Resuming the Ben Roberts-Smith defamation trial in locked-down Sydney carries real risk of someone catching COVID or the entire court having to self-isolate, the decorated soldier’s lawyer says.
The 10-week Federal Court hearing was adjourned during its fourth week on June 29 amid a worsening coronavirus outbreak in the NSW capital.
Three newspapers – being sued by the former special forces soldier over allegations he was involved in war crimes, murders and bullying in Afghanistan – want to resume on July 26 to take evidence from Afghan villagers via audio-visual link from Kabul.
But barrister Bruce McClintock SC, for Mr Roberts-Smith, said at least 20 people would have to be in the courtroom in Sydney.
“That carries real risk, if one person has been exposed to the virus, everyone has to isolate,” he said, noting the Delta strain was “very serious and indeed life-threatening”.
“We are very concerned about the public health aspect of the hearing and we don’t see any way they can be mitigated with the in-person hearings.”
The villagers’ evidence, expected to support the publishers’ case, is estimated to take one week.
Nicholas Owens declined to argue the merits of Mr Roberts-Smith’s application objecting to the July 26 resumption, ahead of a full hearing on Monday.
Mr McClintock said the court may soon wish to consider if the trial needed to move to another city, given the COVID situation.
“We need to keep this case going,” he said, offering Adelaide and Perth as possible alternate venues.
“The possibility of us resuming the whole case (in Sydney) is frankly … negligible.”
Wednesday’s hearing was held on videoconferencing software, like many Federal Court matters since the start of the pandemic.
But the case’s subject matter – and the national security regime required by the federal government – means many matters have required closed court, in-person hearings.
Mr Roberts-Smith’s legal team has closed its case, which has painted the war hero as a victim of a lying campaign by failed soldiers jealous of his stellar military career.
His lawyers argue that the Victoria Cross recipient lost hundreds of thousands of dollars after his reputation was damaged by the media reports and his speaking business “evaporated”.
Mr Roberts-Smith, who completed six tours of Afghanistan between 2006 and 2012, denies all the claims against him.
Federal Liberal MP Andrew Hastie and Mr Roberts-Smith’s ex-wife Emma Roberts are among witnesses set to be called by the publishers.