Four villagers who allege Ben Roberts-Smith was involved in the unlawful death of an Afghan farmer faced the risk of violent repercussions from the Taliban if details about them are disclosed before a coming defamation trial, a court has heard.

Lawyers for Mr Roberts-Smith, a decorated former Australian soldier who is suing The Age and The Sydney Morning Herald for defamation, have called on a judge to order an Australian military inquiry and the federal police to release documents about the Afghan villagers before the trial starts in the Federal Court on June 7.

Ben Roberts-Smith.Credit:Cole Bennetts

Mr Roberts-Smith is suing the news outlets over reports he allegedly committed murder on deployments to Afghanistan and that he allegedly punched his mistress in the face in Canberra in 2018. He denies the allegations and argues the reports are defamatory because they portray him as a criminal.

The news outlets are defending the claim using a truth defence.

On Friday, Mr Roberts-Smith’s lawyers applied to the court to order the release of files in the possession of the Inspector-General of the Australian Defence Force, which investigated the conduct of Australian soldiers in Afghanistan, and the Australian Federal Police, which is investigating war crimes allegations.

The former soldier’s legal team hopes to examine the statements made by the villagers, who are to give evidence at trial that they saw Mr Roberts-Smith kick a handcuffed farmer, Ali Jan, off a cliff in Darwan, in southern Afghanistan, in 2012 and later heard gunshots and saw his body.

Mr Roberts-Smith denies the allegations he kicked Mr Jan off the cliff or murdered the farmer. The AFP is investigating Mr Jan’s death.

Ben Roberts-Smith.Credit:ADF

Arthur Moses, SC, for Mr Roberts-Smith, said on Friday that his team was entitled to know whether the villagers had spoken with Australian authorities and examine any statements if they had. The Victoria Cross recipient deserved the “unhindered opportunity” to test the allegations against him, his lawyer said.

The credibility of the villagers’ evidence was “plainly in issue”, Mr Moses said, as it was possible some witnesses could come “to this court and tell an absolute lie or an absolutely fanciful story” in contrast to other accounts.

Mr Roberts-Smith maintains he and another soldier – known as Person 11 – lawfully engaged with an enemy “spotter” in Darwan.

But Andrew Berger, QC, for the IGADF, called on Justice Wendy Abraham to refuse the application under public interest immunity rules, as the villagers’ safety could be in jeopardy if more details about their involvement were disclosed.

“In this case the prospective harm for the people in Afghanistan is potentially barbaric punishment or death at the hands of the Taliban,” Mr Berger said.

He said the integrity of the IGADF inquiry and future investigations would also be compromised if sensitive documents were disclosed.

Witnesses who gave evidence to the inquiry did so in the knowledge it was confidential, Mr Berger said, and the release of files in a civil case would erode confidence among potential witnesses in future investigations.

“How could they have any confidence that what they say would be treated confidentially?” Mr Berger said.

The AFP also opposed the application. Edward Muston, SC, for the AFP, said disclosures would create a prejudice against “the integrity of the investigations and any charges that may be laid” by revealing those who had spoken with federal officers.

Mr Moses said Mr Roberts-Smith was also concerned about the risk of violent retribution against him and his children.

“He wears those allegations like a loaded gun every day, that he’s an Australian soldier who engaged in war crimes against the Taliban,” Mr Moses said.

“We should pause for a moment and think about what the Taliban may do … if they ever got their hands on him or his family.”

Christopher Mitchell, acting for The Age and The Sydney Morning Herald, said the publishers didn’t take a position on the application.

Much of Friday’s argument was heard in a closed court given the sensitive national security issues involved.

Justice Abraham is expected to make her ruling at a future date.

If you are a current or former ADF member, or a relative, and need counselling or support, contact the Defence All-Hours Support Line on 1800 628 036 or Open Arms on 1800 011 046.

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