Ben Roberts-Smith lawsuit now in limbo as SAS trial stays in Sydney

The defamation lawsuit of Ben Roberts-Smith will not leave Sydney despite the city‘s coronavirus outbreak forcing the high-profile case into indefinite hiatus.

Mr Roberts-Smith is suing Nine newspapers over what he says are false allegations he murdered six prisoners in Afghanistan and is a domestic violence abuser.

Nine says its stories are accurate.

The long-running trial has heard from Mr Roberts-Smith and just a handful of other witnesses but was halted months ago as Delta brought Sydney to its knees.

Now with the city on the verge of reopening, Justice Anthony Besanko was again asked to relocate the trial to South Australia.

Mr Roberts-Smith’s legal team has pushed for the trial to leave Sydney for weeks saying it will be almost a year between his client giving evidence and his accusers.

Some of the witnesses expected to speak against Mr Roberts-Smith include his former SAS comrades and squadmates from Western Australia.

South Australia would allow the WA-based soldiers to give evidence in person in a highly secure courtroom and return to their home state with minimal fuss.

They will not be able to travel to NSW in the near future, however, as the reclusive state attempts to hold back the inevitable Covid-19 outbreak for fears of what the virus will do to its lacklustre hospital system.

But Justice Besanko refused to move the trial.

He also declined to set a new date, concluding there was too much uncertainty to resume in November as initially planned.

The future of the case is now unknown but if the virus subsides early next year the Justice will convene the court.

Many of the WA-based soldiers are crucial for Nine’s case and are expected to say Mr Roberts-Smith ordered or oversaw the deaths of unarmed Afghans on top secret missions.

But memories are fading and many of the traumatised veterans are fraying, the court has heard over the last few months.

The extensive delays have come at a cost to Mr Roberts-Smith, his lawyers say, because Nine’s stories remain unchallenged.

“The stress and humiliation cannot be underscored,” his barrister Arthur Moses SC said on Friday.

One of the secret missions, a focus of the case, was the pursuit of a traitor named Hekmatullah.

Hekmatullah was a member of the Afghan National Army, the fighting force created by the coalition to rebuild the nation, and trained on a base with Australian soldiers.

But Hekmattullah‘s real allegiance was likely with the Taliban as he turned his AK-47 on three Australian Diggers as they played cards in their base – killing them all.

Mr Roberts-Smith was among the SAS force sent out to find the killer.

It was in pursuit of Hekmatullah that Mr Roberts-Smith allegedly killed an unarmed shepherd in the village of Darwan.

He denies that, saying the only man he killed that matched the description of the shepherd was a Taliban spotter brought down by SAS gunfire in a cornfield.

This week Hekmatullah was released from custody in a prisoner trade deal, outraging the families of his victims and the entire nation.

Mr Moses noted that while Mr Roberts-Smith continues to be hounded by the allegations – Hekmatullah is free to return to his life.

Nine’s barrister, Nicholas Owens SC, again told the court the newspapers stood by their stories – and he expected Mr Roberts-Smith to fail in the lawsuit.