Key SAS witnesses may withdraw from giving evidence against Ben Roberts-Smith with Nine‘s lawyers claiming the elite soldier’s legal team has been involved in contacting the top secret witnesses.
Mr Roberts-Smith is suing Nine newspapers claiming they falsely accused him of war crime killings in Afghanistan when he was deployed in the SAS.
Nine stands by the stories, saying the allegations are true, and opened its case against Mr Roberts-Smith by calling SAS soldiers to testify against him in the Federal Court.
The court is expecting to hear from multiple members of the SAS throughout the coming weeks including two soldiers known only as Person 56 and Person 66.
Nine‘s barrister Nicholas Owens SC, on Wednesday, told the court he believed Mr Roberts-Smith’s legal team had contacted two high profile lawyers – Philip Boulten SC and Peter Hodges.
In that contact, Nine claims, Mr Moses “expressed” that the interests of Person 56 and Person 66 may not be ”properly protected” when they are called to give evidence against Mr Roberts-Smith.
The identities of the SAS witnesses are closely guarded secrets known only to their lawyers and others closely involved in the defamation trial.
Nine claims Mr Boulten and Mr Hodges “through means unknown” were put in contact with Person 56.
Person 56 is now seeking to withdraw from giving evidence, Nine told the court.
Mr Owens claims the two lawyers will meet with Person 66 later on Wednesday and is expected to give evidence on Friday.
Person 66 has not made any application for that plan to change, the court heard.
Mr Boulten and Mr Hodges are not accused of any wrongdoing
According to court documents, Nine alleges Mr Roberts-Smith stood behind Person 66 and ordered him to execute one of two Afghan prisoners in a field in Syahchow in October 2012.
Former SAS soldier and Liberal MP Andrew Hastie was deployed during that mission, the court documents state, and is expected to testify for Nine saying he saw Person 66 looking anxious after the mission.
Mr Roberts-Smith denies that allegation entirely.
Person 56, the court previously heard, is expected to give evidence about Nine‘s “centrepiece” murder accusation where Mr Roberts-Smith is alleged to have kicked an unarmed shepherd named Ali Jan down a ”cliff”.
That shepherd was allegedly then shot dead by another soldier whilxjmtzywe lying injured in the dry creek bed below.
Mr Roberts-Smith denies that allegation as well – saying he shot dead a spotter in a cornfield during that 2012 mission within the rules of engagement.
The court has previously heard claims from Mr Roberts-Smith that Nine had done “a deal” with Person 56 that he would only have to give evidence about that single mission.
On Wednesday Justice Anthony Besanko agreed Nine could issue subpoenas to Mr Boulten and Mr Hodges and another notice to Mr Roberts-Smith‘s lawyers to overturn their communications relating to Persons 56 and 66.
Mr Boulten and Mr Hodges have been contacted for comment.
