A secret report ordered by Channel Seven into allegations of war crimes against Ben Robert-Smith will not be made available to a defamation trial, with a judge ruling that the document is legally privileged.
In 2018, after three newspapers published claims the former SAS corporal and Victoria Cross recipient committed a series of war crimes while on deployment in Afghanistan, Roberts-Smith’s employer, Seven West Media, commission a confidential report into the claims against him.
Roberts-Smith, who emphatically denies the allegations, is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation in the federal court.
In a decision handed down on Tuesday, Justice Wendy Abraham said journalist Ross Coulthart, then an employee of the public relations firm Cato & Clegg, was commissioned by the general counsel and commercial director of Seven West Media, Bruce McWilliam, to “prepare a report ” on the Roberts-Smith claims. The report was to consider and summarise “all of the known rumors and claims that are circulating or have been published about Ben Roberts-Smith and get his response to each of them, as well as conduct investigations and make other enquiries as you see fit” .
Coulthart was told to give the report directly to McWilliam, who would pass it on to legal counsel.
McWilliam told Roberts-Smith the document would be useful for Seven West Media “as we will likely also be attacked for continuing to employ you”.
“I also think a copy should be provided to the chairman [Kerry Stokes] so that he is in a position to obtain can get [sic] legal advice on where things stand and so that he can continue to back you.”
Stokes was ultimately given a copy of the report. Roberts-Smith, whose defamation action was being bankrolled by Seven West Media at the time, was not.
Lawyers for the three newspapers sought to subpoena Coulthart’s report, arguing that the “dominant purpose” of the report was not to assist in obtaining legal advice, but “the commercial and reputational concerns of Mr Stokes, and Seven West Media were the primary reasons for its commission.”
Abraham did not agree, ruling that the document was legally privileged and did not have to be handed over.
The dispute follows debate in court last week about whether the newspapers will be allowed to call an additional witness in their defense against Roberts-Smith’s defamation action.
A former comrade of Roberts-Smith, who was serving on his patrol at the scene of an alleged war crime, has, subsequently to the trial starting, agreed to give evidence.
The former soldier, known as Person 56, was a member of Roberts-Smith’s patrol in the village of Darwan, in Uruzgan province, on 11 September 2012.
The newspapers’ reporting has alleged that on that day Roberts-Smith took a handcuffed non-combatant, a farmer named Ali Jan, and forced him to kneel on the edge of a 10m-high cliff, before kicking him off.
Ali Jan was then carried to a different place and shot, either by Roberts-Smith, or by a subordinate soldier under his command, the newspapers allege in their defence.
Roberts-Smith has consistently and strenuously denied the allegation as “completely without any foundation in truth”.
The newspapers, seeking to defend their reporting as true, have been seeking to subpoena Person 56.
Roberts-Smith has vociferously denied the newspaper’s account of Ali Jan’s death, telling the court the man purported to be Ali Jan was a “spotter” – a forward scout who reports soldiers’ movements to gangs – shot after being discovered hiding in a cornfield. He says the man was in possession of a radio and was a legitimate military target.
Roberts-Smith’s lawyers have opposed allowing Person 56 to testify, suggesting they had done a deal with the newspapers to only talk about specific issues. The newspapers deny any such deal but say they expect the witness to object if asked about matters other than Darwan. The court has reserved its decision on the issue.
The defamation trial – which started in 2018 – remains part heard.
It is likely to recommence early in the new year.