Ben Roberts-Smith’s beleaguered defamation ‘trial of the century’ could face a major shake up because one thing risks ‘prejudicing’ the case.
Western Australia’s hard border may “prejudice” Ben Roberts-Smith’s trial, with a shocking 12-month delay forcing his frustrated lawyers to call for the case to leave Sydney.
The decorated soldier is suing Nine’s newspapers, claiming they defamed him by falsely portraying him as a war criminal and domestic violence abuser.
Nine insists their allegations are all true and claim Mr Roberts-Smith killed six prisoners, punched a woman and is a liar.
But what was billed as the “trial of the century” is now threatening to last a long time because crucial WA-based witnesses cannot leave the hermit state to give evidence in Sydney.
The trial was expected to resume in November but NSW’s enduring outbreak could mean WA Premier Mark McGowan keeps the border closed until February, March or even April, the Federal Court heard on Friday.
Mr Roberts-Smith’s barrister Arthur Moses said any certainty of WA’s reopening schedule was “a mirage”.
“One can’t rely on the public statements of any politician to make decisions when a court hearing will be listed,” he said.
Mr Moses asked Justice Anthony Besanko to move the trial to Adelaide.
It’s hoped WA’s iron-ore curtain will allow the SAS witnesses to travel to South Australia more easily than the eastern states.
“This matter must be brought to an end one way or another – or it truly will be like Waiting for Godot,” Mr Moses said.
He lamented there could be almost 12 months of delay before Mr Roberts-Smith’s accusers had their evidence questioned in the witness box.
If the case did not resume soon, he said, it could “prejudice” Justice Besanko’s capacity for ”fact finding”.
A move to Adelaide had been suggested months ago but the court has heard it’s not as simple as just changing courtrooms.
Sydney’s towering Federal Courts were fitted with untold security measures to accommodate the secretive SAS witnesses.
Entire floors and sections of the building have been cordoned off to keep witnesses from interacting with each other, and to prevent the public and media from even seeing some witnesses.
The courts in South Australia will need to be outfitted with similar security, meaning February 2022 could be the earliest date in Adelaide.
Justice Besanko did not officially cancel the November 1 trial date in Sydney and has not yet ruled on moving the trial to Adelaide but the case will return later this month.
Originally published as ‘Prejudice’: Ben Roberts-Smith trial facing major change or risks falling apart, lawyers say