Australia ‘Real difficulties' in moving Roberts-Smith defamation trial interstate: judge

20:15  24 july  2021
20:15  24 july  2021 Source:   smh.com.au

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SYDNEY, AUSTRALIA - JUNE 09: Ben Roberts-Smith departs the Federal Court of Australia on June 09, 2021 in Sydney, Australia. Ben Roberts-Smith is suing three Fairfax newspapers for defamation over reports he committed war crimes while serving in the Australian Special Air Services in Afghanistan. Ben Roberts-Smith is Australia's most decorated living soldier and a Victoria Cross recipient. (Photo by Sam Mooy/Getty Images): Ben Roberts-Smith Defamation Trial Continues © 2021 Getty Images Ben Roberts-Smith Defamation Trial Continues

The judge presiding over war veteran Ben Roberts-Smith's defamation trial says there are significant obstacles to moving the case interstate to avoid a worsening COVID-19 outbreak in NSW but he has not yet ruled it out.

Mr Roberts-Smith's barrister, Bruce McClintock, SC, has previously asked the Federal Court to consider relocating the trial against The Age and The Sydney Morning Herald to a venue outside NSW, pointing to Adelaide and Canberra as potential alternatives.

Mr McClintock told the court earlier this week that "the stress on my client and the anguish this is causing him is very, very great" and his "life is on hold" until the trial is over.

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In a scheduling hearing on Friday, Federal Court Justice Anthony Besanko said "at the moment I can see real difficulties with moving the trial," but he would raise the issue with the parties again on Wednesday.

"We might move and then find there's an outbreak in the state that we've moved to," Justice Besanko said. "Generally speaking, I can see some difficulties with that but I'm open to whatever the parties want to put to me."

On Friday, NSW recorded 136 new cases of COVID-19 in the community, a new record during the current outbreak of the highly transmissible Delta strain of the virus. Chief Health Officer Dr Kerry Chant said she had advised the state government that this was a "national emergency".

Justice Besanko last month called a minimum four-week halt to the trial, which had entered the fourth week of what is anticipated to be a run of up to 10 weeks, after Greater Sydney entered into lockdown.

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The trial will resume on Monday for the limited purpose of hearing urgent evidence from four Afghan witnesses in Kabul via audiovisual link, after the newspapers warned there of a risk of a Taliban-led terrorist attack in the capital city. Only the parties and their lawyers will be present in court.

Barrister Nicholas Owens, SC, acting for the media outlets, said "the situation is really quite fluid because at the time Mr McClintock proposed the solution of Adelaide ... it might have looked like the solution" but "Adelaide would now be worse than Sydney" in relation to travel restrictions.

Mr Owens said "we've asked the Commonwealth to indicate how long any move would take to implement and the answer has come back that it would be at least two to three months", meaning the trial could not resume until November, or October "at the absolute earliest".

"There isn't a location the trial can be moved to that is sufficiently certain to provide an advantage over staying in NSW," Mr Owens said.

Mr Roberts-Smith is suing The Age, the Herald and The Canberra Times over a series of stories starting in June 2018 that he alleges accuse him of war crimes and an act of domestic violence against a woman with whom he was having an extramarital affair. He denies all wrongdoing. The media outlets are seeking to rely on a defence of truth.

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