A secret report ordered by Channel Seven into war crimes allegations against Ben Roberts-Smith will not be made available for a libel lawsuit, with a judge ruling the document is legally protected.
In 2018, after three newspapers published allegations that the former SAS Corporal and Victoria Cross recipient committed a series of war crimes while deployed to Afghanistan, Roberts-Smith’s employer, Seven West Media, commissioned a confidential report into the allegations against him.
Roberts-Smith, who categorically denies the allegations, is suing the Age, the Sydney Morning Herald and the Canberra Times for libel in federal court.
In a ruling on Tuesday, Judge Wendy Abraham said journalist Ross Coulthart, then an employee of the public relations firm Cato & Clegg, was instructed by Seven West Media general counsel and chief commercial officer Bruce McWilliam to ” prepare a report ”on the Roberts-Smith allegations. The report was to examine and summarize “all known rumors and allegations circulating or have been published about Ben Roberts-Smith and obtain his response to each of them, as well as to investigate and carry out other investigations as appropriate. seems to you ”.
Coulthart was ordered to deliver the report directly to McWilliam, who would forward it to legal counsel.
McWilliam told Roberts-Smith that the document would be useful for Seven West Media “because we are also likely to be attacked for continuing to employ you.”
“I also think a copy should be provided to the president [Kerry Stokes] so that he is able to get can get [sic] legal advice on the situation and so that he can continue to support you.
Stokes eventually received a copy of the report. Roberts-Smith, whose libel action was funded by Seven West Media at the time, was not.
Lawyers for the three newspapers sought to subpoena Coulthart’s report, arguing that the report’s “primary purpose” was not to help obtain legal advice, but “Mr. Stokes’ business and reputation concerns. and Seven West Media were the main reasons for his commission ”.
Abraham disagreed, believing that the document was legally privileged and did not have to be handed over.
The dispute follows a debate in court last week over whether newspapers will be allowed to call an additional witness in their defense against Roberts-Smith’s libel action.
A former comrade of Roberts-Smith, who was serving in his patrol at the scene of an alleged war crime, after the start of the trial agreed to testify.
The former soldier, known as Person 56, was a member of the Roberts-Smith patrol in the village of Darwan, Uruzgan province on September 11, 2012.
Newspaper reports alleged that on that day Roberts-Smith took away a handcuffed non-combatant, a farmer named Ali Jan, and forced him to kneel on the edge of a 10m high cliff, before kicking it.
Ali Jan was then transported to another location and shot, either by Roberts-Smith or by a subordinate soldier under his command, the newspapers allege in their defense.
Roberts-Smith has consistently and vigorously denied the allegation as being “completely without any foundation in the truth”.
The newspapers, seeking to defend their information as true, sought to subpoena Person 56.
Roberts-Smith vehemently denied the newspaper’s account of Ali Jan’s death, telling the court that the man claimed to be Ali Jan was an “observer” – an advanced scout who reports soldiers’ movements to insurgents – shot dead after being discovered hiding in a cornfield. He says the man was in possession of a radio and was a legitimate military target.
Lawyers for Roberts-Smith objected to Person 56 testifying, suggesting they made a deal with the newspapers to only talk about specific issues. Newspapers deny such a deal but say they expect the witness to object if questioned on matters other than Darwan. The court reserved its decision on the matter.
The defamation lawsuit – which began in 2018 – remains partly heard.
He is likely to start over at the start of the new year.