “broke the moral and legal rules of military engagement” and “disgraced” his country and its army. He denied all wrongdoing and said the allegations against him were motivated by spite and jealousy.
But Besanko found the newspapers had proven to a civil standard – on the balance of probabilities – that Roberts-Smith was complicit in the murder of four unarmed prisoners in Afghanistan, including kicking a handcuffed prisoner off a cliff before ordering him shot dead. The judge also found Roberts-Smith ordered subordinate soldiers under his command to murder civilians, bullied comrades, intimidated other soldiers he thought might testify against him, and threatened a woman with whom he was having an affair.
Matthew Richardson SC, for Roberts-Smith, told the court that the appeal would contest all four murders Besanko found Roberts-Smith committed. Two of those were committed during a single mission at a compound called Whiskey 108 at a village called Kakarak in 2009, one was committed in September 2012 in Darwan, and one in October 2012 at Chinartu.
In the wake of Besanko’s June judgment, the newspapers are separately seeking a third-party costs order requiring Roberts-Smith’s wealthy backers – including the Seven West Media chair, Kerry Stokes, and his private company which bankrolled Roberts-Smith’s action – to pay the costs of the defamation action. The cost of the defamation trial, which spanned 110 days over two years, has been estimated at up to $35m.
